Opinion
No. 2008–2284.
2010-07-9
ESTATE OF Philip Charles RECUPERO, Deceased.
Abad, Constancio and Mallonga, LLC (Leopoldo Abad, Esq, of counsel) for Aurelia Recupero, petitioner, surviving spouse. Peter J. Piergiovanni, Esq., for Theresa Persichilli, respondent, sister.
Abad, Constancio and Mallonga, LLC (Leopoldo Abad, Esq, of counsel) for Aurelia Recupero, petitioner, surviving spouse. Peter J. Piergiovanni, Esq., for Theresa Persichilli, respondent, sister.
LEE L. HOLZMAN, J.
This is an SCPA 1421 proceeding by the decedent's spouse to determine the validity and effect of her election to take a share under EPTL 5–1.1–A. The decedent died on May 23, 2008. His October 13, 1987 will was admitted to probate on November 12, 2008. Although the spouse is the executrix and the sole beneficiary under the will, it appears that the decedent died without testamentary assets. The issue presented is whether a deed executed by the decedent and his sister transferring title to real property from themselves as tenants in common to themselves as joint tenants is a disposition of property by the decedent that is treated as a testamentary substitute for the purpose of his surviving spouse's elective share (see EPTL 5–1.1–A [b][1][E] ). The parties, in effect, agreed that the court consider all of the papers submitted in this proceeding as a motion and cross motion for summary judgment.
The decedent and his sister inherited a two-family dwelling located in the Bronx from their parents. They took title as tenants in common by a deed dated March 18, 1982. The decedent and his spouse married on November 17, 1983. Thereafter, the decedent's sister and her husband lived in one unit of the realty and the decedent and his wife lived in the other unit. On November 22, 1988, the decedent and his sister executed a deed transferring title to the property to themselves as joint tenants. After the decedent's death, the sister executed a deed on June 6, 2008, transferring title to the property to herself and her husband, as husband and wife, and subsequently commenced a holdover proceeding against the decedent's spouse. That proceeding was stayed by the court where it was pending until this court determined the parties' ownership interest in the realty.
The spouse filed a notice of her right of election on April 24, 2009, and thereafter commenced this proceeding. She argues that because the decedent converted his tenancy in common to a joint tenancy with his sister, while married, this disposition of the real property should be treated as a testamentary substitute for the purpose of the spousal elective share (see EPTL 5–1.1–A [b][1][E] ). The spouse further contends that she has a one-sixth interest in the property, consisting of her one-third elective share of the decedent's one-half interest, and that a deed should be executed to reflect her interest. In support of her position, the spouse submits, inter alia, a copy of her marriage certificate, copies of the 1982, 1988 and 2008 deeds, a copy of an appraisal valuing the property at the time of the decedent's death at $565,000, and a print out from the New York City Department of Finance website listing the decedent and his sister as owners of the property as of June 13, 2008.
In opposition, the sister alleges that upon the decedent's marriage in 1983, she loaned him $50,000 and, five years later, in exchange for a release from the $50,000 loan, the decedent relinquished his interest in the property. In effect, the sister claims that in 1988 she purchased the decedent's entire interest in the realty for $50,000 and, immediately thereafter, made a gift to the decedent by listing him as a joint tenant on the deed executed by her and the decedent, as tenants in common and grantors, because she wanted to keep the house within the family in the unlikely event that she died first. The sister notes that EPTL 5–1.1–A (b)(2) places the burden on the spouse to prove the proportion of the consideration furnished by the decedent to acquire the property.
As evidence of her version of the facts, the sister attaches a copy of a $50,000 non-interest bearing demand promissory note, dated December 27, 1983, signed by the decedent. She also submits a letter, dated December 20, 1983, from the attorney who prepared the note advising her as follows:
“[N]ow that [the decedent] is married his wife can make a claim against the estate for her share as a wife. Therefore, for the note to have any value, you must be able to prove where and how he owes you $50,000.”
In further support of her position, the sister states that she has paid all carrying charges associated with the home and that the decedent and his spouse paid rent as tenants since the execution of the 1988 joint tenancy deed. Finally, the sister relies on Matter of Calligaro (19 Misc.3d 895 [2008] ) for the proposition that if a decedent is precluded from designating another beneficiary, the court may not characterize the asset as a testamentary substitute.
The spouse counters that the sister did not loan any money to the decedent. She notes that the sister was unemployed at the time the loan was allegedly made, lacked funds to make the loan and, instead, it was the decedent who was employed and assisted the sister financially at the time of the alleged loan. The spouse concedes that she and the decedent paid the costs of maintaining their unit of the property, but denies that they ever paid rent to the sister. Finally, the spouse argues that even if the sister did loan $50,000 to the decedent in 1983, which she did not, there are no documents connecting the 1983 note to any transfer of the decedent's interest in the realty.
Summary judgment will be granted only where no material issue of fact exists ( see Phillips v. Joseph Kantor & Co., 31 N.Y.2d 307 [1972];Glick & Dolleck, Inc. v. Tri–Pac Export Corp., 22 N.Y.2d 439 [1968] ). The movant must make a prima facie showing of entitlement to judgment as a matter of law, by tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986];Friends of Animals, Inc. v. Assoc. Fur Mfrs., Inc., 46 N.Y.2d 1065 [1979] ). When the movant has made a prima facie case, the burden of going forward shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact ( see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial ( see F. Garofalo Elec. Co. v. New York Univ., 300 A.D.2d 186 [2002] ).
Here, in the absence of any proof to the contrary, the 1983 $50,000 promissory note would establish a prima facie case that the decedent owed his sister $50,000. Nonetheless, this note was executed five years before the 1988 deed. Aside from the sister's self-serving, conclusory affidavit that she and the decedent entered into an oral agreement whereby she became the sole owner of the realty at issue in 1988 in exchange for releasing the decedent of the obligation to repay the $50,000 note, the sister failed to proffer a scintilla of proof that connects the 1983 promissory note to any transaction in 1988. To the contrary, the 1988 deed is inconsistent with any claim of sole ownership, as the transfer of ownership to joint tenancy necessarily meant that the decedent would have held sole ownership had the sister predeceased him. She attempts to explain this inconsistency by asserting that the decedent's name was included as a joint tenant on the deed as a gift from her to him. Furthermore, the letter from the attorney who prepared the note indicates that he was not aware of the nature of the consideration underlying the note, and the sister failed to present any proof to support her allegation that the decedent made rent payments to her after 1988 or the extent, if any, to which such payments differed from any payments that the decedent made in connection with the property prior to 1988.
The sister's version of the conversations and transactions between herself and the decedent, which are related in the papers she submitted herein, would clearly be inadmissible at trial under CPLR 4519. In light of the fact that the provisions of CPLR 4519 are applicable only “[u]pon the trial of an action or the hearing upon the merits of a special proceeding,” the rule evolved that although proof excludable under CPLR 4519 may not be utilized to grant a motion for summary judgment, it may be considered in opposition to the motion ( see Phillips v. Joseph Kantor & Co., 31 N.Y.2d at 307). In light of the fact that the Court of Appeals also stated in Phillips (31 N.Y.2d at 314) that “a trial would seem unnecessary if it were certain ... that all the proof would be excludable,” the cases thereafter hold that a motion for summary judgment may not be defeated where the sole proof in opposition to the motion is excludable under CPLR 4519 ( see Marszal v. Anderson, 9 AD3d 711 [2004];Mantella v. Mantella, 268 A.D.2d 852 [2000] );Matter of Barr, 252 A.D.2d 875 [1998];Matter of Lockwood, 234 A.D.2d 782 [1996];see also Arnold Herstand & Co, Inc, v. Gallery: Gertrude Stein Inc., 211 A.D.2d 77 [1995] ).
Here, aside from the sister's conclusory, self-serving statements, which are clearly excludable under CPLR 4519, no other proof was proffered to support her contention that she ever became the sole owner of the property while the decedent was alive and her affidavit, standing alone, is insufficient to support such a contention ( see Marszal v. Anderson, 9 AD3d at 711;Mantella v.. Mantella, 268 A.D.2d at 852;Matter of Barr, 252 A.D.2d at 875;Matter of Lockwood, 234 A.D.2d at 782). In short, the sister failed to present any admissible proof to support her defense that she paid consideration to become the sole owner of the property. Furthermore, even if such testimony by the sister was considered, her claim to sole ownership of the realty prior to the decedent's death would fail because of the absence of any writing that connects the 1983 loan to any subsequent transfer of the real property ( see DeRosis v. Kaufman, 219 A.D.2d 376 [1996] ). Accordingly, the disposition by the husband of his interest in the property to his sister as a joint tenant is treated as a testamentary substitute for the purpose of the spouse's elective share pursuant to EPTL 5–1.1–A (b)(1)(E).
The court notes that none of the parties raised the issue of whether the decedent and his sister, by converting their tenancy in common to a joint tenancy, each provided consideration to the other by virtue of the right of survivorship thereby created and, therefore, the decedent's disposition of his interest in the property should not be treated as a testamentary substitute. Consequently, the court is not considering this issue. Moreover, it would appear to be inconsistent for the sister to raise this issue as she alleges that she paid $50,000 for the decedent's interest in the property and she conceded that it was unlikely he would survive her.
Here, although the submissions of the parties establish that the spouse is entitled to an elective share, there remain issues of fact relating to the computation of the elective share that can be resolved only at a trial (see EPTL 5–1.1–A [a] ). Those issues include the value of the real property and whether, under the facts of this case, the alleged $50,000 loan may be considered in computing the elective share.
Contrary to the spouse's contention, her elective share does not automatically give her an ownership interest in the real property. Instead, the elective share only gives her the right to receive a pro rata cash contribution from the decedent's sister ( see Matter of Daniello, NYLJ, Nov. 28, 2000, at 27, col 4; Matter of Curry, 146 Misc.2d 645, 647–648 [1990], citing Matter of Handler, 82 Misc.2d 482 [1975] ). It is only in the event that the sister opts not to satisfy the spouse's elective share by a cash payment that the spouse would receive an interest in the real property (see EPTL 5–1.1–A [c][2] ). In the event that the sister opts to satisfy the elective share by a cash payment, it also appears that she might be entitled to a set off for the use and occupancy by the spouse of one unit of the realty since the date of the decedent's death.
Accordingly, this decision constitutes the order of the court granting summary judgment to the spouse to the extent that it is determined herein that the 1988 disposition of the real property is a testamentary substitute subject to her elective share. In all other respects, the parties' respective motions for summary judgment are denied. Respective counsel and their clients are directed to appear at 9:30 a.m. on July 28, 2010 for a pre-trial conference on the remaining issues with respect to the computation of the pecuniary amount of the spouse's elective share, and to select a date certain for a hearing on this issue. The Chief Clerk is to mail a copy of this decision and order to all counsel.
Proceed accordingly.