Estate of Bolduc v Bolduc

[*1] Estate of Bolduc v Bolduc 2021 NY Slip Op 51090(U) Decided on November 17, 2021 Supreme Court, Warren County Muller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2021
Supreme Court, Warren County

Estate of Eddie J. Bolduc, Danielle Bolduc as Executrix and DANIELLE BOLDUC, Individually, Plaintiff,

against

Nicole Bolduc, Defendant.



Index No. EF2020-68532



Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Brian Reichenbach of counsel), for plaintiff.

William E. Montgomery, Glens Falls, for defendant.
Robert J. Muller, J.

Eddie J. Bolduc (hereinafter decedent) died testate on October 6, 2019. In his Last Will and Testament he left his home — located in the Town of Queensbury, Warren County — and its contents to his daughter, defendant Nicole Bolduc. He then left the remainder of his estate — including any vehicles — to plaintiff Danielle Bolduc, his other daughter. Plaintiff was also named as Executrix of the Will, which was admitted to probate on December 16, 2019.

Prior to his death decedent — who apparently suffered from dementia — resided at his home with defendant, his primary caretaker.[FN1] On October 8, 2015, decedent executed a Power of Attorney appointing defendant as his agent and attorney in fact.[FN2] According to plaintiff, following execution of this Power of Attorney "[d]efendant began using credit card accounts issued from Lowe's Home Improvement Warehouse, Wells Fargo Bank and JC Penney Department Store and debit card accounts from Glens Falls National Bank and TD Bank belonging to [d]ecedent . . . to purchase goods and services for her own personal use and enjoyment." Plaintiff further claims that "[d]uring 2015, [d]efendant began operating [d]ecedent's car for her own purposes, paying the operating expenses, including insurance, repairs, maintenance and payments on . . . the loan . . . used to purchase the car, from [d]ecedent's property."

On June 16, 2020, counsel for plaintiff sent a letter to defendant requesting that she [*2]"contact [his office] to discuss the disposition of the assets and help . . . reconstruct how they were expended." Counsel then sent a follow-up letter on August 10, 2020. With no response to either letter, plaintiff — individually and as Executrix of decedent's estate — commenced this action for breach of fiduciary duty against defendant on December 8, 2020.

Plaintiff seeks a judgment against defendant "for the value of all [d]ecedent's assets expended by [her] that were in excess of the statutory gift limit of [$500] for [each] calendar year from 2015 through 2019." In this regard, plaintiff contends that because decedent did not check the "statutory gifts rider" authorizing defendant "to make gifts in excess of an annual total of $500" all assets expended in excess of that amount constitute impermissible gifts which must be returned to decedent's estate.

Defendant was personally served on January 13, 2021 and thereafter failed to answer or otherwise appear. Presently before the Court is plaintiff's motion for a default judgment and defendant's cross motion for leave to serve a late answer. The motion and cross motion will be addressed ad seriatim.

Turning first to plaintiff's motion for a default judgment, plaintiff has submitted a copy of the pleadings, together with proof of service of the pleadings on defendant and proof of defendant's default. Plaintiff has also submitted her own affidavit relative to the facts. She contends that between 2015 and 2019 defendant spent $6,965.85 on decedent's credit card with Wells Fargo Bank; $10,517.07 on his credit card with Lowe's; and $7,221.76 on his credit card with J.C. Penney; $18,795.27 on his debit card with Glens Falls National Bank; and $20,029.36 on his debit card with TD Bank. She further contends that decedent stopped driving his car — a 2014 Lexus GS 350 sedan — in August 2015, at which time it "had been driven 5,077 miles[ and] was worth $30,212.00 according to NADA Used Car Guide." According to plaintiff, defendant then drove the car until decedent's death — getting into one accident — and the car sold for only $20,500.00. Plaintiff contends that defendant is responsible for the $9,712.00 decrease in value. Plaintiff seeks damages in the amount of $51,732.68, which is the total spent less gifts authorized under the Power of Attorney.

Plaintiff attaches the following to her affidavit as proof of the alleged damages: (1) a copy of a NADA report generated online on February 18, 2021, which estimates the value of a "clean retail" 2014 Lexus GS 350 Sedan to be $30,212.00; (2) a copy of a letter dated August 11, 2020 from Wells Fargo Bank to plaintiff accepting payment in the amount of $1,085.12; (3) a copy of a letter dated August 14, 2020 from Synchrony Bank — Lowe's Consumer Credit Card confirming payment in the amount of $3,610.91 to satisfy the account; and (4) a copy of a letter dated August 14, 2020 from Synchrony Bank — JC Penney Credit Card Account confirming payment in the amount of $1,000.02 to satisfy the account. Insofar as these latter three submissions are concerned, plaintiff contends that she negotiated with the creditors following decedent's death and was able to reach settlements with respect to the amounts due and owing on the respective cards. Significantly, plaintiff has not submitted any proof relative to the debts allegedly incurred by defendant, nor has she submitted proof that the car was sold for $20,500.00 or proof in an admissible form of the motor vehicle's value before damages were sustained.

Notwithstanding the foregoing observations plaintiff has demonstrated her entitlement to a default judgment on the issue of liability only — and not with respect to damages (see CPLR 3215 [b], [f]).

In opposition to the motion, defendant contends that she has both a reasonable excuse for her default in answering and a meritorious defense — as must be demonstrated to successfully [*3]defeat the motion (see Kostun v Gower, 61 AD3d 1307, 1307 [2009]; Drucker v Ward, 293 AD2d 891, 891 [2002]). Insofar as a reasonable excuse is concerned, defendant contends that she failed to answer within the requisite time because of a law office failure. In this regard, counsel for defendant has submitted an affidavit stating, in pertinent part:

"I am acquainted with defendant . . . as an employee at Lowe's, who I would often see in the garden department. "During the summer and fall months of 2020 while at Lowe's defendant . . . talked to me about problems that she was having with her sister . . . regarding her father's estate."On 01/13/2021 when defendant . . . brought the amended verified complaint to my office, she was not a client and my paralegal was not familiar with what she was talking about. Because she believed it was a matter I was handling, my paralegal took the amended verified complaint, without setting up a file or diarying it. She was not aware of the 20-day deadline by which to file an answer. "My paralegal typically does not handle the civil matters. Rather, her duties have been primarily confined to criminal matters. My other assistant who handled civil matters left my office on November 20, 2020. As such, the office was not fully staffed and I was in the process of hiring a new assistant."I was not in the office on 01/13/2021 when defendant . . . came in and I was unaware that she came in and dropped the [off] the amended verified complaint . . ."Inadvertently, the amended verified complaint remained in my paralegals [sic] office and got comingled with other documents that she was working on, which she failed to realize. . . ."Due to the winter season, I did not happen to see defendant . . . at Lowe's in the garden department after she had brought the amended verified complaint in . . . ."Through no fault of defendant . . . an answer was not filed. . . ."My office had no further contact [with] defendant until she brought in the instant motion on 04/27/2021 . . . in a panic."On 04/28/2021 I promptly wrote to [counsel for plaintiff] and the Court with respect to getting an extension to file opposing papers, after which the Court granted an extension."

Defendant has also submitted her own affidavit indicating that she brought the pleadings to the attorney's office on January 13, 2021 — the same day she was served — and left them with his paralegal. According to defendant, she heard nothing further, but called immediately after being served with the motion for a default judgment and then brought the motion to counsel's office that same day.

The Court "may accept law office failure as an excuse 'where the claim of law office failure is supported by a detailed and credible explanation of the default'" (U.S. Bank, N.A. v Clarkson, 187 AD3d 1376, 1377 [2020], quoting 1158 Props., LLC v 1158 McDonald, LLC, 104 AD3d 658, 658 [2013] [internal quotation marks and citations omitted]; see CPLR 2005; Onewest Bank, F.S.B. v Mazzone, 186 AD3d 1815, 1816 [2020]; Luderowski v Sexton, 152 AD3d 918, 920 [2017]). Here, these facts are accepted as a reasonable excuse for defendant's default. Indeed, the excuse is supported by a detailed and credible explanations from both defense counsel and defendant.

Defendant next contends that she has a meritorious defense because all the money spent on the various credit and debit cards was used for decedent's home and for his benefit. In this regard, defendant contends that she began living with decedent in 2013 when he "asked [her] to [*4]move in with him because he was getting older and unable to keep up with things." She worked at Lowe's, but he helped her financially by buying "groceries, clothing[,] personal items and gifts on birthdays and holidays for both [her] and [her] children." She in turn "helped him with maintaining his residence, cooking, doing his laundry, taking him shopping . . . , and providing for anything else that he was not able to do." According to defendant, decedent was "less able to tend to his daily affairs" as he grew older and, in 2015, he appointed her as his agent and attorney in fact. Defendant further contends as follows:

"In 2016 my father began to suffer much more from dementia which became more and more pronounced, up to the point to where he could not take care of himself. At times he didn't know who I was, where he was or what was going on."I became my father's full-time caregiver, with the help of my children . . . . His dementia got so bad that we had to put locks and alarms on the doors of the house to keep him from leaving and wandering."As his health deteriorated, he had prostate problems which required me to change his catheter on a regular basis, dress him in diapers and change his bedding often. Frequently he would forget to know that he needed to use the bathroom and would end up going wherever he happened to be. Eventually, public health nurses came in once a week to help. . . ."As his dementia progressed, I fenced in (pretty much all by myself) the entire back [yard] with welded fence and posts so that he could walk around the yard without wandering off. The yard is about one acre in size!"I also worked with my father to make improvements that he wanted to the house which included replacing the carpet in the kitchen and dining room with tile; installing a kitchen island for him to stand and sit at; painting the kitchen cabinets; and a lot of other home improvements. In the beginning he was able to help me [ but a]s time went on, he would sit and tell me how to do it. Then he would ask me who did it. "All of the kitchen appliances failed one by one, as did the hot water heater. These all had to be replaced and I did most of the work myself to install them."Because of his dementia and health conditions I also had to buy and install a power lift chair, a wheelchair, a special floor air conditioning unit and humidifiers."

Insofar as the car is concerned, defendant contends that — although the car was titled to decedent — it was "registered and insured . . . in [her] name." In this regard, defendant contends that "in 2015 [decedent] got into an accident and they were going to cancel his insurance or increase it substantially[, and i]t was cheaper to register and insure it in [her] name." She believes her father "did this so [she] could continue to use his car." Defendant contends that she drove a Mustang that he was unable to get in and out of, so they used his car for shopping and appointments, as well as for taking rides around Lake George. According to defendant, decedent allowed her daughter Kayleigh to drive the car as well and the accident in 2017 occurred when [*5]Kayleigh was hit by someone else, causing minor damage.

Under these circumstances the Court finds that defendant has established a meritorious defense. In the Power of Attorney decedent authorized defendant to act as his agent with respect to "real estate transactions; chattel and goods transactions; . . . banking transactions; business operating transactions; insurance transactions; estate transactions; claims and litigation; . . . tax matters; [and] all other matters." To the extent that defendant resided with decedent and was caring for him and their home, it could certainly be argued that all expenditures were authorized under the Power of Attorney — notwithstanding that decedent did not check the statutory gifts rider.

Therefore, having considered NYSCEF documents 13 through 24, and 30-31, it is hereby

ORDERED that plaintiff's motion for a default judgment is denied; and it is further

ORDERED that defendant's cross motion for leave to serve a late answer is granted, and defendant is directed to serve the proposed verified answer with counterclaim within thirty (30) days of the date of this Decision and Order and it is further

ORDERED that counsel for the parties shall appear for a conference via Microsoft Teams on December 13, 2021 at 10:30 A.M. or, in lieu of so appearing, counsel may execute a Preliminary Conference Stipulation and Order and submit the same to the Court for consideration at least 48 hours prior to the conference.

ORDERED that any relief not specifically addressed has nonetheless been considered and is expressly denied.

The original of this Decision and Order has been e-filed by the Court. Counsel for defendant is hereby directed serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513.

Dated: November 17, 2021

Lake George, New York

___________s/____________________

ROBERT J. MULLER, J.S.C.

ENTER: Footnotes

Footnote 1:Plaintiff resides in Connecticut.

Footnote 2:There does not appear to be any dispute that decedent had capacity when this Power of Attorney was executed.