Matter of Polisseni
Annotate this CaseDecided on September 7, 2022
Surrogate's Court, Monroe County
In the Matter of the Petition for Proof of Validity of Filed Claim Against the Estate of Gregory E. Polisseni, Deceased.
File No. 2020-2687/B
Karen Schaefer, Esq., Rachelle Nuhfer, Esq., and Matthew Eaves, Esq., Barclay Damon LLP, Rochester, New York, Attorneys for Petitioner/Executor, Gary Polisseni.
Charles Schiano, Esq., Rochester, New York, Attorney for Respondent/Claimant, Juliet Catalfo. Christopher S. Ciaccio, S.
On this motion for summary judgment, the court is asked to determine the validity of Juliet Catalfo's claim in the amount of $107,500.00 against the estate of Gregory Polisseni for personal services she rendered as his live-in girlfriend and intimate partner during the last years of the decedent's life.
The motion to dismiss is granted. The claim is denied in its entirety and dismissed.
PROCEEDINGS
Decedent Gregory Polisseni died on November 19, 2020, due to "blunt force injuries to head," per the death certificate.
He had executed a Last Will and Testament dated June 20, 2012, and a Petition for Probate was filed with this court. Letters Testamentary were issued to Gary Polisseni on December 18, 2020.
On July 9, 2021, Juliet Catalfo ("Juliet") filed a "Verified Claim" against the Estate. The verification was dated July 8, 2021.
The executor rejected the claim by a filing on October 1, 2021 and followed that with a Petition for Validity of Claim filed on October 4, 2021.
On November 12, 2021, Juliet filed a "Reply Affidavit" (presumably to the Petition [NYCEF # 33]) as well as three additional supporting affidavits (NYSCEF # 34-36), including her counsel's affidavit, attesting to some of the circumstances of Juliet's relationship with Gregory. Counsel's Affidavit made reference to text messages between the decedent and Juliet but that he was "not providing copies of the text messages which contain explicit, sexual, salacious photographs of the decedent's and claimant's body parts" (NYSCEF # 34, paragraph "2") as well as "sexually explicit photographs" (paragraph "4").
Juliet also filed (marked by counsel as Exhibits A — A3 [NYSCEF # 37]) copies of what appear to be screen shots of a payment application showing payments to Juliet from Greg over a period of time and decorated by smiley faces, hearts, and popsicles.
In April 2022 the Estate moved for summary judgment on Juliet's claim. Juliet filed an Affidavit (NYSCEF # 49) replying to the motion and filed Exhibits "A — A-5," (NYSCEF # 51-56) which were the same items she filed previously (NYSCEF # 37-40), plus two additional exhibits. "Exhibit A-1" is a letter from Juliet's attorney to counsel for the Estate referencing delivery of a flash drive containing "very personal information," and Exhibit A-5 is Gregory's [*2]obituary. After counsel for Gregory filed a Reply Affirmation and Memorandum of Law, Juliet filed (NYCEF # 62, "Exhibits") the "Schiano flash drive contents," which contained copies of 4,258 text messages between Juliet and Gregory, with the "salacious" elements redacted.
FACTS
Juliet makes the following (material) factual assertions, which on this motion for summary judgment are construed in the light most favorable to Juliet Catalfo, the party against whom judgment is sought.
Juliet met Greg in 2008.
In 2013 she attended a trade show in Las Vegas and set up an exhibition booth to promote a line of clothing created by Greg. She displayed his products. Greg paid for all of her expenses. Juliet alleges that Greg made an "implied promise" to pay for her services.
In 2015 Greg and Juliet began living together.
In 2016 they became engaged.
In 2016 Greg purchased land in Fairport, New York and began to engage contractors to construct a home. At Greg's request, Juliet assisted with design selections and other matters associated with the construction.
In 2017 and 2018, Juliet made 11 visits to a fertility clinic, all paid by Greg, with the hope they would have a child together.
In 2017 Greg promised Juliet he would take care of her in his Will.
Greg and Juliet decided in 2017 that they would get married in 2018. They never did.
For several weeks in 2018 Greg was in a drug and alcohol rehabilitation unit in Florida. Juliet stayed with him part of the time.
Per Juliet, Gregory "on many occasions clearly indicated that I would be an owner of the Victor house and as a result of the services I rendered, he stated that I deserved the 'whole package.'"
Juliet gave up her job as a hairdresser to stay with and take care of Greg. The total hours she would have otherwise worked but for the services she rendered to Greg were 4,300. At the rate of $25 per hour, she claims she is owed $107,500.00 for the services she provided.
In 2019 Greg sold the East Henrietta home. Greg and Juliet moved in with his mother, then rented an apartment in Victor, New York. Juliet then went to live in Baltimore for 12 months before returning.
Numerous texts were exchanged between Juliet and Greg (NYSCEF # 62, named as the "Schiano flash drive contents"), many of which contain assurances of future financial support, marriage, and love.
Representative texts from Greg to Juliet are as follows:
I want you to have what a woman like you deserve.I love you dearly!!!And it amazes me that I get to share my life with you. I couldn't ask for anything more in this lifetime.I am building my life upon YOUR love!!!At times I'm an asshole but will always make sure your safe.I want everyone to know your my girl! And I'm your man!
I am SOOO in love with you Juliet Catalfo PolisseniThat is one thing that is sacred to me. My love for you. Only I can define it. And I will write our vows. Sometimes there's things that are left for just us.And yes I am going to marry you!Correct! So when we decide to have the reception we do. At our beautiful home!!!And you will always be my heart and will always take care of you.Although I couldn't think of anyone on this planet I would rather have kids with than you!I always take care of YOUI would do anything for youI never would want you out of my life! Ever!!DISCUSSION
It is well-settled that 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 necessitating a trial (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; 2006905 Ontario Inc. v Goodrich Aerospace Can., Ltd., 197 AD3d 1008 [4th Dept 2021]); Oddo v City of Buffalo, 159 AD3d 1519, 1520 [4th Dept 2018]). The failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; CPLR 3212 [b]; see also Malamas v Toys R Us — Delaware, Inc., 94 AD3d 1438, 1438 [4th Dept 2012] [a moving party must affirmatively demonstrate the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent's proof]).
Proof offered by the moving party must be in admissible form. Further, the evidence should be viewed in the light most favorable to the party opposing the motion. (See Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Dix v Pines Hotel, Inc., 188 AD2d 1007, 1007 [4th Dept 1992].) Once a prima facie 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 (Alvarez, 68 NY2d at 324; Mortillaro v Rochester Gen. Hosp., 94 AD3d 1497 (4th Dept 2012]). Conclusory and speculative assertions are insufficient to defeat a motion for summary judgment (Trahwen, LLC v Ming 99 Cent City #7, Inc., 106 AD3d 1467 [4th Dept 2013], lv dismissed 21 NY3d 1066 [2013]).
A summary judgment motion "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212 [b]).
Additionally, clear and convincing proof is required to support a claim filed against a decedent's estate that a claimant worked on a pecuniary basis (Matter of Gorden, 8 NY2d 71, 76 [1960]; Matter of Adams, 1 AD2d 259 [4th Dept 1956], affd 2 NY2d 796 [1957]; Matter of Block, 258 App Div 342 [1st Dept 1940]; Dombrowski v Somers, 51 AD2d 636, 637 [3d Dept 1976], revd, 41 NY2d 858 [1977].
Here, the Estate has established its entitlement to judgment as a matter of law.
Juliet's claims are, at various times in the submissions, characterized as a breach of an implied and/or express contract; or as falling within the doctrine of promissory estoppel. They relate to Juliet's rendering of services as a "care giver, "life saver," chauffeur, "as an employee of Artistix," an enterprise owned by Greg, and as manager for the construction of a home he was building.
Viewing all claims and the submissions in support in the light most favorable to Juliet, she has not set forth facts sufficient to raise a question of fact requiring a trial.
The text messages between Greg and Juliet,[FN1] and the plain reading of Juliet's affidavit, do not establish the existence of a contract, express or implied. As the Court of Appeals held in Dombrowski v Somers, 41 NY2d 858, 859 [1977], a case that is almost exactly on point and in which the claimant alleged that she provided the decedent "nursing care, cooking, cleaning, marketing and similar tasks" for which the claimant was compensated in her lifetime:
"The words to 'take care of', in the context of this record, are too vague to spell out a meaningful promise" and are "legally insufficient to support a finding that there was a contract to compensate plaintiff during her lifetime." Dombrowski v Somers, 41 NY2d 858, 859 [1977].Like the claimant in Dombrowksi, Juliet concedes that she was paid for the services she rendered Greg.
If Juliet is arguing (to give her pleadings and submissions a liberal reading) that Greg agreed to take care of her by bequest in exchange for the services she rendered, the agreement is unenforceable because it was never reduced to a writing clearly expressing an offer and acceptance (see EPTL 13-2.1, subd. (a), par. (2); Dombrowski v Somers, 41 NY2d 858, 859 [1977]).
Juliet does not shy from making it clear that she and Greg were romantically involved. That does not help her argument, but rather, puts it exactly within the fact pattern in Morone v Morone, 50 NY2d 481, 488-489 [1980], in which the learned Hon. Bernard Meyers, writing for a unanimous Court of Appeals, eloquently stated that:
A court cannot recognize an implied contract for domestic services between domestic partners—especially cohabitating domestic partners—in large part because of the "substantially greater risk of emotion-laden afterthought, not to mention fraud, in attempting to ascertain by implication what services, if any, were rendered gratuitously and what compensation, if any, the parties intended to be paid" (Morone, 50 NY2d at 488)."The notion of an implied contract between an unmarried couple living together is . . . contrary to both New York decisional law and the implication arising from our Legislature's abolition of common-law-marriage" (Morone, 50 NY2d at 489)."As a matter of human experience personal services will frequently be rendered by two people living together because they value each other's company or because they find it a convenient or rewarding thing to do" (Morone, 50 NY2d at 488).Thus, to the extent the contract between Juliet and Greg was implied, her claim is barred by the holding in Morone.
Juliet relies heavily on the Court of Appeal's more recent decision, Matter of Hennel (29 NY3d 487, 490 [2017]). There petitioners sought under a theory of promissory estoppel to enforce an oral promise made by the decedent that would otherwise be void under the statute of frauds and EPTL 13-2.1, subd. (a), par. (2). Decedent had promised his grandsons that his estate [*3]would satisfy the balance of a mortgage he had taken out to help them purchase property, a promise he left out of a 2008 will.
The Court, acknowledging that it had not yet "expressly recognized this principle," held that "where the elements of promissory estoppel are satisfied and enforcement of the statute of frauds would inflict such an unjust and egregious result upon the party who detrimentally relied on the oral promise that the resulting injury would be unconscionable, the opposing party may be estopped from relying on the statute of frauds" Matter of Hennel, 29 NY3d 487, 489, 493 [2017].
Nonetheless, the court reversed the lower court and dismissed the claim, finding that while the claimants had relied to their detriment on a promise made by the decedent, they would not suffer "unconscionable injury" if the statute of frauds and EPTL 13-2.1, subd. (a), par. (2) were enforced (Matter of Hennel, 29 NY3d 487, 496 [2017]).
Here Juliet claims to have relied to her detriment upon Greg's "promise" to "take care" of her, and to give her ownership of the house he was building. Her detriment was the income she gave up attending to Greg's needs and desires and reflected in the amount of the claim she now makes against the Estate.
Hennel is inapplicable to the instant matter for several reasons.
It does not overrule the holding in Dombrowski, which held that the words "take care of" are too vague to qualify as a promise. That ambiguity is to be contrasted with the promise in Hennel, in which the decedent drew up a will (later abrogated), in which he explicitly set forth a promise to satisfy the mortgage debt owed by his grandsons.
Hennel does not overrule Morone which refused to recognize promises made (as an assertion of the existence of an implied contract) in the context of an "intimate," partnered, live-in relationship.
Finally, even if Greg's statements were promises of future compensation, Juliet has not shown, as a matter of law and giving her submissions the benefit of every possible inference, that she suffered an "unconscionable injury."
During the course of her relationship with Greg she was compensated, having been provided with a place to live (with Greg and sometimes his mother), money to cover her expenses, and all the benefits of the intimacy of their relationship. Juliet has provided text messages attesting to the satisfaction Greg found in her company, and the reasonable inference can be made from the submissions (even without taking into consideration the "salacious" texts and images referred to by counsel for Juliet) that the feeling was mutual.
The arrangement between Greg and Juliet does not qualify as "one such as no person in his or her senses and not under delusion would make on the one hand, and as no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense" (Matter of Hennel, 29 NY3d 487, 495 [2017], citing Christian v Christian, 42 NY2d 63, 71 [1977] [internal quotation marks, brackets, and citations omitted]; see generally Gillman v Chase Manhattan Bank, 73 NY2d 1, 10—12 [1988]; Mandel v Liebman, 303 NY 88, 94—96 [1951]).
To find a question of fact under the circumstances presented here would render the holdings in Morone and Dombrowski overruled, which Hennel did not intend to do.
Accordingly, the claimant has failed to establish a question of fact requiring a trial.
Claimant Juliet Catalfo's claim is denied. The Executor's request for an order granting his motion for summary judgment is granted.
The Executor's request for an order directing Juliet Catalfo to reimburse the Estate for [*4]legal fees incurred in defending against the claim is denied.
Counsel for the Executor is directed to submit a proposed Order on notice to opposing counsel.
September 7, 2022
Hon. Christopher S. Ciaccio, Surrogate Footnotes
Footnote 1: (even assuming their admissibility on this motion, see Matter of Loew, 38 Misc 3d 1206(A) [Sur Ct, Nassau County 2012])
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