Matter of Loew
Annotate this CaseDecided on June 30, 2015
Sur Ct, Nassau County
In the Matter of the Proceeding for Turnover of Property Withheld, Estate of Jacqueline Gebhard Loew a/k/a JACQUELINE LOEW, JACQUELINE G. LOEW and JACQUELINE A. LOEW, Deceased.
355665/D
Edward W. McCarty III, J.
In this miscellaneous turnover proceeding, the petitioner Cynthia Frank has moved for partial summary judgment. For the reasons that follow, the motion is denied.
The decedent, Jacqueline Loew, died on March 4, 2009, a domiciliary of Nassau County. She was survived by her three children, Cynthia Frank, William Tull, Jr., and Gregory Tull (hereinafter "Cynthia," "William," "Gregory"). The decedent left a last will and testament dated December 22, 2006. Pursuant to the terms of her will, the decedent's residuary estate is divided equally among her three children. The will nominated Gregory as executor. Preliminary letters testamentary issued to Gregory on August 26, 2009. The will was admitted to probate by decree dated December 21, 2010, and letters testamentary issued to Gregory on the same date.
Thereafter, Cynthia petitioned for the issuance of limited letters of administration to commence a SCPA 2103 discovery proceeding against Gregory. Cynthia filed her petition for limited letters of administration on September 22, 2010. Gregory opposed Cynthia's application and filed objections claiming that Cynthia's allegations were conclusory. By decision dated January 26, 2011 (Dec. No. 27004), the court granted Cynthia's application for limited letters of administration, and limited letters issued to Cynthia on February 23, 2011. Pursuant to an Order to Attend signed on June 17, 2011, Gregory was examined on July 19, 2011. Thereafter, on November 25, 2011, Cynthia filed a Petition for the Turnover of Property, and a citation returnable on January 4, 2012 issued thereon.
Cynthia's petition seeks the turnover of the following: (i) Two Hundred Thousand ($200,000.00) Dollars transferred by the decedent to Gregory and his wife, Diana, by check number 6531 in or about January 2008 from decedent's Citibank checking account; (ii) Thirty-Six Thousand ($36,000.00) Dollars transferred to a neighbor, Anthony Congero, Gregory's father-in-law, Frank Arculeo, and mother-in-law, Francine Arculeo, by checks numbered 6407, 6408 and 6409, each in the amount of $12,000.00 on or about July 28, 2007, and thereafter transferred by such individuals to Gregory and Diana Tull; and (iii) "The Slow Day" painting by John George Brown, which was sold by Gregory on or about September 27, 2004 through Christie's for $22,000.00.
The petitioner previously moved for partial summary judgment for the turnover of Two Hundred Thousand Dollars ($200,000.00) transferred by the decedent, Jacqueline Loew, to the respondent, Gregory Tull, on or about February 1, 2008 together with interest at the statutory rate of nine (9%) percent from November 25, 2011. By decision and order dated December 21, 2012 [*2](Dec. No. 27986), the motion for summary judgment was denied as being premature. The court also noted that "the evidence presented by Gregory in response establishes the existence of triable issues of fact . . . . Here, Gregory, independent of his own testimony, has raised an issue of fact based upon documentary evidence of the 2007 gift tax return filed by the decedent and the document signed by both the decedent and Gregory on February 4, 2008 memorializing the $280,000.00 loan."
The court did, however, grant the branch of the cross-motion which sought dismissal of the petitioner's application seeking the turnover of The Slow Day painting on the basis that it was time-barred.
Petitioner now moves again for partial summary judgment of the $200,000.00 transferred from decedent to respondent by check number 6531 dated February 1, 2008 and $36,000.00 transferred by checks numbered 6407, 6408 and 6409 which were made payable to respondent's in-laws and neighbor during July 2007.
Petitioner argues that summary judgment must be granted because respondent will not be able to meet his burden of proving by clear and convincing evidence that the aforementioned transfers were gifts to him by the decedent. Petitioner claims that respondent was the only person present when the checks were issued and delivered and his testimony would be barred by CPLR 4519 because it is the only evidence offered by respondent. Petitioner claims that the court's prior statement that there were issues of fact was made prior to the time discovery had been completed and now, after discovery, it is clear that the only evidence of the gift is respondent's self-serving statements.
Respondent's counsel argues that the present motion should be denied for the same reasons set forth in the court's prior decision. Gregory argues that Cynthia's assertion that his testimony is barred by CPLR 4519 to defend a summary judgment motion is incorrect. In addition, Gregory states that Cynthia's analysis is flawed because it mistakenly assumes that there must be a witness to the transaction in order to prove the transfer is a gift. Gregory asserts that there are a number of ways by which a gift may be proved. Gregory further asserts that his claim that the $200,000.00 is a gift is consistent with prior gifts his mother made to him and her other children, including Cynthia. None of these prior transfers were ever identified as gifts in notations on the checks or in a separate document. Gregory asserts that it is significant that his mother made a $280,000.00 loan to him three days after the $200,000.00 transfer and in a separate document evidenced the transaction as a loan. According to Gregory, the loan was made to help him purchase a retirement home in South Carolina, prior to his New York home being sold. When his New York home was sold, he repaid the decedent $280,000.00 with interest. Gregory claims that if the decedent wanted to treat the $200,000.00 transfer as a loan and not a gift, she certainly was aware of how to memorialize a loan, especially given the proximity in time between the two transfers.
Additionally, Gregory claims that in 2006 he convinced the decedent to change her will so that his siblings would receive more of her estate. In 2004, the decedent had executed a will under which Gregory would inherit the decedent's home, all her personal property and one-third of her residuary estate. According to Gregory, the decedent's house was worth approximately $1,000,000.00. He suggested that she divide her estate equally among her children, but that she gift him money from time to time for his retirement and the purchase of a retirement home. [*3]Gregory states that, in accordance with their conversation, the decedent executed a new will and gifted him $135,000.00 in 2007, $36,000.00 to others in 2007 which was then regifted to him and $200,000.00 in 2008. Gregory points out that the decedent executed the gift tax return for her 2007 gifts. A gift tax return was prepared by the accountant for the 2008 gift on Gregory's instructions, but was never signed by the decedent.
One of the major obstacles to respondent's establishing the validity of the gifts is that, given the proofs submitted, he would be the primary witness to the facts and circumstances surrounding the transfers and his testimony would be barred under CPLR 4519. Under CPLR 4519, commonly known as the Dead Man's Statute, the testimony of an interested witness about a personal transaction between the witness and the decedent may be excluded at trial (Philips v Kantor, 31 NY2d 307 [1972]). However, the Court of Appeals in that case further held that "[e]vidence, otherwise relevant and competent upon a trial or hearing, but subject to exclusion on objection under the Dead Man's Statute, should not predetermine the result on summary judgment in anticipation of the objection" (id. at 310). "Generally, evidence consisting of communications between an interested party and a decedent which is excludable at trial as violative of the dead man's statute (see CPLR 4519) may still be utilized by the opposing party to defeat a motion for summary judgment." (Mantella v Mantella, 268 AD2d 852, 853 [3d Dept 2000]). The court in Mantella noted, however, that "[w]here, as here, such evidence is proffered as the sole proof in support of the opposing party's claim, it is deemed insufficient" (id. at 853, citing Matter of Lockwood, 234 AD2d 782 [3d Dept 1996]). Similarly, the Third Department affirmed an order granting a motion for summary judgment in which the evidence offered in opposition to the motion consisted of the self-serving statement of the opponent. The court concluded that where the sole evidence was a statement made by an individual who is deemed interested under the Dead Man's Statute, the testimony is inadmissible and does not "raise a factual issue sufficient to withstand summary judgment" (Albany Savings Bank v Seventy-Nine Columbia Street, 197 AD2d 816, 817 [3d Dept 1993] [internal citations omitted]).
Here, at this juncture after all discovery has been completed, the respondent has offered the following independent corroborating support for his position: the signed 2007 gift tax return, an unsigned 2008 gift tax return which discovery has shown was prepared at his instruction, execution of a promissory note with respect to the $280,000 check transfer on February 4, 2008 (three days after the $200,000 transfer) and the change reflected in the 2006 will. Such evidence is sufficient to raise a triable issue of fact.
Accordingly, the motion for summary judgment is denied.
This constitutes the decision of the court.
Dated: June 30, 2015
EDWARD W. McCARTY III
Judge of the
Surrogate's Court
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