Scicchitano v Algazi

[*1] Scicchitano v Algazi 2006 NY Slip Op 50857(U) [12 Misc 3d 1152(A)] Decided on April 10, 2006 Supreme Court, Nassau County Robbins, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 10, 2006
Supreme Court, Nassau County

Carol Ann Scicchitano, as the Executrix of the Estate of Frank Scicchitano, Deceased, Plaintiff,

against

Michael Algazi, as the CTA Administrator of the Estate of Janice Kaufman a/k/a Janice Herman, Deceased, Defendants,



013328-03

Tammy S. Robbins, J.

Defendant moves this court under Index No.008628-04 for an order pursuant to CPLR

§3212 granting summary judgment to the defendant and dismissing the plaintiff's complaint in its entirety. Additionally, Defendant has moved this court under Index No.013328-03 for leave to reargue the decision and order of the Honorable John P. Dunne, dated September 30, 2005, which denied defendant's motion for summary judgment dismissing the complaint and denied summary judgment as to the defendant's counterclaims for wrongful death and conscious pain and suffering. Plaintiff has submitted affirmations in opposition to both motions.

The causes of action arise out of the deaths of both Janice Kaufman and Frank Scicchitano. Janice Kaufman and Frank Scicchitano had been involved in a relationship for approximately thirteen years. They were tenants-in-common and co-owners of a condominium apartment located at 230 West Broadway, Long Beach, New York. On February 27, 2003, Frank Scicchitano conveyed his ownership of the property to Janice Kaufman. On May 12, 2003, both Frank Scicchitano and Janice Kaufman were discovered dead in the Long Beach condominium. After an investigation, the police determined that Frank Scicchitano killed Janice Kaufman and then committed suicide.

After their deaths, Frank Scicchitano's estate brought an action seeking to set aside the transfer of property by Frank Scicchitano to Janice Kaufman. In the complaint, plaintiff alleges that Frank Scicchitano lacked the necessary intent to make an effective transfer of the property since he was under duress and undue influence as a result of certain acts undertaken by Janice Kaufman. The complaint alleges that for a period of time prior to February 27, 2003, Janice Kaufman threatened to disclose that Frank Scicchitano committed certain acts of sexual indiscretion and professional indiscretion. The complaint alleges that all of these allegations are [*2]untrue, yet nevertheless, this conduct had an adverse impact on Frank Scicchitano's psychological well being and led to the deterioration of his mental condition which caused him to convey the property against his will. The complaint further alleges that any agreement made between the individuals was illegal and has no force since it was based upon conduct constituting extortion and coercion and therefore must be set aside. Defendant filed an Answer denying each and every allegation made by Plaintiff and asserted counter-claims against Plaintiff's decedent for causing the wrongful death of Defendant's decedent.

On June 25, 2004, Plaintiff filed a second complaint alleging that Janice Kaufman caused the wrongful death of Frank Scicchitano by stabbing him multiple times with a knife. Presumably, as an alternate theory of liability, the complaint also alleges that Janice Kaufman threatened and extorted property from Frank Scicchitano which resulted in him suffering from deep depression and causing him to ultimately commit suicide. Defendant filed an Answer to the second action denying the allegations and submitting counterclaims pursuant to 22 NYCRR §130 demanding an award of costs and sanctions against the Plaintiff and her attorney and to reimburse all actual expenses and reasonable attorneys fees resulting from the frivolous conduct in having commenced and continued this action without a legal or factual basis. D

efendant's Motion to Reargue

Defendant has moved to reargue the denial of the motion for summary judgment in the first action. CPLR § 2221 states that a motion for leave to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion. This court finds that Defendant has made a sufficient showing entitling him leave to reargue. Justice Dunne has retired from the bench, thus this court will hear Defendant's motion.

Defendant initially moved this court for summary judgment claiming that Frank Scicchitano was not unduly influenced or coerced into conveying his share of the condominium to Janice Kaufman and claiming that the evidence adduced established that Frank Scicchitano killed Janice Kaufman on May 12, 2003. Plaintiff relies on his Affirmation in Opposition submitted in response to Defendant's initial motion papers. C

auses of Action Seeking to Set Aside Conveyance of Title of the Condominium

Plaintiff continues to maintain that there is a question of fact as to the voluntariness of the conveyance and execution of the agreement between the two decedents and there is a question of fact surrounding the circumstances of the deaths of Frank Scicchitano and Janice Kaufman. Plaintiff provides the deposition testimony of Bernadette Berger, the deposition testimony of Diane Pyne, the affidavit of Carol Ann Scicchitano, the notes of Dr. Edgar Gerstein, the three suicide notes of the Plaintiff's decedent, other notes of the decedents, a tape recording from early 2000, a tape recording of a conversation between the two decedents from May 8, 2003, and crime scene photographs (see Affirmation of Thomas P. McCloskey (Pl's Aff.)). This court has reviewed the tape recordings submitted by Plaintiff. Irregardless of the evidentiary hurdles concerning the authenticity of the tapes, the authenticity of the voices on the tapes, and the chain of custody issues which may be raised at trial, courts "have recognized that proof which might be inadmissible at trial may, nevertheless, be considered in opposition to a motion for summary judgment" (Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453).

One of the tapes purports to be a recording of a conversation between Frank Scicchitano and Janice Kaufman. The male voice on the tape, identified by Plaintiff in her affidavit as the voice of her father Frank Scicchitano, is making attempts to induce the female voice, alleged to [*3]be Janice Kaufman, to make admissions as to extortion. Plaintiff alleges that the female voice on the tape is silent in response to these inducements. This representation by Plaintiff is untrue, in fact, the female voice denies any allegation of extortion. The tape recording reflects a tone and manner of conversation between these two individuals which was cordial and amicable, there was no threatening or intimidating remarks or intonations heard on the recording. As to the recording from early 2000, which is held out to be a message left by Janice Kaufman to Frank Scicchitano's son, this message does not provide any proof of allegations concerning an agreement, threats, or accusations regarding bribery and extortion between Janice Kaufman and Frank Scicchitano.

Plaintiff relies on the deposition of Diane Pyne, Frank Scicchitano's secretary. Diane Pyne stated that on one occasion Janice Kaufman said that she knew things about Frank Scicchitano that could get him in trouble (Pl's Aff., Exhibit F, pg. 55). She stated that she never concluded from these statements that Janice Kaufman was blackmailing Frank Scicchitano (Id). She stated she had no further discussions about this comment and she never learned any further details concerning this comment (Id. at pg. 37).

Bernadette Berger testified that she dated Frank Scicchitano for a period of time prior to his death and that during the entire time that she knew him, he never stated that he was paying money to stop Janice Kaufman from threatening him or his family (Pl's Aff. Exhibit D, pg. 19). She testified that a woman left a message on her answering machine stating that she and Frank Scicchitano would be in the newspapers (Id. at pg. 24). She also stated that Frank Scicchitano told her that Janice Kaufman had come to his job in Nassau County and claimed that he molested her daughters (Id. at pg. 28). She stated that she "thinks" Frank Scicchitano's secretary was present when this incident occurred. The secretary, Diane Pyne testified that Janice Kaufman never came to her office and denied having any knowledge of this incident (Pl's Aff. Exhibit F, pg.55).

Further, Plaintiff provides copies of photographs of three suicide notes left by Frank Scicchitano (Pl's Aff., Exhibit H). The notes state the terms "extortion and bribery" yet they do not state Janice Kaufman's name (Id.). Plaintiff also provides her own affidavit (Pl's Aff., Exhibit B), which mostly contains statements made by other individuals. Plaintiff does however state that she observed her father's mental and physical condition to have deteriorated prior to his death (Id.).

On a motion for summary judgment, this court is required to look at the facts in the light most favorable to the non-moving party who must be afforded the benefit of every reasonable inference (see Negri v. Stop and Shop, Inc., 65 NY2d 625). As well, 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 eliminate any material issues of fact from the case (see Winegrad v. New York University Medical Center, 64 NY2d 851 citing Zuckerman v. City of New York, 49 NY2d 557).

There has been no evidence presented from which a reasonable inference could be drawn that there was moral coercion which could not be resisted or which constrained the decedent to do that which was against his free will and desire (see Matter of Chiurazzi, 296 AD2d 406 citing Children's Aid Society of New York v Loveridge, 70 NY 387). Plaintiff states that her father made the February 27, 2003 conveyance because he was threatened by Janice Kaufman (Pl's Aff., Exhibit B) and, that her father's mental and physical condition had deteriorated prior to his [*4]death (Id.). However, there has been no evidence that Frank Scicchitano was in a weakened condition, that he suffered from personality changes, or that he was not in control of his finances. The evidence presented to this court reveals that the deed to the condominium had been changed three different times throughout the thirteen year relationship between the decedents (see Affirmation of Defendant (Def' Aff.), Exhibit L). Furthermore, Bernadette Berger testified that in and around January and February of 2003, Frank Scicchitano seemed bright and articulate and he understood who he was and he seemed competent to make decisions. Additionally, the records of Dr. Gerstein, Frank Scicchitano's therapist, indicate that Frank Scicchitano had no anxiety on May 8, 2003, that he had found a new job and was proud of his ability "to always come out on top" (see Def's Aff., Exhibit Q). Moreover, the records indicate that Frank Scicchitano felt in control of himself and better able to resolve conflicts (Id.). "Without a showing that undue influence was actually exerted upon the decedent, mere speculation that opportunity and motive to exert such influence existed is insufficient" to raise a question of fact for the jury (see Matter of Chiurazzi, supra citing Matter of Fiumara, 47 NY2d 845; see also In the Matter of Tracy, 195 AD2d 469; Hedges v Presbyterian Church Society of Bridgehampton, 100 AD2d 586 citing Matter of Walther, 6 NY2d 49). As Justice Dunne stated in his decision of September 22, 2005,

It is not sufficient to establish merely that

threats were uttered. It must be shown that

those threats constrained the will of the promisor

and induced the promise or compelled the act

(Morey v Sings, 174 AD2d 870). Duress requires

a showing of a wrongful threat and the effect of

precluding the exercise of free will (Kranitz v

Strober Organization, Inc., 181 AD2d 441).

Applying these principles to the case at bar, the

plaintiff has to provide evidence that a wrongful

threat was made by Janice Kaufman to Frank

Scicchitano of which he was aware and that the

threat precluded the existence of free will by Frank

Scicchitano.

For reasons unknown to this court, Justice Dunne then concludes that the submissions presented to the court establish that an issue of fact exists as to whether undue influence was exerted to procure the conveyance at issue. Justice Dunne does not specify which issue of fact had been presented by Plaintiff. He cites to the case of Casucci v Casucci, 8 AD3d 523 in support of his conclusion. In the Casucci case, the plaintiff sued his two brothers seeking to set aside two deeds transferring title from their father to the two defendant brothers. The court found that where the transfers occurred eight days prior to the father's death, while he was being cared for in the home of one of the defendants, and where the father significantly altered the testamentary plan contained in a will executed only two months earlier, summary judgment was properly denied as there was an issue fact as to whether undue influence was exerted to procure the transfers at issue (Casucci supra, 8 AD3d 523). This court finds that in its prior decision, the law as it applies to the facts of this case was misapprehended by the court (In re Estate of Ancell, 191 Misc 2d 252). As such, Defendant's motion for summary judgment as to Plaintiff's causes of [*5]action alleged in Index Number 013328-03, is granted. D

efendant's Counter-Claim for Wrongful Death.

Defendant has provided the City of Long Beach Police Department reports, the Nassau County Police Department reports including Detectives' Reports and Forensic Reports, the Certificates of Death, the Nassau County Medical Examiner reports including Reports of Autopsy, and an affidavit from Mark L. Taff, a board certified forensic and anatomical pathologist. The police reports and the autopsy reports conclude that Frank Scicchitano killed Janice Kaufman. Janice Kaufman was found lying on her kitchen floor fully dressed (see Def's Aff., Exhibit G). The Medical Examiner determined that Janice Kaufman suffered fourteen stab wounds to her torso with perforation of the aorta, lungs and liver resulting in her death (Id.). Additionally, Janice Kaufman had multiple superficial stab wounds to her hands which are concluded to be defensive wounds (see Def's Aff., Exhibit V).

Furthermore, the police reports indicate that Frank Scicchitano was found lying nude in the bathroom shower stall of the apartment (see Def's Aff., Exhibit F). His clothes were found neatly folded on the dining room table along with a suicide note (Id.). The Medical Examiner determined that Frank Scicchitano died from hemorrhage from transected antecubital veins and tibial vein due to multiple incised wounds of the forearms, legs and neck (Id.). The police reports and the autopsy reports conclude that Frank Scicchitano committed suicide. Dr. Taff's affidavit indicate that he agrees with the conclusions of the Medical Examiner (see Def's Aff., Exhibit V). Additionally, the records of Dr. Gerstein indicate that at some point in time in the past, Frank Scicchitano had scratched the back of his hand with a knife and that Frank Scicchitano admitted that he was testing how he would take physical pain (see Def's Aff., Exhibit Q).

Previously, Justice Dunne stated that Public Health Law § 4103(3) provides that "a properly certified death certificate is prima facie evidence in all courts and places of the facts therein stated'" (Stein v Lebowitz-Pine View Hotel, Inc., 111 AD2d 572 quoting Anderson v Commercial Travelers Mut. Acc. Ass'n., 73 AD2d 769). A death certificate, as supported by a medical examiner's report, is properly accepted as proof of causation (CPLR 4520). Here, Defendant has provided proof in addition to a death certificate, to wit the autopsy reports, police homicide investigation reports, and the affidavit of a forensic and anatomical pathologist. The court finds that the Defendant has established a prima facie showing that Frank Scicchitano killed Janice Kaufman entitling Defendant to judgment as a matter of law (see Matter of Low, 22 AD3d 666 citing Zuckerman v City of New York, 49 NY2d 557; Matter of Covert, 97 NY2d 68; Riggs v Palmer, 115 NY 506).

Once a prima facie showing has been made, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact (Johnson v. Queens-Long Island Medical Group, 2005 WL 3118028). Plaintiff maintains that there are issues of fact disputing Defendant's counter-claim that Frank Scicchitano caused the wrongful death of Janice Kaufman. However, the only submission offered by Plaintiff is her own statement that not all of the knife wounds on Frank Scicchitano's body were self-inflicted. Plaintiff does not present any evidence to refute the objective evidence submitted to this court. The Plaintiff's "speculative and conclusory allegations suggesting that [Frank Scicchitano] was not the killer fail[s] to raise a triable issue of fact" (Matter of Low, supra, citing Zuckerman, supra).

This court finds that there were facts which were overlooked and misapprehended by this [*6]court in its previous decision. Defendant's motion for summary judgment as to the counter-claim for wrongful death is granted. M

otion for Summary Judgment, Index Number 008628-04

As to Defendant's motion for summary judgment for the second complaint filed by Plaintiff alleging wrongful death, Defendant claims that Plaintiff has failed to prove the claim that threats made by Janice Kaufman caused the depression and suicide of Frank Scicchitano. Defendant again submitted the police reports from the City of Long Beach and the County of Nassau including Detectives' Reports and Forensic Reports, the Certificates of Death, the Nassau County Medical Examiner reports including Reports of Autopsy, and the affidavit from Mark L. Taff, M.D. As stated above, these submissions establish a prima facie showing entitling Defendant to judgment as a matter of law (see Matter of Low, supra citing Zuckerman, supra; Matter of Covert, supra).

Plaintiff contends that there are issues of fact supporting the claims that Janice Kaufman caused the wrongful death of Frank Scicchitano by stabbing him multiple times with a knife or that Janice Kaufman threatened and extorted property from Frank Scicchitano which resulted in him suffering from deep depression and causing him to ultimately commit suicide. Plaintiff once again relies on the deposition testimony of Bernadette Berger, the deposition testimony of Diane Pyne, the affidavit of Carol Ann Scicchitano, the three suicide notes of the Plaintiff's decedent, the tape recording from early 2000 and, the tape recording of the conversation between the two decedents from May 8, 2003 (see Pl's Aff.). As stated above, the tape recording fails to demonstrate any evidence of threats or intimidations. In fact, the notes from Frank Scicchitano to Janice Kaufman indicate that he was very much in love with her and that he was trying to continue to have a relationship with her (see Def's Aff., Exhibit H, see Def's Aff.(Index No. 013328-03), Exhibit P). Importantly, Frank Scicchitano states in his letters that he wishes to financially support Janice Kaufman (Id.). Moreover Diane Pyne stated that she never concluded that Janice Kaufman was blackmailing Frank Scicchitano (Pl's Aff., Exhibit F, pg. 55) and, Bernadette Berger testified that Frank Scicchitano never stated that he was paying money to stop Janice Kaufman from threatening him or his family (Pl's Aff. Exhibit D, pg. 19).

The only proof that Frank Scicchitano was in a deep depression is Plaintiff's statements that she observed her father's mental and physical condition to have deteriorated prior to his death (Id.). These statements are insufficient to establish an issue of fact as to whether Janice Kaufman's actions caused Frank Scicchitano's depression and ultimately his suicide. Although, "there is neither public policy nor precedent barring recovery for suicide of a tortiously injured person driven insane' by the consequences of the tortious act (Fuller v Preis, 35 NY2d 425 citing Restatement, 2d Torts, s 455; Prosser, Torts (4th ed.), Op. Cit., pp. 280-281; see, generally, Schwartz, Civil Liability for Causing Suicide: A Synthesis of Law and Psychiatry, 24 Vand.L.Rev. 217, 255), such recovery is only warranted where there is a significant causal connection between the alleged acts and the suicide (Id.). Even affording the Plaintiff the benefit of every inference to be gleaned from her submissions, she has not presented any evidence to support her claim that threats made by Janice Kaufman caused the depression and suicide of Frank Scicchitano. Plaintiff is required to "set forth specific facts showing that there is a genuine issue for trial" (Anderson v Loberty Lobby, Inc., 477 U.S. 242). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts" (Matsushita Electric Industrial Co., Ltd. v Zenith Radio Corp., 475 U.S. 574). Here, "the causal [*7]nexus [is] too tenuous to permit a jury to speculate' as to the proximate cause of the suicide" (Fuller v Preis supra, 35 NY2d 425 citing Corrieri v Cole, 26 NY2d 932).

Furthermore, with regard to Plaintiff's alternative theory that Janice Kaufman killed Frank Scicchitano (as alleged in Plaintiff's complaint although not argued in her Opposition papers), this claim is not supported or substantiated by any evidence. Plaintiff's mere allegations are insufficient to defeat the findings of the Police Department and the Chief Medical Examiner that Janice Kaufman's cause of death was a homicide and Frank Scicchitano's cause of death was suicide. The only argument submitted in support of this proposition is Plaintiff's speculative and conclusory allegation that not all of the knife wounds on Frank Scicchitano's body were self-inflicted. Again, Plaintiff does not present any evidence to refute the conclusion of the police and the Medical Examiner that Frank Scicchitano killed Janice Kaufman. Plaintiff has failed to raise a triable issue of fact; therefore, Defendant's motion for summary judgment as to Plaintiff's complaint alleging wrongful death, Index No. 008628-04, is granted.

Finally, Defendant demands an award of costs and sanctions against the Plaintiff and her attorney and reimbursement for all actual expenses and reasonable attorneys fees pursuant to 22 NYCRR §130 resulting from the frivolous conduct in having commenced and continued this action without a legal or factual basis. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party (22 NYCRR §130).

On June 25, 2004, Plaintiff filed the complaint alleging that Janice Kaufman caused the wrongful death of Frank Scicchitano by stabbing him multiple times with a knife or, in the alternative, alleging that Janice Kaufman threatened and extorted property from Frank Scicchitano which resulted in him suffering from deep depression and causing him to ultimately commit suicide. Four days later, on June 29, 2004, the Plaintiff was deposed and admitted that she had no evidence to support her claims. At her deposition she testified that her father died because he was "blackmailed to death" (see Def's Aff., Exhibit H). Plaintiff testified that she was aware that the Medical Examiner determined her father's cause of death to be suicide (Id.). When asked if she had any documents to indicate that her father's death was anything other than suicide, she responded that she did not have any such documents (Id). When asked what if any information she had to form her belief that her father did not kill Janice Kaufman, she stated that she did not have any information (Id.). When Plaintiff was asked if she was in possession of any evidence that would indicate that her father was not the cause of Janice Kaufman's death, she stated that she had no such information, no documents, and no material to support this assertion (Id.). "It is clear that Plaintiff and/or its counsel have demonstrated a callous and reckless disregard for the truth and the law. Sanctions appear to be more than appropriate" (Grandell Rehabilitation & Nursing Home, Inc. v Devlin, 10 Misc 3d 1045 (A). Counsel for defendant shall submit to this court his costs, actual expenses and reasonable attorneys fees resulting from having to defend the frivolous conduct of Plaintiff and her attorney in filing the second complaint, Index Number 008628-04, without having a legal or factual basis.

In accordance with the foregoing decision of this court, all of Plaintiff's causes of action are hereby dismissed. Defendant's motion for summary judgment as to his wrongful death claim [*8]is granted in its entirety and the matter is set down for trial on the issue of damages only. This case is hereby referred to the Calendar Control Part to be placed on the trial calendar.

Dated:April 10, 2006

It is So Ordered

Honorable Tammy S. Robbins