| Miller v Lu-Whitney |
| 2009 NY Slip Op 02499 [61 AD3d 1043] |
| April 2, 2009 |
| Appellate Division, Third Department |
| Robert C. Miller et al., Respondents, v Wen Mei (Iris) Lu-Whitney,as Administrator of the Estate of Laurence Whitney, Deceased, and as Administrator of theEstate of Daniel Ben Shmuel Barrett, Deceased, Appellant, et al.,Defendant. |
—[*1] Hacker & Murphy, L.L.P., Latham (Thomas D. Buchanan of counsel), forrespondents.
Mercure, J.P. Appeal from an order of the Supreme Court (Ferradino, J.), entered March 20,2008 in Saratoga County, which, among other things, granted plaintiffs' motion for summaryjudgment.
This appeal involves a dispute over sculptures created by Daniel Ben Shmuel Barrett(hereinafter decedent), who died in 2003. Plaintiffs assert that, in 1989, they entered into anagreement with decedent that required them to pay him a monthly stipend for a specified periodof time in exchange for an undivided one-half interest in certain of decedent's sculptures, whichthe three men intended to sell for a profit. In addition, decedent and plaintiffs entered into a newagreement in 1991, the purpose of which was to "confirm, update and modify" the 1989agreement. The 1991 agreement called for five additional payments to decedent, acknowledged[*2]total payment to decedent in the amount of $312,000, andindicated that artworks in an annexed schedule were "owned equally by" plaintiffs and decedent.The 90 sculptures covered by the 1991 modification were photographed; each photograph wassigned by decedent and plaintiff Robert C. Miller, and dated November 4, 1991, the date of theexecution of the written modification. Evidently, three sculptures were sold prior to execution ofthe 1991 agreement as a result of the efforts of plaintiffs and decedent; most of the pieces,however, remained unsold.
In 2002, decedent's wife, defendant Sonja Ben Shmuel—acting in her capacity asattorney-in-fact for the disabled decedent and on her own behalf—gifted substantially allof decedent's sculptures to their son, Laurence Whitney. The gift expressly included any interestof decedent and Ben Shmuel "in sculpture and artwork co-owned with [plaintiffs]." Followingdecedent's death, plaintiffs commenced this action against Whitney, as administrator ofdecedent's estate, and Ben Shmuel. Plaintiffs seek, among other things, return of the sculptures.Defendant Wen Mei (Iris) Lu-Whitney (hereinafter defendant), as administrator of Whitney'sestate, was substituted as a party defendant upon Whitney's death in 2006.[FN*]Following joinder of issue, plaintiffs moved for summary judgment and defendant cross-movedfor summary judgment dismissing the complaint. Supreme Court thereafter granted plaintiffs'motion, denied defendant's cross motion and directed that the sculptures be divided such thatplaintiffs would receive 45 of the remaining sculptures, prompting this appeal by defendant.
Defendant asserts that all of the evidence presented by plaintiffs in connection with theagreements or in an attempt to identify which sculptures were included in the agreements isbarred by the Dead Man's Statute (see CPLR 4519). Furthermore, defendant argues thateven assuming that the 1989 and 1991 agreements are "genuine," they are fatally indefinitebecause the agreements do not adequately identify or describe the 90 sculptures that arepurportedly co-owned. Finally, defendant contends that, at the very least, questions of fact existregarding whether decedent and plaintiffs entered into a joint venture. We disagree with each ofthese assertions and, thus, we affirm.
The Dead Man's Statute "precludes a party or person interested in the underlying event fromoffering testimony concerning a personal transaction or communication with the decedent"(Matter of Rosenblum, 284 AD2d 820, 821 [2001], lv denied 97 NY2d 604[2001]; see CPLR 4519; Matter of Wood, 52 NY2d 139, 144 [1981]). The rule is"grounded . . . on the concept that where death has sealed the lips of one of theparties to a personal transaction, the law, for the protection of his [or her] estate and. . . survivors, should and ought to seal the lips of anyone else making a claimagainst the estate" (Tepper v Tannenbaum, 65 AD2d 359, 362 [1978]). While evidenceexcludable at trial under the Dead Man's Statute may be considered in opposition to a motion forsummary judgment so long as it is not the sole evidence proffered (see Phillips v Kantor &Co., 31 NY2d 307, 314 [1972]; Marszal v Anderson, 9 AD3d 711, 713 [2004]; Matter ofLockwood, 234 AD2d 782, 782 [1996]), such evidence "should not be used to supportsummary judgment" (Phillips v Kantor & Co., 31 NY2d at 313; see Acevedo vAudubon Mgt., 280 AD2d 91, 95 [2001]).
Nevertheless, and particularly relevant here, we note that the statute does not bar "theintroduction of documentary evidence against a deceased's estate . . . [A]n adverseparty's [*3]introduction of a document authored by a deceaseddoes not violate the Dead Man's Statute, as long as the document is authenticated by a sourceother than an interested witness's testimony concerning a transaction or communication with thedeceased" (Acevedo v Audubon Mgt., 280 AD2d at 95 [citations omitted]; see YagerPontiac v Danker & Sons, 41 AD2d 366, 368 [1973], affd on op below 34 NY2d 707[1974]; Kiser v Bailey, 92 Misc 2d 435, 438-439 [1977]). Furthermore, the statute doesnot prohibit an interested party from testifying against his or her own interest (see Matter ofTremaine, 156 AD2d 862, 863 [1989]; see also Acevedo v Audubon Mgt., 280AD2d at 95; Brezinski v Brezinski, 84 AD2d 464, 468 [1982]).
Here, Ben Shmuel—who was decedent's wife, a party defendant and not adverse to theinterests of the estates of the deceased or her son, Whitney—conceded in depositiontestimony that the signature on the 1991 agreement was that of her husband, therebyauthenticating the document (see Acevedo v Audubon Mgt., 280 AD2d at 95). As notedabove, that document unambiguously sets forth plaintiffs' expenditure of $312,000 in exchangefor an undivided one-half interest in artworks identified in a schedule that was to be annexed tothe agreement. While the parties dispute whether an exhibit of 90 photographs maintained byMiller is, in fact, the schedule referenced in the agreement, Ben Shmuel testified that pursuant totheir arrangement with decedent, plaintiffs obtained co-ownership of between 50 and 100 ofdecedent's sculptures in exchange for payment of money. Ben Shmuel also submitted an affidavitacknowledging the existence of an agreement, pursuant to which plaintiffs "were to use theirbusiness skills to help promote, market and sell the sculptures." Ben Shmuel described plaintiffs'activities in marketing the sculptures through private offerings and gallery shows, and sheindicated that any proceeds from the sale of the sculptures were to be split equally betweenplaintiffs and decedent.
Moreover, the gift documents to Whitney—upon which defendant relies to establishher ownership of the sculptures—expressly acknowledged that the art work was co-ownedwith plaintiffs, and Whitney testified that he was aware that plaintiffs "did business with"decedent and co-owned sculptures pursuant to an agreement with decedent. Indeed, Whitneyconceded during his deposition that he found pieces of sculpture that he believed to be co-ownedby plaintiffs, along with paperwork scattered around decedent's house and office that included 65signed photographs of the co-owned sculptures. Whitney further admitted that 62 of thosephotographs are included in Miller's schedule of 90 photographs. Finally, Miller submittedaffidavits regarding his maintenance of business records in connection with theagreement—a description of "an independent act which cannot be considered testimony'concerning a personal transaction or communication' with decedent" (Trotti v Estate ofBuchanan, 272 AD2d 660, 662 [2000] [citation omitted]; see Durazinski v Chandler, 41 AD3d 918, 920[2007])—including the schedule of 90 photographs annexed to the 1991 agreement thatboth he and decedent signed and that bear the date of the 1991 agreement. While Miller'sschedule contains 28 photographs that were not duplicated in Whitney's records, Ben Shmuelauthenticated decedent's signature on the back of those additional photographs.
Given the foregoing evidence, which is not barred by the Dead Man's Statute, we agree withSupreme Court that plaintiffs established prima face entitlement to summary judgment.Specifically, plaintiffs established that they and decedent had entered into a business enterpriseor joint venture, i.e., a " 'special combination of two or more persons where in some specificventure a profit is jointly sought' " (Gramercy Equities Corp. v Dumont, 72 NY2d 560,565 [1988], quoting Forman v Lumm, 214 App Div 579, 583 [1925]), involving thefunding, creation and marketing of the 90 identified sculptures (see Ackerman v Landes,112 AD2d 1081, 1082 [1985]; Chalmers v Eaton Corp., 71 AD2d 721, 722 [1979];see also Campo v 1st Nationwide Bank, 857 [*4]F Supp264, 272 [1994]). In response, defendant submitted no evidence to create a triable issue of fact,arguing instead that the Dead Man's Statute bars all of plaintiffs' proof and offering onlyspeculation and conjecture regarding the agreements and plaintiffs' possession of the 90 signedand dated photographs. Inasmuch as her arguments regarding the Dead Man's Statute aremeritless and "mere conclusions, expressions of hope or unsubstantiated allegations or assertionsare insufficient" to defeat a motion for summary judgment (Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]), Supreme Court properly granted plaintiffs' motion anddenied defendant's cross motion.
Defendant's arguments, to the extent that they are not otherwise addressed herein, have beenconsidered and found to be lacking in merit.
Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, with costs.
Footnote *: Lu-Whitney indicates that theaction was discontinued against Ben Shmuel.