Matter of Varrone

[*1] Matter of Varrone 2021 NY Slip Op 50562(U) Decided on June 17, 2021 Surrogate's Court, Queens County Kelly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2021
Surrogate's Court, Queens County

In the Matter of the Application of Charles Varrone as Limited Administrator of the Estate of Cynthia Varrone, Deceased, To Discover Property Withheld and for turnover of assets.



2018-5367/B



Michael F. Mongelli II, PC

By: Michael F. Mongelli, Esq.

Attorney for Petitioner, Charles Varrone

Silvagni and Como, P.L.L.C.

By: Ida Como, Esq.

Attorney for Respondent, John Varrone
Peter J. Kelly, S.

The decedent passed away on July 4, 2018 leaving five children as her distributees. Her son, Charles, as limited administrator, commenced the instant proceeding seeking, inter alia, an inquiry of his sibling John and the return to the estate of real property titled in John's name and located in Middle Village, New York. As an aside, on file with the Court is a last will and testament that leaves the entirety of decedent's estate to the respondent John.

Petitioner avers that respondent unduly influenced the decedent into executing two deeds: one on April 21, 2010 whereby the property was transferred from decedent to decedent and respondent as joint tenants with rights of survivorship; and one on October 15, 2013 whereby the decedent divested herself entirely of any ownership interest in the property and designated the respondent as sole owner. Petitioner claims the decedent suffered from dementia and lacked the mental capacity necessary to effectuate either of the transfers. In addition petitioner asserts the deeds were the product of respondent's undue influence.

Respondent denies the material allegations of wrongdoing and now moves for summary judgment dismissing the petition on the grounds that respondent has demonstrated, prima facie, that the transfers are valid and no triable issues of fact exist.

Petitioner opposes the motion on the grounds that it is not supported by admissible evidence and alleges the existence of material issues of fact warranting a trial.

The Court must first address petitioner's claims of the motion's evidentiary insufficiency. Specifically, petitioner states that the motion fails from the outset as it is unsupported by an affidavit, and the transcripts of the depositions submitted by movant are uncertified and/or unsigned copies, and non compliant with CPLR 3116.

There is completely no merit to this argument. Although CPLR 3212 provides that a motion for summary judgment is to be supported by an affidavit, supporting proof, such as depositions and other documents of individuals with personal knowledge, may be placed before the Court by way of attorney's affirmation as was done here (See Zuckerman v NY, 49 NY2d 557, 563 [1980]).

Additionally, although respondent has submitted some unsigned and/or uncertified copies of deposition transcripts in support of his motion, the argument to disregard such evidence is unpersuasive, somewhat disingenuous, and borderline frivolous.

In some cases, the petitioner was actually the party in possession of the originals and thus, the only party in a position to either file the original duly executed transcripts with the Court or demonstrate compliance with CPLR 3116. In fact, petitioner's opposition to the motion includes proof of his compliance with CPLR 3116 as to many of the transcripts complained of. Even more notable is the fact that petitioner does not challenge the accuracy of any of the other transcripts, quoting from them extensively, and engaging in a comprehensive dissection of their contents, thereby adopting them in the form provided (see Baptiste v Ditmas Park, LLC, 171 AD3d 1001 [2d Dept 2019]; Gallway v Muintir, LLC, 142 AD3d 948 [2d Dept 2016]; Ashif v. Won Ok Lee, 57 AD3d 700 [2d Dept 2008]). Indeed petitioner's entire time line of factual events is derived from information contained in the transcripts he nominally seeks to exclude. Accordingly, the Court rejects petitioner's claims of evidentiary insufficiency and turns to the merits of the dispositive motion before it.

A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact (see e.g. Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]). Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution (see also CPLR 3212; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Respondent, as the donee of the zero-consideration transfers at issue bears the burden of proving an intervivos gift from the decedent and is required to prove each of three elements by clear and convincing evidence: (1) an intent on the part of the donor to make a present transfer; (2) delivery of the gift—actual or constructive—to the donee sufficient to divest the donor of dominion and control over the property; and (3) acceptance on the part of the donee (see Gruen v. Gruen, 68 NY2d 48 [1986]); Matter of Szabo, 10 NY2d 94 [1961]).

In cases such as these, the donor's intention is paramount in determining whether a transaction constitutes a valid inter vivos gift (see Matter of Hicks, 82 Misc 2d 326, 329 [Sur Ct, Cattaraugus County 1975]). This is so because the recording of the subject deeds, as has occurred here, gives rise to a presumption of delivery and acceptance (see Ten Eych v Whitbeck, 156 NY 341 [1898]; Dwyer v Adler, 251 AD25 535 [1998]).

To establish donative intent, respondent must demonstrate prima facie that the decedent intended to make an irrevocable present transfer of ownership. The test is whether the donor intended the gift to have no effect until after the maker's death, or whether she intended it to transfer some present interest (see McCarthy v. Pieret, 281 NY 407, 409 [1939]). In the former instance, the disposition is good only if made by a will (see id.). In the latter, however, where the gift is made effective in the lifetime of the decedent and there is no power to recall it, it is considered a gift inter vivos (see id.).

No one factor or consideration is independently determinative of donative intent (see Gruen v. Gruen, 68 NY2d 48 [1986]). Rather, courts will consider the totality of the evidence adduced, including the status and relationship of the parties, as well as oral and written expressions of a gift, in making a determination (see id.). Additionally, the donor must be mentally capable of formulating the requisite intent to make a gift (Matter of Creekmore, 1 NY2d 284 [1956]).

In support of the motion, respondent has submitted, inter alia, copies of the subject deeds and accompanying instruments of transfer. It is uncontraverted that these documents reflecting zero consideration exchanges were executed by the decedent in her individual capacity. Contrary to petitioner's assertions, such documents are in and of themselves evidence of decedent's donative intent (see McCarthy v Kaminski, 2013 NYLJ Lexis 6464 *23 [Sur Ct, Suffolk County 2013]; Estate of Romano, 8 Misc 3d 1010(A) [Sur Ct, Nassau County 2005] (Estate of Breitman, 1999 NYLJ Lexis 1131 [Sur Ct, Nassau County 1999]).

Respondent has also submitted the decedent's Will, the original of which is on file with the Court. The Will, executed the same day as the deed creating a joint tenancy between the decedent and the respondent, also devises the subject real property to respondent and specifically, in more than one paragraph, disinherits the decedent's other children.

Operative only at death, it can be argued that by its very nature, a Will cannot serve as evidence of a present intent to give the premises to the respondent. However, it may be considered as evidence of the status and relationship that existed between the decedent and the parties, and where decedent's affections appeared to lay at the time of the questioned transaction. In any event, as a practical matter, the Will stands as an additional barrier to petitioner's desire to claw back the real property for equal division among himself and his siblings.

In addition to the above documentary evidence, further support of donative intent was supplied via the disinterested deposition testimony of attorney Jake LaSala. LaSala testified that he prepared the deeds and accompanying transfer documents at decedent's behest; that he discussed the transactions with the decedent; that he personally supervised their execution on the days in question; and that he arranged for the deeds' recording. LaSala testified repeatedly that decedent's main objective was to ensure that the respondent—who lived with her, assisted her, and was without a spouse and children of his own—had a place to live, and would not be thrown out of the house. The will, while perhaps appearing redundant, was apparently done to provide the decedent with additional assurances—so that she would be "more secure that John would have [the home]."

Although the foregoing already constitutes sufficient evidence of decedent's donative intent, respondent also includes affidavits from two of decedent's other children, Benjamin and William, that swear as follows:

I know that my mother, Cynthia Varrone, signed 2 deeds that gave her property located at 85-23 [sic] 78th Street, Middle Village, NY, 11379 to my brother, JOHN VARRONE, and I know that her intent was to give that property to my brother JOHN VARRONE.

These statements, brief as they may be, constitute sworn admissions that are against Benjamin and William's pecuniary interests. Although petitioner has been long aware of the existence of these affidavits, he has not, based on the proof submitted, sought to depose either of his siblings regarding their contents. According to petitioner, his brother Benjamin "is believed" to have since passed away. But in any event, no substantive legal basis has been provided for the Court to disregard these affidavits in their entirety, irrespective of their lack of embellishment or the fact that they were originally submitted in connection with a pre-answer motion to dismiss that was later withdrawn.

Also, while petitioner urges otherwise, the evidence of donative intent submitted by respondent is not diminished by the decedent's failure to file a gift tax return. The failure to file a gift tax return is not uncommon, particularly among individuals with modest estates who do not require sophisticated estate or gift tax planning. Although the existence of a gift tax return would [*2]constitute strong evidence of intent, its absence is not, in and of itself, determinative of the issue (see, e.g., Gruen v. Gruen, 68 NY2d 48, 54 [1986]).

As logic dictates, donative intent presupposes that the donor possesses the mental capacity to make a gift (see e.g., Spallina v. Giannoccaro, 98 AD2d 103, 106 [4th Dept 1983]). Again, the onus falls upon the respondent to establish the donee's competency by clear and convincing evidence (see Matter of Breitman, 1999 NYLJ Lexis 1131 [Sur Ct, Nassau County 1999]). However, the burden is "lightened by the law's presumption that individuals have capacity and is somewhat eased by the

law's recognition that '[a] person . . . may be of old age and [even] mentally weak, and still be able to understand and comprehend the meaning of a deed or the transfer of property." (Matter of Rella, 2012 NYLJ Lexis 822, *5 [Sur Ct, New York County 2012] (internal citations omitted).

Here, respondent did not have to rely solely upon the strength of this ameliorative presumption. Adequate evidence of decedent's mental capacity at the relevant times was demonstrated by the disinterested witness testimony of attorney LaSala who oversaw the execution of the deeds and instruments of transfer on both occasions and stated "there was nothing in 2010 or 2013 that gave me any inclination that this woman [the decedent] didn't know what she was signing or doing." The testimony of non-party witnesses William D. Jelley, Richard Cerichero, and decedent's treating physician, Dr. Francis J. Anello, corroborated this.

Furthermore, the testimony of attorney LaSala demonstrated prima facie the absence of undue influence. La Sala testified that he took directions solely from the decedent and the transfers were done at decedent's behest.

Having carefully considered the totality of the evidence provided, the Court finds that the respondent has demonstrated prima facie entitlement to judgment as a matter of law.

Consequently it was now incumbent upon petitioner to "lay bare affirmative proof" that material issues of fact exist warranting a trial.

Petitioner's opposition relies upon select portions of uncertified copies of decedent's hospital and medical records to support the allegation that decedent lacked the necessary mental capacity to gift the real property to the respondent, or at least, demonstrate the existence of a material issue of fact in that regard.

Initially, the Court observes that the absence of a certification renders such records inadmissible (CPLR 4518[c]). While petitioner gives no reason for casting aside formal admissibility requirements he previously championed, respondent, in turn, has not sought to challenge the admissibility of these records and has likewise submitted uncertified copies of medical records on his own behalf, so the Court has carefully considered the entirety of their contents.

Among them are records reflecting the decedent's admission to Weil Cornell for the time period of August 23, 2009 through September 4, 2009 for a brain hemorrhage. Despite the length of stay, petitioner provides a mere 7 pages of discharge notes, none of which are legally sufficient to raise an issue of fact regarding the decedent's competency.

For example, that the decedent suffered from agoraphobia and was "poor for compliance with medical care" is irrelevant as to her capacity. Nor does the term "altered mental status" at a time far removed from the questioned transactions, particularly when read in totality with "increasing headache" as a symptom that would warrant follow up, constitute sufficient relevant factual evidence contradicting respondent's prima facie proof (see generally Matter of Martinicio, 177 AD3d 882 [2d Dept 2019]; Matter of Hedges, 100 AD2d 586 [2d Dept 1986]; [*3]Matter of Waldron, 240 AD2d 507 [2d Dept 1997]; Matter of Chin, 2018 NYLJ Lexis 278 [Sur Ct, Queens County 2018]).

Finally, the mere fact that respondent signed the discharge instructions as opposed to the decedent does not establish an issue of fact as to decedent's lack of capacity. The act itself is legally non-probative and the records make clear that decedent remained in charge of her own plan of care as it states: "The patient was recommended for subacute rehabilitation following her hospital stay. She has refused placement and will be going home, her son is aware of this recommendation" (emphasis added).

The only potentially relevant portion of the records to the issue of capacity are notations made by decedent's treating physician that indicate decedent had "mild alzheimers" or "mild dementia" in and around 2012 and 2013, as well as one reference to "modest alzheimers" in November of 2013. However, the initial probative shortcoming to this proof is the undisputed fact that the 2010 deed giving respondent a right of survivorship in the property predates these observations.

Further, it has long been held that a diagnosis of dementia, Alzheimers, or organic brain disease is not incompatible with capacity (see e.g., Feiden v Feiden, 151 AD2d 889 [3d Dept 1989]). Standing alone, without any other evidence, such notes are insufficient to raise an issue of fact (see id., see also, e.g., Matter of Friedman, 26 AD3d 723 [3d Dept 2006]). Finally, the mere fact that decedent was taking prescription medication does not rob her of her ability to contract.

Petitioner in opposing this motion was obliged to "lay bare affirmative proof" (see Matter of Engelhardt, 34 Misc 3d 1232(A) [Sur Ct, Queens County 2010]). In this regard, there is not a scintilla of evidence to suggest that decedent's afflictions, or any medications she was taking, rendered her incompetent to comprehend the nature of the transactions on the dates in question (see id., see also Matter of Giaquinto, 164 AD3d 1527 [3d Dept 2018]; Matter of Lee v. Bank of NY [2d Dept 2002]; Luna v Ayroso, 2013 NY Misc. Lexis 553 [Sup Ct, Queens County 2013]).

In short, the evidence provided by the petitioner is totally insufficient to sustain his burden on the issue of capacity.

Lastly, the Court turns to petitioner's claim that summary judgment is precluded because the confidential relationship between petitioner and respondent rendered the transactions presumptively void, or, unsuitable for a summary disposition given the material issues of fact on the issue of undue influence.

In support, petitioner submits copies of New York State Statutory Short Form Power of Attorneys dated October 12, 2009 whereby the decedent and her husband, William Varrone, designate the respondent as their attorney-in-fact [FN1] . Also included are copies of Health Care Proxies whereby decedent and her husband name each other as primary agents and respondent as a secondary agent.

The relationship between an attorney-in-fact and the grantor of the power of attorney is one which can rise to the level of a confidential relationship (Matter of Adams, 2013 NYLJ Lexis 4612 [Sur Ct, Suffolk County 2013]; Matter of Petix, 15 Misc 3d 1140[A] [Sur Ct, Monroe County 2007]). However, the mere existence of a power of attorney does not render the relationship between the parties confidential as a matter of law (see id.).

Rather, the hallmark of a confidential relationship is the disparate power of one party over another (Matter of Zirinsky, 10 Misc 3d 1052[A] affd 43 AD3d 946 [2d Dept 2007]). If the facts so demonstrate, the beneficiary of the transaction has the additional burden of proving the transaction was "fair, open, voluntary, and well understood, and therefore free from undue influence" (Matter of Boatwright, 114 AD3d 856, 858 [2d Dept 2014]).

Although the decedent's age and struggle with agoraphobia rendered her reliant on respondent in some respects, the record is bereft of proof that respondent was wielding disparate power over the decedent. Notably, the subject transactions were not effectuated with the use of the power of attorney. While respondent testified that he was "POA" on decedent's checking account to assist with bill-paying responsibilities, this, alone, does not rise to the level of disparate power (see Matter of Harmon, 2015 NYLJ Lexis 5849 [Sur Ct, Suffolk County 2015]). In fact, as limited administrator petitioner had the opportunity and authority to obtain financial records reflecting respondent's arguably wrongful usage of the account. Significantly, none was submitted.

In fact, the record indicates that respondent was likewise dependent upon decedent and had been for many years. Petitioner's affidavit in opposition to the motion acknowledges as much: "I viewed John's services as an act of redemption. Moreover, and in reality, John had nowhere else to live as he had no real income for quite a long time."

Such evidence, inadvertently or not, gives credence to the testimony of attorney LaSala, who consistently stated that the decedent's paramount concern was ensuring that respondent had a place to live, and could not be "kicked out" by his siblings.

Even if the relationship were considered confidential in nature such to permit an inference of undue influence, the close familial bond that existed between the decedent and respondent, as mother and son, serves to negate any inference of undue influence that might otherwise arise (see e.g., Matter of Po Jun Chin, 2018 NY Misc Lexis 145 [Sur Ct, Queens County 2018]; Matter of Anella, 88 AD3d 993 [2d Dept 2011]; Matter of Zirinsky, 43 AD3d 946 [2d Dept 2007]).

And despite petitioner's apparent suspicions, without a showing that undue influence was actually exercised, respondent's passive presence at the home he resided in at the time the deeds and instruments of transfer were signed does not raise an issue of fact with respect to undue influence (see Matter of Swain, 125 AD2d 574 [2d Dept 1986]; Matter of Walther, 6 NY2d 49 [1959]).

Finally, all of the petitioner's other arguments are without merit. The theory that the respondent and the attesting witnesses to the decedent's will were cohorts in a grand scheme to obtain dominion and control over the decedent's real property is based entirely upon conjecture, borders upon absurd, and, as such, is insufficient to establish a material issue of fact warranting a trial (see Matter of Aoki, 99 AD3d 253 [1st Dept 2012]). In the absence of evidence, the hopes of discrediting the witnesses at trial is likewise insufficient to defeat summary judgment (see e.g., Angeles v Goldhirsch, 268 AD2d 217 [1st Dept 2000]; Harris v Pitts, 109 AD3d 790 [2d Dept 2013]).

In light of the above, the branches of the motion which seeks to dismiss the petition on [*4]the basis of CPLR 3211[4] and CPLR [7] are moot.

It has not escaped this Court's attention that the decedent's actions were not only free from undue influence or lacking in reason, but that her paramount concern regarding respondent's ability to remain in the subject premises unmolested upon her demise was prescient, and her apprehension that attempts would be made to remove respondent therefrom was prophetic. Apart from the within proceeding, a pending, albeit stalled, Supreme Court action has been brought against respondent also seeking to set aside the 2013 deed for reasons seemingly identical to those set forth herein.

Interestingly, the plaintiff in that action is respondent's brother, Paul Varrone, in his capacity as an "heir and distributee." Paul, however, has curiously stayed silent in this proceeding, a fact rendered all the more suspect given that he and the petitioner Charles are represented by the same attorney and is therefore, presumably aware of the status of this proceeding as well as the existence of the testamentary instrument on file with the court.

Accordingly, the respondent's motion for summary judgment is granted, the within petition dismissed, and the stay set forth in this Court's order to attend is stricken. The Clerk of the Court is directed to furnish a copy of this decision and order to the parties that have appeared in this proceeding as well as the related action in the Supreme Court of Queens County under Index No: 716945/2018 (see Matter of Noble, 31 AD3d 643 [2d Dept 2006]).

This constitutes the decision and order of the Court.

Settle decree.

Dated: June 17, 2021

HON. PETER J. KELLY

SURROGATE Footnotes

Footnote 1:The motion papers appear to state that respondent "procured" another set of Powers of Attorneys from his parents on April 21, 2010, this time with a Major Gifts Rider. However, neither the electronic exhibits nor the hard copies provided by counsel include a Power of Attorney with Major Gifts Rider signed by decedent—only one signed by William who was never a titleholder of the subject property. In any event, no documents have been submitted reflecting transactions effectuated with a Power of Attorney or Major Gifts Rider of any date for either the decedent or her pre-deceased spouse.