| Matter of Favaloro |
| 2012 NY Slip Op 02871 [94 AD3d 989] |
| April 17, 2012 |
| Appellate Division, Second Department |
| In the Matter of Leonard Favaloro, Deceased. Joan Favaloro,Appellant; Joyce Donahue et al., Respondents. |
—[*1] John Newman, Jericho, N.Y., for respondents.
In a probate proceeding in which Joyce Donahue and Susan Powers, the limitedadministrators of the estate of Leonard Favaloro, petitioned pursuant to SCPA 2103 for theturnover of certain property from Joan Favaloro, the executor of the estate of Leonard Favaloro,Joan Favaloro appeals (1), as limited by her brief, from so much of an order of the Surrogate'sCourt, Suffolk County (Czygier, Jr., S.), dated September 29, 2009, as denied her motion forsummary judgment dismissing the petition, (2) from an order of the same court dated December17, 2010, which denied her separate motions pursuant to CPLR 4401, made at the close of thepetitioners' case, for judgment as a matter of law, and pursuant to CPLR 4404 (a) to set aside ajury verdict in favor of the petitioners and against her and for judgment as a matter of law, or toset aside the jury verdict as contrary to the weight of the evidence or in the interest of justice andfor a new trial, and (3) from a decree of the same court entered February 2, 2011, which, upon theorders and upon the jury verdict, is in favor of the petitioners and against her directing her to turnover the proceeds of certain brokerage accounts to the petitioners.
Ordered that the appeals from the orders are dismissed, and it is further,
Ordered that the decree is reversed, on the law, the appellant's motion pursuant to CPLR4401 for judgment as a matter of law is granted, the order dated December 17, 2010, is modifiedaccordingly, and the petition is dismissed; and it is further,
Ordered that one bill of costs is awarded to the appellant.
The appeals from the intermediate orders must be dismissed because the right of directappeal therefrom terminated with the entry of the decree in the proceeding (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the intermediateorders are brought up for review and have been considered on the appeal from the decree (seeCPLR 5501 [a] [1]).[*2]
The decedent, Leonard Favaloro (hereinafter thedecedent), died at the age of 79 on May 8, 2006, survived by his wife of 34 years, Joan Favaloro(hereinafter Favaloro), and his two adult daughters from a prior marriage (hereinafter together thepetitioners). Pursuant to a stipulation between Favaloro and the petitioners, the decedent's willdated July 29, 2003, was admitted to probate; Favaloro obtained letters testamentary; and thepetitioners obtained limited letters of administration for the purpose of examining their rights toan IRA account and a brokerage investment account that belonged to the decedent during hislifetime (hereinafter the accounts).
After conducting certain discovery, the petitioners filed a petition pursuant to SCPA 2103 forthe turnover from Favaloro of the proceeds of the accounts, which the petitioners alleged weredesignated to pass to them upon the decedent's death. The petitioners claimed, inter alia, that,immediately prior to the decedent's death, Favaloro had changed the title and beneficiarydesignations on the accounts to prevent them from passing to the petitioners.
On April 23, 2009, Favaloro moved for summary judgment dismissing the petition. Favaloroasserted that she was the designated beneficiary and/or owner on the accounts since theirinception, which was more than 15 years prior to the decedent's death. She further argued that sheremained the beneficiary and/or owner of the accounts, despite the fact that on April 25, 2006,while in the hospital, the decedent executed change of beneficiary forms (hereinafter the changeforms) in favor of the petitioners, since the decedent's broker thereafter followed the decedent'soral instructions not to implement the change forms. The petitioners opposed the motion,arguing, inter alia, that the broker's receipt of the change forms effected the decedent's request tochange the accounts in their favor, and that Favaloro had, in effect, coerced the decedent intoorally rescinding the change.
In an order dated September 29, 2009, the Surrogate's Court, inter alia, denied Favaloro'smotion for summary judgment. The Surrogate's Court determined that Favaloro made a primafacie showing that the decedent had effectively rescinded the change forms, but that a triableissue of fact existed as to whether the change forms were rescinded due to Favaloro's exercise ofundue influence.
The matter then proceeded to a jury trial. On the petitioners' direct case, they established,inter alia, that they had spoken to the decedent frequently, and increased their visits to his hometo regular weekend visits after he was diagnosed with pancreatic cancer in 2005. The decedent'sdoctor testified, among other things, that he admitted the decedent to the hospital on April 24,2006, to address the decedent's persistent increasing pain. The decedent's broker also testifiedthat during a phone conversation with the decedent on April 20 or 21, 2006, the decedentrequested that the beneficiaries on the accounts be changed to the petitioners. The broker mailedthe required change forms to the decedent, and received the executed paperwork on April 28,2006.
The petitioner Joyce Donahue testified that she had personally mailed the change forms backto the decedent's broker. The broker testified that Donahue telephoned him from Florida on April28, 2006, and instructed him to effectuate the change forms, which she expected him to receivelater that day. However, the decedent telephoned the broker's office 10 minutes later that sameday, and spoke with the broker's assistant. The broker further testified that, according tocontemporaneous "computer notes" made of that conversation, the decedent directed that thechange forms should not be effectuated, and that the decedent indicated that he was heavilysedated when he signed them, and did not remember signing anything. The broker's notes furtherindicated that Donahue obtained a check from the decedent in the sum of $50,000 on April 25,2006, which the decedent tried to "stop" on May 2, 2006, after the check had already beencashed.
At the close of the petitioners' case, Favaloro moved pursuant to CPLR 4401 for judgment asa matter of law, and the trial court reserved decision on the motion.
On her rebuttal case, Favaloro relied on the testimony of a friend who, along with her spouse,had a close relationship with her and the decedent for many years. Also testifying on behalf ofFavaloro was another family friend who knew the decedent well and worked for him prior to his[*3]death, and the attorney whom the decedent had retained todraft a confirmatory letter regarding his rescission of the change forms. Finally, testimony waselicited from a caseworker from Suffolk County Adult Protective Services who interviewed thedecedent on May 2, 2006, in response to a complaint of elder abuse which Donahue had filedagainst Favaloro. The caseworker stated, inter alia, that she had prepared a report whichconcluded that there was no "evidence whatsoever of mistreatment or mismanagement of [thedecedent's] care."
The jury returned a verdict in the petitioners' favor, in which it answered "yes" to the singlequestion of whether "the failure to process the change of ownership and/or beneficiarydesignations of decedent's [ ] accounts to his daughters, Joyce Donahue and Susan Powers, [was]a product of undue influence?"
In accordance with the trial court's instructions, Favaloro submitted a written post-trialmotion pursuant to CPLR 4404 (a) to set aside the jury verdict and for judgment as a matter oflaw, or to set aside the jury verdict as contrary to the weight of the evidence or in the interest ofjustice and for a new trial, and the petitioners opposed the motion. In an order dated December17, 2010, the Surrogate's Court denied Favaloro's motion pursuant to CPLR 4401 for judgment asa matter of law and her posttrial motion. In denying the motion pursuant to CPLR 4401, theSurrogate's Court determined that the petitioners presented a case which supported their versionof the events with multiple witnesses and evidence, and rejected Favaloro's contention that therewas no rational process by which the jury could have found in the petitioners' favor.
On February 2, 2011, the Surrogate's Court entered a decree in favor of the petitioners andagainst Favaloro directing her to turn over the proceeds of the accounts to the petitioners.Favaloro appeals from the decree, and the orders dated September 29, 2009, and December 17,2010.
A finding of undue influence requires a showing " 'that the influence exercised amounted to amoral coercion, which restrained independent action and destroyed free agency, or which, byimportunity which could not be resisted, constrained the testator to do that which was against his[or her] free will and desire, but which he [or she] was unable to refuse or too weak to resist' "(Matter of Walther, 6 NY2d 49, 53 [1959], quoting Children's Aid Socy. of City ofN.Y. v Loveridge, 70 NY 387, 394 [1877]; see Matter of Engelhardt, 88 AD3d 997, 998 [2011]; Matter ofHerman, 289 AD2d 239, 240 [2001]). Although undue influence may be established throughcircumstantial evidence, such evidence must be of a substantial nature, and an inference of undueinfluence " 'cannot be reasonably drawn from circumstances when they are not inconsistent witha contrary inference' " (Matter of Walther, 6 NY2d at 54, quoting Matter of Ruef,180 App Div 203, 204 [1917], affd 223 NY 582 [1918]; see Matter of Swain, 125AD2d 574, 575 [1986]). Furthermore, "[a] mere showing of opportunity and even of a motive toexercise undue influence does not justify a submission of that issue to the jury, unless there is inaddition evidence that such influence was actually utilized" (Matter of Walther, 6 NY2dat 55; see Matter of Fiumara, 47 NY2d 845, 846 [1979]; Matter of Herman, 289AD2d at 240).
On her motion for summary judgment, Favaloro established her prima facie entitlement tojudgment as a matter of law based upon, inter alia, the affidavit of the decedent's broker, whoasserted that the decedent acted of his own accord in instructing him not to implement the changeforms (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985];Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). However, in opposition, thepetitioners raised triable issues of fact through their affidavits which described, among otherthings, Favaloro's alleged attempts to control the decedent during the last weeks of his life, andasserted that the decedent was "completely coherent" when he executed the change forms (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, the Surrogate's Courtproperly denied Favaloro's motion for summary judgment (see Preshaz v Przyziazniuk, 51 AD3d 752 [2008]; Latopolski v Rudge, 35 AD3d 389[2006]).
However, the Surrogate's Court erred in denying Favaloro's motion pursuant to CPLR 4401for judgment as a matter of law. "To succeed on a motion for judgment as a matter of lawpursuant to CPLR 4401, a defendant has the burden of showing that there is no rational processby which the jury could find in favor of the plaintiff and against the moving defendant" (Elnakib v County of Suffolk, 90 AD3d596, 596-597 [2011]; see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Doland v [*4]Stephenson, 89 AD3d 789 [2011], lv denied —NY3d —, 2012 NY Slip Op 67973 [2012]; Velez v Goldenberg, 29 AD3d 780, 781 [2006]). In determiningwhether a movant satisfies this burden, the court must accept the opponent's evidence as true andaccord the opponent "the benefit of every reasonable inference which can reasonably be drawnfrom the evidence presented at trial" (Elnakib v County of Suffolk, 90 AD3d at 597;see Doland v Stephenson, 89 AD3d at 789; Matter of O'Malley, 87 AD3d 1012 [2011]; Velez vGoldenberg, 29 AD3d at 781).
Here, the petitioners' proffered evidence was insufficient to establish that the decedentinstructed his broker not to implement the change forms as a result of undue influence byFavaloro. The petitioners provided no evidence that Favaloro knew about the change formsbefore April 28, 2006, the date on which the decedent directed his broker not to implement thechange forms and, therefore, failed to establish that she had a "motive" to exercise undueinfluence and procure their rescission (cf. Matter of Fiumara, 47 NY2d at 846; Matterof Herman, 289 AD2d at 240). In addition, the change forms drastically altered thedecedent's longstanding testamentary plan to leave the bulk of his estate to Favaloro. Thepetitioners also established that they freely stayed at the decedent's home after he was diagnosedwith cancer in 2005, and the petitioner Susan Powers testified that there was no issue about herbeing alone with the decedent during the period from April 21, 2006, to April 29, 2006, whichincluded the date on which the decedent telephoned his broker to rescind the change forms. Thepetitioners also proffered no evidence that Favaloro actually exercised undue influence inconnection with the rescission of the change forms (see Matter of Fiumara, 47 NY2d at846; Matter of Walther, 6 NY2d at 54; Matter of Herman, 289 AD2d at 240),aside from Powers's testimony that Favaloro was not giving the decedent his pain medication.However, this was countered by the testimony of the decedent's personal physician, who testifiedthat, on unannounced visits to the decedent's home during the last two months of his life, hefound that the decedent was "very comfortable and everything seemed to be appropriate and wellrun."
Furthermore, the evidence on the petitioners' direct case supported an inference that thedecedent independently decided to rescind the change forms. As previously noted, according tothe broker's testimony, the decedent asserted that he was not aware of what he was signing whenhe executed the change forms. The broker also testified that he had daily conversations with thedecedent, and at no time did the latter state that Favaloro wanted to run the decedent's affairs. Hefurther stated that Favaloro neither called him to discuss the accounts nor ever advised him tomake any changes to the accounts. Since "[a]n inference of undue influence cannot be reasonablydrawn from circumstances" where, as here, those circumstances "are not inconsistent with acontrary inference" (Matter of Walther, 6 NY2d at 54 [internal quotation marks omitted];see Matter of Swain, 125 AD2d at 575), there was no rational basis for the jury'sconclusion that the decedent rescinded the change forms based on Favaloro's exercise of undueinfluence.
In light of our determination, Favaloro's remaining contentions have been rendered academic.Balkin, J.P., Eng, Hall and Sgroi, JJ., concur.