Matter of Fischer

[*1] Matter of Fischer 2005 NY Slip Op 52219(U) Decided on November 28, 2005 Surrogate's Court, New York County Preminger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2005
Surrogate's Court, New York County

In the Matter of the Estate of MARY FISCHER, Deceased.



4327/1997

Eve M. Preminger, J.

Petitioners, Erik J. Stapper, as temporary administrator of the estate of Mary Fischer and preliminary executor of the will of Alfred Fischer, and United Jewish Appeal-Federation of Jewish Philanthropies of New York, Inc., as the residuary beneficiary under the will of Alfred Fischer, commenced a proceeding in each estate, in accordance with SCPA 2103, for the turnover of almost $1 million allegedly converted by respondent Hala Delcina Brown, the Fischers' home health care aide during their final years. Probate of the wills proffered by Eric J. Stapper, the Fischers' attorney, has been delayed pending a determination of the authenticity of later wills proffered by Hala Delcina Brown.

The main issue in these turnover proceedings is whether Mary Fischer, who died November 3, 1997 at age 92, and her husband of more than fifty years Alfred Fischer, who died April 15, 1998 at age 97, were taken advantage of by their caretaker. It is undisputed that in a period of little more than two years, Hala Delcina Brown depleted the Fischers' assets by cashing checks drawn from the Fischers' checking accounts in the aggregate of $364,750, payable to Mary Fischer, Alfred Fischer or to cash, and by cashing checks in the aggregate of $121,315, payable to Hala Delcina Brown. Following Mary Fischer's death, Alfred Fischer's bank accounts were transferred into joint accounts with Ms. Brown, and upon Mr. Fischer's death, Ms. Brown withdrew $493,329.70 from such accounts.

Ms. Brown claims: (1) she cashed all the checks payable either to Mary Fischer or to Alfred Fischer for their respective benefit; (2) checks payable to cash or to herself represented a combination of her salary, funds she expended on behalf of the Fischers, and gifts; and (3) Alfred Fischer's transfer of his assets into joint accounts with her was a gift. Petitioners claim Ms. Brown converted assets belonging to a senile Mary and Alfred Fischer and is obligated to return $979,394.70, less Ms. Brown's salary, to Erik J. Stapper, as temporary administrator of the estate [*2]of Mary Fischer and preliminary executor of the will of Alfred Fischer.

The testimony portrayed a couple whose declining health and social isolation made them wholly dependent on Ms. Brown. A member of the Masonic Lodge, in which Alfred Fischer had played an active role, testified that Mary Fischer resigned as a board member of a related foundation around 1990 because she was experiencing a loss of memory. By 1994, he testified, Mary Fischer was no longer capable of conducting a basic telephone conversation: she would ask him repeatedly how he was, and only sometimes put her husband on the telephone. The doorman in the Fischers' apartment building described the degeneration of the Fischers in the mid-1990's, from being "proud in the way that they would dress and well mannered" to slovenly and fetid. Mr. Fischer, confined to a wheel chair, became "lethargic and totally absent." Mrs. Fischer, once friendly and content, became withdrawn. She would call the doorman on the intercom to say she was afraid and did not feel comfortable with "Miss Hala." Eventually she became mute. One day in mid-1996 Mary Fischer appeared in the lobby wearing sleepwear and no undergarments. A Lodge member who visited Mr. Fischer in late 1997, having been alerted by the Fischers' doorman "there's something wrong up there" testified: "his mind was no longer functioning." A community worker with Self Help Community Services, an organization that assists Holocaust survivors and Nazi victims, who visited Mr. Fischer on November 7, 1997, described a man unable to speak, uncomprehending and unresponsive, whose body, upon being transferred from bed to wheel chair, remained limp. [FN1]

The overwhelming proof is that, by 1996, an enfeebled Mary and Alfred Fischer lacked capacity to handle, or even monitor, their financial affairs.

Transactions between a couple with impaired capacity and their care giver are subject to vigilant scrutiny (Gordon v Bialystoker, 45 NY2d 692, 698; Ten Eyck v Whitbeck, 156 NY 341, 353). Under the doctrine of constructive fraud, such transactions are presumed void, the burden being on the stronger party to prove the absence of an abuse of confidence (Gordon v Bialystoker, 45 NY2d 692, 698, supra; Ten Eyck v Whitbeck, 156 NY 341, 353, supra; Cowee v Cornell, 75 NY 91, 99-100). The Court of Appeals articulated the doctrine of constructive fraud in this fashion: Whenever . . . the relations between the contracting parties appear to be of such a character as to render it certain that they do not deal on terms of equality but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from an overmastering influence, or on the other from weakness, dependence, or trust justifiably reposed, unfair advantage in a transaction is rendered probable, there the burden is shifted, the transaction is presumed void, and it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood.

[*3]Gordon v Bialystoker, 45 NY2d 692, 698, supra, quoting Cowee v Cornell, 75 NY 91, 99-100.

Therefore, Ms. Brown is obligated to account for any money expended for the benefit of the Fischers, and to prove the elements of any gift with clear and convincing evidence, corroborated by the testimony of disinterested witnesses (Matter of Corse, 16 Misc 2d 538, 539, affd without op 13 AD2d 651).

Ms. Brown has not met her burden. She has failed to account for money spent on the Fischers' care, and has alleged no increase in the Fischers' expenses or change in the manner in which the Fischers paid their bills that would have accounted for the disparity between total cash withdrawals from the Fischers' checking account in all of 1995 of approximately $2,200 from which the Fischers paid Ms. Brown's wages and the almost $500,000 withdrawn over the next two years.[FN2] Ms. Brown has attempted neither to quantify the supposed gifts of cash [FN3] nor to document the circumstances under which they were made.[FN4] Ms. Brown's failure to prove the absence of an abuse of confidence established her conversion of the Fischers' assets; nevertheless, petitioners offered additional evidence. A linguistics professor, an expert in Carribean English, testified that documents allegedly signed by Alfred Fischer, including three letters to his bank, one dated November 12, 1997, which provides: "I Alfred Fischer make Hala Delcina Brown Of 18888 Pacific street, Brooklyn, NY. 11233. the BENEFICIARY of all my [*4]account [sic]," the second dated December 6, 1997, which provides: "Please transfer the interest from my CD. [sic] to my new checking account," a joint account with Hala Brown and Alfred Fischer, and the third dated February 4, 1998 directing the transfer of the balances of two other accounts into a joint account with Alfred Fischer and Hala Brown, were not written by Alfred Fischer, a Viennese emigre whose writing style was very formal and whose usage and sentence structure demonstrated patterns that "very nearly conform with flawless standard English," but by an individual whose native language is a variety of deep Carribean English Creole. Ms. Brown's speech, according to the expert, influenced by deep Jamaican English Creole, demonstrates many of the structural features contained in these documents.

There remains the question whether, and how much, Ms. Brown is permitted to claim as payment for her salary. She claims she began working for the Fischers in 1991,[FN5] twice a week, 4 hours a day, at $10 an hour, and graduated to 7 days a week, 12 hours a day, at an hourly rate of $20, but her testimony as to when she began working 84 hour weeks was evasive and conflicting.

Given the Fischers' inability to care for themselves after 1995, it is apparent Ms. Brown rendered some services, for which she should be compensated on the basis of quantum meruit, as the Fischers lacked capacity to enter into an employment contract. Petitioners suggest Ms. Brown be paid for 84 hours a week at the rate of $7 an hour which, petitioners assert, was the union rate for health care aides in New York City in 2004. Although it appears Ms. Brown essentially lived in the Fischers' apartment, and entertained friends and family there, there is no basis in the record to award her compensation for more than 4 hours of work a day, 7 days a week. At $7 an hour, 28 hours a week, Ms. Brown's compensation, from January 1, 1996 until Alfred Fischer's death on April 15, 1998, would be $23,324.

Accordingly, the Court finds Ms. Brown converted $956,070.70, calculated as the sum of checks cashed by Ms. Brown from 1996 until Alfred Fischer's death ($364,750 + $121,315 = $486,065), plus funds withdrawn by Ms. Brown from her joint accounts with Alfred Fischer ($493,329.70), less a salary of $23,324.

Settle decrees setting forth the sum to be turned over to each estate, (with Ms. Brown's salary, for the period from January 1, 1996, through November 3, 1997, being paid from the two estates equally and, for the period from November 3, 1997 through April 15, 1998, being paid from the estate of Alfred Fischer), with interest at the legal rate, computed as of the respective dates of death of Mary and Alfred Fischer.

___________________________________________

S U R R O G A T E [*5]

Dated: November , 2005 Footnotes

Footnote 1: The witness visited Mr. Fischer only once and took no further action, explaining: "Because we are non-for-profit organization. We are not government protective services. And we can build our relationship only on free will and voluntarily. But with Mr. Fischer, we couldn't build any relationship, and I reported this to my supervisor."

Footnote 2: When asked: "Did the Fischers' normal living expenses increase after 1995?" Ms. Brown replied: "I don't know. I couldn't say." Similarly, when asked: "Is there anything you can think of between 1995 and 1996 which would account for a change in the Fischers' spending habits?" Ms. Brown replied: "I don't know, not to my knowledge." On redirect questioning by her attorney, Ms. Brown was asked: "Did you observe, ma'am, after you started working for the Fischers, did you observe a sudden what would be regarded as a sudden shift in their spending patterns, where they would spend more?" and replied: "Yeah, Mrs. Fischer would withdraw more and give me a bigger check to spend."

Footnote 3: When asked: "What was the total amount of the gifts that the Fischers gave you in the form of checks?" respondent replied: "I don't have any recollection. I don't have any record of that." Asked by the Court whether the sum was less than $100,000, Ms. Brown answered: "To my knowledge, your Honor."

Footnote 4: Ms. Brown testified: Q Did the Fischers ever give you any checks as gifts to you? A Many on holidays. Q I'm sorry? A Yes, they do. Q How many such checks were there? A I don't have any recollection of that at this time.

Footnote 5: Ms. Brown's contention that she began working for the Fischers in 1991 was refuted by the record. A live-in aide to another resident of the Fischers' building recalled first meeting Ms. Brown in 1996. The doorman's recollection was that Ms. Brown was not employed by the Fischers before 1995. Petitioners assert Ms. Brown began her employment in 1995.