Opinion
No. 12056/2013.
06-29-2015
Andre MOORE, Individually and as Administrator of the Estate of Robert I. Moore, Deceased, Plaintiff, v. Nelson HOLLAND, Individually and Nelson Holland as Trustee of The Moore Family 2012 Irrevocable Trust, and John T. Henderson, Defendants.
The following papers numbered 1 to 18 were read on this motion by plaintiff for an order pursuant to CPLR 3212 seeking to set aside a deed dated March 24, 2012; for an order pursuant to CPLR 325 transferring the matter to the Surrogate's Court, Queens County; and for an order directing the purported will of Robert I. Moore dated January 9, 2009 be made available for forensic examination; and the cross-motion of the defendants for an order granting summary judgment and dismissing the plaintiff's complaint:
| Papers | Numbered |
|---|---|
| Notice of Motion–Affirmation–Affidavits–Exhibits | 1–5 |
| Henderson Notice of Cross–Motion–Affidavits–Exhibits | 6–10 |
| Holland Affirmation in Opposition to Motion | 11–15 |
| Reply Affirmation | 16–18 |
This is an action to declare the deed dated March 24, 2012 regarding 530 Grassmere Terrace, Far Rockaway, New York, to be null and void; for an order enjoining defendant Nelson Holland from transferring or encumbering said premises; and for an order directing the City Register to vacate and cancel of record the March 24, 2012 deed and directing Nelson Holland to surrender possession of the premises.
The plaintiff's complaint asserts that Robert L. Moore died intestate on November 7, 2012. His only heir was his son Andre Moore, the plaintiff herein. On May 14, 2013, Letters of Administration were issued by the Queens Surrogate's Court to Andre Moore. The complaint asserts that Robert I. Moore and his wife acquired title to the subject premises on December 21, 1976 as tenants by the entirety. On January 8, 2009, his wife died leaving Robert I. Moore as sole owner of the property. Subsequently, Mr. Robert Moore fell and injured his head requiring a two month hospital stay and a month of rehabilitation.
According to the complaint, defendant, Nelson Holland, was a step-son of Robert Moore. It is alleged that Robert Moore, age 75 and in ill health, transferred the deed to the premises to his step-son, Nelson Holland, who was the Trustee of the Moore Family 2012 Irrevocable Trust, without consideration. The complaint asserts that the purported deed dated March 24, 2012 is a nullity and the signature of Robert Moore is the product of undue influence and/or duress and/or forgery by defendants John Henderson and Nelson Holland. As a result, the complaint asserts causes of action for fraud, unjust enrichment, undue influence, false execution of the deed, false notarization of the accompanying documents with the deed, and conflict of interest of attorney John Henderson. Mr. Henderson, it is alleged, drafted the Moore Trust for Mr. Moore but allegedly acted for Mr. Holland in transferring the deed without providing Mr. Moore with independent legal advice. Further, it is alleged that in order to file a deed at the New York City Register's Office three documents needed to be executed by Robert Moore, a bargain and sale deed, real property transfer report and affidavit of compliance with smoke detector requirement. It is alleged that the bargain and sale deed and real property transfer report were not signed by the same person and one or both of the documents are forgeries. It is also alleged that the notarization of Mr. Moore's signature by Mr. Henderson was falsely witnessed. It is alleged that the deed is invalid as it was fraudulently acknowledged and therefore, the Register lacked the authority to accept the invalid documents for filing.
This action was commenced by the plaintiff by the filing of a summons and complaint on June 21, 2013. Issue was joined by service of a Verified answer from Nelson Holland on August 9, 2013, and by service of a verified answer by John T. Henderson on August 22, 2013 and an amended verified answer from Mr. Henderson on September 3, 2013.
Plaintiff now moves for an order granting summary judgment and setting aside the deed transferring the property to Nelson Holland from the Moore Family Trust and for an order directing surrender of the property and enjoining any further encumbrance of the property.
In support of the motion the plaintiff, Andre Moore, submits an affidavit stating that his father, Robert Moore, having fallen down in his home in July 2011 sustained a blood clot on the brain. He died on November 7, 2012. On May 14, 2013 Andre Moore obtained Letters of Administration. On June 12, 2012, the City Register recorded a purported deed dated March 24, 2012 whereby Robert Moore transferred the house in Far Rockaway to Nelson Holland as Trustee of the Moore Family 2012 Irrevocable Trust. Andre Moore states that there are at least one or more forgeries made in the package of documents submitted to the City Register. A forensic Document Examiner retained by the plaintiff, Jeffrey H. Luber, submitted an affidavit stating that the Robert Moore signature on the deed is different than the Robert Moore signatures on the Property Transfer Report and the Affidavit of Compliance. Andre Moore sates that attorney Henderson notarized all three documents and because at least one was a forgery the notarization on at least one of the documents filed with the City Register is false, the acknowledgment on the deed was falsely made, and a fraud was committed against the City Register.
Secondly, plaintiff seeks to have this matter transferred to the Queens Surrogate's Court pursuant to CPLR 325 to hear and determine the cause of action raised in the summons and complaint and affirmative defenses raised in the defendants' respective answers. It is asserted that the action is in its early stages, no note of issue has been filed, and the action is not on the trial calendar of the court. The basis of the request is the affirmative defense asserted by both defendants in their respective answers allege that plaintiff does not have the right to act as administrator of the Estate because there exists a valid will and testament naming another individual as the executor. Plaintiff contends that the issue of the validity of the will is an issue normally adjudicated in Surrogate's Court. The affirmative defense also asserts that Andre Moore was aware of the existence of the valid will and with intent to defraud the court, he applied for Letters of Administration. Andre states, however, that it has been two years since the death of his father and no probate proceedings have been commenced nor has the purported will been filed in Surrogate's Court. A proceeding to compel production of the will was commenced pursuant to SCPA § 1401 by order of the Surrogates Court dated December 18, 2012. Nelson Holland failed to appear in court for inquiry on January 17, 2013 or to deliver the will.
Lastly, plaintiff seeks an order directing that the original will be made available to the plaintiff for examination by a forensic handwriting expert.
In opposition, Nelson Holland states that although he is not the biological son of Robert Moore, he lived with him at the Grassmere address since 1976. He states that Robert Moore validly executed a last will and testament on January 9, 2009. When Mr. Moore became ill, Holland became the health care proxy and Trustee of the Moore Family 2012 Irrevocable Trust. He states that on March 24, 2012, Mr. Moore executed a deed to Nelson Holland as Trustee of the Trust. He states that it was Mr. Moore's intention that the house be sold and the proceeds shared amongst all the children and step children. He states that Andre Moore filed for letters of administration despite the fact that there was a valid will.
Alan Smikum, Esq. counsel for Mr. Holland, contends that summary judgment is not appropriate as the plaintiff has failed to establish that the deed should be set aside based upon forgery of the deed, the Real Property Transfer Report or Affidavit of Compliance since the signatures do not match. He contends that the certificate of acknowledgment of the signature should not be overthrown when the evidence is of doubtful character. Counsel contends that the Luber affidavit is not sufficient in light of the certificate of acknowledgment stating that Robert Moore executed the deed. In addition, Mr. Henderson states in his affidavit that he helped Mr. Moore sign the documents when he requested help signing the transfer report and affidavit of compliance. Thus, counsel asserts there are questions of fact as to the authenticity of the signature on the deed. Counsel also opposes the transfer of this matter to Surrogates Court. Counsel asserts that the action is merely to set aside a deed and that there is no issue as to the validity of the will. Counsel asserts that the issue of the will being valid is incidental to the issue of the defendants' purported forgeries. Counsel also claims that the will dated January 9, 2009 was filed with the Surrogates Court on October 16, 2013 under Index No.2012–4939/E and plaintiff may request that the Court provide the original for examination.
Defendant, John Henderson, cross-moves for an order granting summary judgment dismissing the action against him. In his affidavit, Mr. Henderson states that in March 2012 he was contacted by Nelson Holland seeking estate planning for Mr. Moore. He suggested an irrevocable trust. He was aware that Mr. Moore had a validly executed will that was prepared in 2009. He prepared a trust and a deed to Mr. Moore's property. He states that Mr. Moore was completely lucid when they met. He said that Mr. Moore signed both the Trust and Deed by himself but asked for assistance with signing other ancillary documents. He states that he provided Mr. Moore with assistance but the signature is in fact Mr. Moore's. Mr. Henderson states that the signatures look different because they were signed by Mr. Moore but with his assistance.
Upon review and consideration of the plaintiff's
motion, the defendant's cross-motion and affirmation in opposition and the plaintiff's reply thereto, this Court finds that both the plaintiff's motion and the cross-motion of defendant Henderson for summary judgment are denied. A review of the evidence submitted to the court demonstrates that there are several questions of fact precluding summary judgment to either party at this time. These questions include, but are not limited to, the validity of Robert Moore's will dated January 9, 2009; whether Mr. Moore died intestate; whether Mr. Robert Moore himself lawfully executed all the documents necessary to record the deed with the City Register; whether the signatures on the deed and ancillary documents were falsely acknowledged prior to filing; whether the signatures on the documents filed with the City Register concerning the deed to the property were forged and what was the nature of the "assistance" provided by Mr. Henderson in aiding Mr. Moore to sign the required documents prior to filing with the City Register; whether Andre Moore lawfully filed an application for letters of intestate administration as there was a purported will filed in Surrogate's Court in 2013; whether the deed dated March 24, 2012 recorded with the City Register is null and void; whether the deed was obtained by fraud, coercion or duress of the defendants; and whether counsel Henderson had a conflict of interest concerning the circumstances surrounding the signing of the deed.
The plaintiff's application for an order removing this matter to the Surrogate's Court pursuant to CPLR 325(e) is granted.
"The Supreme Court and the Surrogate's Court have concurrent jurisdiction over the administration of a decedent's estate. However, whenever possible, all litigation involving the property and funds of a decedent's estate should be disposed of in the Surrogate's Court" (Cipo v. Van Blerkom, 28 AD3d 602 [2d Dept.2006] ). The Supreme Court upon motion, may transfer an action to the Surrogate's Court where an action pending in the Supreme court affects the administration of a decedent's estate which is within the jurisdiction of the surrogate's court" (CPLR 325[e] ; see N.Y. Const, art VI, § 12 [f]; § 19 [a]; Goodwin v. Rice, 79 AD3d 699 [2d Dept.2010] ).
Here, the plaintiff commenced this action in his capacity as administrator of the decedent's estate, and seeks to nullify the transfer of property which is part of the estate. In addition, there are questions as to the validity of a purported will and the validity of the plaintiff's letters of administration. As such, determination of this action "affects the administration of the decedent's estate". Moreover, transfer to the Surrogate's Court will "foster judicial economy and lead to an expedited settlement of the decedents estate" (see Goodwin v. Rice, supra.
For all of the above stated reasons it is hereby,
ORDERED, that the motion by the plaintiff and the cross-motion by defendant, John T. Henderson for summary judgment are denied, and it is further,
ORDERED, that plaintiff's motion for removal pursuant to CPLR 325(e) is granted and the above titled action now pending in this Court is removed to the Surrogate's Court of Queens County for determination, and it is further,
ORDERED, that he Clerk of this Court, upon filing with him a copy of this order, shall forthwith deliver all papers and records in the above-entitled action to the Clerk of the Surrogate's Court, Queens County.