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Surrogate's Court, New York,

PETITION OF David S. FISCHER as Administrator of the Estate of, Stanka Sucich, Deceased, for the turnover of assets and other relief.

File No. 2015-594/F

Decided: September 01, 2022

Fischer & Burstein, P.C., David S. Fischer, Esq., Attorneys for Petitioner, David S. Fischer, as Administrator c.t.a. Yvette A. Bentham, Esq., Attorney for Objectants, Omahdeo Rodrigues and Alim Shaw

Decedent, Stanka Sucich, died testate on January 14, 2015. Litigation ensued in connection with the probate of decedent's last will and testament dated August 30, 2013 resulting in a stipulation of settlement whereby the within respondents relinquished their right to serve as the nominated co-executors and the instrument was admitted to probate. Letters of administration c.t.a were issued to the petitioner.

Subsequently, petitioner commenced the within proceeding against respondents, Omahdeo Rodrigues (Rodrigues) and Alim Shaw (Shaw), seeking inter alia the return to the estate of over $200,000.00 from Rodrigues, representing funds claimed to be wrongfully converted from decedent's bank accounts as well as a judgment for expenses and use and occupancy occasioned by respondents refusal to vacate the decedent's premises. As an aside, Rodrigues was decedent's home health aide and Shaw was apparently hired to drive decedent.

Respondents, who at the time were self-represented, filed an answer generally denying the allegations of the petition and decrying the claims as untruthful, “libelous,” and an affront to respondents’ constitutional rights. Shortly thereafter, respondents retained counsel who participated in a preliminary conference and entered into a discovery schedule in February 2020. In the two plus years that have since elapsed, even considering a “Covid delay,” there has not been a single application made to the Court for a conference or a modification or extension of the discovery schedule entered into by the parties.

Petitioner now moves for summary judgment in his favor. The lone opposition to the motion consists of “verified objections to the summary judgment motion” executed by respondents and an extremely sparse affirmation from counsel, claiming that the motion is premature, as the examination of the petitioner had not been conducted despite efforts to do so.

With respect to the threshold issue of the timeliness of the motion, section 3212[a] of the Civil Practice Law and Rules (“CPLR”) provides that any party may move for summary judgment after issue has been joined. Courts may deny summary judgment when facts essential to justify opposition to the motion exist, but cannot be stated (CPLR 3212[f]), the mere fact that discovery is not complete will not necessarily warrant denial of the motion (see e.g. Peerless Ins. Co. v Allied Bldg. Prods. Corp., 15 A.D.3d 373, 790 N.Y.S.2d 474 [2d Dept 2005]; Country Glen, LLC v. Himmelfarb, 4 Misc 3d 1015(A), 798 N.Y.S.2d 344 [Sup Ct, NY County 2004]).

For the Court to delay action on this motion, there must be a likelihood that the discovery will lead to evidence that will provide a basis to oppose the motion and that such discovery is in the possession of the moving party (see id.; Reale v Tsoukas, 2017 NYApp Div Lexis 202, 2017 WL 93836 [2d Dept 2017]; In re Estate of Wilson, 266 A.D.2d 164, 698 N.Y.S.2d 854 [1st Dept 1999]).

Respondents do not explain how the discovery sought would assist in their defense of the motion. Mere hope that favorable evidence would possibly surface is insufficient (see Anderson v Rehab. Programs Found., 240 A.D.2d 524, 659 N.Y.S.2d 992 [2d Dept 1997]). Nor do respondents provide a compelling explanation for failing to pursue such discovery despite the significant passage of time (see Ingalsbe v Chicago Ins. Co., 287 A.D.2d 939, 731 N.Y.S.2d 782 [3d Dept 2001]). Generic claims of hardship and illness occasioned by the Covid-19 pandemic are unavailing, given that courts and litigants alike have been conducting such examinations virtually for nearly its entire duration.

Procuring examinations of the petitioner and any non-party witnesses was well within respondents’ own power. At a minimum, there was nothing preventing respondents from procuring affidavits from any such non-party witnesses to submit in opposition to this motion.

Respondents have not demonstrated in their moving papers or at oral argument the existence of essential facts in petitioner's exclusive possession which would warrant the denial of summary judgment. (See CPLR § 3212[f]; Matter of Zirinsky, 43 A.D.3d 946, 841 N.Y.S.2d 637 [2d Dept 2007]; Matter of DiCorcia, 35 A.D.3d 463, 827 N.Y.S.2d 170 [2d Dept 2006]; Delaney v. Good Samaritan Hosp., 204 A.D.2d 678, 612 N.Y.S.2d 433 [2d Dept 1994]; Home Sav. Bank v. Arthurkill Assoc., 173 A.D.2d 776, 570 N.Y.S.2d 644 [2d Dept 1991]). Accordingly, the Court turns to the merits of the motion before it.

A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact (see e.g. Giuffrida v Citibank Corp., 100 N.Y.2d 72, 81, 760 N.Y.S.2d 397, 790 N.E.2d 772 [2003]). Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution (see also CPLR 3212; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]).With respect to the first branch of the motion which seeks the return to the estate of monies allegedly converted to respondent, the petitioner is initially tasked with the burden of establishing that the property sought from Rodrigues first belonged to the decedent (see e.g., Matter of Kelligrew, 63 A.D.3d 1064, 882 N.Y.S.2d 221 [2d Dept 2009]).

Petitioner submits portions of decedent's banking records and the transcript of Rodrigues examination in support of this request for relief. The evidence reflects that on August 30, 2013, respondents brought decedent to her local branch of the Dime Bank for the purpose of “adding” Rodrigues to decedent's bank accounts. For reasons that are unspecified, bank personnel refused to go through with the transaction. Respondent Rodrigues testified as follows in this regard:

She [the decedent] said to them she would like to add me to her account. And they were fighting with her at the bank that she cannot do that.

And she said, it's her money and she wants to add me to her account.

Exhibit G at p. 46.

Not to be deterred, respondents drove decedent to a different branch where she did not typically bank. There, Rodrigues was added to decedent's checking (4448) and savings accounts (3741).

Subsequent to the addition of Rodrigues to the account, the sum of $246,681.31 was immediately withdrawn and deposited into a new savings account (5247) in decedent and Rodrigues’ names at Santander Bank where a checking account was also established (4914) (Santander accounts). At the time of decedent's death, the documentary evidence provided established that the collective balance in the Santander accounts totaled $273,115.43. Respondent testified to having transferred the funds into her name alone after the decedent's demise.

Based on the above, petitioner had satisfied his initial burden of demonstrating that the subject funds belonged to the decedent and, by a series of transactions, were subsequently transferred into an account owned solely by Rodrigues. Accordingly, the burden shifts to Rodrigues to establish that the transfers were a gift (Gruen v Gruen, 68 N.Y.2d 48, 505 N.Y.S.2d 849, 496 N.E.2d 869 [1986]).

The burden of proving an intervivos gift from the decedent falls squarely upon the party asserting ownership (see id.). The alleged donee is required to prove by clear and convincing evidence each of three elements: (1) an intent on the part of the donor to make a present transfer; (2) delivery of the gift—actual or constructive—to the donee sufficient to divest the donor of dominion and control over the property; and (3) acceptance on the part of the donee (see id.; Matter of Szabo, 10 N.Y.2d 94, 217 N.Y.S.2d 593, 176 N.E.2d 395 [1961]). Additionally, the donor must be mentally capable of formulating the requisite intent to make a gift (Matter of Creekmore, 1 N.Y.2d 284, 152 N.Y.S.2d 449, 135 N.E.2d 193 [1956]).

Further, given the undisputed facts, it appears that the nature of the relationship between the decedent and Rodrigues, her paid care giver, unrelated by blood, rises to that of a confidential relationship (see e.g., Matter of Petix, 15 Misc 3d 1104[(A]), 836 N.Y.S.2d 499 [Sur Ct., Monroe County 2007]).

The hallmark of such a relationship is the disparate power of one party over one another (Matter of Zirinsky, 10 Misc 3d 1052[(A]), 809 N.Y.S.2d 484, aff'd, 43 A.D.3d 946, 841 N.Y.S.2d 637 [2d Dept 2007]). The relationship often serves as a double edged sword in these scenarios. On the one hand, providing a plausible basis as to why the donor, grateful for assistance, would bestow her largess on her care giver. On the other hand, reflecting a donor, weakened by the rigors of time, rendered peculiarly susceptible to manipulation and overreaching by the person upon whom she has come to desperately rely.

It is the latter scenario that courts have zealously guarded against, rightfully imposing an additional burden upon the donee to demonstrate that the transaction was “fair, open, voluntary, and well understood, and therefore, free from undue influence” (Matter of Boatwright, 114 A.D.3d 856, 858, 980 N.Y.S.2d 554 [2d Dept 2014]).

In this regard, Rodrigues’ own testimony confirms its application, depicting the decedent as an elderly woman, wholly reliant upon the respondents for her activities of daily living, 24 hours a day, seven days a week:

I cooked for her. I washed the home. Shopping. Accompanying her everywhere she wanted to go. I took care of her. I showered her, dressed her. Make sure she gets her meds.

There was a time when she could not use the cane anymore. She was in a wheelchair. I had to ger her in the car and get her out, so he [Shaw] would help me.

Exhibit G at p. 13, p. 22.

Given the undisputed facts set forth herein, it is apparent that Rodrigues occupied a confidential relationship with the decedent and is therefore charged with the additional, and onerous burden of demonstrating the fairness and voluntariness of the transactions at issue.

With the foregoing in mind, the Court first considers whether respondents have established the essential element of donative intent (see Matter of Hicks, 82 Misc 2d 326, 329, 368 N.Y.S.2d 675 [Sur Ct, Cattaraugus County 1975]).

Generally, the party confronted with the task of demonstrating intent will initially present the Court with the signature card(s) that created the account to invoke the favorable—if not controversial—presumption set forth in section 675 of the Banking Law. Pursuant to this statute, a signature card bearing language of survivorship will trigger the following:

The making of such deposit or the issuance of such shares in such form shall, in the absence of fraud or undue influence, be prima facie evidence, in any action or proceeding to which the banking organization, foreign banking corporation, surviving depositor or shareholder is a party, of the intention of both depositors or shareholders to create a joint tenancy and to vest title to such deposit or shares, and additions and accruals thereon, in such survivor. The burden of proof in refuting such prima facie evidence is upon the party or parties challenging the title of the survivor.

Interestingly enough, neither petitioner nor respondents submitted copies of the signature cards for the Santander accounts. Accordingly, the presumption cannot be applied.

Signature cards are not the only means by which decedent's intent can be gleaned. Courts will consider the totality of the evidence adduced, including the status and relationship of the parties, as well as oral and written expressions of a gift in making a determination (see id.).

Inexplicably, although in opposing this motion respondents were obliged to “lay bare affirmative proof” (see Matter of Engelhardt, 34 Misc 3d 1232(A), 950 N.Y.S.2d 608 [Sur Ct, Queens County 2010]), they have furnished no independent evidence of decedent's intent or her capacity to form such intent. The opposition consists solely of self-serving claims concerning decedent's wishes, which fall far short of the clear and convincing standard.

Moreover, the bald assertions, even when considered, are contradicted by the terms of decedent's Will—which does not bestow anything of significance on the respondents—and Rodrigues’ own testimony concerning the questioned transactions which describe her addition to the accounts as being a “matter of convenience” for decedent.

Given the complete absence of any competent evidence in favor of establishing donative intent, no further analysis of the remaining evidentiary burdens is required on the part of the Court. The failure to establish the paramount element of intent is fatal to respondents’ argument and any discussion of the remaining elements is thus academic.

Accordingly, the branch of the motion seeking the return to the estate of the sum of $273,115.43, representing the date of death balance of decedent's Santander accounts, together with legal interest from the date of decedent's death is granted.

For the same reasons, the branch of the motion seeking the return to the estate of the sum of $6,687.91 (4448) representing the date of death balance in decedent's Dime checking account, together with legal interest from the date of decedent's death, is granted.

The Court now turns to the branch of the motion seeking a declaration that respondents breached a Stipulation of Settlement that was entered into between the parties on May 26, 2017 and amended June 8, 2017. The stipulation resolved protracted litigation concerning the validity of decedent's last will and testament and resulted in the appointment of the within petitioner as administrator c.t.a. over the respondents, who were nominated as co-executors of the Will.

The dispute that has surfaced revolves around this provision of the Stipulation:

The Estate of Stanka Sucich shall pay the following sums:

Twenty Thousand ($20,000.00) to the petitioner Omahdeo Rodrigues ․ within 10 days of the vacating of the decedent's house at 78-19 166th Street, Fresh Meadows NY 11366 and turnover of the keys to the newly appointed Administrator c.t.a.

An identical provision follows providing for the same payment to respondent Shaw. However, the petitioner has refused to pay the aforesaid sums to the respondents claiming that respondents breached the agreement as they failed to timely vacate and turn over the keys to the premises.

Petitioner's refusal to make the payments appears to be predicated on the notion that the agreed upon consideration was entirely in exchange for respondents voluntarily vacating the premises. However, review of the stipulation in its entirety suggests that the heart of the resolution was the respondents’ relinquishment of their right to receive personal property under the will and to serve as the nominated co-executors. In fact, just prior to the paragraph dictating the terms of the payment to the respondents appears the following:

Petitioners hereby consents [sic] to the probate of the instrument dated August 30, 2013, and for the Last Will and Testament of the Decedent and renounces their appointment as Executors and withdraws, with prejudice, their Petition for the probate of such instrument and all pending petitions and motions, and consents to the grantingof full Letters of Administration c.t.a. to David S. Fisher, Esq. ․

The release language of the stipulation further demonstrates that the consideration for the payment of monies to the respondents was largely tied to their agreement to forego their appointment as co-executors:

Petitioner ․ agrees to release, and hereby does release, any and all claims to or upon the property of the Estate of Stanka Sucich, whether real or personal, and whether now or hereafter acquired, to the end that the Estate and/or David S. Fischer, Esq., as administrator c.t.a., shall have free and unrestricted right to dispose of any property ․ and, without in any manner limiting the foregoing, specifically relinquishes any claims to any rights of first refusal, any specific bequests under the 2013 will and to any commissions, legal fees or reimbursements relating to having been named as Executor ․

An additional provision was included to ensure the respondents’ timely renunciation and the petitioner's appointment:

[T]he Petitioners Omahdeo Rodrigues and Alim Shaw agrees to fully cooperate with the Legatees in a timely manner in executing any and all documents reasonably required by the court to probate the subject will, renounce any rights of appointment and to have an Administrator c.t.a. of the Legatees’ choosing appointed and a bond dispensed with.

In viewing the agreement as a whole, the payments that were to be made to the respondents were plainly in consideration of their agreement to forego their fiduciary roles in the decedent's estate, and correspondingly, the right to receive commissions and payment of their legal fees in such capacities. Given petitioner's appointment as administrator c.t.a, the respondents apparently complied with the essential terms of the agreement.

In contrast, the stipulation failed to provide any time frame whatsoever by which respondents were required to vacate the premises. No reference was made to signal any urgency in this regard, such as by use of “time is of the essence” language. Indeed the terms “in a timely manner” was not even employed.

Rather, under the agreement, vacating the premises was mentioned but once, to serve as the triggering event by which petitioner was obligated to make the agreed upon payments. Presumably, petitioner tied the obligation to pay only upon vacating under the presumption that it would act as an incentive for the inhabitants to leave sooner rather than later.

Intentions aside, the promise of payment did not spur the respondents into action. Indeed they did not vacate the decedent's home until November 16, 2018. When, as here, a contract fails to set a time frame for performance or a demand for the same, the law implies a reasonable time (see e.g., Valley Natal Bank v Babylon-Chrysler-Plymouth, Inc., 53 Misc 2d 1029, 280 N.Y.S.2d 786 [Sup Ct, Nassau County 1967] aff'd 28 Ad2d 1092, 284 N.Y.S.2d 849; Oswald v Oswald, 73 Misc 2d 607, 341 N.Y.S.2d 959 [Fam Ct, Queens County1973]). However, the continued possession of the premises by the respondents was apparently accomplished with the grudging consent of the petitioner, who was negotiating with their counsel throughout that time period. A notice to quit was not served until August of 2018 and no further action was taken.

Accordingly, the branch of the motion seeking a declaration that respondents breached the terms of the agreement is denied. As respondents renounced their appointment as co-fiduciaries of the within estate, and ultimately vacated the premises, petitioner is obliged to pay them the bargained for consideration under the terms of the bargain he struck.

That said, equity dictates that respondents bear the reasonable and necessary expenses that were incurred as a result of their continued occupancy of the premises including the reasonable and necessary expenses associated with general maintenance and preservation of the property, as well those occasioned for respondents own convenience, such as utilities (see In re Dai, 1994 NYLJ LEXIS 4294 [Sur Ct, Kings County 1994]).

In view of the evidence provided, the branch of the motion seeking a judgment in favor of petitioner in the sum of $11,454.00 for expenses occasioned by respondents continued possession of the property, is granted.

The final branch of the motion seeking a judgment of $115,000.00 for the fair value of the use and occupancy of the premises is denied. The Court declines to impose such an amount in view of petitioner's acquiescence in allowing the respondents to remain on the premises for the period of time in question (see Eighteen Assoc., LP. v Nanjim Leasing Corp., 257 A.D.2d 559, 683 N.Y.S.2d 291 [2d Dept 1999]).

This constitutes the decision and order of the Court.

Settle Decree.

Peter J. Kelly, S.

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