| Castor v Pulaski |
| 2014 NY Slip Op 03386 [117 AD3d 1552] |
| May 9, 2014 |
| Appellate Division, Fourth Department |
[*1]
| David W. Castor, Jr., Respondent, et al., Plaintiff, vLynn J. Pulaski, Appellants, et al., Defendants. |
Costello, Cooney & Fearon, PLLC, Syracuse (Daniel Rose of counsel), fordefendants-appellants.
Meggesto, Crossett & Valerino, LLP, Syracuse (James A. Meggesto ofcounsel), for plaintiff-respondent.
Appeal from an order and judgment (one paper) of the Supreme Court, OnondagaCounty (Anthony J. Paris, J.), entered December 14, 2011. The order and judgment,among other things, awarded plaintiff David W. Castor, Jr., compensatory damages,punitive damages and attorneys' fees against defendants Lynn J. Pulaski and Paul W.Pulaski.
It is hereby ordered that the order and judgment so appealed from is unanimouslymodified on the law by granting in its entirety the motion to dismiss the complaint forlack of standing, the first and third through sixth ordering paragraphs are vacated, andthe complaint is dismissed against defendants Lynn J. Pulaski and Paul W. Pulaskiwithout prejudice in accordance with the following memorandum: David W. Castor, Jr.(plaintiff) commenced this fraud action seeking damages from, inter alia, Lynn J. Pulaski(Lynn) and Paul W. Pulaski (Paul) (collectively, defendants) in connection with theprobate of a fraudulent will, purported to be the will of plaintiff's father, David Castor,Sr. (decedent), which was offered for probate by defendant Stacey R. Castor (Castor),decedent's wife. Castor was convicted of, inter alia, the murder of decedent in connectionwith decedent's death in August 2005 of antifreeze poisoning, and offering a falseinstrument for filing in connection with the purported will (People v Castor, 99 AD3d1177 [2012], lv denied 20 NY3d 1010 [2013]). Decedent's death was treatedas a suicide until Castor's arrest approximately two years later. Plaintiff is decedent's soleheir. It is undisputed that defendants agreed to Castor's request that they witnessdecedent's signature on the will six weeks after his death and that they thereafter eachsigned an attestation affidavit, falsely swearing that he/she was present when decedentexecuted the will, that decedent declared the document to be his will and that he/shewitnessed decedent's signature. Castor was issued letters of administration c.t.a. in June2006 and filed an accounting in April 2007, valuing the estate at $159,048.50. Castorwas the sole beneficiary under the purported will. Although plaintiff filed objections tothe probate of the will because he suspected Castor may have been responsible for hisfather's death, he testified that he withdrew those objections because he relied ondefendants' attestation affidavits. At the inquest on damages against Castor and thenonjury fraud trial against defendants, the Public Administrator testified that the value ofthe estate was approximately $45,000. Supreme Court awarded damages to plaintiff inthe amount of $127,118.65 and punitive damages in the amount of $250,000 with jointand several liability between defendants and Castor.
We agree with defendants that the estate representative is charged with the duty ofrecovering property of the estate, and that plaintiff, as decedent's sole heir, has noindependent cause of action, either in his own right or the right of the estate, to maintainan action for recovery of the property of the estate, absent extraordinary circumstances(see McQuaide v Perot, 223 NY 75, 79-80 [1918]; Gaentner v Benkovich, 18AD3d 424, 426 [2005]). Extraordinary circumstances include collusion of thepersonal representative with others or an "unreasonable refusal" of the personalrepresentative of the estate to commence an action (McQuaide, 223 NY at 80).Inasmuch as the extraordinary circumstances must relate directly to the actions of thepersonal representative of the estate, we conclude that the court erred in determining thatthe "unique and novel circumstances" of this case, i.e., "homicide, possible forgery,perjury, false statements, and possible conflicts of interest," constitute the requisiteextraordinary circumstances. Indeed, we note that the Public Administrator testified thathe was not asked to commence the fraud action (cf. id. at 80-81), and there is noallegation that he was involved in the alleged fraud (cf. Inman v Inman, 97 AD2d864, 865 [1983]). We therefore conclude that the court erred in denying defendants'motion to dismiss the complaint against them on the ground that plaintiff lacked standingto commence the action. We therefore grant defendants' motion and dismiss thecomplaint against them without prejudice to the commencement of a new action by anappropriate party within six months, in accordance with CPLR 205 (a).
In light of our determination, we do not address defendants' remaining contentions.Present—Scudder, P.J., Smith, Carni, Lindley and Whalen, JJ. [Prior CaseHistory: 33 Misc 3d 1235(A), 2011 NY Slip Op 52250(U).]