Matter of Katz
Annotate this CaseDecided on June 12, 2007
Sur Ct, Nassau County
In the Matter of the Estate Probate Proceeding, Allen M. Katz, a/k/a Allen Katz, Deceased.
341364
Appearances:
John P. Clarke, Esq.
35 Broad Street
Williston Park, NY 11596
(Attorney for Petitioner)
Thomas D. Atkinson, Esq.
Ledwith & Atkinson
14 St. James Place
Lynbrook, NY 11563
(Attorney for Respondent)
John B. Riordan, J.
In this contested probate proceeding, the proponents Bradley Katz and Jay F. Korth move for an order pursuant to CPLR 3212 granting summary judgment dismissing the objections of the respondent Kimberly Katz and admitting the propounded will dated October 24, 2005 to probate. The respondent has interposed the following objections to the propounded instrument: undue influence and fraud. For the reasons described below, the motion is granted.
FACTUAL BACKGROUND
The decedent, Allen M. Katz, died on December 30, 2005 survived by his son, Bradley Katz, one of the proponents herein, and his daughter, Kimberly Katz, the respondent. The decedent's oldest son, Elliot, predeceased him.
The will offered for probate provides that the entire residuary estate is payable to Bradley, or if Bradley is not living, to Bradley's son, Brent, or his surviving issue. In addition, the will gives the decedent's brother Myron Katz a life estate in the decedent's one-half (½) interest in real property in Lynbrook. The will names Bradley and the attorney-draftsman, Jay F. Korth, as executors. If either of them fails or ceases to act, Jay T. Korth is named as successor.
SUMMARY JUDGMENT
Summary judgment may be granted only when it is clear that no triable issue of fact exists (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Phillips v Joseph Kantor & Co., 31 NY2d 307, 311 [1972]). The court's function on a motion for summary judgment is "issue finding" rather than issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), because issues of fact require a hearing for determination (Esteve v Abad, 271 App Div 725, 727 [1st Dept 1947]). Consequently, it is incumbent upon the moving party to make a prima facie showing that he is entitled to summary judgment as a matter of law (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Zarr v Riccio, 180 AD2d 734, 735 [2d Dept 1992]). The papers submitted in connection with a motion for summary judgment are always viewed in the light most favorable to the non-moving party (Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610, 610 [2d Dept 1990]). If there is any doubt as to the existence of a triable issue, the motion must be denied (Hantz v Fishman, 155 AD2d 415, 416 [2d Dept 1989]).
If the moving party meets his burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In doing so, the party opposing the motion must lay bare his proof (see Towner v Towner, 225 [*2]AD2d 614, 615 [2d Dept 1996]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to overcome a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see Prudential Home Mtge. Co., Inc. v Cermele, 226 AD2d 357, 357-358 [2d Dept 1996]).
UNDUE INFLUENCE
The objectant has the burden of proof on the issue of undue influence (Matter of Bustanoby, 262 AD2d 407, 408 [2d Dept 1999]). The three elements of undue influence have been described as motive, opportunity, and the actual exercise of undue influence (see Matter of Fiumara, 47 NY2d 845, 846 [1979]). This classic formulation about what constitutes undue influence still resonates in the case law: "[i]t must be shown that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency. . . . It must not be the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity, or by a silent, resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear" (Children's Aid Socy. v Loveridge, 70 NY 387, 394 [1877]; see also Matter of Kumstar, 66 NY2d 691, 693 [1985]).
Undue influence is rarely proven by direct evidence; rather, it is usually proven by circumstantial evidence (Matter of Walther, 6 NY2d 49, 54 [1959]; Children's Aid Socy. v Loveridge, 70 NY 387, 395 [1877]; Matter of Burke, 82 AD2d 260, 269 [2d Dept 1981] ). Among the factors that are considered are: (1) the testator's physical and mental condition (Matter of Woodward, 167 NY 28, 31 [1901]; Children's Aid Socy. v Loveridge, 70 NY 387, 395 [1877]; Matter of Callahan, 155 AD2d 454 [2d Dept 1989]); (2) whether the attorney who drafted the will was the testator's attorney (Matter of Lamerdin, 250 App Div 133, 135 [2d Dept 1937]; Matter of Elmore, 42 AD2d 240, 241 [3d Dept 1973] ); (3) whether the propounded instrument deviates from the testator's prior testamentary pattern (Children's Aid Socy. v Loveridge, 70 NY 387, 402 [1877]; Matter of Kruszelnicki, 23 AD2d 622 [4th Dept 1965]); (4) whether the person who allegedly wielded undue influence was in a position of trust (Matter of Burke, 82 AD2d 260, 270 [2d Dept 1981]) and (5) whether the testator was isolated from the natural objects of his affection (Matter of Burke, 82 AD2d 260, 273 [1981]; see Matter of Kaufman, 20 AD2d 464, 474 [1st Dept 1964], affd 15 NY2d 825 [1965]). With this in mind, it is also important to remember that in order to defeat a motion for summary judgment, the objectant must demonstrate that there is a genuine triable issue by allegations that are specific and detailed and substantiated by admissible evidence in the record. Mere conclusory assertions will not suffice (Matter of O'Hara, 85 AD2d 669, 671 [2d Dept 1981] ).
FRAUD
The objectant also bears the burden of proving fraud (Matter of Schillinger, 258 NY 186, 190 [1932]; Matter of Beneway, 272 AD 463, 468 [3d Dept 1947]). It must be shown that "the proponent knowingly made a false statement that caused decedent to execute a will that disposed of [her] property in a manner different from the disposition [she] would have made in the absence of that statement" (Matter of Clapper, 279 AD2d 730, 732 [3d Dept 2001]). Moreover, a finding of fraud must be supported by clear and convincing evidence (Simcusky v Saeli, 44 NY2d 442, 452 [1978]). In order to defeat the motion for summary judgment on the issue of fraud, the objectant must come forward with more than "mere conclusory allegations and [*3]speculation" (Matter of Seelig, 13 AD3d 776, 777 [3d Dept 2004]). Indeed, to defeat a motion for summary judgment, the objectant must produce sufficient evidence to show that there is an issue of fact to the effect that the proponent made a false statement or statements to the decedent to induce her to make this will, that the decedent believed the statement, and that without such statement or statements, the propounded will would not have been executed (NY PJI 7:60 [2006]). A showing of motive and opportunity to mislead is insufficient; evidence of actual misrepresentation is necessary (Matter of Gross, 242 AD2d 333, 334 [2d Dept 1997]).
ANALYSIS
Kimberly asserts that the propounded will was the result of undue influence and fraud on the decedent by Bradley and the decedent's brother, Myron. In support of her position, Kimberly has submitted her own affidavit, an affidavit from her mother, the decedent's former wife, Joan Tatham, an affidavit from Kenneth Payne and an affidavit from James Payne, both of whom allege that they were longtime acquaintances of Kimberly and the decedent. Kimberly has also submitted copies of the decedent's medical records from Franklin General Hospital covering the period September 2, 2005 through September 28, 2005.
Kimberly asserts that she and her father had a very close, warm and personal relationship despite the fact that she lived in Chicago. Kimberly also states that the decedent suffered from "severe cerebellar ataxia, a degenerative nervous system disorder in the last 30+ years of his life." Kimberly further alleges that the decedent was wheelchair bound, had slurred speech and great difficulty with fine motor skills. In addition, Kimberly asserts that her father was depressed and suicidal due to the death in 2005 of his oldest son Elliot, who also suffered from ataxia. Kimberly alleges that Bradley took advantage of the decedent's weakened and depressed condition and unduly influenced him into changing his prior testamentary scheme. The decedent's prior will dated November 22, 1999 left his estate to his three children equally. Kimberly claims that the decedent was admitted to Franklin General Hospital for his depression in September, 2005. During his stay at Franklin General Hospital, the decedent allegedly told Kimberly that Bradley and the decedent's brother Myron were "kicking him out of his house in Lynbrook." According to Kimberly, her father expressed to her his "feelings of being trapped and helpless." Kimberly further alleges that on or about September 18, 2005, she had a discussion with the decedent in which he insisted that he only had $78,000 in savings left, even though Kimberly knew that her father's assets were valued at approximately $300,000.00. Kimberly argues that her father specifically told her that Bradley and Myron had told him that he only had $78,000.00 left and that he would eventually be bankrupt.
Kimberly also asserts that on or about October 8, 2005, the decedent told her that Bradley had come from Florida to New York to visit him and told him that Kimberly was "running up his credit cards" and "was going to leave him broke." Kimberly also claims that Bradley told her father horrible things about her and that her father told her that Myron and Bradley were "ganging up" on him. She claims that the decedent called Bradley "a vulture" and said that he couldn't fight him anymore. Thereafter, upon being released from Franklin General Hospital, the decedent became a patient at the Garden Care Center which is where he was at the time he executed the purported will. Upon his discharge, the decedent moved to Florida. After the move, the decedent allegedly told Kimberly that Bradley took all his money and he had nothing left. [*4]
Finally, Kimberly asserts that on November 24, 2005, she was driving in a car with James Payne and Kenneth Payne. During the car ride, Kimberly had a telephone conversation with her father on speaker phone. Her mother Joanne Tatham, who was a resident in the same facility in Florida where the decedent was residing, was allegedly present with the decedent at the time the call was made. During that conversation, the decedent allegedly told Kimberly, James and Kenneth that he had changed his will because Bradley forced him to do so. Kimberly claims that her father felt pressured to change his will because he believed that Bradley and Myron would not let him move back into the Lynbrook home. According to Kimberly, the decedent felt he had no choice but to move to Florida with Bradley, and Bradley would not let him move until his will was changed. Kimberly claims that Bradley and Myron had convinced the decedent that his assets were much less than they actually were and that he had no choice but to move to Florida.
Kimberly and Bradley's mother Joanne Tatham has submitted an affidavit on behalf of Kimberly in which she states that from November 2005 through the decedent's date of death, they both resided at the same nursing home in Florida. She alleges that, on November 11, 2005, the decedent told her that he had been forced to change his will because Bradley and Myron would not allow him to return to his home in Lynbrook. Ms. Tatham further claims the decedent told her that Bradley would not permit him to move to Florida until the will had, in fact, been changed. According to Ms. Tatham, she was also present with the decedent on November 24, 2005 when the telephone call described above took place and she heard the decedent tell Kimberly, James Payne and Kenneth Payne that Bradley had forced him to change his will. Moreover, Ms. Tatham asserts that Bradley had no contact with decedent for over twenty years and that Bradley's relationship with the decedent was antagonistic.
Kimberly has also submitted the affidavits of Kenneth Payne and James Payne. Both Kenneth and James assert that the decedent stated in the telephone conversation on November 24, 2005 that he had changed his will because Bradley forced him to do so. According to both Kenneth and James, the decedent told them during the telephone conversation that Bradley and Myron would not let him move back to his home in Lynbrook. His only option was to move to Florida with Bradley and Bradley demanded that the decedent's will be changed prior to the move. Both Kenneth and James assert that the decedent stated that he was "broke" and was afraid of being put in a Medicaid nursing home. Kenneth also asserts that he knew the decedent for twelve years and spoke to him on a weekly basis. Kenneth claims that the decedent spoke of Bradley in terms of bitterness, anger and frustration and that he adored his daughter Kimberly.
In support of the motion, Bradley has submitted his own affidavit, the affidavit of the decedent's brother Myron, the affidavit of the attorney-draftsman and proponent Jay Korth, the affidavit of Salvatore Esposito, an attesting witness to the will, and the affidavit of the administrator at the nursing home in Florida where the decedent resided at the time of his death.
Bradley asserts that he never had any discussions with the decedent regarding his will. He claims he was unaware of the proffered will until it was given to him by the decedent, together with a power of attorney, which delivery took place on November 5, 2005. Bradley asserts that he flew to New York on November 5, 2005 to assist the decedent with his move to Miami, Florida. The decedent left the Garden Care Center on November 6, 2005. Prior to that time, Bradley had visited his father with his uncle Myron at the Garden Care Center on October 7, 2005. Bradley argues that he only suggested that his father move to Florida until such time as [*5]he was strong enough to return to his home in Lynbrook or if he chose he could make the move permanent. According to Bradley, his father wanted to investigate other alternative care in the Long Island area and was reluctant to move from New York. Bradley alleges that, in mid-October, he received a telephone call from his uncle during which he was told that his father had decided to move to Florida on a trial basis. Bradley claims that he did not have any conversations relating to his father's will with Jay Korth until November 5, 2005, at which time the will and power of attorney were delivered to him by his father.
The attorney-draftsman, Jay F. Korth, asserts that he represented the decedent for over twenty-five years. The decedent had been a medical doctor. Mr. Korth claims that the decedent's "mental acuity was always keen." According to Mr. Korth, in or about May 2005, the decedent contacted him to discuss the preparation of a new will. Thereafter, in late September 2005, the decedent again contacted him to discuss "problems which had arisen with the use of his credit cards by his daughter Kimberly Katz." Mr. Korth wrote to the decedent on June 6, 2005 advising him that a draft of his will was ready for his review. Thereafter, Mr. Korth learned that the decedent had been injured in a fall at his home in August 2005 and that he was hospitalized at Franklin General Hospital. In October 2005, Mr. Korth received a copy of his letter of June 6, 2005 on the bottom of which were instructions to Mr. Korth about the proposed will. The instructions were printed by the decedent's brother Myron but signed by the decedent. Mr. Korth was aware that the decedent could not write legibly because of his physical condition but states that he recognized the signature as the decedent's.
On October 24, 2005, Mr. Korth went to the Garden Care Center for the purpose of having the decedent execute his new will. The decedent's long-time friend, Salvatore Esposito and Patricia DeMartino, one of the health aides at the Garden Care Center, acted as witnesses together with Mr. Korth. Mr. Korth stated that the decedent read the will and understood its contents. Mr. Korth further asserts that he never communicated with Bradley with respect to the preparation, contents or proposed execution of the decedent's will prior to its execution and that the first time he met Bradley was on November 5, 2006.
The decedent's brother Myron has submitted an affidavit in which he asserts that he lived with the decedent in the Lynbrook residence for the last 30 years. Myron alleges that he visited the decedent everyday while he was a patient at Franklin General Hospital and Garden Care Center and that the decedent was rational. According to Myron, Bradley visited the decedent once in early October 2005 and again on November 5, 2005. Myron was present during both visits and alleges that there was no discussion of the decedent's will. On October 13, 2005, the decedent decided to relocate to Florida and asked Myron to write a response to the note from Mr. Korth. Myron claims that the decedent dictated the response to him and discussed the contents of the will with him. Myron alleges that the decedent was upset because of Kimberly's use of his credit cards. Accordingly to Myron, the decedent was concerned about his finances and that so much of his money had been squandered by Kimberly. Myron denies that he urged the decedent to make the proposed will, claiming that the decedent was intelligent and strong willed. To Myron's knowledge, the decedent did not discuss the will with Bradley at any time.
Salvatore Esposito, one of the attesting witnesses, has submitted an affidavit wherein he states that he was the decedent's childhood friend and had known the decedent for over 65 years. He states that he was asked by the decedent to act as an attesting witness to the will. According to Mr. Esposito, the decedent appeared to be of sound mind and not under any restraint. Mr. [*6]Esposito did not discuss the exact contents of the will with the decedent, but he alleges that the decedent did indicate that he had to do what he was doing in the will because of "Kimberly's exorbitant use of a credit card which he had made available to her." Prior to that date, the decedent had also told him that Kimberly had misused his credit cards.
The administrator of the facility in Florida where the decedent and his ex-wife were living asserts that the decedent resided at the facility from November 6, 2005 to December 30, 2005 and that she interacted with the decedent on a daily basis. Her impression was that the decedent was alert. Upon the decedent's admission, he expressed his desire not to receive any phone calls from Kimberly. Shortly after his arrival, a package from Kimberly was received addressed to the decedent and Joanne Tatham. The administrator informed the decedent of the package, and he responded "Oh no, not for me. I want nothing to do with her, give it to Joanne."
The proponents have the burden of proof on the issues of due execution and testamentary capacity. Here the proponents have made out a prima facie case on due execution. It is undisputed that the propounded instrument bears the signatures of three attesting witnesses, that the instrument contains an attestation clause and was supervised by an attorney. Moreover, no objection as to due execution has been interposed.
Concerning testamentary capacity, a testator enjoys a presumption of sanity and mental capacity (Matter of Coddington, 281 App Div 143 [3d Dept. 1952] aff'd 307 NY 181 [1954]). The respondent has not objected on the grounds of lack of testamentary capacity, but does annex to her opposition papers copies of the decedent's medical records from Franklin General Hospital, all of which predate the date the will was executed and have no bearing on the issue of testamentary capacity at the time of execution. Both Mr. Esposito and Mr. Korth, two of the three attesting witnesses, have submitted affidavits in support of the motion regarding the decedent's capacity at the time of the will execution.
Concerning the issues of fraud and undue influence, although the proponents have moved for summary judgment dismissing these objections, the respondent has the burden of proof on these issues. The affidavits of Bradley Katz, Jay F. Korth and Myron Katz submitted by the proponents in support of summary judgment are replete with testimony which would be excludable evidence under the Dead Man's Statute (CPLR 4519). While such barred testimony may be considered in opposition to a motion for summary judgment, it may not be considered in support of a summary judgment motion. Moreover, the statements in Mr. Esposito's affidavit concerning the decedent's statements regarding Kimberly's alleged credit card use are hearsay. Similarly, the statements in the affidavit of the nursing home administrator concerning her conversation with the decedent regarding the package delivered are inadmissable as hearsay.
Nevertheless, Kimberly has the burden of proof on the issues of fraud and undue influence and in opposing summary judgment must lay bare her proof (Matter of Leone, NYLJ, Feb. 3, 2000, at 36 col. 2 [Sur Ct. Westchester County]). The only proof Kimberly has offered are the affidavits of Kimberly, her mother and Kenneth and James Payne. Although Kimberly's testimony is not barred by CPLR 4519 for purposes of opposing summary judgment, it constitutes hearsay. Similarly, the affidavits of Joanne Tatham, Kenneth Payne and James Payne contain hearsay statements. While a party opposing summary judgment may submit hearsay evidence, such proof may not be the sole factual basis for denying the motion (Rodriguez v Sixth President, Inc., 4 AD3d 406 [2d Dept. 2004]; Sunfirst Federal Credit Union v Empire Ins. [*7]Company/All City Ins. Co., 239 AD2d 894 [4th Dept. 1997]; Arnold v New York City Housing Authority, 296 AD2d 355 (1st Dept 2002); Estate of Essig v 58th Street Holding Corp., 14 Misc 3d 1225A (Sup Ct, Queens County 2007). Respondent seeks to defeat this motion solely on the basis of hearsay evidence. The fact that the declarant, the decedent, is unavailable to testify does not warrant a different result (5 Bender's New York Evidence-CPLR, §15.09). The only other evidence offered by respondent are the medical records from Franklin General Hospital annexed to respondent's opposition papers. The records pre-date the execution of the propounded instrument by approximately one month or more. No records from the Garden Care Center, which is where the decedent resided at the time the will was executed, have been offered by respondent. Thus, the hearsay evidence, standing alone is insufficient to establish undue influence and fraud. Accordingly, the motion is granted.
Settle decree.
Dated: June 12, 2007
JOHN B. RIORDAN
Judge of the
Surrogate's Court
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