| Matter of Tognino |
| 2011 NY Slip Op 06851 [87 AD3d 1153] |
| September 27, 2011 |
| Appellate Division, Second Department |
| In the Matter of Betty C. Tognino, Deceased. John Tognino,Appellant; Robert Tognino et al., Respondents. |
—[*1] Neal J. Roher, Garden City, N.Y., for respondents.
In a proceeding to contest the validity of certain amendments to the decedent's living trust,the petitioner appeals from so much of an order of the Surrogate's Court, Nassau County(Riordan, S.), dated June 30, 2010, as granted that branch of the respondents' motion which was,in effect, to dismiss the petition as barred by the doctrine of res judicata pursuant to CPLR 3211(a) (5), but was treated by the Surrogate's Court as one to dismiss the petition pursuant to CPLR3211 (a) (7).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thematter is remitted to the Surrogate's Court, Nassau County, for a determination of therespondents' motion in accordance herewith.
The petitioner, John Tognino, commenced this proceeding to contest the validity of certainamendments to a living trust executed by the decedent, his mother, on the ground that theamendments were the product of fraud and undue influence. Under the trust agreement, asoriginally drafted, the trust estate, which included the decedent's home, was to be distributedequally to the decedent's sons—the petitioner and the respondent Robert Tognino(hereinafter Robert)—upon the decedent's death. However, the decedent executed anamendment in 2003 which provided for the distribution of two thirds of the trust estate to Robertand one third of the trust estate to the petitioner. In 2005, the decedent executed a secondamendment, superseding the first, which provided that the trust estate was to be distributed toRobert upon the decedent's death. The second amendment also provided that Robert and his wife,the respondent Jill Stallone-Tognino (hereinafter Jill), were permitted to reside in the decedent'shome for their natural lifetimes, and were to receive all proceeds from any sale of the home,minus $150,000, which was to be paid to the petitioner.
The respondents moved, in effect, to dismiss the petition as barred by the doctrine of resjudicata pursuant to CPLR 3211 (a) (5) or, alternatively, for summary judgment dismissing thepetition. The Surrogate's Court treated the first branch of the motion as being pursuant to CPLR3211 (a) (7) and granted that branch of the motion, analyzing the petition as one to recover forfraud, and finding that the petition failed to plead fraud with sufficient particularity.
The Surrogate's Court erred in treating that branch of the respondents' motion as one pursuantto CPLR 3211 (a) (7) to dismiss the petition. The respondents did not identify (a) (7) as theparagraph under which their CPLR 3211 motion was made, and, significantly, did not argue inany of their papers that the petition failed to plead sufficient allegations or failed to plead fraudwith [*2]sufficient particularity (cf. Blumstein vMenaldino, 144 AD2d 412, 413 [1988]). Concomitantly, the petitioner was not given theopportunity to respond to such an argument, or to move to replead (see McLearn v Cowen &Co., 60 NY2d 686 [1983]; cf. Blumstein v Menaldino, 144 AD2d at 413).
Moreover, even if a motion to dismiss pursuant to CPLR 3211 (a) (7) was properly before theSurrogate's Court, it was error to dismiss the entire proceeding, because the petitioner'sallegations were sufficient to support a claim that the amendments to the decedent's living trustwere invalid by virtue of undue influence. Although, as the court observed, the petition itself wasconclusory, the petitioner submitted evidence that remedied the defects in the petition (see Ryan v Cover, 75 AD3d 502,503 [2010]; AAA Viza, Inc. v BusinessPayment Sys., LLC, 38 AD3d 802, 803 [2007]). The petitioner's evidence in oppositionto the motion alleged that the respondents made appointments for the decedent with attorneys inorder to execute amendments to the living trust, which was originally drawn such that the trustestate would be distributed equally to Robert and the petitioner upon the decedent's death.Further, according to the petitioner, the decedent, who was approximately 81 and 83 years old,respectively, when the amendments were executed, and had a number of health problems, wasliving with the respondents, and many of the appointments with the attorneys were conducted atthe decedent's home. The petitioner alleged that Jill threatened to leave Robert, who was disabledand unable to work, if the trust was not amended, thereby causing the decedent great agitation.The petitioner also submitted affidavits from various family members averring that this threatwas made and that the decedent was generally intimidated by Jill. These allegations weresufficient to state a claim that the trust amendments were invalid by virtue of undue influence (cf. Matter of Pellegrino, 30 AD3d522 [2006]; Matter ofGerdjikian, 8 AD3d 277 [2004]; Matter of Itta, 225 AD2d 548 [1996]).
Accordingly, we reverse the order insofar as appealed from, and remit the matter to theSurrogate's Court, Nassau County, for a determination of the respondents' motion, which was, ineffect, to dismiss the petition as barred by the doctrine of res judicata pursuant to CPLR 3211 (a)(5) or, alternatively, for summary judgment dismissing the petition. Skelos, J.P., Eng, Austin andMiller, JJ., concur.