Matter of Karpel
Annotate this CaseDecided on December 20, 2013
Sur Ct, Monroe County
In the Matter of the Estate of Louis M. Karpel, Deceased. Proceeding by Gale Scherer as Executrix, Petitioner, To Turnover tangible Personal Property and Value of Real Property in the Hands of Pamela Lamboy and Stuart I. Gluckman, Respondents.
2012-2614/A
APPEARANCES
Richard R. Levin, Esq., Attorney for Gale Scherer, as Executrix, Petitioner herein. Bond Schoeneck & King, PLLC, Edward C. Radin, Esq., Of Counsel, attorney for Pamela Lamboy and Stuart I. Gluckman, Respondents herein.
Edmund A. Calvaruso, J.
BACKGROUND
The decedent, Louis M. Karpel, died on October 28, 2012. He was survived by two daughters, Gale Scherer and Pamela Lamboy. Both daughters are Co- Executrixes of the decedent's estate. They received Letters Testamentary from this Court on December 4, 2012. Prior to his death, the decedent's daughter Pamela Lamboy resided with him and when he was hospitalized after a fall, she was named his Attorney-in-Fact in a Power of Attorney which restricted her from engaging in real estate transactions and in making gifts in excess of $500. This Power of Attorney was prepared by the Attorney for the Petitioner. He had also allegedly prepared a will for the decedent. An appraisal of the decedent's house was completed and dated June 20, 2012. The appraisal gave a value for the house of $240,000. A few days later, the [*2]decedent signed a contract to sell the house to Pamela Lamboy for $240,000 with a mortgage contingency. Also included in this contract was a personal property agreement to transfer all personal property within the house to Pamela Lamboy for a $10. Shortly thereafter a new Power of Attorney was created naming Pamela Lamboy as the decedent's Attorney-in-Fact. This Power of Attorney was prepared by Attorney Craig Welch. However, this Power of Attorney did not contain any restrictions with regard to real estate transactions. The deed to transfer the property was signed by the decedent on September 27, 2012 and the closing took place on October 2, 2012. The Petitioner also alleges that Pamela Lamboy helped the decedent sign the deed which transferred the real property.
The decedent's other daughter, Gale Scherer, as Executrix of the decedent's estate, filed a Notice of Motion seeking an Order requiring Pamela Lamboy and Stuart I. Gluckman, the Respondents in this matter, to turnover tangible personal property and the value of the Real Property back over to the Estate. She claims that the real estate transaction was the result of undue influence and that the decedent lacked the mental capacity to sign the contract. She also alleges that the value of the real property is $305,000 and that the personal property within the decedent's residence included expensive items such as crystal, furs, jewelry and collectibles. She also alleges that the transfer of the real property to her sister, Pamela Lamboy was contrary to the decedent's estate plan as provided by the decedent's Will.
On February 14, 2013, the Petitioner filed the petition for Discovery. On May 21, 2013, the Petitioner filed a Notice of Motion for Summary Judgment, an Attorney Affirmation and a Memorandum of Law. An Amended Notice of Motion was filed by the Petitioner on May 29, 2013. The Petitioner seeks an Order rescinding the transfer of the real property which occurred on October 2, 2012, and directing that it to be returned to the estate; directing the Respondents pay to the estate $45,000 or such amount that the Court finds was the reduction in the fair market value of the said real property which was transferred; and requesting the removal of Pamela Lamboy as co-executrix as well as surcharging her and denying her commissions. On June 19, 2013, the Respondents filed an Affirmation in Opposition to the Petitioner's Motion for Summary Judgment and filed a Cross-Motion seeking summary judgment in favor of the Respondents, dismissal of the Petition in its entirety, and an award of Attorney fees.
DECISION
A motion for summary judgment can be granted only when there is no doubt as to the absence of triable issues. Rotuba Extruder, Inc. v. Ceppos, 46 NY2d 223 (1978); Andre v. Pomeroy, 35 NY2d 361 (1974). In making its motion, the Petitioner must present sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing pleadings. Winegrad v. New York Univ. Med. Center, 64 NY2d 851 (1985). Both the Petitioner and the Respondents have moved for summary judgment. After considering the motions and memoranda submitted by both parties, the Court finds that neither party has met its burden in this matter.
It is incumbent upon the Petitioner to allege sufficient facts in its pleadings to prove undue influence on the part of Pamela Lamboy as well as lack of mental capacity of the decedent [*3]at the time of the transaction which is at issue in this matter as a matter of law. ThePetitioner' pleadings allege that a confidential relationship existed between the decedent and Pamela Lamboy as parent and child. However, to prevail as a matter of law, the Petitioner must prove the existence of other factors, in addition to the relationship,that show that undue influence was exercised. See Matter of Putnam, 257 NY 140, (1931). For instance, evidence regarding the health of the decedent during the time these joint accounts existed would be very relevant in such an inquiry. Based on the submissions from both parties, it remains an open question as to whether or not undue influence was exercised by Pamela Lamboy over the decedent in the transfer of the real property in question. The Court cannot state as a matter of law that undue influence was exercised over the decedent relative to that transaction. Further, without a hearing, the Court would not be able to determine the value of the real property at the time of the transfer to the Respondents.
Also, both parties have not presented sufficient proof that there are not any material issues of fact relative to their claims. It is not clear to the Court, based on the pleadings thus far submitted, that undue influence was exercised over the decedent. The decedent's mental capacity remains an issue in this matter. The Court cannot determine what the decedent's mental capacity was at the time of the transfer of the real property without conducting a hearing. Both parties have controverted each other's allegations regarding this issue as well. The Court, after hearing the proof and determining the credibility of the witnesses, and considering all of the evidence would then be in a position to determine what occurred, the mental capacity of the decedent at the time of the transaction, and whether or not undue influence was exerted upon him.
CONCLUSION
Based on the pleadings submitted, the Court cannot find that the petition should be granted as a matter of law. It further cannot find that the petition should be dismissed as a matter of law. Accordingly, the Motion and Cross-Motion for Summary Judgement are denied. The Court has scheduled this matter for a conference with counsel for the parties on March 13, 2014 at 11:00 a.m. One of the issues that the Court wishes to discuss with the parties is whether, if a hearing is required in this matter, the Attorney for the Petitioner would have a conflict continuing to represent the Petitioner, in light of the fact that his client alleges that he suggested to Ms. Lamboy that if she was going to purchase the decedent's home, to not keep the sale secret from Ms. Scherer. The Court does not intend to schedule this matter for a hearing until any potential conflicts of interest are addressed and resolved. This will avoid the possibility of a mistrial or scheduling delays.
Enter.
Dated: December 20, 2013
Edmund A Calvaruso
Hon. Edmund A. Calvaruso, Surrogate
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