Matter of Barad
Annotate this CaseDecided on September 12, 2018
Surrogate's Court, Kings County
In the Matter of the Application of Stella Barad, as Administrator of the Estate of Rodion Barad (aka Rodion Tikhomirov), Deceased, To Turn Over Property Withheld.
2012-1979/A
Attorney for Petitioner: Edwin Drantivy (718) 375-3750
Attorney for Objectant: Ronald D. Degen (212) 227-4530
John G. Ingram, S.
The following papers were considered in determining this motion for summary judgment:
Papers Numbered
Verified Petition to Turnover Property and Exhibits 1
Objections to Petition and Exhibits 2
Motion for Summary Judgment 3
Memorandum of Law in Support of Motion for Summary Judgment. 4
Exhibits in Support of Motion for Summary Judgment 5
Affirmation in Opposition to Motion for Summary Judgment and Exhibits 6
Reply Affirmation in Support of Motion for Summary Judgment and Exhibits 7
Background
Rodion Barad (aka Rodion Tikhomirov) (hereinafter Decedent) was an artist and a painter. On December 17, 1997, he married Stella Barad (hereinafter Petitioner). On August 25, 2006, they had a daughter. At times during their marriage, Decedent and Petitioner lived apart. On March 20, 2009, Decedent and Anna Gordeychuk had a daughter. On August 19, 2011, Decedent died, by suicide, in Petitioner's residence.
The Petition
On May 29, 2013, the Court issued limited letters of administration to Petitioner for the estate of Decedent. On April 7, 2014, she filed a petition requesting that the Court issue an order directing Anna Gordeychuk to turn over to the estate seven of Decedent's works of art, oil on canvas paintings, or to compensate the estate for the value of the paintings or any proceeds derived their sale. Petitioner identified the paintings as follows:
(1) Creation: Day Five (1992);(2) The Gorgonas' Seaside (1992);(3) Phantoms of Elsinore (1993);(4) Bacchante (1995);(5) The Game (1996);(6) Semiramis (1997); and,(7) Muse (1998).She alleged that Anna Gordeychuk used undue influence to obtain the paintings from Decedent and that she wrongfully took possession from Decedent when he was in a weakened state of mind. Petitioner further maintained that, in any event, Decedent did not have the right to transfer title to any of the paintings because she and Decedent were parties in a divorce proceeding and pursuant New York Domestic Relations Law § 236, he was bound by an automatic order prohibiting him from transferring any property.
Objections to Petition
Anna Gordeychuk (hereinafter Objectant) objected to the turnover petition. Objectant acknowledged that she possessed the following six paintings created by Decedent:
(1) Creation: Day Five (1992);(2) The Gorgonas' Seaside (1992);(3) Phantoms of Elsinore (1993);(4) Bacchante (1995);(5) Semiramis (1997); and,(6) Muse (1998).She maintained that she is the rightful owner of the six paintings because Decedent gave them to her as a gift.[FN1] To support her claim of ownership, Objectant submitted a signed and notarized document entitled Assignment of Rights Agreement (hereinafter Agreement). Objectant also claimed that Decedent was not bound by an automatic order pursuant to section 236 of New York Domestic Relations Law because the automatic order law was not in effect at the time Decedent commenced the divorce proceeding. She submits a copy of a printout from the Kings County Clerk's Office which shows that Decedent filed a matrimonial action on April 17, 2009. Objectant denied that she possesses the painting The Game. She maintains that Decedent sold that painting.
Motion for Summary Judgment
After discovery and interrogatories, Objectant now moves for summary judgment, asserting that there are no material issues of fact to be tried. She asserts that the Agreement establishes that the six paintings that she possesses were a gift made by Decedent to her, that there is no proof that Decedent lacked the mental capacity to make the gift or that she used undue to obtain the gift, and that the automatic orders of Domestic Relations Law is inapplicable to Decedent's divorce action. Objectant also asserts that Petitioner failed to offer any proof that she possesses the painting The Game.
Opposition to Motion for Summary Judgment
Petitioner opposes the summary judgment motion and maintains that there is a issue [*2]whether Decedent's severe alcoholism and depression diminished his mental capacity to give the paintings as a gift. To support her claims regarding Decedent's mental condition, Petitioner submits a report from a psychiatrist who evaluated Decedent. The report, dated September 3, 2008, is from Dr. Felix Dron. Petitioner also maintains that there exists an issue as to whether Objectant exerted undue influence over Decedent while he was in this diminished mental state.
In addition, Petitioner asserts that there exists an issue as to whether Decedent gifted the paintings to Objectant or merely stored them at Objectant's residence to hide them in order to avoid child support for his oldest daughter. To support this claim, Petitioner submits an Order of Support on Consent from Kings County Family Court, dated November 14, 2007 and a Petition for Violation of a Support Order, filed by Petitioner on September 17, 2010. She further argues that there is an issue as to the validity of the Agreement because Decedent did not receive consideration in exchange for the paintings.
Reply Affirmation
Objectant, repeats, in sum and substance, the arguments she made in her summary judgment motion.
Discussion and Decision
Summary judgment may be granted only where it is clear that no triable issue of fact exists (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Phillips v Kantor & Co., 31 NY2d 301 [1972]). The party moving for summary judgment has the burden to present sufficient admissible evidence demonstrating the absence of any issues of facts (CPLR § 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557 [1980]; Fairlane Financial Corp. v Longspaugh, 144 AD3d 858 [2d Dept. 2016]); Setter v Fire Island Ferries, Inc., 139 AD3d 840 [2d Dept 2016]. If a prima facie case is made, then the burden shifts to the opposing party to establish the existence of material issues of fact requiring a trial by tendering evidentiary proof in admissible form (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d at 562-63; Fairlane Financial Corp. v Longspaugh, 144 AD3d at 859; Setter v Fire Island Ferries, Inc., 139 AD3d at 841]). When determining a motion for summary judgment, the facts must be viewed in the light most favorable to the non-moving party (Fundamental Portfolio Advisors v Tocqueville Asset Mgt. LP, 7 NY3d 96, 105 [2006]). If there is any doubt as to the existence of a colorable issue, summary judgment should be denied (Rotuba Extruders, Inc v Ceppos, 46 NY2d 223, 231 [1978]; Hantz v Fishman, 155 AD2d 415 [2d Dept 1989]).
The Six Paintings in Objectant's Possession
In this case, Objectant acknowledges that she possesses six of the seven paintings identified by Petitioner. Those six paintings are Creation: Day Five; The Gorgonas' Seaside; Phantoms of Elsinore; Bacchante; Semiramis; and Muse. Objectant alleges that no triable issues of fact exist regarding her ownership of the paintings because Decedent gave them to her as a gift.
For a gift to be valid, there must be: (1) intent by the donor to make a present transfer; (2) delivery of the gift to the donee; and (3) acceptance by the donee (Mirvish v Mott, 18 NY3d 510 [2012]; Gruen v Gruen, 68 NY2d 408 [1986]; Matter of the Estate of Berg, 23 Misc 3d 1127[A] (Sur Ct, Nassau County, 2009]). The proponent of the gift must prove these three elements by clear and convincing evidence (Mirvish v Mott, 18 NY3d 510; Gruen v Guien, 68 NY2d 408).
Here, the parties do not dispute that Objectant is in possession of the six paintings. Although Petitioner does not concede delivery and acceptance, the crucial inquiry is whether Decedent had the required intent to transfer those paintings to Objectant. To establish this, Objectant submits the Agreement, a typed document entitled Assignment of Rights Agreement. That document identifies the six paintings and Decedent as the artist and owner. It states that Decedent transfers his full rights of ownership of the paintings to Objectant. The document, dated February 3, 2011, was signed by Decedent and witnessed by a notary. This signed, notarized written document demonstrates that Decedent unequivocally intended to transfer his ownership of the paintings to Objectant on February 3, 2011. Thus, Objectant has established that there are no triable issues of fact regarding Decedent's intent (CPLR § 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557; Fairlane Financial Corp. v Longspaugh, 144 AD3d 858; Setter v Fire Island Ferries, Inc., 139 AD3d 840.
Having established a prima facie case for summary judgment, the burden now shifts to Petitioner to demonstrate by admissible evidence that there exists a triable issue regarding the gift of the six paintings. To this end, Petitioner alleges that as a result of Decedent's prolonged abuse of alcohol and depression, he could not have formed the intent to make the gift. To support her claims regarding Decedent's mental condition, Petitioner submits a report from a psychiatrist who evaluated Decedent. The report, dated September 3, 2008, is from Dr. Felix Dron. In the report, the psychiatrist discusses Decedent's abuse of alcohol and possible depression. He also found that Decedent did not show signs of delusions, hallucinations, bizarre behavior, or any indications of psychotic process.
There is a legal presumption that every individual is competent to engage in a transaction and the objecting party must demonstrate lack of competence (Jones v Jones, 137 NY 610, 613 [1893]; Matter of Delgado, 98 AD3d 915 [2d Dept 2012]; Matter of Lee, 294 AD2d 336 [2d Dept 2002]). Moreover, even if an individual suffers from afflictions that affect his or her mind, this is insufficient to establish incompetency. The objecting party must demonstrate that the individual was incompetent at the time of the challenged transaction (Gala v Magarinos, 245 AD2d 336 [2d Dept 1997]; Matter of Waldron, 240 AD2d 507 [2d Dept 1997]; Feiden v Feiden, 151 AD2d 889 [3rd Dept 1989]).
In this case, in the psychiatric report, Dr. Dron does not find that Decedent lacked mental capacity at anytime. In any event, a 2008 psychiatric evaluation and report has no bearing on Decedent's state of mind or competency when he transferred ownership of the paintings to Objectant three years later. Thus, there is no triable issue of fact regarding Decedent's state of mind and competency at the time he gave the gift.
Petitioner also maintains that the Agreement is invalid because Objectant failed to give Decedent consideration for the paintings. However, as discussed above, a valid gift only requires intent, delivery, and acceptance. (Mirvish v Mott, 18 NY3d 510; Gruen v Gruen, 68 NY2d 408; Matter of the Estate of Berg, 23 Misc 3d 1127[A]). A valid gift does not require consideration. Thus, there is no issue regarding consideration.
Next, Petitioner claims that there is an issue as to whether Objectant asserted undue influence over Decedent to obtain the paintings by threatening him. Specifically, she alleges that Objectant threatened to obtain a court order for child support against Decedent for his younger daughter if Decedent did not give her the paintings. In order to prove undue influence, the party [*3]alleging undue influence must demonstrate: (1) the existence and exertion of an influence; (2) the effective operation of such influence as to the subvert the mind of decedent at the time of the execution of the gift; and (3) that, but for the undue influence, the gift would not have been executed (Matter of Walther, 6 NY2d 49 [1959]). A finding of undue influence requires proof of moral coercion, such that it destroyed free agency and restrained independent action (Matter of Evanchuk, 145 AD2d 559 [2d Dept 1988]). Mere speculation that opportunity and motive to exert such influence existed does not establish undue influence (Matter of Chiurazzi, 296 AD2d 406 [2d Dept 2002]).
In this case, Petitioner fails to submit any evidence, beyond conclusory allegations and speculation, that Objectant actually exercised undue influence over Decedent when he gifted the paintings. Likewise, Petitioner failed to submit any evidence beyond conjecture that Objectant made threatening or coercive statements which caused Decedent to dispose of his paintings in a manner different than he otherwise would have (Matter of Coniglio, 242 AD2d 901 [4th Dept 1998]). Thus, there is no triable issue regarding undue influence.
In addition, Petitioner asserts that Decedent did not give the paintings to Objectant, rather, he merely stored them in Objectant's apartment. She explains the Decedent did this in an effort to hide assets from the court to avoid his child support obligations to his oldest daughter. To support this claim, Petitioner submits an Order of Support on Consent from Kings County Family Court, dated November 14, 2007 and a Petition for Violation of a Support Order, filed by Petitioner on September 17, 2010. Even assuming, arguendo, that Decedent initially brought the paintings to Objectant's residence to avoid his child support obligations in 2007 and 2010, this does not cast any doubt on the validity of the gift that he made on February 3, 2011. Thus, Petitioner's storage claim does not raise a triable issue of fact.
Furthermore, there does not exist any triable issue of fact as to whether Decedent was prohibited from transferring ownership of the paintings because he was bound by an automatic order pursuant New York Domestic Relations Law § 236. Objectant submitted a copy of a printout from the Kings County Clerk's Office (Index Number 5219/2009). The printout shows that an uncontested matrimonial action was filed by Decedent on April 17, 2009. The automatic orders provisions of New York Domestic Relations Law § 236 took effect on September 1, 2009 (see DRL § 236 [B] {2}{b}[this act takes effect September 1, 2009; see also 11 NY Prac., NY Law of Domestic Relations, McKinney's Commentary § 13.1, Interim restraining orders [automatic orders of DLR § 236 applicable to matrimonial actions effective Sept 1, 2009]). And Petitioner does not contradict this effective date. Thus, there is no triable issue of fact that Decedent was bound by an automatic order prohibiting him from transferring the paintings.
The Seventh Painting
Petitioner requests that Objectant turnover the painting, The Game. Objectant maintains that Decedent sold that painting before 2011. Objectant does not offer proof of this purported sale. And, any conversation between Objectant and Decedent regarding any alleged sale are inadmissible pursuant to the Dead Man statute (CPLR § 4519; Phillips v Kantor & Co., 31 NY2d 301, 313 [1927]; Beyer v Melgar, 16 AD3d 532 [2d Dept 2005]). Thus, Objectant is not entitled to summary judgment regarding the artwork The Game.
Accordingly, the motion for summary judgment is granted as to the six paintings in Objectant's possession, and denied at to the seventh painting, The Game.
This constitutes the Decision and Order of the Court.
Dated: September 12, 2018
Brooklyn, New York
HON. JOHN G. INGRAM
Acting Surrogate and Justice of the Supreme Court Footnotes
Footnote 1: Objectant did not identify the date she received the paintings.
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