Summers v Estate of Laykind
Annotate this CaseDecided on March 31, 2006
Supreme Court, Nassau County
Allan D. Summers, Plaintiff,
against
Estate of Donald R. Laykind, Defendant.
9517-05
Counsel for Plaintiff
Allan D. Summers - pro se
15 Friendly Lane
Jericho, New York 11753
Counsel for Defendant
David J. Sutton, P.C.
1205 Franklin Avenue - Suite 320
Garden City, New York 11530
Leonard B. Austin, J.
Plaintiff moves for summary judgment pursuant to CPLR 3212 declaring that Plaintiff is entitled to receive the proceeds of a certain life insurance policy on the life of decedent Donald R. Laykind and further directing the partition and sale of property identified as 942 Roosevelt Street, Franklin Square, New York and 944 Roosevelt Street, Franklin Square, New York, collectively known as 100 Court House Road, Franklin Square, New York.
BACKGROUND
This action arises from a dispute between Plaintiff, the former law partner of decedent Donald R. Laykind, ("Laykind"), and the decedent's estate regarding Plaintiff's right, as the named beneficiary of an insurance policy on the life of Laykind, to receive the proceeds of the policy; the value of the Laykind & Summers partnership and sale of the property located at 100 Court House Road, Franklin Square, New York, where the partnership maintained its office. Because rival claims to the proceeds of the insurance policy were made by Plaintiff, the named beneficiary, and Sandra Laykind, the executrix of Laykind's estate, the insurer, Companion Life Insurance, has refused to release the insurance proceeds.
The Laykind & Summers partnership, initially known as Laykind Summers & Chianese, was formed in or about January, 1981. After Albert Chianese withdrew from the partnership in approximately April, 1986, the partnership continued as Laykind & Summers until Laykind's death on December 20, 2004.
On March 21, 1983, the then partners executed a Partnership "Buy and Sell" Agreement of which the first, third, fourth and sixth articles are of particular significance in this action.
The first article sets forth the rights and obligations of the parties regarding the transfer of a partnership interest upon the death of a partner; to wit:[U]pon the death of a partner, the partnership shall be continue by the surviving partner and the surviving partners shall purchase, and the legal representative of the estate of the deceased partner shall sell, the interest of the deceased partner for the price established in accordance with the provisions of Article Third, and upon the terms and conditions as set forth in Article Sixth.
While the third article states that the value of the respective partnership interest of each of the partners was $150,000, it further provides, in relevant part, that: [w]ithin thirty days after the end of each fiscal year of the partnership, the partners shall collectively redetermine the value of their respective partnership interests for purposes of this agreement * * * If the partners fail to redetermine the value of their respective partnership interests for a particular year, the last previously established value shall control, except that if the partners have not so established a value within two years prior to the death or withdrawal of a partner, the value of the partner's interest shall be determined by the independent certified public accountant retained by the partnership to audit its books. If no such accountant shall be retained, said value shall be determined by any other certified public accountant selected by mutual agreement of the surviving or remaining partners and the withdrawing partner or the legal representative of the estate of the deceased partner."
To insure the availability of funds for the purchase of a deceased partner's interest, the fourth article states that the partners have purchased insurance on the life of each partner. In the [*2]event of a partner's death, the sixth article states that:
"the surviving partner shall immediately collect the proceeds of the policies owned by it on the life of the deceased partner for purposes of this agreement, and shall apply as much of said proceeds as may be necessary to purchase the partnership interest of the deceased partner at the price established in accordance with the provisions of Article Third." (Emphasis added.)
While Plaintiff claims full entitlement to the $150,000. proceeds of the Companion Life Insurance policy [No. CL 5002527C] which the firm purchased on the life of the decedent, Defendant maintains that the proceeds of said policy should not be disbursed until agreement is reached vis-a-vis the value of Laykind's interest in the Summers & Laykind partnership.
DISCUSSION
When the parties set down their agreement in a clear, complete document, their writing should, as a rule, be enforced according to its terms. R/S Assoc. v. New York Job Development Auth., 98 NY2d 29, 32 (2002). Where, as here, the meaning of a contract is plain and clear it is entitled to be enforced according to its terms and not to be subverted by straining to find an ambiguity which otherwise might not be thought to exist. Uribe v. Merchants Bank of NY, 91 NY2d 336, 341 (1998). Whether or not a writing is ambiguous is a question of law to be resolved by the court. W.W.W. Associates, Inc. v. Giancontieri, 77 NY2d 157, 162 (1990). The threshold issue of whether a writing is ambiguous is the exclusive province of the court. Sutton v. East River Savings Bank, 55 NY2d 550, 554 (1982).
In the view of this Court, the relevant articles of the Partnership "Buy and Sell" Agreement are clear and unambiguous on their face. Defendant's attempt to characterize them as ambiguous, without indicating any specific manner in which the agreement is ambiguous, totally lacks merit. Clearly, Plaintiff is the undisputed beneficiary of the subject policy and is entitled to receive the insurance proceeds, which were intended by the parties to provide a fund to be used by a surviving partner, in this case Plaintiff, to purchase or "buy-out" a deceased partner's interest in the law firm. Defendant has failed to show that the relevant provisions of the agreement are reasonably susceptible of more than one interpretation (Chimart Assoc. v. Paul, 66 NY2d 571, 573 [1986]), or to raise a factual issue as to Plaintiff's entitlement to receive the subject proceeds.
Under the circumstances, the procedural bars raised by Defendant as to the manner in which Plaintiff has framed the complaint and set forth the requested relief are hypertechnical and without merit. The Court finds that the Companion Life Insurance Company is not a necessary party without whose joinder the requested relief is impossible. See, Spector v. Toys R Us, Inc., 72 AD3d 358 (2nd Dept. 2004).
Plaintiff has asked this Court to declare his right to receive the proceeds of a certain insurance policy, pursuant to his designation as beneficiary, and in accordance with the applicable provisions of the Partnership "Buy and Sell" Agreement. While there is no question that Plaintiff is entitled to receive the insurance proceeds at issue, there is, however, a question as to the value of decedent's interest in the partnership.
Rather than proceed in accordance with the mechanism set forth in the third article of the Agreement with respect to the value of a partner's interest, each of the parties retained their own expert to determine said value. Not surprisingly, each obtained a different result. Defendant's expert values Laykind's 50% interest in Laykind & Summers, on a debt-free basis, as $150,000. The valuation is an estimate based on generally accepted techniques and does not represent an [*3]opinion as to the liquidation or "break-up" value of the practice. Plaintiff's expert, using an income approach and net asset approach, estimated the value of a 100% interest in the Laykind & Summers partnership to be $92,000 which would mean that Laykind's 50% interest is worth $46,000; considerably less than the figure indicated by Defendant's expert.Given the wide disparity in valuations offered by Plaintiff and Defendant with respect to the issue of the value of Laykind's 50% interest in Laykind & Summers, a hearing is required on the issue of valuation.
Accordingly, it is,
ORDERED, THAT Plaintiff'S motion for summary judgment is granted to the extent that the matter is set down for a conference on May 12, 2006 at 9:30 a.m. to schedule a framed issue hearing to determine the value of the interest of Donald R. Laykind in the Laykind & Summers partnership; and it is further,
ORDERED, that Plaintiff is entitled to receive the proceeds of Companion Life Insurance Company policy [CL5002527] on the life of decedent, Donald R. Laykind. The proceeds shall be placed in an interest bearing bank account jointly controlled by Plaintiff and David J. Sutton, Esq., attorney for Defendant pending further order of this Court or written agreement of the parties; and it is further,
ORDERED,that branch of Plaintiff's motion which seeks partition and sale of the property known collectively as 100 Court House Road, Franklin Square, New York is held in abeyance until the issue of valuation is resolved. The Court notes the representation by Defendant's attorney that the property has been listed with an established real estate broker in Franklin Square. If Defendant has not already done so, it shall provide Plaintiff with a copy of the listing agreement for the property, any advertisements relating thereto as well as a synopsis of the activity engendered by the listing within ten (10) days of service of a copy of this order by Plaintiff upon Defendant's attorney. Nothing herein shall be construed as a bar against or limitation upon the parties agreeing to moving forward with the sale of the property
This constitutes the decision and Order of the Court.
Dated: Mineola, NY________________________________
March 31, 2006 Hon. LEONARD B. AUSTIN, J.S.C.
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