Matter of Goldberg
Annotate this CaseDecided on December 3, 2010
Sur Ct, Kings County
Proceeding to Register Conveyance of Real Property of the Estate of Regina Goldberg, a/k/a REBEKA GOLDBERG, Deceased,
1832/08
For the Petitioner
Seidia Bernard, Esq.
Roach & Bernard
300 Merrick Road, Suite 209
Lynbrook, New York 11503
For the Public Administrator
Barry Cozier, Esq.
Epstein, Becker & Green
250 Park Avenue
New York, New York 10177
N.Y.S. Attorney General
Lisa Barbari, Esq.
Charities Bureau
NYS Department of Law
120 Broadway
New York, New York 10271
Diana A. Johnson, J.
In this proceeding to declare the petitioner the owner of the decedent's real
property, the petitioner asks for an injunction barring the Public Administrator from the selling
the property or continuing a proceeding to evict petitioner pending determination of his petition.
Background
The decedent died on February, 2008, survived by two cousins. The Court granted letters of administration to the Public Administrator on April 23, 2010. The decedent owned property at 1347 East 85th Street in which she resided. She lived in an apartment on the second floor and rented out the first floor apartment.
The Public Administrator listed the property for sale at a public auction. The Public [*2]Administrator brought an action in Housing Court to evict petitioner, who was living in the first floor apartment. Petitioner claimed that the decedent gave him the property on August 15, 2007, and brought a proceeding pursuant to Article 19 of the SCPA to determine his right to the property.
In his petition he alleged that beginning January, 2007, he rented an apartment near the decedent's residence, as a month to month tenant paying $700 a month rent. The petition alleged that soon after he began living in the apartment, the decedent's health deteriorated and that the petitioner provided assistance to the decedent in her household chores, such as cooking and cleaning. He alleged that the decedent refused to accept any rental payments from him.
The petitioner claimed that the decedent told him that she had no close relatives and offered to give him her house. The petitioner said that he originally refused, allegedly because he felt that he should give her some consideration for the property and the decedent refused to accept any consideration.
On August 15, 2007, he alleged that the decedent asked him to come upstairs to see her, where she told him that she had decided to give the property to him and would not accept any consideration. He alleged that she gave him the deed to the house, stating "here is the deed for my home. This home is a gift from me to you. You can do with it as you wish." He alleged that, with the deed, she gave him the insurance papers for the property and the original contract of sale that she executed when she purchased the property. He alleged that the decedent requested that she continue to live in the property until her death, to which petitioner agreed. The petitioner alleged that since August 15, 2007, he had made all decisions concerning the property.
Annexed to the petition was an affidavit of Alphanso Millings, who stated that he lived in Jamaica, West Indies. However, in 2007, he lived next door, at 1349 East 85th Street. He stated that he had a number of conversations with the decedent in which she expressed her desire to give petitioner the property. Around August 15, 2007, she told him that she had given the petitioner her home. Petitioner asked that he be declared the owner of the real property and that the Public Administrator transfer title to the property to him.
The Public Administrator filed an answer, denying that the decedent had made a completed gift of the property to the petitioner and asked that the petition be dismissed. The Public Administrator brought a holdover proceeding in Housing Court to remove the petitioner from the property and listed the property for sale at his next available auction.
The petitioner brought an order to show cause for a temporary restraining order staying the
eviction proceedings and selling the property and asking that Public Administrator be stayed
from proceeding on the matters until determination of his rights to the property.
The Court issued a temporary restraining order and set the matter down for a hearing
on the request for injunctive relief.
The Public Administrator opposed granting a preliminary injunction staying the eviction
proceeding and sale of the residence, on the ground that the petitioner failed to establish his right
to relief as the donee of a completed gift of the property. The Public Administrator attached as an
exhibit a verified claim filed by the petitioner, sworn to on August 30, 2010. In the
accompanying affidavit, the petitioner stated that he was entitled to be paid for his services to the
decedent based upon his allegation that the decedent intended to compensate him for his services
[*3]out of her estate since she could not pay him at the time. The
affidavit also stated that prior to the decedent's death, the decedent appointed him as her agent
and custodian of the property, and that his services in this regard was part of the claim.
Significantly, the petitioner stated in the affidavit that the decedent had offered to give him the
property and that he had refused to accept her gift.
Discussion
In order to establish a right to a
preliminary injunction, the petitioner must establish a probability of success on the merits, danger
of irreparable injury in the absence of an injunction, and a balancing of the equities in his favor.
Aetna Ins. Co. v Capasso, 75 NY2d 860, 862 (1990). Although, the decision to grant or
deny a preliminary injunction rests in the sound discretion of the trial court (Schweitzer v
Town of Smithtown, 19 AD3d 529 [2d Dept 2005]), it may be issued only when the
petitioner demonstrates a likelihood of ultimate success on the merits. Nassau Roofing &
Sheet Metal Co., Inc. v Facilities Dev. Corp.. 70 AD2d 1021 (3d Dept 1979).
Inter Vivos Gifts
In the instant case, the petitioner claims that the decedent made an inter vivos gift of the property to him. To establish a completed gift, the petitioner must show that: (1) the intention to make an irrevocable present transfer of ownership, (2) delivery and (3) acceptance. The burden is on petitioner to show the requisite intention to make an irrevocable present transfer of ownership Matter of Brady, 228 App Div 56 (3d Dept 1930), affd 254 NY 590 (1930). The petitioner has the burden to prove the elements of a gift by clear and convincing evidence. Gruen v Gruen, 68 NY2d 48 (1986).
He who attempts to establish title to property through a gift inter vivos as against the
estate of a decedent takes upon himself a heavy burden which he must support by evidence of
great probative force, which clearly establishes every element of a valid gift. Matter of
Kaminsky, 17 AD2d 690 (3d Dept 1962), app dismissed 12 NY2d 840 (1962).
This requires direct proof of each element of the gift. Matter of Kelsey, 29
AD2d 450 (4th Dept 1970), affd 26 NY2d 792 (1970); Lawless v Mortimore, 42
AD2d 1021 (3d Dept 1973).
In the instant case, petitioner alleges that the decedent intention to make a gift was established by his testimony and that of a neighbor. However, his affidavits fail to establish that the gift was ever completed. Where real property is involved, a valid transfer of an interest in real property requires the delivery a deed or other writing , acknowledged by transferor. GOL § 5-703. Without such a written evidence of transfer, the transfer is incomplete. See Whalen v Harvey, 235 AD2d 792 (3d Dept 1997), lv denied 89 NY2d 816 (1997); In re Roll v D'Elia, 167 AD2d 545 (2d Dept 1990).
Petitioner argues that his ownership was confirmed by delivery of the original deed conveying the property to the decedent and her insurance papers. However, delivery of these documents does not establish a completed gift and are, in any event, consistent with his stated role as the decedent's agent in managing the property.
Nor does the petitioner's evidence establish that the petitioner accepted the alleged gift. While he claims in this proceeding that he accepted the alleged gift on August 15, 2007, he [*4]denied ever agreeing to accept the alleged gift in his affidavit supporting his claim for services.
The failure to establish a likelihood of success on the merits concerning the alleged inter
vivos gift at issue is fatal to petitioner's claim for injunctive relief. Based on the above, the
motion for a preliminary injunction is denied and the temporary restraining order previously
granted is vacated in all respects.
This constitutes the decision and order of the Court.
The Clerk of the Court is directed to mail a copy of this decision and order to all parties who have appeared in this proceeding.
___s/s_____________________________
Hon. Diana A. Johnson
Surrogate
Dated: December 3, 2010
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