| Vumbico v Estate of Wiltse |
| 2017 NY Slip Op 09194 [156 AD3d 939] |
| December 27, 2017 |
| Appellate Division, Second Department |
[*1]
| Marc J. Vumbico, Appellant, v Estate of Rose H.Wiltse, Deceased, et al., Respondents. |
Larkin, Ingrassia & Tepermayster, LLP, Newburgh, NY (William J. Larkin III ofcounsel), for appellant.
John C. Wirth, Jr., Poughkeepsie, NY, for respondents.
In an action, inter alia, for a judgment declaring that the conveyance of certain real propertywas fraudulent, the plaintiff appeals, as limited by his brief, from so much of an order of theSupreme Court, Dutchess County (Hubert, J.), dated August 31, 2016, as granted that branch ofthe defendants' motion which was for summary judgment, in effect, declaring that theconveyance of the property was not fraudulent.
Ordered that the order is reversed, on the law, with costs, and that branch of the defendants'motion which was for summary judgment, in effect, declaring that the conveyance of the propertywas not fraudulent is denied.
The plaintiff and the defendant Celeste Wiltse (hereinafter Celeste) were husband and wife.On August 10, 2011, Rose H. Wiltse (hereinafter the decedent) died leaving a last will andtestament directing that, after the payment of her debts and funeral expenses, the remainder ofher property be given, devised, and bequeathed to her four daughters, Celeste and the defendantsMarcia J. Avezzano (hereinafter Marcia), Ronda A. Wiltse (hereinafter Ronda), and Beth EllenCassidy (hereinafter Beth), per stirpes. The will was admitted to probate on October 17, 2011,and Marcia, Ronda, and Beth were appointed co-executors of the estate. In November 2013,Celeste commenced an action for divorce against the plaintiff.
By deed dated August 27, 2014, the co-executors conveyed certain real property (hereinafterthe property), which had been owned by the decedent, to Celeste and her daughter. In June 2015,the plaintiff commenced this action seeking, inter alia, a judgment declaring that the conveyancewas fraudulent. The plaintiff alleged that he and Celeste had, in effect, previously purchased theproperty from the decedent pursuant to a 2005 agreement under which the sum of $175,000 waspaid to the decedent (hereinafter the 2005 agreement). Following the completion of somediscovery, but prior to any depositions, the defendants moved, among other things, for summaryjudgment, in effect, declaring that the conveyance of the property from the co-executors toCeleste and her daughter was not fraudulent. The Supreme Court granted that branch of themotion, and the plaintiff appeals.
[*2] It is themovant's burden on a motion for summary judgment to "make a prima facie showing ofentitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate theabsence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Only ifthe movant succeeds in meeting its burden will the burden shift to the opponent to demonstratethrough evidence in admissible form that there exists a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 560[1980]). While the ultimate burden of proof at trial will be borne by the plaintiff, a defendantseeking summary judgment bears the initial burden of demonstrating its entitlement to judgmentas a matter of law by submitting evidentiary proof in admissible form (see Zuckerman v Cityof New York, 49 NY2d at 562). On a summary judgment motion by a defendant, thedefendant does not meet its initial burden by merely pointing to gaps in the plaintiff's case;rather, it must affirmatively demonstrate the merit of its claim or defense (see Marielisa R. v Wolman RinkOperations, LLC, 94 AD3d 963, 964 [2012]; Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003, 1005[2011]; Shafi v Motta, 73 AD3d729, 730 [2010]; Pace v International Bus. Mach. Corp., 248 AD2d 690 [1998]).Issue finding, rather than issue determination, is the court's function on a motion for summaryjudgment (see Chimbo v Bolivar,142 AD3d 944, 945 [2016]; Gitlin vChirinkin, 98 AD3d 561, 561 [2012]).
The defendants failed to meet their prima facie burden for summary judgment, in effect,making a declaration in their favor. The defendants did not deny that the 2005 agreement existed,and their answer, which was verified by counsel and made "upon information and belief," wasinsufficient to eliminate triable issues of fact as to whether the 2005 agreement existed (seeAlvarez v Prospect Hosp., 68 NY2d at 324; March Assoc. Constr., Inc. v CMC Masonry Constr., 151 AD3d1050, 1053 [2017]; Cristescu vGasparis, 148 AD3d 669, 669 [2017]; Gershman v Ahmad, 131 AD3d 1104, 1106 [2015]; RiverheadBldg. Supply Corp. v Regine Starr, Inc., 249 AD2d 532, 532-533 [1998]).
Since the defendants failed to establish their prima facie entitlement to judgment as a matterof law, we need not consider the sufficiency of the plaintiff's opposition papers (see Alvarez vProspect Hosp., 68 NY2d at 324).
The defendants' remaining contentions were either waived or are not properly before thisCourt.
Accordingly, the Supreme Court should have denied that branch of the defendants' motionwhich was for summary judgment, in effect, declaring that the conveyance of the property fromthe co-executors to Celeste and her daughter was not fraudulent. Dillon, J.P., Cohen, Connollyand Christopher, JJ., concur.