Matter of Young

[*1] Matter of Young 2010 NY Slip Op 52281(U) [30 Misc 3d 1204(A)] Decided on December 30, 2010 Sur Ct, Broome County Peckham, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2010
Sur Ct, Broome County

In the Matter of George E. Young, Deceased.



2007-726



Kristin K. Luce, Esq.

Attorney for Estate

Coughlin & Gerhart

PO Box 2039

Binghamton, NY 13902

Ronald Benjamin, Esq.

Marya Young, Esq., of Counsel

Attorneys for Cheryl Simple

126 Riverside Drive

Binghamton, NY 13905

Eugene E. Peckham, J.

Cheryl Simple, daughter of decedent, (hereafter, Cheryl) has moved this Court for summary judgment on three items. First, an order compelling Patricia Young, wife of decedent and administratrix (hereafter, Pat) to produce an alleged separation agreement between her and decedent or be precluded under CPLR §3126 from proving such agreement did not contain a waiver of spousal rights. Second, a declaration that Patricia Young is disqualified from serving as administratrix due to an alleged waiver in the separation agreement. Third, a declaration that Patricia Young is disqualified as surviving spouse because she is alleged to have abandoned the decedent under EPTL §5-1.2(a)(5).

It is well settled that summary judgment may only be granted where there is no triable issue of fact. Phillips v. Joseph Kantor & Co., 31 NY2d 307 (1972). Issue finding rather than issue determination is the key. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). The affidavits and other papers are scrutinized in the light most favorable to the party opposing the motion. Robinson v. Strong Memorial Hospital, 98 AD2d 976 (4th Dept., 1983). [*2]

The alleged separation agreement has not been located by either party. Pat, in her sworn affidavit, states that she and her husband, George, separated in 1993 and she moved to North Carolina for a time. Before her move, they went to mediation at ACCORD, a non-profit ADR organization in Binghamton. In 1993, there was also a Family Court order, Docket No. V-1623-93, awarding Pat custody of their son, Kenneth, with visitation to the father (Exhibit A to P. Young Affidavit). Pat has produced the entire Family Court file from that time, which contains an unsigned ACCORD mediation agreement covering custody, visitation and child support. (Letter from Kristen K. Luce, Esq., dated Dec. 8, 2010 with enclosures).

In her affidavit, Pat states, "The only agreement' that was ever established was a document that I actually drew up; there never was a formal agreement or a formal separation." She also states she no longer has a copy because her personal papers were destroyed in a flood in North Carolina in 2000, although this is disputed in Cheryl's reply affidavit. Pat's affidavit also states that George routinely visited her in North Carolina during the holidays and made other special trips to visit. She would also come to New York in the summers to visit and also camp for a week with decedent at the Harford Fair in Pennsylvania; George "would write, send money, he would visit, send gifts, he took care of my cars as before, and even purchased a used Cadillac which he brought me, and he would come and chop firewood" (P. Young Affidavit, Paragraph 35).

In February, 2002, she moved back to New York with Kenneth. In October, 2002, the house at 135 Main St., Windsor, NY, was purchased by George in his name and Pat and Kenneth moved in. During this time, George lived on his family farm at 275 Trim Street, Kirkwood, NY where he had been caring for his aged father until his death in December, 2000. Pat states that during this time she and George exchanged gifts on the holidays, their birthdays, Mother's Day, Father's Day. She also states, "George was always at my house every night for dinner and he would stay late into the night as he would typically leave around 10 P.M. - 12 A.M." and "I was always on George's medical insurance. George always paid the deductible too" (P. Young Affidavit, Paragraphs 51 and 56).

In May of 2007, George became sick with cancer and underwent radiation and chemotherapy. At this time, he moved into the house at 135 Main St. with Pat, where she cared for him until his death on September 1, 2007. Cheryl claims in her affidavit that George moved back in with Pat only "due to illness, not to reconcile with her or resume the marriage" (Simple Reply Affidavit, Paragraph 8).

Despite Cheryl's claim during the period from May to September, 2007, George executed the following documents:

1)A Health Care Proxy dated June 28, 2007, naming Pat as his agent, with Kenneth as

alternate (Exhibit C to P. Young Affidavit).

2)A SEFCU form, dated August 8, 2003, adding Pat as joint owner on the account (Exhibit

D to Broomfield Affidavit).

3)A deed, dated August 10, 2007, transferring title to 135 Main St. from George to Pat and

Kenneth as joint owners (Exhibit E to Broomfield Affidavit).

In addition, Pat remained as beneficiary on George's Prudential life insurance policy in the amount of $43,000 (Inventory pursuant to Rule 207.20 in George E. Young Estate file No.2007-726 and P. Young Affidavit, Paragraph 67). [*3]

Pat petitioned for Letters of Administration on November 29, 2007, which were granted with limitations to her as surviving spouse on February 14, 2008. Cheryl was properly served with a Citation in the proceeding by mail on January 3, 2008. She defaulted in appearing on the return day of February 11, 2008. (George E. Young Estate file #2007-726).

On or about November 17, 2009, the administratrix petitioned to remove the limitation on her letters, which was that no real property of the estate could be sold without further order of the Court fixing bond. The real property in question, which was to be sold, was the family farm at 275 Trim Street, Kirkwood, NY, which, upon the death of their father descended to George and his sister, Lillian Broomfield, as tenants in common. Attached to the Petition as Exhibit D was a contract of sale for the real property signed by Patrica Young, as administratrix of the estate, and Lillian Broomfield. Cheryl appeared in this proceeding and filed an affidavit, dated December 21, 2009, opposing removal of the restriction.

Her affidavit basically alleges Pat, as administratrix, "has not acted fairly, or in the best interest of the estate" including removing valuable antiques. Cheryl also alleged she had an interest in insurance proceeds and retirement benefits and two houses the estate had an interest in (Simple Affidavit, Paragraph 1). In her affidavit, she also alleges that Pat abandoned her father in 1992 and they remained separated until his death, except that he moved back in around May, 2007.

The petition to remove limitations was granted by Order dated February 8, 2010, but requiring that the proceeds of sale be held in the escrow account of Coughlin & Gerhart, attorneys for the estate.

As detailed in the Affirmation of Kristen K. Luce, Esq., dated December 6, 2010, Lillian Broomfield has contested the sale of the Trim Street property. The buyers under the contract of sale were granted specific performance in an action in Supreme Court, Broome County. Ms. Broomfield has appealed this decision, claiming the contract, which she executed, did not contain a "forever green provision" (Luce Affirmation, Paragraphs 24 and 25). Thus, she is still trying to prevent the estate from selling its interest in this parcel of real property, even though she signed the contract of sale and specific performance has been granted.

As to preclusion, Professor Siegel states in his treatise on New York Practice, Paragraph 36, p. 608 that it must be shown that disobedience of a notice to disclose must be "wilful" (CPLR §3126). Here, no wilfulness has been shown, Pat has detailed in her affidavit the circumstances of her separation from her husband and their agreement. She has produced the Family Court file with the unsigned mediation agreement. In her affidavit at Paragraph 16, she states her copy of the agreement was lost in a flood. It is noted that a lay person who participated in mediation could well construe the resulting agreement as a separation agreement, especially since the object of mediation is for people to reach agreement collaboratively.

Furthermore, Cheryl's deposition testimony states that after her father's death, she and Kenneth closed their father's house, sorting and putting any important papers in a Tupperware bin (Exhibit B to Luce Affirmation). Lillian Broomfield admitted at her deposition she took the tub of papers and subsequently returned some of the paperwork (Exhibit C to Luce Affirmation). Thus, if a separation agreement existed, Simple and Broomfield had full opportunity to locate it among decedent's papers. They have not produced any such agreement.

No agreement having been produced, the claim that it contained a waiver of spousal [*4]rights rests on the affidavits of Simple and Broomfield that George told them about it (Simple Reply Affidavit, Paragraph 3; Broomfield Affidavit, Paragraph 10). In effect, they are asking that we presume what might be in an agreement which nobody can find a copy of. Not only are such allegations hearsay, self-serving and lacking in credibility, but they would be barred by the Dead Man's Statute, CPLR §4519. Insofar as the motion requests summary judgment on this issue, it is clear that the allegations must be disregarded because statements inadmissible at trial due to the Dead Man's Statute or because they are hearsay cannot be used in support of the motion. Phillips v. Joseph Kantor & Co., 31 NY2d 307 (1972); Herstand & Co. v. Gallery, 211 AD2d 77 (1st Dept., 1995); Siegel on New York Practice, §281 at p. 465.

In her affidavit at Paragraph 14, Pat states, "We also agreed that if the other wanted, they could draft a will leaving their property to whoever they choose." Insofar as no written agreement to this effect has been produced, nor a will carrying out the provision, such agreement is not binding. More important, a waiver of the right to take under a will, if it existed, is not necessarily also a waiver of the right to take in intestacy.

It is also noted no affirmation of counsel as required by Rule 202.7 has been submitted regarding consultation with opposing counsel to resolve the discovery issues, before filing a motion.

"The burden of establishing that a failure or refusal to disclose was the result of wilful, deliberate or contumacious conduct rests with the party seeking an order of preclusion" Goodman, Rackower & Agiato v. Lieberman, 260 AD2d 599 (2d Dept., 1999). Plaintiff has not met this burden.

For all the foregoing reasons, preclusion is denied and similarly so is summary judgment that there was a waiver of spousal rights to take an intestate share or to act as administrator.

Cheryl in her motion also requests a determination that Pat abandoned decedent and that such abandonment continued until death. EPTL §5-1.2(a)(5). The result of such a determination would be to disqualify Pat as surviving spouse.

In order to establish abandonment, it must be established that the spouse who left did so without the consent of the other spouse, without justification and without the intent to return. "More must be shown than a mere departure from the marital abode and consequent living separate and apart." Matter of Riefburg, 58 NY2d 134 (1983); Matter of Maiden, 284 NY 429 (1940); Belandres v. Belandres, 58 AD2d 63 (1st Dept., 1977); Matter of Carmona, NYLJ, 5/12/00, p. 30, col. 2 (Surr. Ct., Bronx Co.). The burden of proof of abandonment is on the party asserting the same, Cheryl in this case. Matter of Maiden, supra.

As indicated in the quotation above from Riefburg, mere separation is not sufficient to prove abandonment. Even living apart pursuant to a separation agreement is not sufficient, unless there is a specific waiver of all rights in the estate and to act as fiduciary. Matter of Chmiel, 164 Misc 2d 854 (Surr. Ct., Broome Co., 1995).

However, there is no direct proof of actual separation or a separation agreement. The Family Court Order, Docket #V-1623-93 relates only to custody and visitation of Kenneth. The unsigned mediation agreement contains no language of separation or waiver of spousal rights, again, only provisions for custody, visitation and child support. The affidavits of Cheryl and Broomfield claim abandonment, but provide no evidence the separation was without consent or without the intention to return. In addition, as discussed above, they are not to be considered in [*5]support of summary judgment since their statements would be inadmissible at trial.

In actuality, the evidence is all to the contrary. Pat's affidavit details visits by George to her in North Carolina and work he did on cars, chopping firewood, etc. to assist her and that there were letters and gifts back and forth (P. Young Affidavit, Paragraphs 22-29). After her return to New York, she states that he visited her house every night until 10 P.M. or 12 A.M. (Affidavit, Paragraph 51). Her evidence, which might be barred as hearsay or under the Dead Man's Statute, can be considered in order to defeat a motion for summary judgment. Phillips v. Joseph Kantor & Co., supra; Siegel on New York Practice, §281, p. 465. Neither Broomfield nor Cheryl directly contradict Pat's statement in this regard in their affidavits, they merely allege the separation. And Pat in her deposition testimony states that George agreed to her move to North Carolina (Deposition attached as Exhibit A to Affidavit of Marya C. Young at p. 37).

Even more telling is the documentary evidence. Not only did George not have a Will disinheriting Pat, rather he did everything to indicate he still considered her his wife. He retained her on his medical insurance, named her as agent on his health care proxy, added her as joint owner on his bank account and deeded the house he owned in which she lived to her and Kenneth. Perhaps most significant, he never changed the beneficiary designation on his life insurance and thus, she received the proceeds at his death.

The Court holds that Cheryl has not met her burden of proof to establish that Pat abandoned George. It has not been proved that Pat departed without consent, during the separation there was continuing contact and she did, in fact, return. Pat is not disqualified as surviving spouse under EPTL §5-1.2(a)(5).

The last issue is the motion for summary judgment to vacate the decree appointing Pat as administrator of decedent's estate. Surrogates' Court, like any other court, may vacate its own decree upon showing of "fraud, newly discovered evidence, clerical error or other sufficient cause." Matter of Habermehl, 19 Misc 2d 1087 (Surr. Ct., Erie Co., 1959); Matter of Leeper, 53 AD2d 1054 (4th Dept., 1976); Estate of Zahoudanis, NYLJ, 12/28/99 (Surr. Ct., Kings Co.); SCPA §209; EPTL §5015. The Court of Appeals has held that in order to establish entitlement to vacatur "a party must demonstrate a substantial basis for its contest and a reasonable probability of success through competent evidence that would have probably altered the outcome of the original probate proceeding." Matter of American Committee v. Dunn, 10 NY3d 82 at 96 (2008). The Dunn case involved an attempt to reopen a probate on grounds of undue influence, but the same standard must apply in an attempt to vacate an administration decree.

There is no newly discovered evidence in this case. Cheryl has demonstrated in her own affidavits that she knew about the separation and Pat's living in North Carolina, she also knew when Pat returned to New York and that George bought the house at 135 Main Street where Pat lived and she knew that George moved into that house in May, 2007 for Pat to nurse him in his last illness. She alleges the move was only for George to have someone to take care of him, but the documentary evidence of the health care proxy, bank account, deed and life insurance beneficiary designation demonstrate otherwise.

If there be fraud, it must be fraud on the Court by failing to disclose either the abandonment or the separation agreement in the Petition for Letters of Administration. There is no competent proof of any separation agreement, only hearsay and testimony barred by the Dead Man's Statute, which cannot be considered to support summary judgment. Phillips v. Joseph [*6]Kantor & Co., supra. If, as is likely, George and Pat misunderstood their mediation agreement as a separation agreement, it does not contain a waiver of spousal rights, only provisions for custody, visitation and child support.

As has been held above, there is likewise no competent proof of abandonment. In addition to the facts in her affidavit discussed above, Pat testified in her deposition that there was an agreement between George and her that she should go to North Carolina, that she did not abandon him, but that rather, they had a somewhat unconventional long-distance marriage with visits, letters and gifts back and forth, and that he lived with her from May, 2007 until he died (Deposition attached as Exhibit A to Affidavit of Marya C. Young, at pages 37, 51 to 53).

Yet another reason for denying petitioner's prayers for relief in this matter is laches. Cheryl defaulted in appearing in answer to the Citation for appointment of Pat as administrator. She did appear subsequently on the petition to remove the limitation on the Letters to allow the sale of real property, but did not raise then any of the issues she now raises on this motion.

The instant motion was filed on November 5, 2010, over three years from George's death and almost three years since the appointment of the administrator. In Matter of Malkoski, 48 Misc 2d 98 (Surr. Ct., Erie Co., 1965), the court refused to vacate a decree on an accounting where the petition was filed 10 months after the decree was entered. In Matter of Leeper, supra, the Fourth Department refused to vacate a probate where the petition was filed two months after decree. See also Bank of New York v. Stradford, 55 AD3d 765 (2d Dept., 2008) (vacatur of foreclosure denied after two years); Kolajo v. City of New York, 248 AD2d 512 (2d Dept., 1998) (vacatur of default in personal injury action denied after 7 months.).

The Court holds that a motion to vacate a decree granting Letters of Administration made almost three years after the decree was entered is not timely.

The Court holds there is not a substantial basis for Cheryl to contest Pat's appointment as administratix, nor is there the reasonable probability of success necessary to vacate the decree granting Letters of Administration. In addition, the motion to vacate the decree of Administration was not timely. Summary judgment on the motion to vacate the decree granting Letters of Administration is denied.

The Court has considered the other arguments of Petitioner and finds them all to be without merit and they are denied.

This decision constitutes the Order of the Court dismissing the petition herein and denying the motion for summary judgment.

Dated: December 30, 2010_______________________

Hon. Eugene E. Peckham

Surrogate