Matter of Bronner

[*1] Matter of Bronner 2005 NY Slip Op 51643(U) [9 Misc 3d 1118(A)] Decided on October 14, 2005 Surrogate's Court, Nassau County Riordan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 14, 2005
Surrogate's Court, Nassau County

In the Matter of the Probate Proceeding, Will of Gloria R. Bronner, Deceased.



318627



John Morgan, Esq. (attorneys for Respondent)

Farrell Fritz, LLP

EAB Plaza

West Tower - 14th Floor

Uniondale, NY 11556 Robert P. O'Brien, Esq. (attorneys for Petitioner)

Mahon, Mahon, Kerins & O'Brien, LLC

254 Nassau Boulevard

Garden City South, NY 11530

Thomas J. McNamara, Esq. (guardian ad litem)

Certilman Balin Adler & Hyman, LLP

90 Merrick Avenue

East Meadow, NY 211554

John B. Riordan, J.

In this contested probate proceeding, objectant William R. Bronner has moved for an order determining the preclusive effect of a prior judicial finding, and upon such determination, for summary judgment denying probate of the propounded Will, dated March 25, 2002, on the ground that the execution of the Will was fraudulently induced. The prior judicial finding resulted from an action the movant commenced in Supreme Court, Westchester County concerning the ownership of a certain painting, movant asserting that it was a joint gift from the decedent to his sister and him. In this proceeding, movant alleges that his sister made certain false representations to the decedent concerning the ownership of the painting causing decedent to change her testamentary plan, ultimately disinheriting her son.

The decedent, Gloria R. Bronner, died on May 24, 2002, survived by her children, William R. Bronner (the objectant) and Dierdre Butterfield (the proponent). The painting by Thomas Moran was placed in the daughter's possession by the decedent on December 2, 2001. The decedent's son asserted that the painting was a joint gift, given to both him and his sister while the decedent's daughter asserted that the painting was a gift solely to her. Objectant commenced an action against his sister alleging that the painting was a joint gift. After a non-jury trial, it was determined that the Moran painting was a joint gift, the Supreme Court stating in relevant part:

All of the elements to effectuate an inter vivos gift has (sic) been

met. It was a present intent to transfer the painting to the two children, there was delivery of said painting to both, one actual and the other constructive, and there was acceptance by both.

Accordingly, the Court finds that the Thomas Moran painting in question belongs to both the son William Bronner and the daughter Deirdre Butterfield, both have title to and ownership of said painting (Bronner v Butterfield, Sup. Ct., Westchester Co. decision dated June 30, 2005, Bellantoni, J. Index No. 00375/2002).

By judgment entered August 16, 2005, the court declared "that an inter vivos gift of the Moran painting was made in December of 2001 by Gloria R. Bronner to both plaintiff and defendant" dismissing the remaining causes of action against defendant for conversion, misappropriation, breaches of contract, and breaches of fiduciary relationship (Bronner v Butterfield, Sup. Ct., Westchester Co, Bellantoni, J. Index No 00375/2002). [*2]

Apparently, the trial court placed great weight on a conversation that the decedent had with an attorney, Edward McCoyd, in early January 2002, the contents of which were the subject matter of a prior decision of this court (Decision No. 438). In that conversation, decedent stated that the painting was a gift to both children and further stated that she wanted to treat the children equally.

The instant proceeding is a contested probate proceeding wherein there are three issues: testamentary capacity, undue influence and fraud, there being no objection regarding due execution. Objectant now seeks a determination giving preclusive effect to the judicial determination of a joint inter vivos gift and, upon such determination, an order granting summary judgment against the proponent on the issue of fraud.

The central issue herein is whether statements made by the proponent to her mother to the effect that the painting was a gift solely to her were knowingly false statements when made, which caused her mother to change her testamentary plan to disinherit her son which she would otherwise not have done absent the false statement.

In support of the motion, the objectant submits relevant excerpts of the transcript in the painting litigation, the judicial determination therein, excerpts of taped transcripts of recorded telephone conversation between the proponent and the decedent taped by the proponent in March 2002 (some three months after the transfer of the painting), affidavits submitted by the decedent in the painting litigation, excerpts of the deposition testimony of proponent's husband, Kenneth Butterfield, and an affidavit of the attorney-draftsman of the decedent's Last Will and Testament. Objectant contends that the proponent is precluded from relitigating the circumstances of the gift of the Moran painting based upon the doctrine of issue preclusion. Objectant further contends that the evidentiary materials submitted in support of the motion establish his entitlement to summary judgment as a matter of law on the issue of fraud. More particularly, objectant contends that: the transcripts of the telephone conversations show that the proponent made misstatements to the decedent concerning the gift of the painting (to wit, that the painting was solely a gift to her), that the decedent credited such misstatements, that the testimony of the proponent's husband shows that the decedent's relationship with the objectant changed after the commencement of the painting litigation (decedent not wanting to see objectant) and that the statement of the attorney-draftsman to the effect that the objectant's refusal to discontinue the painting litigation resulted in the decedent revising her testamentary plan to disinherit the objectant, shows that the litigation was the sole factor in decedent changing her testamentary plans. Objectant argues that the totality of this evidence, to wit, the determination of a joint gift in the painting litigation, proponent's misstatements as to the nature of the gift of the painting to the decedent and decedent's manifest pique toward objectant for his pursuing the painting litigation and decedent's change in her testamentary plan, ultimately disinheriting the objectant, establish fraud as a matter of law.

The proponent and the guardian ad litem posit similar arguments in opposition. It is argued that: (1) the motion is untimely as it is in contravention of the scheduling order of this court; (2) collateral estoppel does not apply as neither the ward, nor the guardian ad litem, nor the estate were parties to the painting litigation; and (3) that summary judgment should be denied as there are material issues of fact on the issue of fraud. The proponent submits, inter alia, three affidavits executed by the decedent in the painting litigation, a gift tax return of the decedent, an [*3]affidavit and deposition excerpts of a companion employed to care for the decedent, a medical geriatric evaluation of the decedent, dated March 20, 2002, excerpts of the disposition testimony of Edward McCoyd as well as excerpts of the objectant's affidavit in the painting litigation. Proponent not only contends that there are material issues of fact on the issue of fraud but also that the evidence indicates that the painting litigation was not the sole motivating factor in the decedent changing her testamentary plan.

As to the timeliness of the instant motion, both the guardian ad litem and the proponent argue that this court's scheduling order dated April 22, 2005 required that all motions be returnable no later than May 11, 2005 and that the objectant's motion for summary judgment, dated September 14, 2005 is, therefore, untimely. The court notes, however, that the decision in the painting litigation that forms the basis for the instant motion was rendered June 30, 2005 and the judgment therein entered August 16, 2005. Under all the circumstances, the court will decide the motion on the merits.

A threshold issue is the effect, if any, to be given to the determination in the painting litigation. The objectant argues that said determination is dispositive of the issues decided therein covering objectant's interest in the Moran painting and that equitable considerations govern resolution of the same issue of ownership of that painting in the instant probate proceeding, as well as the court's determination that the proponent knew that objectant was to receive a half interest in the painting. The opponents of the motion, citing Matter of Sullivan, 289 NY 323 [1942] and Weiner v Greyhound Bus Lines, 55 AD2d 189 [1976], contend that the proponent appeared in a different capacity in the painting litigation, i.e., in her individual personal capacity and, therefore, the doctrine of collateral estoppel does not apply. While a party appearing in one capacity is generally not bound by the doctrine of collateral estoppel in a subsequent action in which the party appears in a different capacity (see Juan C. v Cortines, 89 NY2d 659 [1997]), there are exceptions. The equitable doctrine of collateral estoppel is "intended to reduce litigation and conserve the resources of the court and litigants and it is based upon the general notion that it is not fair to permit a party to relitigate an issue that has already been decided against it" (Kaufman v Lilly & Co., 65 NY2d 449, 455 [1985]). The elements of collateral estoppel are: first, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination (Gilberg v Barbieri, 53 NY2d 285, 291 [1981]). Here, while the court finds that the proponent did, indeed, have a full opportunity to litigate ownership of the Moran painting and may not contest that issue herein, said issue is not decisive of the fraud issue in the instant probate proceeding. Therefore, that branch of the motion seeking issue preclusion is granted only to the extent that proponent may not relitigate the issue of ownership of the painting and is otherwise denied.

It is well established that the 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 [1986]; Matter of Lucia, 2 AD3d 638 [2003]). 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. Ctr., 64 NY2d 851 [1985]). Once this showing has been made, the burden [*4]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 [1980]).

The objectant bears the burden of proof on the issue of fraud. To prove fraud, objectant must show by clear and convincing evidence that a false statement was made to the testatrix that induced her to make a Will disposing of her property differently than she would have if she had not heard the fraudulent statement (see Simcuski v. Saeli, 44 NY2d 442 [1978]; Matter of Coniglio, 242 AD2d 901 [1997]; Matter of Gross, 242 AD2d 333 [1997]). Stated otherwise, to establish that the Will was procured by fraud, the objectant must prove that the proponent knowingly made a false statement to the decedent to make her Will, that the decedent believed the statement, and that without it, the Will would have been drawn differently or not executed at all (cf PJI2d 7:60[2005]). Contrary to the objectant's contention, objectant has not met his burden of proof on the issue of fraud. The evidence shows that the decedent gave conflicting statements as to her wishes concerning the nature of the gift within a relatively short period of time. While decedent stated to Mr. McCoyd in early January, 2002, that the painting was a joint gift, she contradicted that statement in affidavits she executed in the painting litigation shortly thereafter wherein she stated that the painting was a gift to her daughter. Under the circumstances, decedent's motivation in disinheriting her son cannot be said to be the product of fraud as a matter of law. Clearly, there are material triable issues of fact on the issue of fraud particularly as to whether the proponent knowingly made false statements to the decedent, whether the decedent believed that statement, and whether her testamentary plan was revised as a result. Therefore, the motion for summary judgment is denied (see Matter of Pollock, 64 NY2d 1156 [1985]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; CPLR 3212(b)).

The above constitutes the order of this court.

Dated: October 14, 2005

JOHN B. RIORDAN

Judge of the Surrogate's Court