IN RE: the Claim of Rosario L. Pusatere (2024)

Petitioner is the Administrator of the Estate of Sona M. Pusatere ("decedent") and up until her death, was her husband of thirty-six (36) years. Petitioner has timely filed a claim which generally consists of allegations of the imposition of constructive trust upon the marital residence that the Petitioner resided in with his wife for twenty-eight (28) years and continues to occupy. Petitioner now moves for summary judgment on the claim seeking a declaratory judgment in the form of the imposition of a constructive trust under the theory that Petitioner holds an equitable title interest in the property, or in the alternative, monetary damages. Respondent, Debra M. Vale, a distributee of the estate, by Answering Affidavit opposes this relief  ¹ .

Under SCPA § 1805(1) the general rule is that a fiduciary cannot use estate assets to satisfy the fiduciary's own claim until the claim is proven and the court allows it in the final accounting proceeding. The fiduciary may present a petition to satisfy his claim in advance of the accounting proceeding under an ex parte application in the form of a special proceeding, see SCPA § 1805. However, if questions of fact arise, the court may order a hearing at which those interested in the estate will have an opportunity to be heard. With or without a hearing, the fiduciary should prove his claim to the court's full satisfaction. See, generally, Radigan, New York Estate Administration, 2024 Ed. § 5.06.

Here, petitioner has filed a motion for summary judgment on the issue of the establishment of a constructive trust rather than a petition to satisfy his claim, as would be proper. For judicial economy, the Court will consider such motion as being the equivalent to a petition under SCPA § 1805  ² , and will consider service of process upon all necessary parties to be complete.

STANDARD OF PROOF

The standard of proof on a petition for satisfaction of a claim is born by the claimant and he has the burden of proving his claim by clear and convincing evidence, Matter of Gorden, 8 NY2d 71 (1960). Likewise, the party seeking to impress a constructive trust on property has the burden of proving by clear and convincing evidence that such a trust is necessary to prevent unjust enrichment Alson v. Kessler, 231 NYS2d 872, affd sub nom; In re Kessler's Estate, 18 AD2d 1052. "The clear and convincing evidence standard is satisfied when the party bearing the burden of proof has established that it is highly probable that what he or she has claimed is actually what happened", see, Home Ins. Co. of Ind. v Karantonis, 156 AD2d 844, (3d Dep't 1989); and see also Green v William Penn Life Ins. Co. of NY, 12 NY3d 342 (2009).

It is well settled that summary judgment is a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue. It is a matter of issue finding, not issue determination. AThe proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment, as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (NY 1986). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 (1st Dept. 1984). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action Zuckerman v. City of New York, 49 NY2d 557, 562 (NY 1980); In re Saman Estate, NYLJ, March 26, 2004, at 32, col 5 (Sur Ct, Nassau County 2004).

To defeat a summary judgment motion, the Objectant must come forward and lay bare her proof. It is the Court=s responsibility to determine whether there are issues of fact to be determined, which can only be determined after a trial on the issues. In so doing, the Court must construe the facts in a light most favorable to the non-moving party so as not to deprive that person of his day in court (Russell v. A. Barton Hepburn Hospital, 154 AD2d 796 [3rd Dept. 1989]).

On a motion for summary judgment, the court is not to determine credibility, but is to determine whether there exists a factual issue, or if arguably there is a genuine issue of fact. S. J. Capelin Associates, Inc. v Globe Mfg. Corp., 34 NY2d 338 (1974).

As with the summary judgment standard, the elements of a constructive trust are well known. A constructive trust has been referred to as the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee. In developing the doctrine, equity has laid down four requirements for its invocation. First, there must be a confidential or fiduciary relationship; secondly, there must be a promise, either express or implied; thirdly, there must be a transfer of property in reliance thereon; and finally, there must be unjust enrichment to the transferee. Sharp v. Kosmalski, 40 NY2d 119 (1976).

However, the applicability of the doctrine is not rigidly limited. Its scope is sufficiently expansive to satisfy the needs of justice and to enable courts to mold its elastic remedies to meet the needs of the individual case. No wrongdoing is necessary to invoke the doctrine. Innocent parties may frequently be unjustly enriched. What is required, generally, is that a party hold property under such circumstances that in equity and good conscience they ought not to retain it. See, Miller v. Schloss, 218 NY 400, 407 (1916).

FACTS

It is undisputed that the decedent and Petitioner were married in 1988. The decedent purchased the house located at 655 Kinns Road, Clifton Park, New York in 1996. She resided in the home with her husband, the Petitioner until her death in July of 2023. Petitioner avers that his name was not on title for liability protection reasons, a claim that is not disputed by the Respondent. The property is essentially the sole asset of the Estate.

Petitioner also states that the decedent was married prior to their relationship and that she had two daughters from that relationship, Debra M. Vale and Laura M. Byrnes, who are distributees of the Estate along with Petitioner. He further states that Laura had a son named Joshua Vale who has resided with the decedent and Petitioner for thirty-three (33) years at the Kinns Road property. Joshua has been disabled from an accident twelve (12) years ago where he lost the use of his legs. Petitioner further states that although Laura was receiving child support for Joshua, the Petitioner and decedent were the sole source of financial support for him. Interestingly, these allegations are entirely disputed by Debra Vale, who in her affidavit at paragraph five (5) states that "[t]he family and I have long known that [petitioner] is Laura's biological father and therefore Joshua's grandfather". There is no proof in the record for this speculative assertion. Likewise, she speculatively asserts in paragraph four (4) that Laura gave all her child support to the Petitioner and the decedent. Debra does not have personal knowledge of these facts and as such, these statements are disregarded as hearsay  ³ . Central School Dist. v Cohen, 60 Misc 2d 337, 302 (NY Dist. Ct. 1969).

Indeed, the bulk of Debra's affidavit  ⁴ is filled with open ended questions, hyperbole, and speculative hearsay. Paragraphs 4, 5, 7, 9, 10, 12, 13, 14, and 15 of the affidavit are riddled with speculation and open ended questions. The entire affidavit fails to raise any relevant issue of fact to the instant claim other than it serves as a vehicle to submit a copy of a recorded mortgage on the property at issue of which decedent is the sole obligor.

ANALYSIS

One seeking to defeat a motion for summary judgment is not entitled to a denial of the motion if he merely sets forth a conclusion without any factual basis for it. See, Maringo v. Senior, 102 Misc 2d 1011 (NY Sup. Ct. 1980). Normally, the failure to raise relevant issues of fact in opposition to a summary judgment motion would result in a determination in favor of Petitioner on his claim, as a conclusory affidavit, devoid of evidentiary facts, is insufficient to raise triable issue of fact on motion for summary judgment. See, Kountz v State University of New York, 89 Misc 2d 483, (NY Sup. Ct. 1977), rev'd, 61 AD2d 835, (2nd Dep't 1978).

Unfortunately, the Court finds that the claim cannot be granted as submitted. The Petitioner/claimant has not met his burden on the motion in making a prima facie showing of entitlement to judgment as a matter of law and proving his SCPA claim by clear and convincing evidence to the Court's satisfaction as required by the SCPA. Issues of fact are raised by the Petitioner's own submissions which also contain insufficient evidence to fully determine the claim.

Petitioner avers that he has expended substantial sums of money during his marriage to contribute to the marital residence for taxes, mortgage payments, repairs and improvements. Petitioner submits several presumably self-created spreadsheets itemizing these amounts  ⁵ . The party moving for summary judgment must establish its prima facie entitlement to it. Parties do so by tendering evidence that must be in admissible evidentiary form since the summary judgment procedure is a paper form of a trial. Unfortunately, such self-created, unsworn evidence without an appropriate foundation having been laid is inadmissible for purposes of summary judgment. See, Nevco Contracting Inc. v. R.P. Brennan General Contractors & Builders, Inc., 139 AD3d 515 citing, Rugova v. Davis, 112 AD3d 404, 404—405, (1st Dep't. 2013).

Additionally, it would appear that an issue of fact exists with regard to the mortgage at issue. Petitioner claims that he is the sole obligor, but supports this only with a mortgage statement addressed to him. The mortgage submitted by Respondent shows that decedent is the obligor. The Petitioner and the decedent may well be co-obligors on the note together, but that evidence has not been submitted to the Court. It appears that there may be other loans and debt not documented that are also applicable to the subject property and the facts of the matter. The Court is unable to fully adjudicate the rights and liabilities of the Estate vis-à-vis the Petitioner due to the incomplete financial picture of the Estate and it's liabilities as they concern (or not) the subject property.

Since the salutary purpose of the remedy of constructive trusts is to prevent unjust enrichment, the application of said doctrine is not rigidly limited. Instead, its scope shall be sufficiently expansive, and shall be applied on an individual basis. See, Goodman v. Goodman, 84 AD2d 344 (1st Dept. 1982). As constructive trusts are highly fact specific, the Court finds that a hearing on the claim is required wherein the Court can evaluate the evidence presented and received as-well-as the demeanor and credibility of the parties. As such, it is hereby

ORDERED, that the Petitioner's motion pursuant to CPLR § 3212 is denied for the reasons stated herein; and it is further

ORDERED, that Petitioner shall pay the requisite filing fee of $625.00 within ten (10) days of the filing of this Decision and Order, whereafter the Clerk of the Court shall designate this proceeding as File No.: 2023-689/A. If said fee is not paid, the petition is subject to dismissal; and it is further

ORDERED, that pursuant to CPLR § 3212(c), a hearing pursuant to SCPA § 1805 on the claim of Petitioner is hereby set for November 6, 2024 at 1:00pm in the Saratoga County Courthouse, Part 3, Ballston Spa, New York 12020, continuing on November 7, 2024 at 9:30am, if necessary. Counsel are advised to be familiar with this Court's local rules for the submission of exhibits and conduct of hearings  ⁶ ; and it is further

ORDERED, that Joshua Vale is designated as an interested party in this proceeding and shall be served with copies of all submissions on the instant motion and a copy of this Order pursuant to CPLR § 308 within twenty (20) days prior to the hearing. Petitioner shall have the obligation of service.

DATED: September 23, 2024

HON. JONATHAN G. SCHOPF

SARATOGA COUNTY SURROGATE

ENTERED

FOOTNOTES

1.   Respondents Laura M. Byrnes and Debra M. Vale are represented by the same counsel. Laura has not submitted an affidavit in opposition. Debra's affidavit indicates that it is being submitted on both their behalf's and that they are united in interest in their opposition to the pending motion.

2.   A fee of $625.00 is due for the filing of a petition in Surrogate's Court.

3.   The Court does have concerns related to Joshua being physically disabled and having lived in the home at issue, which has apparently been modified to suit his needs, for 33 years. There is no proof that Joshua was served with the instant motion papers. Going forward, the Court will consider Joshua an interested party to these proceedings due to his interest, at a minimum, as a tenant of the premises.

4.   Laura has not submitted an affidavit in opposition. Debra's affidavit indicates that it is being submitted on both their behalf's. Debra does not have personal knowledge of the items that she relates in her affidavit as being attributable to Laura. The Court declines to consider hearsay in opposition to the motion.

5.   Petitioner does submit a January 20, 2023 receipt for payment of $14,267.00 for a heat pump and related equipment which is not self-created, all of the other entries have no back-up or source documentation.

6.   https://www.nycourts.gov/LegacyPDFS/courts/4jd/mt-rules/Schopf-Rules.pdf

Jonathan G. Schopf, S.