| Matter of Breistol |
| 2009 NY Slip Op 06067 [64 AD3d 1122] |
| July 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Estate of Martha Breistol, Also Known asMartha Bristol, Deceased. Robert E. White, as Executor of Martha Breistol, Also Known asMartha Bristol, Deceased, Appellant; Christopher J. Fust, Respondent. (And Another RelatedProceeding.) |
—[*1] Flink Smith, L.L.C., Lake Placid (Edward B. Flink of counsel), for respondent.
Rose, J.P. Appeals (1) from a decree of the Surrogate's Court of Essex County (Meyer, S.),entered April 16, 2008, which, in a proceeding pursuant to SCPA 2103, among other things,adjudged that certain personal property was not an asset of the estate, and (2) from a decree ofsaid court, entered October 24, 2008, which sanctioned petitioner for frivolous conduct.
Martha Breistol died after she was bequeathed a motorcycle under the will of Valentine Fust,who had predeceased her. When respondent, Fust's nephew, presented a certificate of title andclaimed ownership of the motorcycle, petitioner commenced this proceeding to have themotorcycle included in Breistol's estate. After a nonjury trial, Surrogate's Court found thatrespondent was the rightful owner. Later, upon respondent's application for an award of counselfees pursuant to SCPA 2110, the court found that such an award could not be made under that[*2]statute. Nonetheless, the court found, sua sponte, thatpetitioner's challenge to respondent's ownership of the motorcycle was frivolous under 22NYCRR 130-1.1 (c) and awarded costs equal to the counsel fees that respondent had incurred.Petitioner appeals from both decrees.
" 'Although this Court in a nonjury trial is not limited to determining whether the findings ofthe trial court are supported by the weight of the credible evidence, deference will still be givento the trial court's assessment of credibility issues' " (Matter of Saxton, 274 AD2d 110,118 [2000], quoting J & J Structures v Callanan Indus., 215 AD2d 890, 891 [1995],lv denied 86 NY2d 708 [1995]). At the trial here, petitioner testified to his investigationof respondent's claim to the motorcycle and presented evidence that although the certificate oftitle indicates that the motorcycle was transferred from Kevin Bartel to respondent, it wasactually sold by Bartel to Fust. He also testified that there was no bill of sale or other documentreflecting a sale from Fust to respondent, that Bartel's signature had been forged on a Departmentof Motor Vehicles form, and that respondent's claim of having reached an oral agreement withFust and paid a cash deposit of $2,000 to purchase the motorcycle was inconsistent with Fust'slater bequest of the motorcycle to Breistol. In response, respondent relied upon the certificate oftitle executed by Bartel which showed respondent to be the titled owner, and he testified that hehad paid the balance due in cash and received the certificate of title and other paperwork fromFust after the latter's execution of the will bequeathing it to Breistol. As for the certificate oftitle's omission of Fust's signature and the alleged forgery, Bartel—who was petitioner'switness—testified that Fust was a dealer who likely never signed the certificate as buyer inorder to facilitate a later transfer to his own buyer, and that this had been Fust's practice in othertransactions.
As a result of the inconsistent documentary evidence and the parties' opposing explanations,the determination of whether a sale to respondent occurred hinges upon the credibilitydetermination of Surrogate's Court and the rebuttable presumption of respondent's ownershipcreated by the certificate of title (see Vehicle and Traffic Law § 2108 [c];Gaeta v Morgan, 178 AD2d 732, 735 [1991]). Since the court's assessment ofrespondent's credibility was reached upon a fair interpretation of the evidence (see New YorkTel. Co. v Harrison & Burrowes Bridge Contrs., 3 AD3d 606, 608 [2004]; Matter ofZielinski, 208 AD2d 275, 279 [1995], lv dismissed 87 NY2d 944 [1996]), we willnot disturb its conclusion that petitioner failed to rebut the presumption that respondent was theowner of the motorcycle.
As for petitioner's contention that respondent's testimony in support of his claim that hepurchased the motorcycle from Fust violated the Dead Man's Statute (see CPLR 4519),petitioner himself testified regarding the documentary evidence and Fust's actions in his attemptto dispute the alleged sale of the motorcycle to respondent. In our view, this testimony and thatadduced by petitioner from Bartel effectively waived the protection of CPLR 4519 and he couldnot thereafter prevent respondent from testifying as to the same transaction, "for to do so wouldgive the estate an unfair advantage not intended by the statute" (Matter of Wood, 52NY2d 139, 145 [1981]; see Estate of Goth v Tremble, 59 AD3d 839, 841 [2009]).
Turning to petitioner's contention that costs were improperly awarded against the estate forfrivolous conduct, we agree that Surrogate's Court abused its discretion in imposing a sanctionpursuant to 22 NYCRR 130-1.1. In considering whether specific conduct is frivolous, courts arerequired to examine "whether or not the conduct was continued when its lack of legal or factualbasis was apparent [or] should have been apparent" (22 NYCRR 130-1.1 [c]). Inasmuch as thedetermination of ownership of the motorcycle here largely turned upon the [*3]court's credibility determinations, the lack of a factual basis forpetitioner's position did not become apparent until trial and, thus, petitioner's prosecution of theestate's claim to the motorcycle cannot be considered frivolous (see Llantin v Doe, 30AD3d 292, 293 [2006]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30AD3d 727, 729 [2006]; cf. Navin v Mosquera, 30 AD3d 883, 884 [2006]). In addition,there is no indication in the record that, once the court decided to consider sanctions, petitionerwas afforded an opportunity to be heard on that issue (see 22 NYCRR 130-1.1 [d];Kovach v Hurlburt, 267 AD2d 824, 825 [1999]; compare Matter of Marsh, 207AD2d 749 [1994]).
Finally, despite respondent's urging, and given the closeness of the credibility issueinvolved, we do not consider petitioner's prosecution of these appeals to be frivolous so as towarrant the award of further costs.
Kane, Kavanagh and Garry, JJ., concur. Ordered that the decree entered April 16, 2008 isaffirmed, without costs. Ordered that the decree entered October 24, 2008 is modified, on thelaw, without costs, by reversing so much thereof as imposed a sanction for petitioner's conduct,and, as so modified, affirmed.