Matter of Flood
Annotate this CaseDecided on July 23, 2014
Sur Ct, Dutchess County
In the Matter of the Estate of Thomas F. Flood, III, Deceased.
2013-256/B
JOHN K. GIFFORD, ESQ.
VAN DeWATER AND VAN DeWATER, LLP
Attorneys for Petitioner
85 Civic Center Plaza, Suite 101
P.O. Box 112
Poughkeepsie, New York 12601
DARREN H. FAIRLIE, ESQ.
de RAMON CRUSH, P.C.
Attorney for Respondent Virginia A. Flood
21 Old Main Street, Suite 207
Fishkill, New York 12524
James D. Pagones, J.
In this proceeding filed under SCPA §2102(4),(7) and EPTL §11-1.5(d),(e) to compel distribution of a specific legacy, petitioner Diane Flood moves for a decree, pursuant to CPLR 3212, directing the Estate of Thomas F. Flood, III to execute the documents necessary to transfer ownership of the Reagans Mill Water Co. (The water company) and Reagans Mill Sewer Co., Inc. (The sewer company) shares owned by the decedent on the date of his death to her.
The following papers were considered:Notice of Motion-Affidavit-Memorandum in1-8
Support-Exhibits A-D-Affidavit of Service
Affirmation in Opposition-Affidavit in9-19
Opposition-Exhibits A-H-Affidavit of Service
Reply Affirmation-Affidavit of Service20-21
Copy of the Pleadings22
By way of background, the decedent died on November 8, 2012, leaving a will dated April 12, 2012. The will was admitted to probate in the Dutchess County Surrogate's Court on April 1, 2013 and letters testamentary were issued on the same date to Virginia A. Flood, Sally Menching and Thomas Flood, IV. The decedent and the petitioner were previously married, and in connection with the dissolution of the marriage, the parties entered into an agreement dated April 26, 1995. The agreement provided that the decedent would transfer, as 50% owner of the water company and the sewer company, 25% of his ownership interest in the companies at the time of the agreement. Further, the parties agreed that the decedent would change his will to provide that his remaining 25% interest in the companies would transfer to the petitioner upon his death. In compliance with the agreement, the decedent placed a provision in his will, specifically Article Third, devising all of his interest in the aforementioned companies to the petitioner at the time of his death.
On November 1, 2013 a written request was made to counsel for the estate to arrange for distribution of the specific bequest (Petition, Ex. "C"). That was followed by a formal demand, dated December 9, 2013 (id., Ex. "D"). The record indicates there was no response from the executrices. To date, the shares have not been transferred. This proceeding was commenced on April 18, 2014.
On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (see Andre v. Pomeroy, 35 NY2d 361 [1974]). The movant must set forth a prima facie showing of entitlement to judgment as matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). Once the movant sets forth a prima facie case, the burden of going forward shifts to the opponent of 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]).Here, petitioner has established that the decdent intended to effectuate a specific disposition of property to her under his will (see EPTL §1-2.4), more than seven months have passed from the time the letters were granted, demand has been made for distribution and distribution has not occurred (see SCPA §2102[4]; EPTL §11-1.5[a], Matter of Doehla's Will, 104 Misc 2d 176 [Sur Ct, Nassau County 1980]). Accordingly, petitioner has established her prima facie entitlement to judgment as a matter of law.
In opposition, Virginia A. Flood, as co-executrix of the estate of Thomas F. Flood, III, states that petitioner's motion should be denied as: (1) petitioner fails to attach the pleadings [*2]to her motion pursuant to CPLR 3212(b); and (2) respondent's delay of distribution of corporate shares to petitioner is reasonable under the circumstances herein. With respect to the alleged failure to annex all of the pleadings to the moving papers, CPLR 3212(b) requires that a motion for summary judgment be supported by a copy of a complete set of the pleadings. The court may excuse this procedural defect when the record is "sufficiently complete" (see Welch v. Hauck, 18 AD3d 1096 [3rd Dept 2005], lv denied 5 NY3d 708), meaning a complete set of the papers is available from the materials submitted (see Washington Realty Owners, LLC v. 260 Wash. St., LLC, 105 AD3d 675 [1st Dept 2013]). While this Court finds the record is sufficiently complete, petitioner cures any deficiency by submitting a complete set of the pleadings with her reply papers (see Pandian v. New York Health & Hosps. Corp., 54 AD3d 590 [1st Dept 2008]).
Turning next to the executor's second branch of her opposition papers, which indicates that the continuing delay in disbursement is reasonable. Respondent contends, relying on Matter of Abrams,100 AD3d 746 [2nd Dept 2012], that the failure to respond to petitioner's demand is not the equivalent of a refusal to pay. Matter of Abrams is clearly distinguishable from the within action. The Appellate Division, Second Department, in the proceeding Matter of Abrams held that a claim for the payment of interest is not a demand for payment of a bequest (see Matter of Abrams, 100 AD3d 746, 748 [2nd Dept 2012]). Respondent's assertion that this decision stands for the proposition that the failure to respond to a written request is not the equivalent of a refusal to pay is completely unfounded. The Abrams Court did not add an additional statutory requirement that there must be some additional action taken, such as a written refusal, before commencing an action to compel pursuant to EPTL §11-1.5 (id.). In the present proceeding, petitioner was forced to demand payment of a specific bequest only after the estate failed to distribute it according to the terms set forth in the decedent's will after seven months had elapsed; thus, in this set of facts, the estate's failure to respond to petitioner's demand after a reasonable period of time had passed constitutes a refusal pursuant to EPTL §11-1.5(c).
Moreover, the Court agrees with counsel for the petitioner in that any issues that may arise with respect to the payment of undistributed accumulated cash to the estate by the companies is a matter to be settled between the estate and the companies. Accordingly, this Court finds that the delay in providing the petitioner's specific bequest, i.e. the remaining 25% interest of the water and sewer companies, was without merit and unreasonable.
Accordingly, petitioner's motion for summary judgment is [*3]granted in its entirety. Petitioner is directed to submit a decree consistent with the foregoing on seven (7) days notice within thirty (30) days hereof, which shall contain an award of interest pursuant to EPTL §11-1.5(e); Matter of Abrams, supra at 748.
The foregoing constitutes the decision of the court.
Dated:July 23, 2014
Poughkeepsie, New YorkENTER________________________________
HON. JAMES D. PAGONES, S.C.J.
072314 decision
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