Opinion
February 21, 1995
Appeal from the Supreme Court, Queens County (Rutledge, J.).
Ordered that the order is modified by (1) deleting the provision thereof which granted those branches of the defendants' cross motion which were to dismiss the first, second, third, fourth, sixth, and seventh causes of action insofar as they are asserted against the defendants Gus Neos and Christopher Neos, and substituting therefor a provision denying those branches of the cross motion, and (2) deleting the provision thereof which granted that branch of the defendants' cross motion which was to strike as inadmissible any evidence of communications and transactions between the plaintiffs and Angelo Neos and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
This case involves the disposition of corporate stock previously owned by Angelo Neos (hereinafter Angelo), now deceased, who, shortly after being diagnosed with terminal cancer transferred the stock to himself and his oldest son, the defendant Gus Neos (hereinafter Gus), as joint tenants with the right of survivorship. At around the same time, a last will and testament and a shareholders' agreement were prepared by an attorney, based upon his discussions with Gus and Angelo Neos. The will made no mention of the stock. However, the shareholders' agreement indicated that the stock was being held by Gus and Angelo Neos for the benefit of all of Angelo's sons. Gus Neos admitted that he signed the shareholders' agreement, but claims that he did not read it and merely signed his name, as well as his father's name, in order to stop his brother, the plaintiff Louis Neos, from bothering him, and to prevent his father from being disturbed at this emotionally troubling time. The plaintiffs assert, inter alia, that the decedent did, in fact, sign the shareholders' agreement, and that the stock was transferred in trust for their equal benefit. Gus Neos contends that his father transferred the stock to him unconditionally. Gus admitted, however, that he had an understanding with his father that the stock would be transferred to Gus's oldest brother upon Gus's death, and that this brother, in turn, upon his death, would transfer the stock to the next oldest brother, and so on.
The Supreme Court properly denied the plaintiffs' motion for summary judgment as to their breach of contract cause of action because there is a question of fact as to what, if any, consideration was given in connection with the shareholders' agreement (see, Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 464). The plaintiffs however, also raised a triable issue of fact as to whether Angelo intended the shareholders' agreement to create an express inter vivos trust (see, 106 N.Y. Jur 2d, Trusts, §§ 59-61, 63-71, 80-83, 85). Further, there is evidence that Gus induced Angelo not to bequeath his stock to the plaintiffs, by an express or implied promise that Gus would hold the stock as trustee on behalf of himself and his brothers. Therefore, the Supreme Court erred when it dismissed the plaintiffs' cause of action to impose a constructive trust to compel Gus Neos to fulfill that promise (see, Goldsmith v. Goldsmith, 145 N.Y. 313, 316-317; see also, 106 N.Y. Jur 2d, Trusts, §§ 172, 173; cf., O'Boyle v. Brenner, 303 N.Y. 572, 574). The remaining ancillary causes of action predicated upon the same theories are likewise reinstated.
In addition, the defendants waived the protection of the Dead Man's Statute by introducing Gus Neos's sworn testimony regarding conversations that he had with Angelo about the transactions in question (see, CPLR 4519; see also, Matter of Smith, 171 A.D.2d 666; cf., Matter of Wood, 52 N.Y.2d 139, 144-146).
There is no merit to the defendants' remaining contentions. Miller, J.P., O'Brien, Santucci and Florio, JJ., concur.