Matter of Cox

[*1] Matter of Cox 2012 NY Slip Op 52148(U) Decided on November 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2012
Sur Ct, Bronx County

Estate of Selbourne Cox, also known as SELBOURNE SYLVESTER COX, Deceased



926-P-2005/B



Edward L. Koester, Esq., for Tracy Campbell, movant-administrator

Joyce Y. Hartsfield, Esq., for Blossom Cox Mahoney, objectant

Lee L. Holzman, J.

In this CPLR 3212 motion for summary judgment the movant, the surviving spouse of the decedent and the administrator of his estate, seeks dismissal of the objections interposed to her petition. The relief requested in the petition is a determination that real property conveyed to the decedent and his mother Rachel Cox by a deed dated April 17, 1979 "as joint tenants with the right of survivorship" passed by operation of law solely to the decedent when Rachel predeceased him. The objectant, Rachel's daughter and the administrator c.t.a of her estate, opposes the motion, contending that there are issues of fact for trial with regard to her objections alleging that upon Rachel's death, the decedent held the realty as a constructive trustee for the benefit of the devisees under Rachel's will. Rachel died on October 22, 1995 survived by a spouse, who post deceased, and 10 children. The decedent died on October 4, 2004 survived by his spouse and four children.The five-page handwritten will of Rachel, dated October 10, 1985, provides that the realty should not be sold and should be available to any children who come to the United States from Jamaica, West Indies, and although title to the Bronx realty is in the decedent's name and title to a different real property located in Jamaica, West Indies is in the name of another son, "both children are aware that this is not theirs and must be share equal with the rest of brother and sister [sic]."

On the scheduled trial date of this matter, the parties consented to proceed by motion for summary judgment and, upon good cause shown, this court granted leave for them to do so. The movant contends that Rachel's will does not affect title to the realty which passed to the decedent by operation of law upon Rachel's death.

The objectant opposes the motion asserting that the following demonstrates that there are issues of fact supporting her contention that a constructive trust should be imposed: (1) prior to his death, the decedent was on a kidney transplant list, was undergoing dialysis for kidney disease, and suffered from hypertension; (2) in early 2004, he underwent the kidney transplant operation but died within six months; (3) prior to his death, his behavior reflected his understanding of what was set [*2]forth in their mother's will, that the premises was owned and to be shared by all of her children, as he, the other children and their father resided there after Rachel's death; (4) their mother had an elementary school education, she did not understand the meaning of the right of survivorship or that her other children would be disinherited as a result, and her will contradicts the language of the deed; (5) the premises was purchased in 1979 by their mother with only her funds when many of her 10 children were minors and, had she died in 1980, it would have meant that all minor children were at the mercy of the decedent which was never her intention; (6) from the time of their mother's death to the time of the decedent's death, many of the decedent's siblings repaired, paid taxes on and shared in the costly upkeep of the property, believing that they had an interest in it as they also lived there; (7) Rachel purchased a property in Jamaica, West Indies and, on that deed, she placed the names of herself and another son, without any right of survivorship; and, (8) the decedent married the movant in 2001, after the death of his mother and his diagnosis of kidney failure and, in 2004, before he died, he purchased a separate Bronx home so the movant would have a home to reside at other than the property at issue.

In further opposition to the motion, the objectant submits the affidavit of the brother named on the deed to the Jamaica, West Indies property who states that their mother placed the name of one son on each deed as her spouse was still residing in Jamaica, West Indies while she worked and lived in the Bronx, and she believed that if anything happened to her, those sons would share the realty or the proceeds therefrom with all of her children. He asserts that his name is on the Jamaica deed for convenience only, noting it is without any right of survivorship, and that he holds the property for the benefit of all of his siblings. Finally, he notes that he invested substantial sums in the repair and upkeep of both properties, as did his siblings, and by 2001 the decedent was already unable to work for many years due to his illness. Also annexed is a copy of the September 13, 1989 deed to the Jamaica property, as well as a copy of an October 11, 2004 deed to the separate Bronx property that the decedent allegedly purchased for the movant. In an opposing memorandum of law, the objectant's attorney also argues, inter alia, that the motion should be denied as it was filed more than 120 days after the filing of the note of issue.

In reply, the movant's attorney notes that on the eve of trial the objectant indicated her witness would not be available, on the date of trial the objectant's attorney indicated she was not prepared to proceed, the parties agreed instead to proceed by the instant motion for summary judgment, and the court found good cause to grant leave to make the motion.

As a preliminary matter, the movant correctly notes that the parties consented to proceed by motion on the day set for trial and the court granted them leave on good cause shown to so proceed (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648 [2004]; Matter of Cox, NYLJ, Jan. 6, 2012, at 23, col 2). Accordingly, the motion is properly before the court. 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 has made out a prima facie case, the burden of going forward 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 [*3]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]).

With respect to the opposing affidavits of the objectant and her brother, as they have a direct financial interest in the outcome of the litigation, an objection pursuant to CPLR 4519 would bar them from testifying about any personal transaction or communication with the decedent (see Phillips v Joseph Kantor & Co., 31 NY2d at 307; Durazinski v Chandler, 41 AD3d 918, 920 [2007], quoting Matter of Johnson, 7 AD3d 959, 961 [2004], lv denied 3 NY3d 606 [2004]). In contrast, documentary evidence signed by the decedent does not run afoul of CPLR 4519, as long as the document is authenticated by a source other than an interested witness's testimony concerning a transaction or communication with the decedent (see Matter of Press, 30 AD3d 154 [2006]; Acevedo v Audubon Mgt. Inc., 280 AD2d 91 [2001]; Trotti v Estate of Buchanan, 272 AD2d 660 [2000]). Generally, evidence that is inadmissible at trial under CPLR 4519 cannot be used to support a motion for summary judgment; however, such evidence may be considered in determining whether a triable issue exists to defeat the motion for summary judgment (see Phillips v Joseph Kantor & Co., 31 NY2d at 314; Beyer v Melgar, 16 AD3d 532 [2005]; Salemo v Geller, 278 AD2d 104 [2000]). Nonetheless, evidence otherwise excludable at trial under CPLR 4519, standing alone, may be insufficient to defeat a motion for summary judgment where it is clear that the movant would object to such testimony at trial (see Phillips v Joseph Kantor & Co., 31 NY2d at 314; Marszal v Anderson, 9 AD3d 711 [2004]; Mantella v Mantella, 268 AD2d 852 [2000]; Matter of Barr, 252 AD2d 875 [1998]; Matter of Lockwood, 234 AD2d 782 [1996]; Matter of Taylor, 32 Misc 3d 1227 [A], 2011 NY Slip Op 51440 [U] [2011]; Matter of Recupero, 28 Misc 3d 1207 [A], 2010 NY Slip Op 51200 [U] [2010]).

Here, the survivorship language in the deed at issue is clear. Generally, where a deed contains the right of survivorship, it effectively confers a right of "automatic inheritance" so that, upon the death of one joint tenant, the property does not pass through the rules of intestate succession, or pursuant to a testamentary devise, but is automatically inherited by the surviving tenant (see Trotta v Ollivier, 91 AD3d 8 [2011]). Notwithstanding that general principle, a party may demonstrate that circumstances surrounding the transaction warrant the imposition of a constructive trust on the property (see Vopelak v Tedeschi, 281 AD2d 809 [2001]; Johnson v Lih, 216 AD2d 821 [1995]; Weiss v Weiss, 186 AD2d 247 [1992]). Generally, to establish a constructive trust, the party with the burden of proof must demonstrate a confidential or fiduciary relation, a promise express or implied, a transfer in reliance on that promise and unjust enrichment (see Sharp v Kosmalski, 40 NY2d 119, 121 [1976]; Vopelak v Tedeschi, 281 AD2d at 809; Byrd v Brown, 208 AD2d 582 [1994]). Moreover, the constructive trust doctrine is actually much broader and more liberal, as it is an equitable remedy to prevent unjust enrichment and "its applicability is limited only by the inventiveness of men who find new ways to enrich themselves unjustly by grasping what should not belong to them" (Latham v Father Divine, 299 NY 22, 27 [1949], reh denied 299 NY 599 [1949]; see also Simonds v Simonds, 45 NY2d 233, 241 [1978]; Matter of Wieczorek, 186 AD2d 204, 205 [1992], appeal dismissed 81 NY2d 990 [1993], reargument denied 82 NY2d 707 [1993]).

Here, in opposition to the movant's prima facie evidence of the deed containing a right of [*4]survivorship, the objectant created issues of fact for trial as to whether a constructive trust should be imposed based on the evidence of the mother/son relationship and evidence that: (1) Rachel had an elementary school education and she alone purchased the property; (2) her distributees were raised and lived at the property for decades; (3) her will refers to the verbal agreement and understanding with the decedent and the other son that, effectively, they were holding title to the property for convenience only and in trust for their siblings; (4) her other son made a sworn acknowledgment against interest that he holds the property in Jamaica, West Indies for the benefit of all of the distributees of Rachel, as recited in her will; and, (5) the other son and other distributees of Rachel Cox maintained both properties during her lifetime and after her death in 1995.

Accordingly, this decision constitutes the order of the court denying the motion for summary judgment in its entirety. The parties shall appear before the court on January 14, 2012 at 9:30 a.m., in courtroom 406, in order to set a date certain for trial. The Chief Clerk shall mail a copy of this decision and order to all counsel.

Proceed accordingly.

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SURROGATE