Viola v Viola

[*1] Viola v Viola 2009 NY Slip Op 50892(U) [23 Misc 3d 1122(A)] Decided on May 12, 2009 Supreme Court, Kings County Schack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 12, 2009
Supreme Court, Kings County

Peter Viola, Plaintiff,

against

Kathleen Viola, Individually and as EXECUTRIX OF THE ESTATE OF FRANK VIOLA, THE ESTATE OF FRANK VIOLA, DUPASQUIER CO., INC., and PERSHING, LLC, Defendants.



40233/07



Plaintiff

Jon A Lefkowitz

Brooklyn NY Y

Defendant - Kathleen Viola

Jules A Epstein PC

Garden City NY

Defendant - Du Pasquiier & Co, Inc

O'Hare Parnagian LLP

NY NY

Arthur M. Schack, J.

Decedent FRANK VIOLA (FRANK) died intestate on October 3, 2007 [exhibit D of [*2]motion - death certificate] at the age of 87 years. He was married to defendant KATHLEEN VIOLA (KATHLEEN), who received letters of administration from Surrogate's Court, Kings County [exhibit 1 of cross-motion] on November 19, 2007. Plaintiff PETER VIOLA (PETER), decedent's nephew, claims in his two causes of action in the instant case: ownership of decedent's residence, 110 Bay 49th Street, Brooklyn, New York (Block 6916, Lot 22, County of Kings) by virtue of a constructive trust; and, ownership of a brokerage account in decedent's name as the surviving joint tenant of decedent.

Plaintiff PETER moves for summary judgment, pursuant to CPLR Rule 3212, and defendant KATHLEEN cross-moves for summary judgment and dismissal of PETER's complaint, pursuant to CPLR Rule 3212. There are no triable issues of fact. PETER's motion is denied and KATHLEEN's cross-motion is granted.

Background

FRANK purchased the property at 110 Bay 49th Street on July 7, 1978. The deed was recorded on August 4, 1978 in Reel 1010, page 1771, in the Kings County Office of the City Register of the New York City Department of Finance. FRANK was the sole owner of the premises. Plaintiff's motion fails to address the constructive trust claims in the instant complaint. The complaint, in ¶ 8, states "Frank died on 10/2/07. Ownership of the property would ordinarily pass by operation of law to his surviving spouse, Kathleen." The complaint alleges that PETER and FRANK had a joint bank account in which they both made deposits and from which PETER paid FRANK'S expenses and bills. PETER alleges that FRANK repeatedly said that he wanted PETER to own the house after his death, with KATHLEEN allowed to live in the house. Further, PETER alleges that he paid the tax, water and utility bills for the house from 2004 to the present. PETER admits that KATHLEEN continues to live in the premises. However, he claims that he is entitled to ownership of FRANK's house through a constructive trust, pursuant to Article 15 of the Real Property Actions and Proceedings Law (RPAPL).

Defendant KATHLEEN cross-moves for summary judgment and dismissal of the constructive trust cause of action in that she, as FRANK's sole heir at law and distributee is entitled to her own her home at 110 Bay 49th Street. KATHLEEN claims that in the absence of a will, FRANK's alleged oral promise or expression of intent to bequeath 110 Bay 49th Street to PETER is ineffective to convey title or impose a constructive trust. Further, PETER, at his July 8, 2008 examination before trial [exhibit 8 of cross-motion], testified at p. 14, l. 25 - p. 15, l. 12:

Q. To your knowledge, is there any writing by Frank where he says he wants

you to have the house?

A. No, sir.

Q. There is no letter?

A. No, sir.

Q. No memo?

A. No sir.

Q. No will?

A. No, sir.

Q. And, no deed?

A. No, sir.

PETER's second cause of action alleges that FRANK had a brokerage account with [*3]defendant DU PASQUIER & CO., INC. (DU PASQUIER). Defendant PERSHING, LLC is the clearing house. PETER alleges that in October 2006 both FRANK and PETER signed forms provided by DU PASQUIER [exhibit B of motion] requesting that FRANK's brokerage account be held by FRANK and PETER as joint tenants with right of survivorship. Helen Shaw, a DU PASQUIER representative, sent FRANK various forms, and in a letter, dated October 25, 2006 [exhibit C of motion and exhibit 7 of cross motion], she informed FRANK that he had to fill in various information, including signatures and a letter of authorization to transfer his assets from an individual account to a joint account. PETER claims that he mailed this information to DU PASQUIER. Ms. Shaw wrote back to FRANK, in a letter dated November 15, 2006 [exhibit E of motion], returning the forms to FRANK and asking FRANK and PETER to fill in identification information required by the federal Patriot Act and sign where she indicated on the forms. PETER claims that since both FRANK and PETER were American citizens, and DU PASQUIER knew their identity it was not necessary for them to provide identification and that they had properly signed the application. Further, PETER alleges that it wasn't necessary to have a signature card declaring a joint tenancy when a joint tenancy which can be established in other ways, pursuant to Banking Law § 675 (b). Thus, the proceeds of the joint account must pass to him outside of FRANK's estate and not to KATHLEEN.

KATHLEEN argues that FRANK, on the date of his death, was the sole owner of the DU PASQUIER brokerage account at issue, and that whatever application FRANK allegedly submitted to DU PASQUIER to establish a joint account with the right of survivorship with PETER was incomplete and not delivered in completed form to DU PASQUIER. Also, FRANK took no action, to return the information requested by Helen Shaw on November 15, 2006 to DU PASQUIER, before his October 3, 2007 death. With respect to the incomplete joint account application, little or none of the information was provided by FRANK. PETER, at his EBT, testified: that FRANK did not complete the DU PASQUIER application [p. 34]; much of the writing on the application was PETER's [pp. 37 and 38]; and, PETER mailed the application to DU PASQUIER [pp. 40 and 54].

Further, KATHLEEN argues that any testimony from PETER about decedent's representations or intentions is inadmissible under the "Deadman's Statute." (CPLR

§ 4519). Thus, KATHLEEN argues that but for FRANK's bare signature on an application form, mailed by PETER and not decedent, there is scant admissible evidence of any intent by FRANK to establish a joint account with right of survivorship with PETER. Therefore, a joint account was never established and plaintiff's second cause of action must be dismissed.

Summary Judgment Standard 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 Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad v New York University Medical Center, 64 NY2d 851 [1985] Qlisanr, LLC v Hollis Park Manor Nursing Home, Inc., 51 AD3d 651, 652 [2d Dept 2008]; Greenberg v Manlon Realty, 43 AD2d 968, 969 [2nd Dept 1974]). [*4]

CPLR 3212 (b) requires that for a court to grant summary judgment the court must

determine if the movant's papers justify holding as a matter of law "that there is no defense to the cause of action or that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. (Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. (Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 [1979]).

Discussion

With respect to plaintiff's first cause of action, alleging ownership of decedent's house through a constructive trust, plaintiff has not presented any evidence that a constructive trust exists. Defendant KATHLEEN has demonstrated that she is entitled to the house. Plaintiff PETER alleges that decedent FRANK orally stated that he wanted the house to go to plaintiff PETER after his death. However, to bequeath property, there must be a written will, except for nuncupative and holographic wills which do not apply in this case. (Estates, Powers and Trusts Law [EPTL] § § 1-2.19 and 3-2.1). Plaintiff, in ¶ 8 of his complaint, admits that ownership of the house would ordinarily pass to KATHLEEN by operation of law.

Further, plaintiff is unable to prove the existence of a constructive trust. A constructive trust is an equitable remedy, described by Judge Benjamin Cardozo 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." (Beatty v Guggenheim Exploration, Co., 225 NY 380 [1919]). "In the development of the doctrine of constructive trust as a remedy available to courts of equity, the following four requirements were posited: (1) a confidential or fiduciary relation, (2) a promise, (3) a transfer in reliance thereon and (4) unjust enrichment." (Sharp v Komalski, 40 NY2d 119, 121 [1976]). (See Simonds v Simonds, at 241-242; McGrath v Hilding, 41 NY2d 625, 628-629 [1977]; A.G. Homes, LLC v Gerstein, 52 AD2d 546, 547 [2d Dept 2008]; Williams v Eason, 49 AD2d 866 [2d Dept 2008]; O'Brien v Dalessandro, 43 AD2d 1123 [2d Dept 2007]).

In the instant action none of the elements of a constructive trust are alleged, let alone capable of proof by plaintiff. It is clear that there is no fiduciary relationship between plaintiff PETER and decedent FRANK. The Court of Appeals, in EBC 1, Inc. v Goldman, Sachs & Co. (5 NY3d 11, 19-20 [2005]), held:

A fiduciary relationship "exists between two persons when one

of them is under a duty to act for or to give advice for the benefit of

another upon matters within the scope of the relation" (Restatement

[Second] of Torts § 874, Comment a). Such a relationship, necessarily

fact-specific, is grounded in a higher level of trust than normally present

in the marketplace between those involved in arm's length business

transactions (see Northeast Gen. Corp. v Wellington Adv., 82 NY2d 158, [*5]

162 [1993]). Generally, where parties have entered into a contract, courts

look to that agreement "to discover . . . the nexus of [the parties'] relationship

and the particular contractual expression establishing the parties'

interdependency" (see id. at 160). "If the parties . . . do not create their

own relationship of higher trust, courts should not ordinarily transport

them to the higher realm of relationship and fashion the stricter duty for

them" (id. at 162).

Further, no admissible evidence has been presented of any promise, expressed or implied, made by FRANK to PETER. There is no allegation that decedent FRANK, who owned the house for nearly thirty years prior to his death, transferred ownership to plaintiff PETER in reliance upon any promise or fiduciary relationship between PETER and FRANK.

Plaintiff, to demonstrate the last element of a constructive trust, unjust enrichment, would have to allege that KATHLEEN was unjustly enriched at PETER's expense. KATHLEEN, FRANK's widow, is his sole distributee and, as a matter of law she cannot be possibly be unjustly enriched by receiving her intestate inheritance from decedent FRANK.

Plaintiff has failed to raise a material issue of fact with respect to his second cause of action, to declare FRANK's DU PASQUIER brokerage account a joint account with right of survivorship. Plaintiff alleges that decedent intended to gift the brokerage account to plaintiff by establishing a joint account with right of survivorship. The record is clear that the application allegedly submitted by decedent to DU PASQUIER was incomplete. The November 15, 2007-Helen Shaw letter notified FRANK that various signatures were missing and he failed to comply with identification requirements of the Patriot Act. FRANK never completed DU PASQUIER's application process to create a joint account with PETER. Plaintiff fails to establish that decedent made a gift to him of an interest in the DU PASQUIER brokerage account. There is failure to show an intent on FRANK's part to make a transfer to PETER. Any statements or testimony by PETER as to what might have been said by decedent FRANK is barred by CPLR § 4519, the Deadman's Statute. Further, as a result of the incompletion of DU PASQUIER's required paperwork, the account was never delivered to PETER and PETER never accepted the account.

The Court of Appeals, in Gruen v Gruen (68 NY2d 48, 53 [1986], instructed:

First, to make a valid inter vivos gift there must exist the intent on

the part of the donor to make a present transfer; delivery of the gift,

either actual or constructive to the donee; and acceptance by the

donee (Matter of Szabo, 10 NY2d 94, 98 [1961]; Matter of Kelly,

285 NY 139, 150 [dissenting in part opn] [1941; Matter of Van

Alstyne, 207 NY 298, 306 [1913]; Beaver v Beaver, 117 NY 421,

428 [1889]). Second, the proponent of a gift has the burden of [*6]

proving each of these elements by clear and convincing evidence

(Matter of Kelley, supra, at p 150; Matter of Abramowitz, 38 AD2d

387, 389-30 [1d Dept 1972], affd on opn 32NY2d 654 [1973]).

(See Hardy v Rose, 60 AD3d 904 [2d Dept 2009]; Bader v Digney, 55 AD3d 1290 [4th

Dept 2008]; Randall v McGrath, 53 AD3d 736 [3d Dept 2008]; Widom v Mitman, 39 AD3d 374 [1d Dept 2007]; Matter of Giacalone, 143 AD2d 749 [2d Dept 1988]; Matter of Carroll, 100 AD2d 337 [2d Dept 1984]).

The Appellate Division, Second Department, could have been writing about the instant case, in In re Abramowitz' Estate (38 AD2d 387, 389 [2d Dept 1972]), holding that:

One who attempts to establish title to property through a

gift inter vivos as against a decedent's estate has a very heavy burden

to sustain. The proof must be of great probative force and must

clearly establish every element of a valid gift (Matter of Kennedy,

36 AD2d 549 [3d Dept 1971]; Matter of Kaminsky, 17 AD2d 690

[3d Dept 1962]). A decedent's statement that he has given property

to a relative, when contradicted by the fact that he retains control

over the property and continues to receive the income therefrom,

is insufficient to provide clear and convincing proof of a gift, as

there is in such a case no credible proof of delivery . . . By that test,

clear and convincing proof a valid inter vivos gift is factually lacking

in this case.

(See Matter of Grieff, 92 NY2d 341 [1998]; Gordon v Bialystoker Center and Bikur Cholim, Inc., 45 NY2d 692 [1978]; Campbell v Campbell, 50 AD3d 614 [2d Dept 2008]).

Plaintiff's argument that there is the presumption of joint tenancy, pursuant to Banking Law § 675 (b), is unavailing for two reasons. First, defendants DU PASQUIER and PERSHING, LLC are not banking institutions. Second, even if there were banking institutions, "[i]t is clear that Banking Law § 675 applies only where specific words of survivorship appear on the signature card signed by a decedent (see Matter of Burns, 126 AD2d 809, 811 [3d Dept 1987]; Matter of Camarda, 63 AD2d 837, 838 [4th Dept 1978]) [Emphasis added]." (Matter of Timoshevich, 133 AD2d 1011, 1012 [3d Dept 1987]). Plaintiff fails to present any signature cards demonstrating that a joint account with right of survivorship existed with DU PASQUIER. "The Banking Law § 675 presumption provides that the opening of an account in the names of two individuals, and in form to be paid or delivered to either, or the survivor of them,' is prima facie evidence of an intention to create a joint tenancy (Banking Law § 675)." (In re Gilman, 6 Misc 3d 1001 [A] [Sur Ct, Nassau County 2004]). Decedent FRANK continued to receive DU

PASQUIER account statements solely in his name after the November 15, 2006-Helen

Shaw letter was sent to him [exhibit 1 of affirmation in further support of cross-motion]. There [*7]is no evidence that decedent did anything to attempt to add PETER to the account after receiving the November 15, 2006-Helen Shaw letter. In order for the statutory presumption to be triggered, the "survivorship" language must appear on the signature card for the subject account.

Therefore, it is clear that plaintiff is unable to prove the existence of a constructive trust for the ownership of decedent's house and is unable to prove the existence of a joint tenancy with right of survivorship for decedent's brokerage account with DU PASQUIER. On the other hand, defendant KATHLEEN's proof of the absence of a constructive trust for the ownership of decedent's house by plaintiff PETER and of the absence of a joint tenancy with right of survivorship for decedent's brokerage account with DU PASQUIER is clear and unrebutted.

Conclusion

Accordingly, it is

ORDERED, that plaintiff PETER VIOLA's motion, pursuant to CPLR Rule 3212, for summary judgment is denied; and it is further

ORDERED, that defendant KATHLEEN VIOLA's cross-motion, for summary judgment and dismissal of plaintiff PETER VIOLA's entire complaint, pursuant to CPLR

Rule 3212, is granted.

This constitutes the decision and order of the Court.

ENTER

__________________________

Hon. Arthur M. Schack

J. S. C.