Matter of Murtha

[*1] Matter of Murtha 2013 NY Slip Op 51027(U) Decided on June 20, 2013 Sur Ct, Wyoming County Griffith, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 20, 2013
Sur Ct, Wyoming County

In the matter of the Estate of Daniel J. Murtha, Petition pursuant to SCPA §2103, Petition pursuant to SCPA §2105



2011-93/B & C



Bradley A. Janson, Esq.

Attorney for Petitioner Patricia Gilliland

Anthony DiFilippo IV, Esq.

Attorney for Respondent and Cross-Petitioner Pamela Slocum

Michael F. Griffith, J.

The decedent died a resident of Wyoming County on May 18, 2011 as a result of injuries sustained in an ATV accident. His Last Will and Testament dated September 29, 2000 was admitted to probate and Letters Testamentary were issued to Patricia Gilliland on June 23, 2011. The executor filed a petition pursuant to NY SCPA §2103 seeking to recover an extensive list of personal property alleged to be in the possession of the respondent, Pamela Slocum. Ms. Slocum, in turn, filed her Answer and a cross- petition pursuant to NY SCPA §2105 seeking the return of items of personal property alleged to be in the possession of the estate. The Answer of the estate was filed on December 5, 2012. The matters came on for hearing on April 23, 2013.

Upon the pleadings, proof and written summation of counsel the court makes the following Findings of Fact and Conclusions of Law:

Findings of Fact

1. The decedent began residing with Ms. Slocum at her residence but they moved into decedent's residence on Route 20-A in Warsaw, New York in August, 2004.

2. Ms. Slocum and the decedent resided together at his residence until his death, with the exception of a brief period of time in 2007-2008 when she left the residence and then returned. [*2]

3. The decedent was arrested for and convicted of a violation of NY V & T Law §1192-3 (DWI) in the Justice Court for the Town of LeRoy, New York:

A. March 17, 2011 - Decedent entered a plea of guilty. B. April 1, 2011 - Decedent was evaluated by Genesee Justice for eligibility for supervision of a Conditional Discharge.

C. May 2, 2011 - Decedent was sentenced in the Town of LeRoy Justice Court.

4. As a part of his sentence decedent would have been required to install an ignition interlock device on any vehicles which he owned.

5. In order to avoid the ignition interlock requirement, the decedent transferred title to the following vehicles to the respondent:

A. 1997 Ford Explorer - new title issued April 1, 2011.

B. 1984 Pace Arrow Mobile Home - new title issued June 13, 2011.

C. 2001 Harley Davidson motorcycle - new title issued June 13, 2011.

D. 1977 Honda motorcycle VIN # GL13002361 - title endorsed May 14, 2011.

E. 1991 GMC Suburban - title endorsed May 14, 2011.

6. Two, other 1977 Honda motorcycles were never titled in the name of the decedent: A. 1977 Honda VIN #CB750F2103593- title endorsed by Lafferty / Cummings as seller(s) in 1999 and endorsed by the respondent as purchaser May 15, 2011. (Resp. Ex. T).

B. 1977 Honda VIN# GL 13010805 - (Resp. Ex. K).

7. It is clear that, from the outset, there was considerable acrimony between the parties, as evidenced by the police involvement at the premises: A. June 23, 2011 -Respondent called the Wyoming County Sheriff when she discovered a note from the decedent's sister at the residence and that the locks had been changed. Respondent regained entry to the residence through a window.

B. June 24, 2011 - Decedent's son, Jesse, called the Sheriff over concerns

about the removal of property from the residence. The Police Report (Resp. F) states that Jesse was upset and unsatisfied by the answers the Deputy provided. C. July 1, 2011 - The Sheriff was called to the premises by the respondent when the locks were again changed by someone acting for the estate.D. July 2, 2011 - Despite the absence of any court proceeding to terminate her occupancy of the residence, the respondent decided to leave and the Sheriff was again called to the premises by the estate over concerns about the removal of personal property by Ms. Slocum. The Police Report (Resp. H) states that the issue was resolved by the parties' agreement as to which items could be removed and which would be left at the residence.

8. The list of property claimed by the estate attached to the petition, as updated on Petitioner's Exhibit 1, was not prepared by the petitioner. It was prepared by the decedent's sons, Jesse and Jason, from video they had taken at the property. [*3]Petitioner was not present when the video was taken or when the list was made. Neither Jesse nor Jason Murtha were called as witnesses.

9. Ms. Slocum vacated the premises on or about July 3, 2011, subsequent to the final involvement of the Sheriff about the property removal issues.

10. Petitioner's Exhibit 2 is a detailed list of the various items of personal property claimed by the Respondent to belong to her and alleged to be in the possession of the estate. While some of the items are of emotional significance, many are mundane items of daily living with nominal, financial value, including: sawhorses, a pallet, plywood, a shovel, a roto-tiller (without motor), etc.

11. Similarly, with the exception of items relating to the decedent's Viet Nam war service and various motor vehicles, many of the items claimed by the estate and described on Petitioner's Exhibit 1 are items of everyday life and use, including: used appliances, an answering machine, floral baskets, pitchfork, shovel, garden lights, extension cords, music CDs, etc.

12. In support of her claim of title to and ownership of the items in Petitioner's Exhibit 2, the respondent submitted thirty-five photographs (Exhibit I, 1-35) purporting to show the nearly empty condition of the decedent's residence when she began residing with him in August, 2004 after the petitioner moved out. Although these were claimed to be taken by the respondent in July or August, 2004, the roll of film is alleged to have been misplaced and developed more recently. The photos do, however, include a picture of the decedent's daughter, Jenna, at a much younger age consistent with the time claimed that they were taken by Ms. Slocum. The court finds the photos to be a credible representation of the decedent's residence at the time her occupancy began.

13. The respondent also called a long-time friend of the decedent, Thomas Salamone, as a witness. He testified, credibly, on two subjects: A. He is and has been in possession of the tractor with bucket (item 7 on Petitioner's Exhibit 2) stating that the decedent traded it to him for a supply of beef 12 to 18 months prior to his death.B. He did not know why the decedent transferred the vehicles to Ms. Slocum, but did state that the decedent's plan had been to sell them to purchase a new RV and put a new roof on the residence. Petitioner objected to the testimony as hearsay. The court reserved decision on the objection but now overrules it and finds the testimony admissible.

CONCLUSIONS OF LAW

The testimony and evidence presented centered around two areas: the competing claims to the vehicles transferred by the decedent and the items of household goods, tools and personal effects in and around the decedent's residence. [*4]

No credible testimony was offered by the petitioner with regard to the ownership, current location or possession of virtually all of the items on petitioner's exhibit 2. Other than the motor vehicles, respondent has denied knowledge or possession of all such property. With the exception of the disputed canopy garage and the purchase of a water heater for the premises (for which the petitioner has agreed to reimburse respondent), no credible testimony was presented by the respondent with regard to the ownership, current location or possession of the items described on petitioner's exhibit 1. Petitioner has denied knowledge or possession of all such property.

While testimony and exhibits were presented regarding several motor vehicles, no proof was presented that two of the 1977 Honda motorcycles were ever titled in the name of the decedent. 1977 Honda VIN / Title #GL13010805 and 1977 Honda motorcycle VIN / Title # CB750F2103593 are found to be the property of Pamela Slocum. The remaining vehicles below were owned by the decedent prior to his death but transferred to the respondent at various times shortly prior to his death:

A. 1997 Ford Explorer

B. 1984 Pace Arrow RV

C. 2001 Harley Davidson motorcycle

D. 1991 GMC Suburban

E. 1977 Honda motorcycle, VIN / Title #GL13002361

It is clear that the decedent transferred title to the specified vehicles to Ms. Slocum to avoid the necessity and expense of the installation of ignition interlock devices on each vehicle. Respondent has argued that the transfer of title to each vehicle created a presumption that Ms. Slocum became the legal owner of each vehicle, free of any claim by the estate (See Dorizas vs. Island Insulation, 254 AD2d 246 [2d Dep 1998] and Potter vs. Keefe, 261 AD2d 864 [4th Dep 1999]). Both of these cases arose in the context of determining ownership of vehicles in personal injury actions rather than resolving competing claims of ownership.

While the title transfer may create a presumption of ownership, the presumption is not binding on the court. For example, in the event of the insolvency of the estate, in the absence of consideration paid by Ms. Slocum the transfers could be attacked by the fiduciary as a fraudulent conveyance (See NY Debtor and Creditor Law §273). In the absence of consideration paid by Ms. Slocum in return for the transfers, the only legal basis for a claim of ownership by her would require proof that the decedent intended to make a gift of the vehicles to her. Respondent has the burden of proving that the decedent intended to make such gifts (5 Warren's Heaton, Surrogate's Court Practice, §62.08 [2][f], [7thed]). The principle has been stated as, "To warrant the finding that an inter vivos gift has been made the evidence, taken as a whole, must be inconsistent with any other design on the part of the donor, such as a transfer for the purposes of custody." (Estate of Collins, NYLJ, December 9, 1999 at 35 col 222 [Sur Ct Kings Co 1999]).

Since any testimony by the respondent about statements made by the decedent to her [*5]about the transfers is barred by NY CPLR §4519, the only proof before the court of his intent involves the circumstances of decedent's DWI conviction and sentence. Given decedent's longstanding ownership of all of the vehicles involved and his stated intent to sell them to purchase a new motor home and replace the roof on his residence, it is clear that the transfers to Ms. Slocum were done solely to avoid the consequences of his DWI conviction and intended to provide her with temporary title and control during the term of his conditional discharge supervision (cf. Estate of Moffett, 49 Misc 2d 225 [Sur Ct Erie Co 1966]).

The respondent bears the burden of proving that the decedent intended to make a gift of the vehicles to her. In the absence of such proof the court finds that the vehicles described in paragraph 4 of these Conclusions of Law remain the property of the estate and must be returned to the possession of the executor.

No credible proof having been presented by the estate to establish the current location, possession or title to the balance of the items on petitioner's exhibit 2, the claim of the estate to all such items must be dismissed (See NY SCPA §2104 [3]). With regard to the respondent's claims to the balance of the items on petitioner's exhibit 1, while it is possible that some or all of these items were left at the residence during her periodic, wrongful exclusion from the premises or as a result of the police involvement at the premises on July 2, 2011, no credible proof was offered to establish the current location or possession of such items and the respondent's claim to all such items must also be dismissed.

Now, upon the proof presented and the foregoing Decision, it is

ORDERED, ADJUDGED AND DECREED that the two, 1977 Honda motorcycles described above are the property of the respondent, Pamela Slocum, and shall be returned to her if not currently in her possession, and it is further

ORDERED, ADJUDGED AND DECREED that the remaining five vehicles described above are the property of the estate and shall be returned by the respondent, Pamela Slocum, to the possession of the petitioner / executor within 30 days of the filing of this Decree, and it is further

ORDERED, ADJUDGED AND DECREED that the respondent, Pamela Slocum, shall execute the certificates of title for the five vehicles and return such certificates of title to the petitioner / executor at the time of the physical return of said vehicles, and it is further

ORDERED, ADJUDGED AND DECREED that the estate pay to Pamela Slocum the sum of $496.29 as reimbursement for the cost of the water heater for the premises, and it is further

ORDERED, ADJUDGED AND DECREED that the claim of the petitioner to all [*6]remaining items described on petitioner's exhibit 2 is hereby dismissed, and it is further

ORDERED, ADJUDGED AND DECREED that the claim of the respondent to all remaining items described on petitioner's exhibit 1 is hereby dismissed.

Dated: June 20, 2013

Warsaw, New York

_______________________Hon. Michael F. Griffith

Surrogate

XC:

Bradley A. Janson, attny for petitioner

Anthony DiFilippo IV, attny for respondent / cross-petitioner