| Tronolone v Jankowski |
| 2010 NY Slip Op 05045 [74 AD3d 1721] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| Daniel G. Tronolone, Esq., as Guardian of the Property of RonaldH.B., an Incapacitated Person, Respondent, v Bernard F. Jankowski,Appellant. |
—[*1] Robert J. Pierce, Elma, Tronolone & Surgalla, P.C., Buffalo (John B. Surgalla of counsel),for plaintiff-respondent.
Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (JosephR. Glownia, J.), entered January 27, 2009. The order and judgment, among other things, grantedplaintiff's motion for summary judgment.
It is hereby ordered that the order and judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Plaintiff, as guardian of the property of an incapacitated person (IP),commenced this action for conversion, fraud and breach of fiduciary duty. According to plaintiff,defendant, who had been appointed guardian of the IP's person but not the IP's property, hadtaken money from the IP's house. We conclude that Supreme Court properly granted plaintiff'smotion for summary judgment. We note at the outset that defendant does not contend on appealthat the court erred in denying his cross motion for leave to amend his answer and thus isdeemed to have abandoned any such contention (see Ciesinski v Town of Aurora, 202AD2d 984 [1994]).
Defendant admitted in his answer that he found the money in question in the IP's house butasserted that, with the IP's knowledge and consent, he gave $46,000 in cash and $6,600 insavings bonds to the grandson of defendant's deceased wife to hold in trust for the IP. He alsoadmitted the allegations in the complaint that he was the guardian of the IP's person and that heknew that plaintiff was the guardian of the IP's property. The contention of defendant that thereis an issue of fact whether he was authorized by the IP to have the money held in trust for theIP's benefit is without merit. It is undisputed that, at the time defendant found the money, the IPhad been adjudged to be mentally incapacitated. In any event, plaintiff established in support ofhis motion that, after becoming guardian of the IP's property, he instructed defendant to informhim in the event that defendant discovered any money, stocks or bonds at any of the propertiesowned by the IP. It is further undisputed that defendant did not do so until approximately sevenyears later, at which point about one half of the money was missing. When plaintiff askeddefendant to [*2]return the missing funds, defendant informedplaintiff that he had given the funds to his deceased wife's grandson. The grandson, however,denied having received the funds. We thus conclude that plaintiff met his initial burden on themotion, and we further conclude that defendant failed to raise a triable issue of fact in opposition(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Indeed, wereject the contention of defendant that he raised a triable issue of fact by the statement in hisopposing affidavit that the funds were given to him by the IP's aunt. That self-serving statementcontradicts defendant's prior admissions "and appear[s] to be tailored to avoid the consequencesof [those prior admissions]" (Garcia vGood Home Realty, Inc., 67 AD3d 424, 425 [2009]; see Rosenblatt v Venizelos, 49 AD3d 519 [2008]).Present—Scudder, P.J., Smith, Peradotto, Lindley and Sconiers, JJ.