Matter of Babb

[*1] Matter of Babb 2012 NY Slip Op 51230(U) Decided on July 6, 2012 Sur Ct, Bronx County Holzman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 6, 2012
Sur Ct, Bronx County

In the Matter of the Estate of George Babb, Deceased



317-P-2001



Radin & Kleinman, Esqs., (Abraham N. Kleinman, Esq., of Counsel) for Abraham N. Kleinman. administrator c.t.a. - movant

Ury A. Leid, Esq., for Gwendolyn Williams, respondent

Lee L. Holzman, J.

The administrator c.t.a. moves for summary judgment in this SCPA 2103 proceeding seeking, as a result of the respondent's alleged improper use of a power of attorney, the entry of a decree directing the respondent to pay to the estate the sum of $173,072.33 plus interest at the legal rate from April 13, 2001.

The decedent was hospitalized on April 9, 2001, and died at the age of 73 on April 14, 2001. On April 10, 2001, the decedent as principal signed a power of attorney form, apparently obtained from Chase Manhattan Bank (Chase), designating the respondent as agent. The power of attorney essentially granted the respondent authority to transact any business with the bank on the decedent's behalf. Although the notary affixed her stamp next to or below the respective places on the form where the decedent and the respondent signed the form, the notary signed her name only at the bottom below where the respondent's signature appears. On April 13, 2001, the day before the decedent's death, the respondent withdrew $150,372.21 from one Chase account and $22,700.12 from another account. These funds were deposited into accounts titled in the respondent's sole name or jointly with her husband.

The decedent's will, admitted to probate pursuant to a decree dated October 7, 2005, directs the sale of a parcel of realty he owned in the Bronx and that the respondent, his "friend," and another [*2]beneficiary each receive one-half of the net proceeds. The will also provides for seven pecuniary bequests totaling $57,500 and leaves the residuary estate in equal shares to the decedent's two grandchildren.

The movant contends that he is entitled to summary judgment on the alternate grounds that: (1) the power of attorney is a "nullity" because the decedent's signature was not acknowledged thereon; or (2) the respondent "wrongfully . . . converted those funds for her own personal use" as she conceded during her deposition that the purpose of the power of attorney was to pay the decedent's bills and the funds she withdrew from the accounts were not a gift to her. The respondent's opposition to the motion consists solely of the affirmation of her counsel who asserts that the decedent directed the respondent "to close the subject bank accounts and deposit the proceeds . . . in accounts that . . . (she) owned or controlled." The respondent contends that since these transactions occurred while the decedent was still alive, the funds never became an asset of his estate.

Summary judgment cannot be granted unless it clearly appears that no material issues of fact exist (see Phillips v Joseph Kantor & Co., 31 NY2d 307 [1972]; Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439 [1968]). The movant 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 material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Friends of Animals, Inc. v Associated Fur Mfrs. Inc., 46 NY2d 1065 [1979]). When the movant makes out a prima facie case, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial (see F. Garofalo Elec. Co. v New York Univ., 300 AD2d 186 [2002]).

Although the power of attorney clearly authorizes the respondent to make withdrawals from the decedent's Chase accounts, there is no language therein authorizing the respondent to make a gift of the funds to herself. The respondent, as the decedent's attorney-in-fact, had the duty to utilize the power solely for the decedent's benefit (see Matter of Ferrara, 7 NY3d 244 [2006]; Mantella v Mantella, 268 AD2d 852 [2000]), which mandates that in her dealings with the decedent she "must act in accordance with the highest principles of morality, fidelity, loyalty and fair dealing" (Semmler v Naples, 166 AD2d 751, 752 [1990], appeal dismissed 77 NY2d 936 [1991]). Consequently, when the respondent, without consideration, transferred funds from the decedent's accounts to accounts which she controlled "[s]uch a gift carries with it a presumption of impropriety and self-dealing, a presumption which can be overcome only with the clearest showing of intent on the part of the principal to make the gift" (id., quoting Matter of De Belardino, 77 Misc 2d 253, 257 [1974], affd 47 AD2d 589 [1975]; see also Mantella v Mantella, 268 AD2d at 852).

Here, the respondent failed to overcome the presumption of impropriety. In opposing this motion, she failed to submit any competent evidence by a person with knowledge of the facts to create an issue of fact. Instead, she submits the affirmation of her counsel who was not present when any instructions concerning the transactions at issue allegedly were given. Moreover, if counsel is purporting to summarize the respondent's deposition testimony, his affirmation fails to note the page(s) of that deposition where such testimony exists. Consequently, counsel's affirmation may not [*3]be considered. Furthermore, even if the respondent did testify about such instructions during her deposition, such self-serving testimony would be insufficient to create a triable issue of fact as to whether there was sufficient evidence to overcome the strong presumption of impropriety, as such testimony would be inadmissible at trial under CPLR 4519 (see SCPA 2104 [6]), and accordingly insufficient, standing alone, to defeat the summary judgment motion (see Phillips v Joseph Kantor & Co., 31 NY2d at 314; Marszal v Anderson, 9 AD3d 711 [2004]; Mantella v Mantella, 268 AD2d at 853; Matter of Barr, 252 AD2d 875 [1998]; Matter of Lockwood, 234 AD2d 782 [1996]; Matter of Recupero, 28 Misc 3d 1207 [A], 2010 NY Slip Op 51200 [U] [2010]). In addition, to give any weight to such self-serving testimony would be tantamount to giving effect to a deathbed oral modification of the decedent's will, increasing the respondent's share of the decedent's estate to include all of his personal property, thereby, in effect, revoking the seven pecuniary legacies and the residuary bequests to his two grandchildren. The law does not countenance such a result (see Matter of Ferrara, 7 NY3d at 254 - 255). The granting of summary judgment on this ground renders it unnecessary for the court to discuss the movant's more problematic alternative theory that the alleged failure of the notary to properly acknowledge the decedent's signature on the power of attorney renders the power a "nullity," making the respondent liable to the decedent or his estate for any withdrawals that the respondent made from the decedent's bank accounts, regardless of whether the withdrawals might have been authorized by the decedent.

Accordingly, for the reasons stated herein, the movant is granted summary judgment and may settle a decree directing the respondent to pay to the administrator c.t.a. of the estate the sum of $173,072.33 plus interest at 9% per annum from April 13, 2001 to April 13, 2009, and interest at 5% per annum from April 13, 2009 to the date that the decree is noticed for settlement. The Chief Clerk is directed to mail a copy of this decision to all counsel.

Settle decree.



SURROGATE