Matter of Augustine
Annotate this CaseDecided on December 11, 2009
Sur Ct, Richmond County
In the Matter of the Application of Helen Augustine to set aside a certain deed and mortgage regarding real property purportedly held by the estate of RONALD LISS A/K/A RONALD J. LISS
2007-326/A
Attorneys for Movant:
Hofheimer Gartlir & Gross, LLP, by Robert Kennedy, Esq. (212) 818-9000
Attorney for Petitioner:
Allyn J. Crawford, Esq. (718) 273-9414
Attorney for Estate:
William J. Frew, Jr., Esq. (718) 447-8300
Robert Gigante, J.
Movant BankUnited, FSB seeks an order granting it summary judgment dismissing the petition of Helen Augustine dated June 12, 2007. Her petition seeks a decree that, (1) decedent herein Ronald Liss, or his heirs be banned from any claim of ownership of premises at 489 Page Avenue, Staten Island, New York, (2) sets aside a certain deed to the subject premises dated and recorded in March of 2005, (3) awards attorneys' fees, and, (4) petitioner is the sole and rightful owner of the subject premises.
The petition asserts that on or about March 24, 2005, decedent Ronald Liss (petitioner's nephew) approached her about going to his lawyer's office for the purpose of taking care of some of her financial affairs. It is claimed that decedent represented that she would be signing a Power of Attorney, and that, inasmuch as he was her nephew, she believed this to be true and relied on his statements. The documents presented to her for execution were in fact a deed conveying title of the subject property to decedent, plus related forms necessary to permit its' recording. It is further asserted that decedent knew his representations were false, made with intent to deceive, that her actions in purportedly conveying her interest was the product of Liss' undue influence, and that petitioner never intended to convey her interest in the subject real property. Further, the deed recites consideration paid of $450,000.00, which petitioner asserts was never given to her.
Soon thereafter, decedent used the subject property as security for a $310,000.00 mortgage loan he obtained from BankUnited, FSB. Apparently, after decedent's death, no one made the monthly mortgage payments, and BankUnited commenced a foreclosure action in Richmond County Supreme Court in October of 2007. Parenthetically, it is noted that Mary Liss, decedent's widow and Executrix of his Estate, testified that she had no knowledge of either of [*2]these transactions until after his death. BankUnited, of course, has an interest in the petition, given that its' security in the property may be jeopardized, depending on its ultimate resolution.
In order to prevail on her claims, petitioner must demonstrate, inter alia, an intent on decedent's part to deceive her. The verified petition, as well as petitioner's affidavit, may be considered in opposition to the motion (CPLR 105 (t); Pullnow v Poughkeepsie Newspapers Inc., 67 NY2d 778, 780), and assuming the truth contained therein for purposes of this motion, they raise triable issues of fact for resolution by the trier of fact as to decedent's intentions. A trier of fact could very well find, upon the evidence and circumstances presently before the Court, that decedent made false representations as to the nature of the document she was signing, for the purpose of deceiving her into conveying her interest in the subject real property, and that such was not her real intention. Although a party is generally bound by a written agreement her or she signs, this proposition is qualified by the principle that one who signs a document reasonably believing it is something quite different than it is cannot be bound to the terms of the document (Operating Engineers Pension Trust v Gillian, 737 F.2d 1501, 1504, citing, inter alia, Calamari & Perillo, Contracts 332 (2D Ed.), and 1 Williston on Contracts, Section 95A (3d Ed.)).
Another element petitioner must allege and prove is that she justifiably relied on Liss' representations (Cayuga Partners, L.L.C. v 150 Grand, L.L.C., 305 AD2d 527 (2d Dept.)). Contrary to movant's position, the documents in question do not clearly and unambiguously contradict the oral representations made to petitioner by Liss (Smith v Ameriquest Mortgage Co., 60 AD3d 1037, 1039 (2d Dept.)). Further, movant's reliance on the testimony of the attorney at whose office the transaction took place is unpersuasive. The lawyer said that he discussed the implication of the document she signed, but petitioner does not recall such a conversation, and denies that the lawyer represented her (EBT of Helen Augustine, June 26, 2008, pp 47-48). Consequently, there are triable issues of fact as to whether petitioner was entitled to rely upon those representations made to her before she executed the documents at issue. (Id.)
On a motion for summary judgment, it is the burden of the proponent to demonstrate, prima facie, that it is entitled to judgment as a matter of law, eliminating any material issues of fact, and failure to do so requires denial of the motion (Alvarez v Prospect Hospital, 68 NY2d 320, 324; Winegrad v New York Univ. Medical Center, 64 NY2d 851, 853; see also, Gould v Syracusa, 254 AD2d 800). Movant herein has simply failed to meet this burden. Further, issue finding, rather than issue determination, is the court's role here; it is not the Court's function to assess the credibility of witnesses on a summary judgment motion (Ferrante v American Lung Association, 90 NY2d 623, 631).
For these reasons, the motion for summary judgment in favor of movant BankUnited FSB is denied in all respects.
This decision shall constitute the Judgment and Order of the Court.
Dated: December 11, 2009
ROBERT J. GIGANTE, Surrogate
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