2012 NY Slip Op 51196(U)


Surrogate's Court, Bronx County.

Attorney(s) appearing for the Case

Michael M. Lippman, Esq. , for Frank Roublick, III, petitioner-claimant.

Cormac McEnery, Esq. , for Susan H. Roublick, respondent-spouse.


In this proceeding by one of the decedent's sons, who is also the executor of the estate, to determine the validity of his individual claim for $250,000, the decedent's spouse moves, pursuant to CPLR 3212, for summary judgment dismissing the claim based on, inter alia, the claimant's failure to establish the existence of any material issue of fact as he submitted only his own affidavit in support of the claim and the statements therein are inadmissible under the Dead Man's Statute (CPLR 4519), the statute of limitations for fraud (CPLR 213 [8]) and the Statute of Frauds (General Obligations Law § 5-701). The claimant opposes the motion contending, inter alia, that his claim was timely interposed, is not barred and there are issues of fact for trial.

The decedent died on November 30, 2005. His distributees are the spouse, the claimant and two other children. Preliminary letters testamentary issued to the claimant, by order entered December 6, 2006, and letters testamentary issued to him on December 21, 2007. In the probate petition, the claimant listed estate assets consisting of personal property of $100,000 and Bronx realty valued at $500,000. The decedent's will devises the Bronx realty outright to the spouse, and divides the residuary estate 61% to the spouse, 7% to each of his three children and 3% to each of six grandchildren.

The documents and the claimant's deposition testimony reveal that, on January 6, 1989, following the decedent's divorce from the claimant's mother, the claimant became a tenant in common in the Bronx realty with the decedent, by purchasing his mother's 50% interest therein for $40,000. On July 7, 2003, the day the will was executed, the claimant conveyed his 50% interest in the realty to the decedent for $50,000, which the claimant admittedly received. The July 7, 2003 deed recites that the conveyance was in consideration of $50,000 and any other valuable consideration "paid" by the decedent.

By petition filed December 24, 2009 and by citation returnable February 17, 2010, the claimant commenced this proceeding alleging the following: (1) the claimant was unable to exercise good judgment at the time he transferred his interest in the property to the decedent as the claimant was then suffering from a bipolar disease; (2) the decedent took advantage of his poor judgment by acquiring his interest, which was worth hundreds of thousands of dollars, for "inadequate" consideration of only $50,000; and, (3) the decedent failed to honor his promise to pay the claimant an additional $250,000 at an unspecified later date. The claimant seeks either the $250,000 claimed, or a reconveyance of his interest in the realty for $50,000.

In her verified answer, the spouse generally denied the allegations of the complaint and interposed 18 affirmative defenses and a counterclaim, including the following defenses on which her motion is based: (1) any claim of fraud is barred by the statute of limitations (CPLR 213 [8] and CPLR 210); (2) on October 2, 2003, about three months after the conveyance at issue, the claimant was aware that the decedent gave the claimant's two siblings $80,000 each, yet the claimant failed to make any claim at that time when funds were available and failed to join as necessary parties his two siblings who received a total of $160,000 of funds; (3) the claimant failed to comply with SCPA 1803 (1) as he never interposed his claim in the petition for probate and he is now estopped from interposing it; (4) the claim cannot be established in light of the provisions of the Dead Man's Statute (CPLR 4519); and, (5) the claim is barred by the Statute of Frauds (General Obligations Law § 5-701). In her counterclaim, the spouse asserts that she is entitled to a distribution of 61% of the residuary estate plus interest at a rate of 9% from seven months after the issuance of preliminary letters testamentary on December 7, 2006 to the date of distribution. Her counterclaim also seeks all legal fees and disbursements she incurred in defending against the claim which, she contends, is prima facie a violation of the claimant's acceptance of his fiduciary position and demonstrates his willful failure to abide by the terms of the decedent's will for his own personal gain.

During discovery the claimant testified that there was no writing or other document evidencing the decedent's alleged promise to pay an additional $250,000 in the future. Although he believed that the realty was then valued at $600,000, no appraisal was done. He was aware that the decedent paid $80,000 to each of his two siblings in October, 2003, but he believed that those sums were paid to satisfy an existing mortgage or other loans. He also was aware that the decedent gifted the family electrical business to his brother, and he had no idea of the value of that business. He received gifts from the decedent in the form of early completion bonuses while he worked for the family electrical business and when the decedent helped pay legal bills arising from the claimant's 2003 divorce proceeding. His bipolar disorder was diagnosed in November, 2001 and he has received treatment for the condition since that date.

The spouse now moves, pursuant to CPLR 3212, for summary judgment dismissing the claim, essentially reiterating the defenses and contentions interposed in her answer and annexing in support, inter alia, the July 7, 2003 deed and the claimant's deposition testimony. Based solely on his own affidavit, the claimant opposes the motion contending that: (1) his claims were timely interposed less than three years after the will was admitted to probate on December 21, 2007; (2) as the promise to pay an additional $250,000 did not specify a time for such payment, the claim did not accrue until the decedent's death, and therefore, this proceeding was commenced within the six-year limitation period applicable to fraud; and, (3) his sister was aware of the decedent's promise and is willing to testify, and his former wife was also aware of the promise, so the lack of documentary proof is not fatal to his claim and CPLR 4519 does not bar the testimony of witnesses other than himself.

Summary judgment cannot be granted unless it clearly appears that no material issues of fact exist (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, 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 Associated Fur Mfrs. Inc., 46 N.Y.2d 1065 [1979]). When the movant makes out a prima facie case, the burden 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]).

CPLR 4519 bars testimony from a person interested in the event or a person from, through or under whom such person derives his or her interest or title with regard to any personal transaction or communication with the decedent (see Durazinski v Chandler, 41 A.D.3d 918 [2007], quoting Matter of Johnson, 7 A.D.3d 959, 961 [2004], lv denied 3 N.Y.3d 606 [2004]). Generally, evidence that is inadmissible at trial under CPLR 4519 cannot be used to support a motion for summary judgment; however, such evidence may be considered in determining whether a triable issue exists to defeat the motion for summary judgment (see Phillips v Joseph Kantor & Co., 31 NY2d at 314). Nonetheless, evidence otherwise excludable at trial may not form the sole basis for a court's determination, and standing alone, may be insufficient to defeat a motion for summary judgment (see Philips v Joseph Kantor & Co., 31 NY2d at 314; Marszal v Anderson, 9 A.D.3d 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]; Matter of Recupero, 28 Misc.3d 1207 [A], 2010 NY Slip Op 51200 [U] [2010]; see also Sachs v Soffer, 2010 NY Slip Op 30675 [U] [2010]).

Here, the spouse made out a prima facie case that the decedent acquired the claimant's one-half interest in the realty by establishing that the claimant duly executed a deed which stated that he received consideration of $50,000 for the sale of the realty. In fact, claimant concedes: (1) he received the $50,000 in consideration recited in the deed; (2) he made a $10,000 profit on this transaction as he had acquired his interest in the realty from his mother for $40,000; and, (3) there is no writing to support his claim that he was to receive an additional $250,000 whenever the decedent was able to pay that sum.

In opposition to the motion for summary judgment, the claimant offered no more than his own self-serving, conclusory allegations. He did not offer any independent proof to support his allegation that the decedent was able to take advantage of him due to his bipolar condition or as to the value of the property at the time he executed the deed. Although the claimant correctly asserts that CPLR 4519 would not bar either his sister or his ex-wife from testifying about the decedent's alleged oral promise to make an additional payment to him, the claimant failed to submit an affidavit from either of them in support of this contention. Thus, as the claimant's affidavit concerning the alleged oral promise is inadmissible under CPLR 4519 and there is no other evidence in admissible form to support this contention, the claimant's affidavit, standing alone, is insufficient to establish the existence of any material issue of fact (see Matter of Recupero, 28 Misc.3d 1207 [A], 2010 NY Slip Op 51200 [U], supra). Moreover, in light of the parol evidence rule, it is questionable whether the testimony of a disinterested witness concerning the decedent's alleged oral promise to pay an additional sum of money as consideration at some indefinite future date would be admissible to vary or contradict the unambiguous consideration stated in the deed (see Uihlein v Matthews, 172 N.Y. 154 [1902]; see also Studley v National Fuel Gas Supply Corp., 107 A.D.2d 122, 125 [1985], appeal dismissal 65 N.Y.2d 975 [1985]; TST/Impreso Inc. V Cosmos Farms, 202 A.D.2d 493, 495 [1994]).

Accordingly, for the reasons stated herein the spouse's motion for summary judgment is granted, and the claim is dismissed. The court finds it unnecessary to discuss the other issues raised with respect to the instant motion. Moreover, as the claimant pursued the claim individually and the spouse's counterclaims are interposed against him in his capacity as the executor of the estate, the counterclaims are also dismissed, without prejudice to the spouse's right to raise the same or similar issues in an accounting or other appropriate proceeding. Of course, in making this determination, the court expresses no opinion as to whether the spouse is entitled to any of the relief requested in her counterclaims.

This decision constitutes the order and decree of the court, and the Chief Clerk is directed to mail a copy to all counsel.


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