Matter of Penn

[*1] Matter of Penn 2006 NY Slip Op 52394(U) [14 Misc 3d 1203(A)] Decided on December 13, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2006
Surrogate's Court, Nassau County

In the Matter of the Application of Robert D. Penn and Lawrence Penaro, as Executors of the Estate of Robert Penn, Sr., a/k/a Robert Penn a/k/a Robert Penaro, Deceased,



324389



The appearances of counsel are as follows:

John G. Farinacci, Esq.(For petitioner)

Jaspan Schlesinger Hoffman LLP

300 Garden City Plaza

Garden City, NY 11530-3324

David J. Sutton, Esq.(For respondent)

1205 Franklin Avenue, Suite 320

Garden City, NY 11530

John B. Riordan, J.

In this contested discovery proceeding (SCPA 2103) the executors contend that the respondent is in possession of cash and a cooperative apartment purchased in the respondent's name with funds that belong to the estate. The respondent now moves for summary judgment dismissing the proceeding and for related relief. For the reasons that follow, the motion is denied.

The petitioners in this proceeding are the decedent's two sons in their capacity as co-executors of his estate; they are also the primary beneficiaries of the estate. The respondent is a long-time friend and employee of the decedent who apparently maintained an amorous relationship with him over a period of many years. The respondent contends that the documentary evidence submitted clearly establishes that the cooperative apartment is her property and that she has thus made out a prima facie case warranting an award of summary judgment in her favor. She further contends that the estate has failed to proffer any evidence to support its claims that she was in a confidential relationship with the decedent and that the circumstances which resulted in the respondent's purchase of the cooperative apartment were the result of undue influence having been exercised upon the decedent by the respondent.

In opposition to the motion, the estate contends that the respondent has conceded that the apartment or the proceeds used to purchase it were a gift to her from the decedent. Thus, the estate argues, the burden is on the respondent to establish all the elements of a gift. The respondent's rejoinder to that contention is that her answer to the petition contained a general denial of the allegations in the petition and that it is therefore incumbent upon the estate to make a prima facie showing that the property at issue is that of the decedent, citing Matter of Massey (143 Misc 794 [1932]) and Matter of Buckler (227 AD 146 [1929]). She also cites to several cases for the proposition that where the respondent in a discovery proceeding never concedes that the decedent ever had title in the property, the burden of proof is on the estate to establish that the circumstances which resulted in the transfer of property was not a gift. However, all of these cases are inapposite to the instant case where the respondent has, in fact, conceded that at least some, if not all, of the money used to purchase the cooperative apartment came from the decedent, albeit not in her answer but in her deposition testimony (e.g. Tr. 44, 46, 52). Thus, the [*2]burden of proof is on the respondent to prove all the elements of a gift (Matter of Abramowitz, 38 AD2d 387 [1972]; Matter of Gilman, 6 Misc 3d 1001A [2004]).

It is unclear from the respondent's testimony whether the joint accounts from which some of the money came were true joint accounts or were merely for the convenience of the decedent (see, e.g., Tr. 19, 40, 41, 44). It is clear that in the days preceding the closing on the apartment that substantial sums of money were transferred to permit the respondent to close on the apartment and that the closing documents indicate she is the sole owner. She concedes, however, that the reason the decedent's name is not on the stock and lease is that the board at the cooperative does not permit one person to own more than one unit at the premises. While she argues that the decedent intended the apartment to be the respondent 's sole property and that the decedent made a statement to that effect to a realtor on premises at the cooperative, there is no such supporting affidavit annexed to the moving papers nor, evidently, was this realtor ever deposed. In fact, the only testimony offered in support of the motion is that of the respondent herself. The Court of Appeals has held, "[e]mphatically, evidence excludable under the Dead Man's Statute (CPLR 4519) should not be used to support summary judgment" (Phillips v Joseph Kantor & Co., 31 NY2d 307, 313 [1972]; 9 Warren 's Heaton on Surrogate's Court, § 116.03[3], 7th ed.). While evidence excludable by CPLR 4519 may be used in opposition to a motion for summary judgment, it may not be used to support such a motion (Matter of Vetri, NYLJ, Feb. 26, 1999 at 32).

The respondent has, therefore, failed to establish her right to judgment as a matter of law and the court in such circumstances need not even consider the sufficiency of the opposing papers (Winegrad v New York Univ. Medical Center, 64 NY2d 851, 853 [1985]). The court notes, nevertheless, that even if the respondent had made out a prima facie case, there are clearly triable issues of fact which preclude the granting of summary judgment to either side (Sillman v Twentieth Century Fox Corp., 3 NY2d 395, 404 [1957]).

Accordingly, the respondent's motion is denied in its entirety. This matter will appear on the court's calendar for conference on January 3, 2007 at 9:30 a.m. to schedule the matter for trial or enter a scheduling order for any remaining discovery.

Settle order.

Dated: December 13, 2006

JOHN B. RIORDAN

Judge of the

Surrogate's Court [*3]