Matter of Pashad

[*1] Matter of Pashad 2012 NY Slip Op 51126(U) Decided on June 5, 2012 Sur Ct, Schenectady County Versaci, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 5, 2012
Sur Ct, Schenectady County

In the Matter of the Application The Estate of Mohandrinauth Pashad, Deceased.



2011-391/A



Attorneys for Petitioner/Administrator Chad Pashad

Kurz & Associates, LLC, Michael Kurz, Esq., of counsel

2212 Western Avenue

P.O. Box 1502

Guilderland, New York 12084

Attorneys for Respondents Nishan Budhoo and Seeram Persaud

Englert, Coffey, McHugh & Fantauzzi, LLP, Gregory E. Schaaf, Esq., of counsel

224 State Street

P.O. Box 1092

Schenectady, New York 12301-1092

Vincent W. Versaci, J.

In thisSCPA §2103 discovery proceeding, Petitioner, Chad Pashad, the duly appointed Administrator of this Estate and sole distributee, moves this Court pursuant to CPLR Rule 3212 for partial summary judgment to invalidate the deed that was executed on June 6, 2011 transferring the Decedent's former home located at 442 Hulett Street, Schenectady, New York, to the Respondents. In support of his argument that the deed should be invalidated, the Petitioner alleges that based on the Affidavits of the Decedent's treating physicians submitted on the Motion, this Court should find that as a matter of law the Decedent lacked mental capacity and was wholly incompetent at the time of the deed execution.

In opposition to the Motion, the Respondents argue that the Petitioner has not met his initial burden to show that no triable issues of material fact exist, thereby precluding summary judgment from being granted to the Petitioner. The Respondents further contend that even if the Court were to find that the Petitioner has met his initial burden on the Motion, thereby shifting the burden to the Respondents, material issues of fact have been raised by the Affidavits submitted in opposition to the Motion as well as the various notations that were made in the hospital records relating to the Decedent at or around the time of the deed execution.

The undisputed facts in the record before the Court are as follows. Prior to the events that fueled this court proceeding, the Decedent and the Petitioner, who is the Decedent's only child, lived together at the subject property. The property at that time was owned by the Decedent and his brother, Seeram Persaud, as tenants in common. In May, 2011, while on a visit to his native country Guyana, the Decedent suffered a stroke. Approximately one week later, he was flown to New York and admitted to Jamaica Hospital Medical Center on May 20, 2011. The Decedent suffered a second stroke on May 31, 2011. On June 3, 2011, a form entitled "Medical Orders for [*2]Life-Sustaining Treatment (MOLST)" was executed on behalf of the Decedent. Three (3) days later, on June 6, 2011, the deed in question, which transferred the subject property from the Decedent and his brother, Seeram Persaud, to Seeram Persaud and his son, Nishan Budhoo, was executed at the Decedent's bedside. Since the Decedent could not sign the deed, his thumbprint was placed on the deed directly over the line for his signature. The Decedent's thumbprint was notarized by Christine Pennington, an employee at the nearby Trump Pavilion for Nursing and Rehabilitation. Ms. Pennington also notarized the signature of Seeram Persaud on the deed. The Decedent died five (5) days later on June 11, 2011.

The sole issue for the Court to decide on this Motion is whether the Decedent's conveyance of his interest in the subject property on June 6, 2011 was valid. In order for a conveyance of an interest in real property to be valid, the grantor must have the capacity to transfer the property. Real Property Law ("RPL") §11 provides that "[a] person other than a minor, a mentally retarded person, or person of unsound mind, seized of or entitled to an estate or interest in real property, may transfer such estate or interest." Thus, when a person is "wholly, absolutely, and completely unable to understand and appreciate the nature of the transaction at the time of execution of the deed, he is not competent to make a deed", rendering the conveyance null and void. 43 NY Jur2d, Deeds §23, citing, Larkin v. Rejebian, 271 A.D. 910.

The proponent of a summary judgment motion, herein the Petitioner, must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any genuine material issues of fact. See, Alvarez v. Prospect Hosp., 68 NY2d 320; Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853. If the proponent makes such a prima facie showing, the burden shifts to the party opposing the motion to come forward and lay bare his evidentiary proof in admissible form sufficient to establish the existence of genuine material issues of fact which require a trial. See, Alvarez v. Prospect Hosp., supra, at 324; Zuckerman v. City of New York, 49 NY2d 557, 562. On a motion for summary judgment, the facts must be viewed in the light most favorable to the non-moving party. Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., LP, 7 NY3d 96, 105; Martin v. Briggs, 235 AD2d 192; McArdle v. M & M Farms, 90 AD2d 538. However, mere conclusions, unsubstantiated allegations, or expressions of hope are insufficient to defeat a summary judgment motion. Zuckerman v. City of New York, supra.

The Affidavit of Mohammed Uddin, M.D., the Attending Physician who was primarily involved with the care and treatment of the Decedent while hospitalized at the Jamaica Hospital Medical Center, describes the Decedent's medical condition both before and after his second stroke that occurred on May 31, 2011. Dr. Uddin describes the Decedent as "experiencing facial drooping, paralysis of the right side and was limited in his ability to communicate due to slurred speech and periods of confusion." Dr. Uddin reports that the Decedent's condition "did not neurologically improve" during the course of his hospitalization, and in fact worsened following the second stroke. "He was often lethargic and during periods when he was awake, he was not appropriately responsive." Dr. Uddin states that it is his opinion, "within a reasonable degree of medical certainty, that as of June 6, 2011, [the Decedent] was unable to understand, consider, and knowingly make any independent medical and/or personal decisions on behalf of himself."

The Affidavit of Jean Harris-Kleinman, D.O., who was also involved with the treatment and care of the Decedent during his hospitalization, reveals that Dr. Kleinman initially examined the Decedent on June 2, 2011, following his second stroke. Dr. Kleinman determined that the Decedent "was lethargic and . . . could not reliably respond to even the most simplest of commands." Dr. Kleinman further states that "Mr. Pashad, who had suffered a severe traumatic brain injury as a result of his two strokes, was so cognitively impaired as to make it impossible for him to participate in making any decisions regarding his medical care thereby necessitating family intervention."

Dr. Kleinman goes on to describe the events that she witnessed taking place in the Decedent's hospital room on June 6, 2011, three days after the MOLST DNR Order was executed on the Decedent's behalf by his family members. She recounts that upon entering the room, she [*3]"observed several members of Mr. Pashad's family. . . [She] witnessed Mr. Pashad's paralyzed right arm and hand being lifted to and his thumbprint being placed upon a document which [she] recognized to be a deed." Dr. Kleinman reports that "Mr. Pashad was unable to speak or to affirm the placement of his paralyzed right hand and thumbprint onto the document which would have involved a decision making process which, as a result of his traumatic brain injury, was far beyond his cognitive abilities." Dr. Kleinman concludes that it is her opinion, "within a reasonable degree of medical certainty, that on June 6, 2011, Mr. Pashad did not have capacity and was unable to make any decisions as a result of a traumatic brain injury which had been caused by two strokes."

These Affidavits, along with the Decedent's certified hospital records that have also been submitted in support of the Motion, constitute sufficient medical evidence in admissible form that the Decedent was incompetent on June 6, 2011. The Court finds that based on this medical evidence, the Petitioner has made a prima facie showing of entitlement to judgment as a matter of law that the Decedent was of unsound mind at the time the deed in question was executed. See, Jordan v. Clinton, 18 AD3d 817, 818, where the Court found that the plaintiff's hospital records constituted medical evidence of his unsound mind when he executed the documents in question. With the Petitioner having met his initial burden, the burden now shifts to the Respondents to raise a triable issue of fact as to the Decedent's requisite mental capacity at the exact time the deed was executed. Id., citing, Hubbard v. Gatz, 130 AD2d 622. See also, Campbell v. Thomas, 36 AD3d 576, 577.[FN1]

On the initial return of the Motion, the Respondents submitted the Affidavits of Seeram Persaud and Babita Budhoo. Seeram Persaud, the Decedent's brother and co-owner of the subject property, attests that he witnessed the execution of the deed and that at that time, the Decedent "was aware of his surroundings, the presence of family, and the nature of what was about to transpire. He was able to respond by gripping our hands. He was asked, specifically, if he wanted to sign the deed. He responded Yes', by gripping my hand." Babita Budhoo, who is the mother of the Respondent Nishan Budhoo, attests to her personal knowledge of the family history involving the subject property and another separate, unrelated property in Brooklyn. She states that the transfer of the subject property to the Respondents on June 6, 2011, "was the fulfillment and culmination of the Decedent's [previously declared] intentions." Her Affidavit is silent as to whether she witnessed the deed execution or has any knowledge concerning the Decedent's capacity at that time.

The Respondents also submitted the Decedent's hospital records in opposition to the Motion, pointing to the progress notes taken at or around the time of the deed execution. These notes, which appear to have been written by a nurse or social worker, indicate that the Decedent was "awake and responsive", or "alert and responsive".

After having been granted an extension of time by the Court to submit additional proof in opposition to the Motion, the Respondents submitted the Affidavit of Christine Pennington, the Trump Pavilion employee who notarized the deed, and the Affidavit of Michelle Blearie-Samuel, M.S.W., a social worker at the hospital who was in the Decedent's room at the time the deed was executed. Ms. Pennington recounts that "upon entering Mr. Pashad's room, he was non-verbal, appeared alert, and was able to apply his thumbprint to the deed with the assistance of a family member." She admits that she "did not speak to any physicians or review Mr. Pashad's medical [*4]records prior to the execution of the deed."

Ms. Blearie-Samuel states in her Affidavit that while the Decedent was not one of her patients on June 6, 2011, she was asked by the Decedent's family members to find a notary public to witness a document execution. She recounts that upon entering Mr. Pashad's room, she observed Mr. Pashad to be "alert and responsive." She thereafter contacted Ms. Pennington who came to the room to notarize the deed. Ms. Blearie-Samuel does not recall the deed specifically being executed by the Decedent. She did not speak to any physicians concerning the Decedent prior to the deed being executed.

The evidentiary proof submitted by the Respondents fails to raise a triable issue of fact with respect to the Decedent's lack of capacity at the time the deed was executed. The general observations of the Respondent's lay witnesses that the Decedent was "awake", "alert" and "responsive" fail to controvert the overwhelming medical evidence, and in particular the expert opinions of the Decedent's attending physicians, that establishes that the Decedent was not competent to understand and appreciate the nature of the transaction that took place at his bedside on June 6, 2011. It is well settled that "the opinion of a lay witness is not admissible for the purpose of determining soundness of mind". See, Matter of Ward, 234 NYLJ 82, citing, In re Noguiera's Will, 32 Misc 2d 446, 449-450 ("an ordinary witness may describe the acts of a person whose sanity is in question and then state whether those acts impressed him at the time as rational or irrational, but he may not testify that the person was of sound or unsound mind, except in the case of a witness who was a subscribing witness to a will"). See also, Richardson on Evidence, 10th Ed., §364(m), at 334-335, citing, Holcomb v. Holcomb, 95 NY 316; People v. Hill, 195 N.Y. 16, 26; Weinberg v. Weinberg, 255 A.D. 366.

Respondents have failed to come forward with any expert medical evidence to sufficiently controvert the Petitioner's expert medical evidence and thereby raise an issue of fact as to the Decedent's soundness of mind at the time the deed was executed. To the extent that the progress notes taken by the hospital nurses indicate that the Decedent was "awake and responsive" or "alert and responsive" around the time that the deed was executed, this evidence is wholly neutralized by the progress notes taken by a physician at the same time indicating that the Decedent was "clinically unstable" and could only "respond to simple verbal command and painful stimuli". See, Matter of Hirschorn, 2008 NY Slip Op 52061U.

Moreover, tellingly absent from the Affidavits of Christine Pennington and Michelle Blearie-Samuel is any mention that either of them questioned the Decedent prior to the deed execution to ascertain that the Decedent himself understood the nature of the document and in fact wanted to execute the deed. Nor did either of them verify, through a proper medical assessment performed by a qualified professional, that the Decedent was competent at that exact moment to execute the deed. They simply relied on their personal, lay opinions that the Decedent appeared alert and responsive to conclude that the Decedent was competent, which opinions are insufficient as a matter of law. See, In re Noguiera's Will, supra, at 449-450.

Having failed to raise a triable issue of fact as to the Decedent's lack of competency on June 6, 2011 to execute the deed, the Respondents have not met their burden to overcome the Petitioner's entitlement to judgment as a matter of law. Accordingly, the Court finds that the Decedent was wholly incompetent to execute the deed on June 6, 2011, rendering the conveyance null and void.

To the extent the Petitioner is seeking summary judgment on his claims that the Respondents are guilty of fraud, undue influence, overreaching and coercion, the Court finds that the Petitioner has not made a prima facie showing of entitlement to judgment as a matter of law with respect to these claims. Questions of fact remain thereby precluding summary judgment on these causes of action.

Based on all of the foregoing, the Petitioner's Motion for partial summary judgment is hereby granted to the extent that the Court hereby declares that the Decedent was not competent to transfer his real property by deed on June 6, 2011, rendering such deed invalid, null and void. The Schenectady County Clerk is hereby directed to forthwith strike this deed from its records. [*5]The Motion is denied with respect to the causes of action sounding in fraud, undue influence, overreaching and coercion. The preliminary injunction granted by this Court pursuant to Court Order dated September 6, 2011 shall be extended and continue until further Order of this Court.

Lastly, this discovery proceeding shall go forward with respect to any other assets of the Decedent sought to be discovered, and the parties are hereby granted an additional sixty (60) days from the date of this Decision and Order to complete any and all discovery in this regard. The Court hereby schedules a Compliance Conference to be held on Tuesday, August 14, 2012, at 11:00 a.m.

The parties' remaining arguments, to the extent not specifically addressed herein, have been considered and found to be unavailing.

The foregoing shall constitute the Decision and Order of this Court.

Signed at Schenectady, New York, this 5 day of June, 2012.

____________________________________

HON. VINCENT W. VERSACI

Surrogate

ENTER: Footnotes

Footnote 1:The Court disagrees with the Petitioner that on this summary judgment motion, the Respondents' burden is to present "clear and convincing evidence" that the Decedent was competent at the exact time that the deed was executed. While this may have been the Respondents' burden of proof at a trial, on a summary judgment motion, the Respondents' burden is only to raise a triable issue of fact requiring a trial. Id. See also, Alvarez v. Prospect Hosp., supra, at 324; Zuckerman v. City of New York, supra, at 562.