Brown v Sawicki
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Brown v Sawicki 2012 NY Slip Op 31480(U) May 15, 2012 Sup Ct, Suffolk County Docket Number: 2006-02064 Judge: Jeffrey Arlen Spinner Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF' THE STATE OF NEW YORK TRIAL TERM PART XXI - COUNTY OF SUFFOLK 1------------------------------------------------------I i EDWARD I T. BROWN Individually And As Executor Of The Estate Of THOMAS W. BROWN, Plaintiff, I , ST ANLEY SAWICKI Individually And As Executor Of The Estate Of VICTOR GRAZIANO As Surviving Tenant By Entirety Of JACQUELINE GRAZIANO, Defendant ------------------------------------------------------~ 2006-02064 I, - against - Index No.: Calendar No.: 2009-00759-EQ :, ,, ,, ,, Trial Date; February 7, 2012 , , , , , , : HON. JEFFREY ARLEN SPINNER, Justice OfThe Supreme Court: This is an action sounding in equity, commenced by the filing of a Notice of Pendency, Summons and Verified Complaint on January 20, 2006. Plaintiff sued Defendant, seeking a reconveyance of certain real property, alleging a lack of consideration for the conveyance, imposition of a constructive trust upon the real property and recovery of reasonable use and occupancy thereof. The matter had originally been claimed for a jury trial but at the time of commencement of the trial, the parties waived a jury, instead proceeding to a bench trial. Both parties were represented by very capable and well respected counsel, both of whom were fully prepared to try the matter and who competently did so. The essential facts in this matter are not in dispute. Plaintiff's Decedent THOMAS W. BROWN, was the owner, in fee simple, of real property known and described as 36 5th Street, West Islip, Town ofIslip, New York and designated as District 0500 Section 457.00 Block 03.00 Lot 030.000 on the Land & Tax Map of Suffolk County (the "Property"). Decedent had obtained fee title to the Property by Deed dated June 23, 1964 which was recorded with the Suffolk County Clerk on July 3, 1964 in Liber 3370 of Conveyances, Page 356. On May 16, 1990, Decedent caused to be prepared a Last Will & Testament whereby he devised all but the sum of$ 5,000.00 ofllis estate to PlaintifTEDWARD T. BROV/N, who was one of his sons. Thereafter and on September 19, 2002, Decedent executed a Deed (the "2002 Deed"), for no consideration, wherein he conveyed the Property to VICTOR GRAZIANO and JACQUELlNE GRAZIANO as Tenants 8y The Entirety, reserving unto himself a LIfe Estate. This Deed was recorded with the Clerk of Suffolk County on October 7, 2002 on Libel' 12213 of Conveyances, Page 359. It is this 2002 Deed that brings these parties to C011l1. Page 1 of 6 [* 2] Decedent THOMAS W. BROvVN (known as "Tom") was a wIdower, his wife having passed away in 1960. Decedent's sister Rose had been friendly with JACQUELINE GRAZIANO (then known as JACQUELlNESAWICKI) when all ofthem had lived in Brooklyn. After Decedent purchased the Property, Ms. Sawicki (called "Jacky") moved into the dwelling as well. She resided upstairs while he occupied the ground noor oethe home. Decedent and Jacky kept company with each other though testimony indicates that there was no romantic relationship between them; apparently their relationship was purely platonic. She accompanied him to family functions and holiday celebrations. For many years, Decedent has expressed to his son, Plaintiff EDWARD T BROWN (known as "Teddy") that he was concerned about \Vhal ",'"ould happen to Jacky ifhe predeceased her. Teddy assured his fnther that he would act in accord with his Wishes; that is, Jacky could stay in the house so long as she lived. Apparently, this was discussed bet\veen father and so all no less than fifteen occasions over a twenty year period and according to pJaintiO"s testimony, he fully intended to honor his Jnther's wishes. Plaintiff called Stephen Kretz Esq. as his first witness. Attorney Kretz testified that Decedent had been a long time client of his law firm and a close friend of his late partner. Attorney Kretz had an extensive conference with Decedent \vhich resulted in his drafting of the May 16, 1990 Will. According to the testimony, Tom came to the office with Jacky and "he seemed concerned about her weH-being and he seemed solicitous of her needs." The Will made no provision for Jacky, the only two legatees being Tom's two sons. Attorney Kretz testified that sometime in 2001, Tom and Jacky appeared at his office without prior notice or an appointment. Tom stated that he "needed something" while Jacky stated that Tom wanted to convey title to the Property to her. Attorney Kretz took Decedent aside, out of Jacky's presence and explained what Jacky had requested whereupon Decedent stated "That's not what I want to do, I didn't know that's what she wanted." He opined that Decedent, though quite elderly, seemed competent, aware and oriented. At10rney Kretz did not prepare a Deed nor any other instrument for Decedent. The COUli is acquainted with Attorney Kretz, is aware of his excellent reputation and completely credits his testimony, finding it to be wholly credible and completely above reproach. Pla1l1tillthen testified on his own behalf. As Executor of the estate of Decedent, he waived the so-called Dead Man's Statute [see CPLR § 4519]. As is relevant to this determination, he had discussed the Will with his father and he understood that he was designated as Executor thereof and that the entire estate (save for a $ 5,000.00 bequesT to his brother) was intended for him. He knew that Jacky resided rent-free in Decedent's house and that they kept company together. He stated that he and his father had often discussed Decedent's wishes that Jacky be allowed to stay in the house iEhe predeceased her. He stated that these discussions occurred repeatedly over a twenty year period, continuing right up to the time of his demise. Although he accepted Jacky without question, he did not care for her husband Victor Graziano. He testi tied that his father and Victor did not get along at alL In order to assist with daily activities of living, Decedent had an aide, Andrea Simmons, known as Angie, who helped him from about 2001 until his death on Pebruary 24. 2005. According to Plaintin~ Angic telephoned hIm in December 01'2004, stating that she "had a rroblem with Victor." Victor Graziano told Angie that she could no longer park her car near the house because he "didn't want blacks there," further stating that "I pay the taxes here and I can throw anyone I want out of here." Sensing that somethmg was amiss, PJaintilTtelephoned Attorney Kretz I,.vho searched the land records and discovered that on September 19, 2002 Decedent had executed a Deed, for no consideration, conveying fee title to the Property to Victor and Jacky and retaining unto himselfa life estate. That Deed \vas recorded 011 October 7, 2002 in Liber 12213 of Conveyances, Page 359_ The Deed was prepared hy Attorney Joseph Leshen who died prior to trial of this cause; however, a transcript of his Page 2 01' 6 [* 3] testimony, pursuant to CPLR Article 31, was received into evidence. Plaintiff then telephoned his rather and told him what he had discovered, saying "Pop, what did you-do? Do you realize you gave away the house?" to which Decedent replied "No, I didn't. What are you talking about?" Plaintiff then contacted the District Attorney who assigned an investigator who, after interviewing the attorney who employed the late Attorney Leshen, stated that he "got amnesia" and that Plaintiffs recourse would be to contact an attorney and proceed with a civil suit. The Court found his testimony to be credible, understanding that as Plaintiff: he was an interested witness, see NoSelt!Orlhv v. New York 298 NY 76 (1948). PlaintiiTthCl1called Andrea Simmons as a witness who testified, in relevant part, that Decedent was "very pleasant and tmsting of others" and that she assisted him at his home for approximately three years on a substantially full time basis. Shc helped with his daily activities including cooking, taking him shopping, taking him to the doctor, taking him to the marina to watch boats, etc. According to her testimony, once hcr duties became almost full time, Jacky stopped coming downstairs except to have Decedent sign checks, some in blank, that she would bring to him According to her, Tom and Victor did not get along at all and although Victor occasionally spoke to Decedent, he was "not nice." She stated that the only reason Tom allowed Victor to stay in the house was out of respect for Jacky. She understood that Tom owned the house and described an incident where she saw Jacky have him sign some papers; her impression was that "he signed something he wasn't supposed to sign and didn't mean to do" and upon seeing her there, Jacky told her bluntly to mind her O\vn business. After Jacky left, she told Decedent "1 think you signed YOLlr ouse h away" to which he replied "Jacky wouldn't do that." She then urged Decedent to contact Plaintiff but he told her that Jacky wouldn't allo\v him to use the telephone and stated "Teddy knows the house goes to his daughter who needs a house" (apparently referring to Plamtiffs widowed daughter). She stated that Decedent told her this on more than one occasion, usually informing her that Jacky could stay in the house so long as she lived but that it was ultimately intended to go to his granddaughter ("It goes to the girl, she has a kid and her husband died, she needs a house"). The Court found her to be a credible witness. PlaintifT also called Denise Florio, Plaintiff's daughter. She testified that her grandfather told her that ifhe died, Jacky would be allowed to stay in the house but that the house \Io,'asntended for her sister Laura i whose husband had died in a snowmobile accident in 2003. She also had spoken with Jacky and told her that the agreement with Decedent was that Jacky could stay in the house so long as she was able to care for herself. Like the preceding t\'-/owitnesses, this witness was determined to be credible by the Court. In opposition, Defendant first called Gloria Conklin, a respite worker from Federation of Organizations. She testitied, in relevant parL that she provided respite services for Decedent three hours thrice weekly for approximately five years ..mostly consisting of meal preparation and walks outside the home. She stated that Tom had expressed to her that he "didn't want Jacky in the street" and that he wanted her to "have a plaee to stay." Although she insisted that she knew nothing about the Deed to the Property, she said that Decedent wanted the house in Jacky's name and that one day she arrived to find him dressed in a suit, prepared to go to an attorney to deed the house to her. In contradiction to all other testimony adduced during the trial, she stated that Tom and Victor "got along together," that they "attended Baptist Church together" and that "He loved Vlctor and wanted Victor to have the house" though she conceded that her knowledge of this was not firsthand (and hence, inadmissible hearsay). She also engaged in what could best be described as unprovoked and inexplicable (ld hominem and gratuitous attacks on Andrea Simmons, asserting that Angie had stolen property from Victor and that Angie wanted to "take Victor for his money." At some point prior Page30f6 [* 4] to the trial of this matter, she had executed an Affidavit dated June 26, 2006 which appeared to contain statements that were in direct contradiction to her sworn trial testimony. Upon being confronted with these discrepancies, she blandly stated that she did not read the Affidavit before signing it (see PimlJinello Ii, SwiO & Co. 253 NY J59 (1930)). The Court did not tind this witness to be at all credible. Defendant finally called Richard O'Donnell to the stand who testified that he was both a long time neighbor and a friend of Decedent. His testimony did little more than cast untoward aspersions upon Plaintiff and his relationship with Decedent and upon Angie, stating that "she's not exactly rememberin' what happened.". He admitted that he was emotionally interested in the outcome of this action. After careful consideration of all of the testimonial evidence and the exhibits introduced at trial and having been afforded the opportunity to evaluate and assess the demeanor and credibility of the witnesses who appeared herein, the Court makes findings of fact and conclusions of law as hereinafter set forth. The Plaintiff demands reconveyance of the Property, claiming that the 2002 Deed was procured through the use of some fraud or, alternatively, the imposition ofa constructive trust thereon. Distilled to its essence, this action falls within the purview of Article 15 of the Real Property Actions and Proceedings Law as one to determine conflicting claims to real property. That having been said, it appears that the elements of Plaintiff's claim effectively Il1voke the provisions of Real Property Law § 265. In order for Plaintiff to prevail, it must be proven that the execution of the 2002 Deed was either the product of undue influence or some other malfeasance on the part of Jacqueline Clraziano or that she breached or otherwise exploited an existing confidential relationship. As a threshold matter, the burden of establishing undue influence is clearly placed upon the proponent of the claim, Allen v. LaVaud 213 NY 322 (1915). Where the proponent successfully establishes, by the proper quantum of admissible proof, that there exists a confidential relationship, the burden is then shifted to the opponent to demonstrate that the transaction at issue is free of improprieties and is not otherwise tainted, Gordon v. Rialvstoker Center & Bikur Cholim 45 NY 2d 692 (1978). A careful exammation of all of the evidence adduced clearly and unequivocally demonstrates that there was a long standing confidential relationship between Thomas W. Brown and Jacqueline Graziano. Thus, Plaintiff has indubitably met his primafacie burden of demonstrating entitlement to the reliefsought herein, Therefore, PJaintJlf is entitled to a declaration that the 2002 Deed is void ab initio and is entitled to a reconveyance of the Property, Russell v. Russell 128 AD 2d 5/5 (2"'1 Depl. /987). appeal dismissed 70 NY 2d 783 (/987), 1,oiacol1o 1'. Loiacono /87 AD 2d 414 (2"'1 Dept. 1992). As to Defendant, he has failed to sustain his statutory burden, thereby compelling the Court to order judgment in f~lVor Plaintiff. However, Plaintiff has (ailed to adduce sufJicient proof as to the claim for of recovery or use and occupancy. In view ofPlaintirrhaving established his right to the relief sought, viz., a reconveyance and nullification of the 2002 Deed, the Court need not address the claim rcspectmg the imposition of a constructive trust Page 4 of 6 [* 5] It is, therefore, ORDERED, ADJUDGED and DECREED that the Deed dated September 19,2002 purporting to convey property known as 36 tifth Stre~t, West Islip, Town ofIsJip, Ne\v York, District 0500, Section 457.00, Block 03.00, Lot 030.000, which was recorded \vith the Clerk of Suffolk County on October 7,2002 in Liber 12213 of Conveyances at Page 359 is null, void and of no force and effect, in fact or at law; and it is further ORDERED, ADJUDGED and DECREED that any and all subsequent conveyances flowing therefrom are likewise null, void and of no force and effect, in fact or at law; and it is further ORDERED, ADJUDGED and DECREED that the ESTATE OF THOMAS W. BROWN is the owner, in fee simple absolute, of the real property described herein and is entitled to exclusive possession thereof; and it is further ORDERED, ADJUDGED and DECREED that the Defendant, his successors, assigns, heirs and any and all others claiming any interest by, under or through said Defendants, subsequent to the filing of the Notice of Pendency herein shall be and are hereby forever foreclosed, barred and estopped from and of any and all claims of and to any estate or interest in or to the real property described herein; and it is further ORDERED, ADJUDGED and DECREED that within thirty (30) days following the date of entry hereof: Defendant shall executc a Deed, in recordable form, sufficient to convey to Plaintiff the real property described herein; and it is further ORDERED, ADJUDGED and DECREED that the Sheriff of Suffolk County shall be and is hereby authorized, empowered and directed to execute such Deed as aforesaid upon the default of Defendant; and it is further ORDERED, ADJUDGED and DECREED that any re1iefnot expressly granted shall be and the same is hereby denied. The real property affected by this determination is described as fiollows: All that certain plot, piece or parcel of land, with the buildings and improvements thereon created, situate, lying and being at East Babylon, in the Town of Islip, County of Suifolk and State orNew York, known and designated as Lots Nos. 65,66,67,68 in Block 23, on the Map of"Pinelakc at East Babylon, property belonging to the Babylon Lands Inc., situate in the County of Suffolk, N.Y." flied in lhe SuJrolk County Clerk's Office on October 29, 1926 as Map No. 52. Said rea! property is known as and by the street address of]6 Fifth Street, West Islip, Town oflsllp, New York 11795, DIstrict 0500 Section 457.00 Block 03.00 Lot 030.000. Page 5 of 6 [* 6] Plaintiffs counsel is directed to settle a Judgment consistent with this determination within fourteen (14) days from the date of entry hereof. This shall constitute the decision, judgment and order of this Court. Dated: May 15,2012 H...iverhead,New York Ili (~U ! f //1> ./ I ii/1 4/ '" j 1\ Jilj /; , J'lJ' :' '('fI,AVcI' I /,I/-! Holi, JEFFj{EY I , "j ;,../J Ii Vi ~j~i: '. ! ;1 / 'v' ~/ f/v ARLEN!SI'INNitR, ':; TO: Michael S_ Cox, Esq_ Phillips Weiner Artura & Cox Attorneys for Plaintiff 165 South Wcllwood Avenue P.O. 80x 405 Lindenhurst, New York 11757 Justin N. Lite, Esq. Lite & Russell. PLLC Atlorneys for Defendant 212 Higbie Lane West Islip, New York 11795 L 1-'[N,'\1 lJISI'OSITION ~ NON-[:INAI. SCAN DISI'OSITl()N DO NOT SCAN Page 6 of 6 J,S,C
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