Opinion
172 A 2004
06-12-2009
In the Matter of Proceeding by Herman F. Evert, III, as Administrator of the Estate of Herman Evert, Jr., a/k/a Herman F. Evert, Jr., Deceased, Pursuant to SCPA § 2103 to Discover Property Withheld
Phillips, Weiner, Quinn, Artura & Cox, Esqs. Attorneys for Movants Vittoria & Purdy, LLP Attorneys for Respondent One Rockefeller Plaza
Phillips, Weiner, Quinn, Artura & Cox, Esqs.
Attorneys for Movants
Vittoria & Purdy, LLP
Attorneys for Respondent
One Rockefeller Plaza
, J.
In this contested miscellaneous proceeding, the court now has before it a motion asking the court to reconsider its Decision dated September 23, 2008, and confirming Order dated October 21, 2008, fixing, after inquest, the amount movants are jointly and severally liable to the estate of Herman F. Evert, III, as its distributive share in this decedent's estate which was wrongfully appropriated by movants. Specifically, movants request an order pursuant to CPLR § 2221(d) granting leave to reargue and an order pursuant to CPLR § 2221(e) granting leave to renew the October 21, 2008, Order. For the reasons set forth herein, these requests are denied.
Background
Decedent, who died on December 9, 2003, was survived by four sons, Herman F. Evert, III ("Herman"), William Evert, Clifford Evert, and Roger Evert. Decedent's son Herman was appointed administrator of decedent's estate by Decree of this court dated November 18, 2004. Movants are decedent's sons William and Roger.
Discussion - Motion to Reargue
A party may bring a motion to reargue a prior motion within the time allowed to take an appeal from the underlying order or judgment (CPLR 2221[a], 5513; Porowski v. Mason, 238 AD2d 559). A motion to reargue must show that the court either overlooked or misapprehended relevant facts or misapplied controlling principles of law (Santa Maria v. Schwartz, 238 AD2d 569). It is not a vehicle to permit an unsuccessful party to again raise the same questions previously decided, or raise legal arguments different from those advanced in the original application (Mayer v. National Arts Club, 192 AD2d 863; William P. Pahl Equipment Corp. v. Kassis, 182 AD2d 22, lv. denied, lv. dismissed, 80 NY2d 1005). The motion to reargue is addressed to the court's reasonable discretion and may be granted where the court is asked to reconsider its prior order (Michael v. Communications Workers of America AFL-CIO, 130 Misc 2d 424). If such a showing is not made, the motion must be denied (Loland v. City of New York, 212 AD2d 674).
Movants argue that the court misapprehended matters of fact and law set forth in this court's Decision dated September 23, 2008, and confirming Order dated October 21, 2008. This is not the case. The undersigned's Decision dated September 23, 2008, considered the arguments movants again advance; although now, for the first time, movants provide some documentation to support their assertions that certain transfers made by decedent to movant William were gifts, and that there were no transfers made to Roger. Movants chose to provide no evidence at the inquest to support their position, and appeared without benefit of counsel, despite being afforded the opportunity, by way of adjournment, on more than one occasion, to retain counsel and the repeated suggestion by the court that counsel be retained. It is only now, after an Order has been issued directing movants to make payment of $88,030.00 to the estate of Herman F. Evert, III, that they are attempting to re-litigate an issue about which they had ample opportunity to be heard, and which they chose to essentially ignore. The court specifically addressed the issue of the transfers of decedent's property to them, and movants' assertions that all records concerning the transfers were destroyed. The record reflects that movants now for the first time supply many of these records as exhibits to their motion.
Movants argue that it was incumbent on petitioner to procure financial statements to establish that gifts were made, and the values thereof. This is not correct. It is the proponent of a gift, in this case William, who has the burden of proving the elements of a gift (the intent on the part of the donor to make a present transfer; delivery of the gift, either actual or constructive to the donee; and acceptance by the donee) by clear and convincing evidence (see, Gruen V. Gruen, 68 NY2d 48, citing Matter of Kelley, 285 NY 130, at 150; and Matter of Abramowitz, 38 AD2d 387, at 389-390, aff'd 32 NY2d 654). Petitioner's obligation at the inquest was to prove not only the measure of damages, but also that the property was owned by decedent on the date of his death and was, or is, in respondents' possession. At the inquest, petitioner met his obligation on all issues to the satisfaction of the court.
The facts, as presented at the inquest, were neither overlooked nor misapprehended. The motion to reargue is, therefore, denied.
Discussion - Motion to Renew
A motion for leave to renew, on the other hand, must be supported by new or additional facts, which, if known to the party at the time of the prior motion, were not known to the party seeking renewal; and, consequently, not made known to the court (Brooklyn Welding Corp. v. Chin, 236 AD2d 392; Karlin v. Bridges, 172 AD2d 644). In addition, movant should offer a valid excuse for not submitting the new facts upon the original application, and may not later present a "different legal argument merely because he was unsuccessful upon the original application" (Michael v. Communications Workers of America AFL-CIO, 130 Misc 2d 424, at 427, citing Foley v. Roche, 68 AD2d 558, and Cirfico Holdings v. G.T.E., 99 AD2d 939). While a motion to renew must generally be based on newly discovered facts, the court has the discretion to grant this relief in the interest of justice, although not all the requirements for renewal are met (Strong v. Brookhaven Memorial Hospital Medical Center, 240 AD2d 726).
Movants would like the court to excuse their delay providing documentation supporting their position, and to hold that, by not allowing such documentation to now be presented, some injustice will be done. After the inquest, petitioner and movants attempted to add to the record, by correspondence; such additional submissions were not accepted. [Affirmation in Support, ¶¶ 21, 22] In short, movants would like the court to accept their argument that they were not given an appropriate opportunity to present their case. For the following reasons, movants argument fails, as ample opportunity to present their proofs were afforded to them.
Relevant Case History - Motion to Renew
As noted above, Herman was appointed administrator on November 18, 2004. Immediately thereafter, on December 6, 2004, Herman filed a proceeding, pursuant to SCPA § 2103, for the discovery and turnover of property withheld, naming all of his brothers as respondents. The instant motion is, essentially, a continuation of the 2004 proceeding. In that proceeding, Herman specifically stated that "personal property which should be delivered to petitioner to be administered by him is in the possession and under the control of the other sons of the decedent, namely, William Evert, Roger A. Evert, and Clifford J. Evert." [Petition filed December 6, 2004, ¶ 2] Citation in that proceeding issued December 6, 2004, returnable January 11, 2005. Movant Roger Evert ("Roger") was timely served, by personal service, on December 17, 2004. After difficulty in serving movant William Evert ("William"), jurisdiction in this proceeding was obtained over William in early March of 2005.
On March 9, 2005, after obtaining jurisdiction over William, but prior to conducting an inquiry, petitioner, Herman F. Evert, III, died. Petitioner's counsel thereafter notified the court of Herman's death, and a Decision issued June 16, 2005, holding that proceeding in abeyance pending the substitution of fiduciary. Application was thereafter made by Bette Dee Evert, Herman's surviving spouse, as executrix of his estate, for successor letters of administration. That contested proceeding resulted in the issuance of successor letters of administration to Bette Dee Evert on May 22, 2006. The discovery and turnover proceeding was restored to this court's calendar by Decision dated November 2, 2006, and Bette Dee Evert is the petitioner in this proceeding, which is merely a continuation of the proceeding originally commenced on December 6, 2004.
Petitioner thereafter filed a motion on March 7, 2007, to compel respondents, the movants in the instant proceeding (along with their brother, Clifford), to comply with petitioner's discovery demands dated January 12, 2007. In that motion, petitioner clearly outlines the discovery demands, both informal and formal, she made upon respondents herein. The record reflects, and the court notes, that the exhibits attached to that motion included copies of decedent's federal personal income tax returns for 1999, 2000, 2001, and 2002, which show the source of decedent's interest and investment income (Chase Bank, Metropolitan Life Insurance, Astoria Federal Savings Bank, HSBC, and Vanguard), and a decrease in decedent's taxable interest income from $20,836.00 in 1999 to $186.00 in 2002 (plus tax exempt interest of $7,465.00).
It was this significant decrease in decedent's investment income that petitioner sought information about. Petitioner asserted in that proceeding that she provided movants with copies of these tax returns, and included a copy of a cover letter, in which her counsel requested an informal document exchange. Movants have not denied receipt of any of the discovery demands, and timely compliance with such demands would have precluded the need for petitioner's subsequent motion, as well as the instant motions. The court notes that the March 7, 2007, motion makes clear petitioner's claim for turnover of assets, as well as the computation of damages which were, at that time, in the stated amount of $83,398.00 (exclusive of any claim for non-income producing assets, and assets not included in decedent's income tax returns (see, Affirmation of John G. Lipsett, Esq., attorney for petitioner, ¶¶ 9 through 10, inclusive)). The March 7, 2007, motion, which was unopposed, resulted in an Order dated May 21, 2007, directing movants and Clifford J. Evert to comply with the discovery demand, within thirty days of service upon them of a copy of the May 21, 2007, Order.
Service of that Order was completed on June 1, 2007. On July 27, 2007, petitioner filed yet another motion, again seeking compliance with petitioner's discovery demands, in particular "Petitioner's Combined Discovery Demand" dated January 12, 2007, and again requesting damages in the amount of $83,398.00, or, in the alternative, the scheduling of an inquest. That motion resulted in a Decision dated November 19, 2007, which noted that respondents appeared on the return date of the motion, but failed to file any responsive pleading. The matter was, therefore, set down for an inquest on January 22, 2008. Due to difficulties in serving respondents, the inquest was adjourned to February 26, 2008, and again adjourned to March 25, 2008, when the inquest was finally held. It is clear, therefore, that movants had ample notice (December 17, 2004, for Roger, and early March of 2005 for William) of the information petitioner sought.
It appears, from movants' Exhibit E, that movants first attempted to obtain some of the documents requested through discovery, the Vanguard statements, on March 26, 2008, after the conclusion of the inquest. Movants request that the court now consider this information in determining the amount, if any, to be awarded petitioner. As noted above, this court issued its Decision on September 23, 2008, holding movants, William S. Evert and Roger A. Evert, together with their brother, Clifford Evert, responsible for a distribution to the Estate of Herman F. Evert, III, the sum of $88,030.00, "representing the latter's [Estate of Herman F. Evert, III] intestate share of the former's estate [Herman F. Evert, Jr.], together with statutory interest." This Decision directed the parties to settle an order on notice, which petitioner did - the Order signed by this court on October 21, 2008, which movants now seek to set aside.
Therefore, in light of the long history of this case, and in light of the contumacious behavior of movants in ignoring two discovery orders, the interests of justice would require the denial of their motion to renew, even if they were able to provide reasonable justification for their failure to present such facts on the prior motion, which movants have not done.
Accordingly, it is
ORDERED, that the motion to reargue the court's Decision dated September 23, 2008, and confirming Order dated October 21, 2008, is denied; and it is further
ORDERED, that the motion to renew the court's Decision dated September 23, 2008, and confirming Order dated October 21, 2008, is denied.
JOHN M. CZYGIER, JR., Surrogate