Castor v Pulaski

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[*1] Castor v Pulaski 2011 NY Slip Op 52250(U) Decided on December 14, 2011 Supreme Court, Onondaga County Paris, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2011
Supreme Court, Onondaga County

David W. Castor, Jr., and Janice Poissant, Plaintiffs,


Lynn Pulaski, Paul Pulaski, Stacey R. Castor, Michael P. Ochsner Michael Colman and Dani Colman, Defendants.



JAMES A MEGGESTO, Esq., of Counsel


PAUL G. FERRARA, Esq., of Counsel




Anthony J. Paris, J.

This action was commenced by Plaintiffs against Defendants by the filing of a Summons and Verified Complaint on June 12, 2009. In their Complaint, Plaintiffs seek recovery from Defendants for alleged fraud and conspiracy surrounding the probate of the Last Will and Testament of DAVID W. CASTOR, SR. and for the conversion of certain estate assets. Thereafter, Defendants PULASKI interposed an Answer and Cross-Claims against all Co-Defendants; Defendants COLMAN interposed an Answer; a Notice of Appearance was served on behalf of Defendant OCHSNER without an Answer; and, finally no appearance was [*2]interposed by or on behalf of Defendant STACEY CASTOR.

By order executed on March 19, 2010, the Court granted a default judgment against Defendant STACEY CASTOR as to liability and referred the matter to an Inquest on the issue of damages. Subsequently, said Inquest was scheduled along with a Non-Jury Trial as to the other Defendants, and both matters came on to be heard by the Court on January 13, 2011.

Prior to the commencement of these proceedings, a settlement was reached as to Defendants COLMAN and Defendant OCHSNER, and the action was discontinued against those Defendants conditioned upon the payment of certain sums and the return of certain property to the Public Administrator of the estate of DAVID W. CASTOR, SR. Also, the Cross-Claims against those Defendants were discontinued by Defendants PULASKI (but not the Cross- Claim they lodged against Defendant STACEY CASTOR). In addition, prior to the taking of proof, the Court ruled on two motions in limine made by Defendants PULASKI.

The first motionin limine sought the dismissal of this action on the basis of Plaintiffs' lack of standing. The Court granted that branch of Defendants' motion as to Plaintiff JANICE POISSANT, the mother of Plaintiff DAVID W. CASTOR, JR., and the former spouse of decedent DAVID W. CASTOR, SR. The Court denied Defendants' motion as to Plaintiff DAVID W. CASTOR, JR., based on the holdings set forth in MCQUAIDE v. PEROT, 223 NY 75 (1918), and the unique and novel special circumstances of this particular case, which would allow a distributee and heir of an estate to institute and maintain an action in his individual capacity. See trial transcript pages 9-17.

Therefore, the only parties left in this action are Plaintiff, DAVID W. CASTOR, JR., Defendant STACEY CASTOR, and Defendants PULASKI.

Defendants' second motion in limine seeking to preclude the admission of the Accounting filed in the Onondaga County Surrogate's Court by Defendant STACEY CASTOR in her capacity as Administrator CTA was denied. See trial transcript 17-19.

Also, prior to the commencement of proof, Defendants PULASKI moved for default judgment against Co-Defendant STACEY CASTOR on their Cross-Claim as she had neither appeared nor answered said Cross-Claim. The Court reserved on that motion, and will rule on said motion hereinbelow.

During the course of the Inquest and Non-Jury Trial, the Court has had the unique experience and opportunity to hear and evaluate the demeanor of the witnesses and weigh and assess their credibility. The Court has also had the opportunity to review and analyze the Exhibits admitted into evidence. Furthermore, the Court has taken judicial notice of the criminal conviction of Defendant STACEY CASTOR for the wanton and diabolical murder of her husband, DAVID W. CASTOR, SR. Based on this unique opportunity, the Court is in a position to make its findings and render its conclusions.

Based on the evidence and all the pleadings that make up the record of this particular case, including their testimony, it is obvious that Defendants PULASKI were not innocent pawns. They knew what they were doing was wrong and bore false witness to both the Will and Attestation Clause without any hesitancy or reservation. Thereafter, they executed the Attesting Witness Affidavits that they also knew were false. From the record, it is clear that they kept these falsehoods from the Surrogate's Court and Plaintiff to his detriment throughout the estate proceedings. Defendants PULASKI only "came clean" when the District Attorney's [*3]investigators came knocking on their door and they were given immunity in return for their cooperation and testimony in the criminal prosecution of Co-Defendant STACEY CASTOR.

As stated, the Court has listened to their sworn testimony, and has reviewed it numerous times in its deliberations. Based on Defendants' track record, their testimony is totally incredible except for those portions wherein they admit that they willingly and voluntarily falsely acknowledged MR. CASTOR'S execution of his Last Will and Testament when, in fact, they did not so witness his signature and he did not request them to sign as witnesses. They also admit to their subsequent execution of the Attesting Witness Affidavits on November 23, 2005, knowing that the information contained in said Affidavits was not true.

Also, equally incredible is the "poor me" apology Defendants PULASKI attempt to deliver to Plaintiff. If their intention for such an "apology" was to atone for their deceitful conduct and/or solicit some sort of sympathy for their perjurous actions - they fell far short of the mark. The only feeling evoked was a feeling of nausea and an urge to vomit.

Their testimony that they did not read what they signed is totally devoid of any credibility. Quite frankly, the Court finds such testimony insulting in view of their background, intelligence, and experience as had to be drawn out from them on cross examination. While the genesis of this action is the heinous crime committed by Defendant STACEY CASTOR, Defendants PULASKI compounded the crime through their admitted dishonesty. Had Defendants PULASKI been honest by refusing to bear false witness to the Will and execution of the Attesting Witness Affidavits, they would not be parties to this lawsuit.

Plaintiff was contesting the purported Last Will and Testament of his father, DAVID W. CASTOR, SR., being offered for probate by Defendant STACEY CASTOR. He withdrew his objection, as he credibly testified, in the face of Defendant PULASKIS' subsequent execution of the Attesting Witness Affidavits. See trial transcript at pages 101-107. Had these Defendants acted with any sense of decency, Plaintiff would not have been caused to endure the magnitude of harm and damages he has endured and incurred. Defendants PULASKI admitted that they signed in 2005 as witnesses to decedent's Will which was dated 2003. Their reaffirmance of this falsehood by signing the Attesting Witness Affidavits, not only harmed Plaintiff, but also subjected the Surrogate's Court to needless and unwarranted proceedings, thereby detracting from the orderly administration of that Court's normal, proper and legitimate proceedings.

Therefore, by reason of the foregoing and based on the entire record before this Court, Plaintiff has shown by the quantum of proof necessary that he is entitled to recover damages for tortious fraud from all three Defendants; AND IT IS SO ORDERED.

The exact amount of said damages will be calculated by the Court herein below after the Court rules on Defendants PULASKIS' Cross-Claim against Defendant STACEY CASTOR.

In their Cross-Claim, Defendants seek indemnity and/or contribution from Defendant STACEY CASTOR. The doctrine of unclean hands may bar recovery where a party seeking recovery is guilty of such immoral and unconscionable conduct as would be condemned and pronounced wrongful by honest and fairminded people where such conduct pertains to the matter in litigation. NATIONAL DISTILLERS & CHEM. CORP. v. SEYOPP CORP., 17 NY2d 12 (1966); GILPIN v. OSWEGO BUILDERS, INC., ET AL., 87 AD3d 1396 (4th Dept. 2011); PECORELLA v. GREATER BUFFALO PRESS, INC., 107 AD2d 1064 (4th Dept. 1985).

Based on the record in this particular case, the doctrine of unclean hands bars any [*4]recovery by Defendants PULASKI from Defendant STACEY CASTOR. All three Defendants committed criminal acts not only to the obvious detriment of decedent and Plaintiff, but also to the public generally. Defendant STACEY CASTOR'S criminal conviction and sentence addressed her criminal conduct. However, Defendants PULASKI skated away from their criminal responsibility through the receipt of immunity. They will not skate away from their civil responsibility to Plaintiff. Nor will Defendant STACEY CASTOR escape such liability.

Therefore, by reason of the foregoing, the Cross-Claim of Defendants PULASKI against their Co-Defendant STACEY CASTOR is DISMISSED, and all three Defendants will be jointly and severally liable to Plaintiff; AND IS SO ORDERED.

As to the calculation of plaintiff's damages due from the Defendants, the Court will address the following: compensatorydamages; punitive damages; and attorneys fees.

A. Compensatory Damages

As Defendant STACEY CASTOR was tried and convicted of the murder of her husband, DAVID W. CASTOR, SR., she is disqualified from inheriting under his estate. Such disqualification would render Plaintiff, the only child of decedent, as his sole heir and distributee. ETPL § 4-1.1; RIGGS v. PALMER, 115 NY506 (1889); CARDOZO v. WLASIUK, 3 Misc 3d 1060 (Sup. Ct.Chenango Co. 2004).

The Plaintiff should, therefore, recover from Defendants as compensatory damages, the value of decedent's estate listed as $271,534.68 as shown in the Judicial Settlement of Account (See Exhibit 1); less the amount of $45, 029.53 held by the Public Administrator as of December 9, 2010; less the amount of $15,000.00 representing the amount previously received by Plaintiff; less $25,217.76 representing business debts of decedent as listed in Schedule D of the Judicial Settlement of Account; less $41,913.84 representing decedent's personal debts (not including the $15,000 previously received by Plaintiff and $2,334. paid to Defendant STACEY CASTOR for mortgage payment reimbursements), as set forth in Schedule D of the Judicial Settlement of Account; and less $17,254.90 representing Administration Expenses as set forth in Schedule C-1 of the Judicial Settlement of Account.

These subtractions net out an amount of $127,118.65, which is hereby awarded to Plaintiff as compensatory damages; AND IT IS SO ORDERED.

B. Punitive Damages

Punitive damages are warranted where the conduct of the party being held liable

evidences a high degree of moral culpability and a wanton disregard for the rights of others. GIBLIN v. MURPHY, 73 NY2d 769 (1988); HUNTER v. GALLAND, ET AL., 37 AD3d 1048 (4th Dept. 2007). While it is the contention of Defendants PULASKI that punitive damages cannot be awarded against them because they merely made a few bad decisions and there was no harm to the public generally, such contention borders on the absurd.

Defendant STACEY CASTOR murdered the decedent and knowingly offered a sham Will to the Surrogate's Court for probate. Defendants PULASKI, while not complicit in decedent's murder, knowingly perpetrated a fraud upon Plaintiff and Surrogate's Court by wrongfully signing in 2005 a Will that they say they witnessed in 2003, and further compounding their lie by executing the Attesting Witness Affidavits. This latter act compelled Plaintiff to withdraw his objection to the probate of the Will and hoodwinked and deceived the Surrogate's Court into probating a fraudulent instrument. Clearly, this murderous and deceptive conduct on [*5]the part of Defendants was aimed at the public in general, and Plaintiff in particular.

Assuming, arguendo, that it could conceivably be maintained that such conduct was not aimed at the public generally, the record establishes that conduct of all three Defendants was so repugnant and reprehensible so as to satisfy the threshold of moral culpability necessary to allow the imposition of punitive damages. GIBLIN v. MURPHY, supra.

Based on the foregoing, the Court deems punitive damages are appropriate and finds that the reasonable amount to be awarded jointly and severally against Defendants in favor of Plaintiff is $250,000.00. AND IT IS SO ORDERED.

C. Attorney's Fees

In view of the special and unique circumstances of this particular matter and the egregrious conduct of Defendants, the Court determines that Plaintiff is entitled to recover reasonable attorneys fees. Had Defendants not acted in the reprehensible manner detailed in this case, Plaintiff would not have been compelled to incur attorney's fees to right their wrongs and secure some type of emotional closure to these traumatic events.

Therefore, Plaintiff's counsel is directed to submit by Affirmation an application for attorney's fees detailing services rendered and the time devoted thereto on or before January 16, 2012. Defendant STACEY CASTOR and counsel for Defendants PULASKI are directed to submit any opposition to such request in written form on or before January 30, 2012, or request a hearing before the Court on this issue. Upon submission or after a hearing, the Court will issue a separate Order and Judgment on attorney's fees.

To summarize and recapitulate, after the trial of this action and based upon the entire record, and due deliberation having been had, the Court finds and concludes as follows:

(1) Defendants are jointly and severally liable to Plaintiff and Plaintiff is entitled to recover damages as against the Defendants;

(2) The Cross-Claim of Defendants PULASKI against Defendant STACEY CASTOR is DISMISSED;

(3) Plaintiff is awarded judgment for compensatory damages against Defendants in the amount of $127,118.65;

(4) Plaintiff is awarded judgment for punitive damages against Defendants in the amount of $250,000.00;

(5) Plaintiff is awarded reasonable attorney's fees to be separately addressed as herein above detailed; and

(6) Plaintiff is awarded judgment for the costs and disbursements of this action.






Dated: December 14, 2011

Syracuse, NY [*6]

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