LUCY AITA v. TIMOTHY DEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3713-05T33713-05T3

LUCY AITA,

Plaintiff-Appellant,

vs.

TIMOTHY DEY, ESQ.,

Defendant-Respondent.

__________________________________

 

Submitted: October 18, 2006 - Decided November 15, 2006

Before Judges Cuff, Winkelstein and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4281-05.

Glenn A. Bergenfield, attorney for appellant.

Graham, Curtin, attorneys for respondent (Christopher J. Carey, of counsel; Patrick J. Galligan and Mary-Ann E. Gill, on the brief).

PER CURIAM

Lucy Aita commenced this legal malpractice action against defendant Timothy Dey following his failed effort to obtain compensation for her from the September 11 Victim's Compensation Fund (Fund). Plaintiff appeals from an order granting summary judgment in favor of defendant. We affirm.

Our standard of review of a summary judgment is the same as the motion judge. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The following is a recitation of the facts viewed in the light most favorable to plaintiff, the non-moving party.

Plaintiff and Paul Innella were engaged to marry and the ceremony was planned for April 2002. Plaintiff's fiancé worked in the World Trade Center and he died on September 11, 2001. At the time of his death, the couple lived together in plaintiff's parents' house with her parents.

Plaintiff's fiancé died intestate. His sister, Maria Rich, was designated administratrix of his estate. Rich was also appointed decedent's personal representative for the purpose of submitting a claim to the Fund.

Prior to decedent's death, plaintiff and decedent's sister had a close relationship. The relationship deteriorated after decedent's death. We can surmise from the record that a dispute arose regarding plaintiff's participation in any recovery from the Fund because on January 29, 2002, defendant, acting on behalf of plaintiff, filed a claim with the Fund on plaintiff's behalf. The claim was rejected and on November 12, 2002, defendant appealed the decision of the Special Master that plaintiff was not eligible to serve as the Personal Representative of decedent. By letter dated June 13, 2003, Kenneth R. Feinberg, the Special Master of the Fund rejected plaintiff's appeal. In his letter he stated:

The Special Master has considered your recent appeal of the denial of your application to the Victim Compensation Fund ("VCF") to be Personal Representative on behalf of Paul Innella. However, the Special Master has determined that you did not demonstrate that you are the appropriate Personal Representative eligible to submit a claim on behalf of the decedent. Generally, the Personal Representative is the individual appointed by a court of competent jurisdiction as the Personal Representative of the decedent's will or estate. The court has in fact appointed a proper Personal Representative in this case.

The Special Master has also considered your application as a Statement of Interest/Objection to the claim filed by Maria Rich on behalf of the decedent. The regulations require the Special Master to abide by state law in accepting a distribution of the VCF award. In this case, the Personal Representative has submitted a valid plan under state law. The existing New Jersey law does not mandate distribution to a fiancé or domestic partner. Accordingly the Special Master cannot mandate such a distribution.

By letter dated August 5, 2003, defendant forwarded evidence of cohabitation, financial dependence and intended marital status to the Special Master. In a September 13, 2005 letter, the Special Master advised defendant that he had met with plaintiff but plaintiff was not an eligible claimant. He reiterated this advice in a letter dated December 14, 2005.

In the meantime, on June 24, 2003, defendant filed a complaint and sought an order to show cause to replace Rich as the administratrix of her brother's estate. The judge denied the relief because New Jersey law recognized decedent's sister as being in a relationship of consanguinity closer than plaintiff.

Thereafter, plaintiff filed a complaint against defendant in which she alleged that defendant was negligent in his representation of her. Plaintiff asserted that defendant failed to take the necessary steps to protect her claim to the Fund. In opposition to defendant's motion, she submitted a certification of an attorney, a trusts and estates specialist, who opined that defendant should have sought an order requiring Rich, the administratrix, to discharge her fiduciary duty to plaintiff by including her as a claimant or allowing her to participate in the distribution from the Fund.

In opposition to defendant's motion for summary judgment, plaintiff also relied on the report filed by the Special Master. In this report the Special Master related the difficulty presented by claims of persons engaged to be married to victims and the methods he utilized to address those claims. He reported that in accordance with Fund procedures, distributions were made according to the law of the state in which the victim resided. If, in the case of intestacy, the law of the relevant state made no provision for domestic partners or those engaged to be married to a victim, no claim was allowed or distribution made, unless he could convince the personal representative of a victim that inclusion was the appropriate thing to do. Kenneth R. Feinberg, Final Report of the Special Master for the September 11th Victim Compensation Fund of 2001 59 (2004).

Judge Hurley granted defendant's motion for summary judgment. In his oral opinion, he found that Fund procedures followed New Jersey law and that New Jersey law made no provision for those who were engaged to marry an intestate victim. Under those circumstances, he found that the administratrix, who followed New Jersey law, could not be considered to have acted arbitrarily by refusing to include plaintiff as a claimant or to make a distribution to her from the proceeds received by the estate from the Fund. Thus, defendant's failure or reluctance to bring an action to compel Rich to include plaintiff in the claim or any distribution from the Fund was well-grounded in law and in fact.

A prima facie case of legal malpractice requires the following elements: "(1) the existence of an attorney-client relationship creating a duty of care by the defendant attorney, (2) the breach of that duty by the defendant, and (3) proximate causation of the damages claimed by the plaintiff." McGrogan v. Till, 167 N.J. 414, 425 (2001) (citing Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996)). In order to successfully prove that defendant committed malpractice, plaintiff must be able to show that she would have been able to recover from the Fund but for defendant's failure to file a motion to order decedent's Personal Representative to assert a claim to the Fund on her behalf.

Decedent's Personal Representative had a fiduciary duty to those individuals classified as beneficiaries under the law. At the relevant time, New Jersey intestacy law only provided for spouses and blood relatives, N.J.S.A. 3B:5-3. Plaintiff was not a spouse or blood relative; therefore, she was not eligible to take by intestate succession.

The Fund provides that a Personal Representative shall be appointed for the decedent. 28 C.F.R. 104.4 (2006). The Personal Representative shall be either the executor or administrator of the decedent's estate, or the first person in the line of succession under the intestacy laws of the decedent's domicile. Ibid. In the present case, the decedent's sister, Maria Rich, was designated as administratrix of the decedent's estate and, consequently, was appointed as his Personal Representative.

The Fund regulations also state that the Personal Representative "shall distribute the award in a manner consistent with the law of the decedent's domicile or any applicable rulings made by a court of competent jurisdiction." Id. at 104.52. Before any funds are distributed, the Personal Representative must submit a distribution plan to the Special Master of the Fund for approval. Ibid. Should the Special Master find that the distribution plan does not adequately compensate individuals provided for in decedent's will or under applicable state intestacy laws, the Special Master may direct the Personal Representative to distribute funds to those individuals. Ibid.

Both the Final Report of the Special Master and the supplementary information statement contained in the Federal Register, particularly address the concerns of fiancés regarding their eligibility under the Fund. Final Report, supra, at 59; 67 Fed. Reg. 11242-43 (March 13, 2002) (codified at 28 C.F.R. 104). Specifically, both note that many individuals felt that the Fund should expressly provide that fiancés be eligible. Ibid. After consideration of these comments, rulemakers decided to allow state law to control this issue, recommending that those individuals who were unhappy with the outcome direct their criticisms to state officials. Ibid.

Additionally, plaintiff is ineligible to collect under the New Jersey Wrongful Death Act. N.J.S.A. 2A:31-1 to -6. The Wrongful Death Act applies only to those persons who are eligible to inherit under the intestacy statute. N.J.S.A. 2A:31-4; Cassano v. Durham, 180 N.J. Super. 620, 625-26 (Law Div. 1981). As established above, plaintiff, as decedent's fiancé, cannot inherit by intestate succession, and is therefore ineligible to collect under the Wrongful Death Act.

Rich, as decedent's Personal Representative, submitted a distribution plan to the Special Master. This plan was found valid under New Jersey law; consequently, the Special Master was unable to mandate distribution of an award to plaintiff. As administratrix, she was also required to abide by New Jersey law.

Although plaintiff acknowledges that she is not entitled to funds under New Jersey intestate law or wrongful death law, she argues that she is entitled to a portion of decedent's estate under palimony law. This contention is unfounded.

The basis for a palimony claim is the right created by contract, and is not derived from the relationship between the plaintiff and the decedent. In re Estate of Roccamonte, 174 N.J. 381, 389 (2002). Therefore, in order for a valid palimony claim to exist, the following elements must be proven: "(1) that the parties cohabitated (2) in a marriage-type relationship; (3) that, during this period of cohabitation, [decedent] promised plaintiff that [he] would support [her] for life; and (4) that this promise was made for valid consideration." Levine v. Konvitz, 383 N.J. Super. 1, 3 (App. Div.), certif. denied, 186 N.J. 607 (2006). Additionally, New Jersey courts have held that cohabitation between the parties must be for a "significant period of time." McDonald v. Estate of George Mavety, 383 N.J. Super. 347, 360 (App. Div.), certif. denied, 187 N.J. 79 (2006). A "significant period of time" has been found to be fifteen years or greater. Roccamonte, supra, 174 N.J. at 383; Kozlowski v. Kozlowski, 80 N.J. 378, 381 (1979); Crowe v. De Gioia II, 203 N.J. Super. 22, 31 (App. Div. 1985), aff'd o.b., 102 N.J. 50 (1986). In contrast, cohabitation for two-and-one-half years or less has been held insufficient to support a palimony claim. In re Estate of John C. Sasson, 387 N.J. Super. 459, 468 (App. Div. 2006).

Here, plaintiff and decedent lived together in plaintiff's parent's house with plaintiff's parents. The record does not state how long plaintiff and decedent cohabitated, nor, as in Roccamonte, does it indicate that decedent had promised plaintiff that he would take care of her for the remainder of her life. Roccamonte, supra, 174 N.J. at 386-87.

Here, the undisputed facts provide no basis for a legal malpractice claim against defendant. As a matter of law, plaintiff was not an eligible claimant and there was nothing that defendant could do to alter her eligibility. The order granting defendant's motion for summary judgment is therefore affirmed.

Affirmed.

 

L. 2005, c. 331, 3 amended N.J.S.A. 3B:5B-4 to provide that domestic partners are eligible to share in a decedent's estate that passes by intestate succession. Plaintiff does not qualify as a domestic partner; and the amendment was effective January 12, 2006.

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A-3713-05T3

November 15, 2006