| Petty v Barnes |
| 2010 NY Slip Op 00827 [70 AD3d 661] |
| February 2, 2010 |
| Appellate Division, Second Department |
| Jane Petty, Appellant, v Daniel Barnes et al., Respondents,et al., Defendants. |
—[*1] Slade & Newman, LLP, New York, N.Y. (Louis I. Newman of counsel), forrespondents.
In an action to set aside a power of attorney and to recover damages based upon theconversion of two Totten trust accounts, the plaintiff appeals from (1) an order of the SupremeCourt, Kings County (Schneier, J.), dated March 12, 2008, which denied her motion for atemporary restraining order enjoining the defendant Daniel Barnes from utilizing the funds in theTotten trust accounts and granted the cross motion of that defendant for summary judgmentdismissing the complaint insofar as asserted against him, and (2) an order of the same court datedJune 27, 2008, which denied her motion for leave to amend the complaint.
Ordered that the orders are affirmed, with one bill of costs.
The plaintiff, Jane Petty, was a long-time companion of the decedent Mowbray Barnes(hereinafter Mowbray). In 2004, Mowbray executed a power of attorney appointing Petty andinformed her that he had established two Totten trust accounts for her benefit. In 2005,Mowbray, approximately 96 years old, began exhibiting symptoms of decreased cognitivecapacity. In 2006, the defendant Daniel Barnes (hereinafter Daniel), Mowbray's nephew, notifiedPetty that Mowbray had revoked her power of attorney and executed a new power of attorneyappointing him. Daniel allegedly subsequently removed Petty as beneficiary of the Totten trustaccounts, converted the Totten trust accounts to joint accounts with Mowbray, and disbursed thefunds within those accounts for his own use.
In 2007 Mowbray died, after which Petty commenced this action to recover damages forconversion and to set aside Daniel's power of attorney. She then moved, inter alia, for atemporary restraining order enjoining Daniel from transferring any more of Mowbray's assets forhis own use. By order dated March 29, 2007, the Supreme Court granted Petty's motion, amongother things, for a temporary restraining order enjoining Daniel from transferring Mowbray'sassets.
In December 2007, Petty moved for another temporary restraining order against Daniel,notwithstanding that the original temporary restraining order was still in effect. Danielcross-moved for [*2]summary judgment dismissing the complaintinsofar as asserted against him. By order dated March 12, 2008, the Supreme Court deniedPetty's motion and granted Daniel's cross motion.
Petty then moved for leave to amend the complaint, seeking, inter alia, to enjoin Daniel fromutilizing the funds from the Totten trust accounts on the grounds of conspiracy to commit primafacie tort, tortious interference with a contract, grand larceny, elder abuse, and unlawfulinterference with and conversion of an inchoate interest. By order dated June 27, 2008, theSupreme Court denied Petty's motion on the ground that none of the proposed causes of actionhad merit.
Contrary to Petty's contentions, Daniel was entitled to summary judgment dismissing hercause of action alleging conversion insofar as asserted against him. Conversion is theunauthorized "exercise of dominion over or interference with" a specific identifiable piece ofproperty in defiance of the owner's rights (Gilman v Abagnale, 235 AD2d 989, 991[1997]; see Ahles v Aztec Enters., 120 AD2d 903 [1986]). Petty's claim addressedDaniel's termination of two Totten trust accounts held by Mowbray on which she was named thebeneficiary. However, a depositor may revoke or terminate a Totten trust during his lifetime(see EPTL 7-5.2 [1]; Eredics v Chase Manhattan Bank, 100 NY2d 106, 109-110[2003]). Thus, a beneficiary's interest in a Totten trust is "a mere expectancy and not a vestedlegal right" (Matter of Bobeck, 143 AD2d 90, 91 [1988]; see Matter of Fayo, 7 AD3d 795,796 [2004]). Accordingly, the Supreme Court properly granted Daniel's cross motion forsummary judgment dismissing the complaint insofar as asserted against him (see CPLR6301; Matter of Billings, 241 AD2d 452, 453 [1997]; see also IRB-Brasil Resseguros S.A. v Portobello Intl. Ltd., 59 AD3d366 [2009]).
Moreover, the Supreme Court providently exercised its discretion in denying Petty's motionfor leave to amend her complaint, as the proposed amended complaint was palpably withoutmerit (see CPLR 305, 3025 [b]; Buckholz v Maple Garden Apts., LLC, 38 AD3d 584 [2007]; Thone v Crown Equip. Corp., 27AD3d 723, 724 [2006]; Reuter v Haag, 224 AD2d 603, 604 [1996]).
In light of our determination, Petty's contention with respect to the denial of her motion for atemporary restraining order has been rendered academic, and her remaining contentions arewithout merit. Mastro, J.P., Miller, Angiolillo and Austin, JJ., concur.