Matter of Nailor

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[*1] Matter of Nailor 2018 NY Slip Op 51706(U) Decided on November 28, 2018 Surrogate's Court, Erie County Mosey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 28, 2018
Surrogate's Court, Erie County

In the Matter of Estate of Booker T. Nailor, Jr., Deceased.



Appearing for Petitioner Samara Robinson


Appearing for Co-Administrators John Nailor and Robert Nailor, Sr.
Acea M. Mosey, J.

Decedent died on March 8, 2017 at age 78. A widower at the time of his death, he was survived by his father [Booker T. Nailor, Sr.] as his sole distributee.[FN1]

Decedent was also survived by a number of siblings, including his two brothers, John Nailor [hereafter, John] and Robert Nailor, Sr. [hereafter, Robert].

Because decedent died without a Will, his estate passed by intestacy to his father. On April 13, 2017, decedent's father executed a document consenting that John and Robert should be appointed co-administrators of this estate (see SCPA 1001[6]). Letters of administration were duly issued to John and Robert on June 1, 2017.

By petition verified October 13, 2017, Samara Robinson [hereafter, Samara], Geneva Nailor's granddaughter but no blood relative of decedent's, requested that this Court "impress a constructive trust over the investment accounts or the proceeds of the investment accounts, real estate, bank accounts, and any other assets owned by Booker T. Nailor, Jr. at the time of his death". The petition is grounded in Samara's allegations that, before his death, decedent made representations to Samara about leaving to her and her daughter various of his assets, but that, before such transfers could take place, decedent became ill and beneficiary designations could [*2]not be completed. The estate filed a verified answer opposing the petition.

Pending now before me is a motion by the estate for an order from this Court "dismissing [the] Petition to Impose [a] Constructive Trust". Samara opposes the motion, and "respectfully requests a trial on the merits".

All papers having been finally submitted, I find and decide as follows.



Procedurally, I note at the outset that, although not specifically denominated as such, this is a summary judgment motion (see CPLR 3212), the standards for which are well-known and may be briefly stated.

In Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986], our Court of Appeals said:

"As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra, at p 562)" (see also, Jaques v. Brez Props., LLC, 162 AD3d 1665, 1666 [2018]).

And, it is axiomatic that, where the burden has shifted to the party opposing an accelerated judgment application,

" ' "[m]ere conclusions, expressions of hope or un-substantiated allegations or assertions are insufficient" ' to defeat summary judgment (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988], quoting Zuckerman v City of New York, 49 NY2d 557, 562 [1980])" (Justinian Capital SPC v. WestLB AG, NY Branch, 28 NY3d 160, 168 [2016]).


As noted, this is a petition to impress a constructive trust. In Sharp v. Kosmalski, 40 NY2d 119, 121 [1976], our Court of Appeals set out the factors for determining whether a constructive trust should be imposed:

"Generally, a constructive trust may be imposed '[when] property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest' (Beatty v. Guggenheim Exploration Co., 225 NY 380, 386; 1 Scott, Trusts [3d ed], § 44.2, p 337; 4 Pomeroy's Equity Jurisprudence [5th ed], § 1053, p 119). In the development of the doctrine of constructive trust as a remedy available to courts of equity, the following four requirements were posited: (1) a confidential or fiduciary relation, (2) a promise, (3) a transfer in reliance thereon and (4) unjust enrichment (see Janke v Janke, 47 AD2d 445, affd 39 NY2d 786; Vassel v. Vassel, 40 AD2d 713, affd 33 NY2d 533; Foreman v. Foreman, 251 NY 237; Sinclair v. Purdy, 235 NY 245; Ahrens v. Jones, 169 NY 555; Matter of O'Hara, 95 NY 403).

Most frequently, it is the existence of a confidential relationship which triggers the equitable considerations leading to the imposition of a constructive trust (see Bogert, Trusts and Trustees [2d ed], § 482, p 132; 61 NY Jur, Trusts, § 146, pp 303-304). Although no marital or other family relationship is present in this case, such is not essential for the existence of a confidential relation (see Muller v. Sobol, 277 App Div 884 [meretricious relationship]; Bogert, op. cit., §482, pp 136-147; 1 Scott, op. cit., p 339)."

Moreover, as the Kosmalski Court also pointed out, "[t]he solitary purpose of the constructive trust remedy is to prevent unjust enrichment" (id., at 123):

"A person may be deemed to be unjustly enriched if he (or she) has received a benefit, the retention of which would be unjust (Restatement, Restitution, § 1, Comment a). A conclusion that one has been unjustly enriched is essentially a legal inference drawn from the circumstances surrounding the transfer of property and the relationship of the parties. It is a conclusion reached through the application of principles of equity" (id., at 123).



Here, the gist of Samara's allegations is that decedent promised to leave her and her daughter various of his assets but that he became ill before he could take the necessary steps to do so:

"[F]or all practical purposes, Booker's wife, Geneva, my grandmother, and Booker raised me. I had my daughter at seventeen (17) and she also lived with Booker and Geneva. When I was in college, I left my daughter with my grandfather, Booker Nailor, Jr. and my grandmother and they took her to school until just before my grandmother got sick. I was in college at Buffalo State and we decided that it would be better for my daughter if they could raise her while I was attending college. Booker always treated me and my daughter as his family and Booker made it known that he was our grandfather and to always call him granddad. We were as close as a family could be and for all practical purposes, Booker Nailor, Jr., and my grandmother, Geneva Nailor raised me. They also raised my daughter until I completed school. Thanks to Booker and my grandmother, I have a successful career as a real estate agent and I earn a comfortable living and live in a comfortable area.

. . .

Booker started to get his affairs together shortly after my grandmother died. He had me assist him in putting together these affairs. I am fully aware of the extent of his financial investments and that he was getting together changes of beneficiaries in order to have myself and my daughter be the beneficiaries.

. . .

Booker Nailor, Jr., my grandfather, the only grandfather I ever knew was in a close familial place and in a fiduciary relationship with me and my daughter and I relied on that and his representations to me that the accounts that he had saved all his life for would be ours for our future" (emphasis added).

Samara also alleges the following:

"Although we were not natural born grandchildren and great-grandchildren of Booker T. Nailor, Jr. because he married my grandmother Geneva Nailor, we were treated all during our lifetime as his grandchild and great-grandchild, the natural objects of his affection. He had a close relationship with some of his brothers and sisters until his mother died and his sister can bear out that he intended all of his assets to go to myself and my daughter, J'Sharre Gamblin who were looked at by him as his own grandchildren.

The collection and transfer of the property to the estate would cause an unjust enrichment to estranged family members who did not at all bear this close relationship to my late grandfather.

The petitioner, hereby requests this Court impress a constructive trust over the assets and to Order the Estate to transfer all of the assets of Booker T. Nailor, Jr. including but not limited to the accounts referred to in this petition and any real estate or cash realized from the real estate assets" (emphasis added).


In moving for dismissal of Samara's petition, the estate asserts, inter alia, that there is nothing in that petition "which could be characterized as actions made in reliance of a promise", urging that Samara's "claim that she relied on the decedent's statements is immaterial unless she did something in reliance."[FN2] Put simply, the estate — after analyzing the petition in detail — argues that there was no detrimental reliance by Samara on anything which decedent may have said such that it would now be unjust and inequitable to allow decedent's assets to pass via his estate to his sole distributee father.[FN3]

Samara's September 20, 2018 response to the estate's papers adds nothing factually or legally to what is set out in her petition. Although she reiterates that she relied upon the expectation of receiving decedent's assets when he died, there is nothing more than that asserted factually. The estate co-fiduciaries have responded in a joint September 27, 2018 affidavit that Samara "still has failed to [allege] any acts which could be characterized as actions made in reliance of a promise."

The case law clearly establishes that mere reliance upon a promise, without taking affirmative steps to the detriment of the party seeking the imposition of a constructive trust, is insufficient. It is, in effect, a substantive change in position by the "promisee" in reliance upon the promise which would make it unjust and inequitable not to have that promise which induced the change in position subsequently enforced by the court. See, e.g., Zuley v. Elizabeth Wende Breast Care, LLC, 126 AD3d 1460, 1462 [2015] ["The requisite elements of [a constructive trust cause of action] are a fiduciary relationship, a promise, or transfer in reliance on the promise, [*3]and unjust enrichment" (emphasis added)]; see also, Rossi v. Morse, 153 AD3d 1637 [2017].

In Matter of Marine Midland Trust Co., 36 AD2d 471 [1971], our Appellate Division reviewed a claim for imposition of a constructive trust grounded in what the Court characterized as an "inferred" promise by the decedent to transfer certain realty to persons who worked on his farms. In rejecting the request to impose a constructive trust on the property, the Court said:

"However, decedent did not appropriate property belonging to others but merely retained what was legally and rightfully his. It should be noted that objectants were reasonably well recompensed for performing their end of the bargain and, hence, it cannot be said that decedent was unjustly enriched by retaining title to the farm. Although the facts may reveal a case of unrealized expectations, we may not, without more, fashion a constructive trust. 'It is not the promise only, nor the breach only, but unjust enrichment under cover of the relation of confidence, which puts the court in motion' (Sinclair v. Purdy, 235 NY 245, 253). Decedent may well have had a moral obligation to give the property to objectants but such an obligation 'is not enough to set a court in motion to compel the devolution of property in a certain way (Amherst Coll. v. Ritch [151 NY 282], supra; Oursler v. Armstrong, 8 A D 2d 194, 197, citing Wood v. Rabe [96 NY 414], supra, p. 421)' (Oursler v. Armstrong, 10 N Y 2d 385, 391). A constructive trust has been imposed where property is parted with on the faith of an oral promise (Sinclair v. Purdy, supra), but none may be imposed by one who has no interest in the property prior to obtaining a promise that such an interest will be given to him; and, since objectants' performance of working the farm was not unequivocally referable to the oral agreement they now claim, the agreement would be void as violative of the Statute of Frauds (General Obligations Law, § 5-703, subd. 3; Burns v. McCormick, 233 NY 230; Reoux v. First Nat. Bank of Glens Falls, 17 A D 2d 915). A constructive trust is a 'fraud-rectifying' trust rather than an 'intent-enforcing' trust (Saulia v. Saulia, 31 A D 2d 640, mod. on other grounds 25 N Y 2d 80). (See, also, Equity Corp. v. Groves, 294 NY 8, 13; Bogert, Trusts and Trustees [2d ed.], § 471, p. 7; 3 Scott, Trusts, § 462.1.) There has been no transfer of property here resulting in unjust enrichment under cover of any confidential relationship" (at 474, emphasis added).

I find and conclude that there has not been even an arguable showing of detrimental reliance by Samara on any promise, express or implied, by decedent, within the meaning of the law. Thus, she would not be entitled to the imposition of a constructive trust over any of decedent's assets.

Accordingly, the estate's motion for summary judgment dismissing this petition must be, and it hereby is, granted in all respects, and the petition is hereby dismissed.

This decision shall constitute the Order and Decree of this Court and no further order or decree shall be required.


November 28, 2018



Surrogate Judge Footnotes

Footnote 1:Decedent's wife, Geneva Nailor, had predeceased him in 2007, and decedent had no children. Geneva, however, apparently had one or more children from another relationship, none of whom were adopted by decedent.

Footnote 2:Robert's August 2, 2018 affidavit, at paragraphs 4 and 5.

Footnote 3:I note that decedent's father died on August 27, 2017. His estate passes by Will to all of his surviving children. See Erie County Surrogate's Court estate file #2017-3971.