| Greene v Greene |
| 2012 NY Slip Op 01431 [92 AD3d 838] |
| February 21, 2012 |
| Appellate Division, Second Department |
| Stuart M. Greene, Appellant, v Marcia B. Greene,Respondent. |
—[*1] Rosenberg Fortuna & Laitman, LLP, Garden City, N.Y. (David I. Rosenberg and Anthony T.Wladyka III of counsel), for respondent.
In an action to recover damages for conversion, the plaintiff appeals, as limited by his brief,from stated portions of an order of the Supreme Court, Queens County (Schulman, J.), datedFebruary 22, 2011, which, inter alia, granted that branch of the defendant's motion which was forsummary judgment dismissing so much of the complaint as sought to recover damages for thealleged conversion of certain bonds, and denied that branch of his cross motion which was forsummary judgment on so much of the complaint as sought to recover damages for the allegedconversion of those bonds.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant was married to nonparty Rudolph Greene (hereinafter the decedent) and is theplaintiff's stepmother. The plaintiff is the decedent's son. At issue on this appeal are certain "EE"and "HH" federal bonds owned under the joint names of the decedent and the defendant(hereinafter the bonds). In May 2005, the decedent sent a letter to the plaintiff (hereinafter thedecedent's letter), and instructed the plaintiff not to open the letter until the decedent's death. Theplaintiff apparently complied with the decedent's wishes, and only opened the letter following thedecedent's death on January 7, 2008. The decedent's letter indicated that, attached thereto, was aform to utilize to "rename" the bonds in the names of the plaintiff and the plaintiff's daughter.The letter was signed by the decedent and the defendant; the defendant's signature appearedbelow the statement, "witnessed by me today."
The plaintiff commenced this action, alleging, among other things, that the defendant hadconverted the bonds and had refused the plaintiff's demand to "return" the bonds to him. Thedefendant moved, inter alia, for summary judgment dismissing so much of the complaint assought to recover damages for the alleged conversion of the bonds. The plaintiff cross-moved,among other things, for summary judgment on that portion of the complaint, asserting, inter alia,that he had established ownership of the bonds based upon the decedent's letter. The SupremeCourt, among other things, granted the aforementioned branch of the defendant's motion anddenied the aforementioned branch of the plaintiff's cross motion, concluding that the decedent'sletter did not [*2]constitute a valid inter vivos gift or a validtestamentary disposition. The plaintiff appeals from stated portions of the Supreme Court's order,and we affirm the order insofar as appealed from.
" 'To make a valid inter vivos gift the donor must intend to make an irrevocablepresent transfer of ownership, there must be a delivery of the gift, either by a physical delivery ofthe subject of the gift or a constructive or symbolic delivery, and there must be acceptance by thedonee' " (Ross v Ross Metals Corp.,87 AD3d 573, 575 [2011], quoting Matter of Partos, 203 AD2d 578, 578 [1994];see Gruen v Gruen, 68 NY2d 48, 53 [1986]). " 'An inter vivos gift requires that the donorintend to make an irrevocable present transfer of ownership; if the intention is to make atestamentary disposition effective only after death, the gift is invalid unless made by will' "(Ross v Ross Metals Corp., 87 AD3d at 575, quoting Gruen v Gruen, 68 NY2d at53). "Moreover, '[t]he delivery required must be such as to vest the donee with control anddominion over the property . . . [and] intention or mere words cannot supply theplace of an actual surrender of control and authority over the thing intended to be given' "(Ross v Ross Metals Corp., 87 AD3d at 575, quoting Matter of Szabo, 10 NY2d94, 98 [1961] [internal quotation marks omitted]).
Here, in support of that branch of her motion which was for summary judgment dismissingso much of the complaint as sought to recover damages for the alleged conversion of the bonds,the defendant established, prima facie, that the decedent did not, by the decedent's letter, make avalid inter vivos gift of the bonds to the plaintiff. The content of the letter and the decedent'sinstructions to the plaintiff that he not open the letter until after the decedent's death demonstratethat the decedent did not, by the letter, make " 'an irrevocable present transfer of ownership' " ofthe bonds to the plaintiff (Ross v Ross Metals Corp., 87 AD3d at 575, quoting Gruenv Gruen, 68 NY2d at 53; cf. Matter of Huyot, 276 AD2d 697, 698 [2000], certdenied sub nom. Huyon-Renoir v Flusser, 535 US 1035 [2002]). Moreover, to the extent thatthe decedent attempted to make a testamentary disposition of the bonds, the disposition wasineffective, as it failed to comply with the requirements of EPTL 3-2.1. In opposition to thedefendant's prima facie showing that the plaintiff did not have any enforceable ownership interestin the bonds, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Courtproperly granted that branch of the defendant's motion which was for summary judgmentdismissing so much of the complaint as sought to recover damages for the alleged conversion ofthe bonds, and properly denied that branch of the plaintiff's cross motion which was for summaryjudgment on that portion of the complaint.
The plaintiff's remaining contentions either are without merit or need not be reached in lightof our determination. Dickerson, J.P., Chambers, Hall and Miller, JJ., concur.