Abercrombie v. Andrew College

Citation438 F.Supp.2d 243
Decision Date15 June 2006
Docket NumberNo. 04-CV-7717(KMK).,04-CV-7717(KMK).
PartiesNancy ABERCROMBIE, as Administratrix of goods, chattels, and credits of Liddie Mae Murphy, Plaintiff, v. ANDREW COLLEGE, Defendant.
CourtU.S. District Court — Southern District of New York

Matthew Dollinger, Dollinger, Gonski & Grossman, Carle Place, New York, for Plaintiff.

Charles M. Mirotznik, Law Offices of Charles M. Mirotznik, New York, New York, for Plaintiff.

Arthur G. Jacoby, Richard Young Im, Herrick, Feinstein LLP, New York, New York, for Defendant.

OPINION AND ORDER

KARAS, District Judge.

The Complaint in this action alleges that Defendant Andrew College obtained an invalid deed to the remainder interest of Ms. Liddie Mae Murphy's residence. Specifically, it is alleged that the deed is an invalid testamentary instrument, and was otherwise obtained via fraud and undue influence. As relief, the Court is asked to impose a constructive trust over the residence and to grant punitive damages.

Andrew College brought this Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim and alleging that the Statute of Limitations had expired. However, after the Motion was filed, Ms. Murphy passed away. A niece, Nancy Abercrombie, was appointed Administratrix of Ms. Murphy's estate, and a dispute ensued between Abercrombie and Andrew College over the validity of Ms. Murphy's Will. That dispute is pending before a Surrogate's Court in New York.

Abercrombie also was substituted as Plaintiff in this action. She then moved to have this case dismissed on the ground that the probate exception to the Court's diversity jurisdiction applied. In the alternative, Abercrombie moved to have the Court abstain, in light of proceedings ongoing in New York Surrogate's Court.

For the reasons discussed below, Abercrombie's application that this Court dismiss or stay this action is DENIED, and Defendant's Motion is GRANTED without prejudice to Abercrombie to seek leave to file an amended complaint.

I. Background
A. Ms. Murphy and Andrew College

Unless otherwise noted, the following facts are not in dispute. Liddie Mae Murphy graduated in 1937 from Andrew College, a private, two-year liberal arts college in Georgia. Ms. Murphy maintained a close relationship with her alma mater and, indeed, credited the College for her successful career as an entertainer and writer. On December 14, 1967, Ms. Murphy purchased a townhouse ("the Property") in Manhattan. (Compl.¶ 8) Over twenty years later, on or about March 23, 1990, Ms. Murphy executed a deed of conveyance ("Deed") and a Remainder Charitable Contribution Agreement ("Contribution Agreement") through which she gifted the Property, located at 45 West 84th Street, New York, New York, to Andrew College and retained a life interest for herself. (Compl. ¶¶ 9, 18; Jakoby Decl. Ex. C) Ms. Murphy was represented by counsel at the time she executed the Deed and the Contribution Agreement. (Compl.¶25.) Andrew College took possession of the Deed, and later recorded it in the Office of the City Register of the County of New York on March 11, 1992.1 (Compl. ¶ 14; Jakoby Decl. Ex. D)

B. The Complaint and the Motion to Dismiss

This action was commenced in New York State Supreme Court on July 20, 2004 (Def.'s Mem. of Law in Support of Def.'s Mot. To Dismiss ("Def.'s Mem.") Ex. A) and was removed to this Court pursuant to 28 U.S.C. § 1441 on September 29, 2004.2 According to the Complaint, Ms. Murphy did not intend to convey an irrevocable inter vivos gift to Andrew College at the time the Deed and Contribution Agreement were signed. (Compl.¶23) Instead, the Complaint alleges that Ms. Murphy thought the Deed was revocable and would not have signed it otherwise. (Compl.¶24) The Complaint also alleges that Ms. Murphy was inadequately counseled, (Compl.¶25) that Andrew College made fraudulent statements and exercised undue influence over her by taking advantage of her "advanced age, lack of business savvy, vulnerability, [and] loneliness," as well as the "affection and esteem" she held for the college. (Compl.¶¶27, 31)

Andrew College filed a Motion to Dismiss on March 2, 2005, asserting that all of the claims in the Complaint are barred by the statute of limitations, that the Deed is not subject to the testamentary formalities required under New York law, and that the fraud allegations are insufficiently particularized. Plaintiff timely responded to the Motion, but the Court held off in its decision to permit the parties to complete the mediation process they had begun in January 2005.

C. Mediation and Guardianship

At a pre-motion conference held in December 2004, the Parties expressed a willingness to pursue mediation, which the Court ordered. (Hr'g Tr. 7, Aug. 22, 2005) It had been the Court's (and Andrew College's) expectation that the Parties themselves would participate in the mediation. However, counsel for Plaintiff advised the mediator and counsel for Andrew College the day of the first mediation session on January 14, 2005 that Ms. Murphy apparently had been hospitalized and that she would not be attending the mediation. (Hr'g Tr. 8, Aug. 22, 2005; Certification in Resp. to Def.'s Documentation Submitted to the Court on Aug. 22, 2005 ("Pl.'s Certification") Ex. 10) At the end of that first session, Andrew College requested a supervised visit with Ms. Murphy, an idea that the mediator evidently endorsed. Within an hour of that session, however, counsel for Plaintiff notified counsel for Andrew College that Abercrombie had determined that "it would not be advisable" for even a supervised visit with Ms. Murphy.3 (Def.'s Timeline, Ex. 3) A second mediation session was held on March 8, 2005, but again, Ms. Murphy did not attend.4 (Hr'g Tr. 9, Aug. 22, 2005)

The mediation thereafter stalled, in large part it appears, due to Abercrombie's efforts to be appointed as Guardian for Ms. Murphy. In fact, Abercrombie submitted the Petition seeking her appointment as Guardian, pursuant to Article 81 of the New York Mental Hygiene Law, on April 5, 2005. (Def.'s Timeline, Ex. 6) While counsel for Ms. Murphy/Abercrombie notified the mediator of this filing, he did not notify the Court or counsel for Andrew College, until he sent a one-sentence letter on June 7, 2005.5 (Pl.'s Certification Ex. 15-18; Def.'s Timeline, Ex. 7) Nor did Counsel provide notice of Ms. Murphy's initial opposition to Abercrombie's efforts to become her Guardian. In Ms. Murphy's words: "While I once had a close relationship with NANCY ABECROMBIE, I no longer maintain such a relationship with her, and do not trust her to manage my affairs." (Def.'s Timeline, Ex. 8 at 2) Instead of Abercrombie, Ms. Murphy proposed Segundo More be her court-appointed Guardian. (Def.'s Timeline, Ex. 8 at 1-2, 6) Ultimately, it appears that there was some resolution of the dispute, whereby Ms. Murphy consented to the appointment of: (i) Segundo More to be her Guardian; (ii) Segundo More and Abercrombie to be co-Guardians of Ms. Murphy's property; and (iii) Abercrombie as Special Guardian of the case against Andrew College.6 (Pl.'s Certification, Ex. 23 at 2)

D. Ms. Murphy's Declining Health and Demise

On August 1, 2005, Ms. Murphy was critically injured in an apparent fall. (Hr'g Tr. 11, Aug. 22, 2005) For this she was hospitalized at Roosevelt St. Luke's and listed in critical condition. (Hr'g Tr. 12, Aug. 22, 2005) Sometime soon thereafter, Abercrombie, though not appointed as Ms. Murphy's Guardian, sought a health care proxy to remove Ms. Murphy from life support. (Hr'g Tr. 12, Aug. 22, 2005; Def.'s Timeline, Ex. 10) An attorney for Segundo More, the court-appointed Guardian for Ms. Murphy, made an emergency, ex parte application to restrain St. Luke's Hospital from removing Ms. Murphy's life support and to declare any health care proxies to be declared null and void. (Def.'s Timeline Ex. 10) On August 15, 2005, the Honorable William J. Davis, Justice of the Supreme Court of New York, who had been presiding over the guardianship proceedings, revoked all previously-issued health care proxies.7 (Def.'s Timeline, Ex. 11 at 10)

Ms. Murphy never recovered from the fall and passed away on September 25, 2005. The cause of death was determined to be "[b]lunt impact injury of the head with multiple complications including sepsis following bowel perforation by ventriculoperitoneal shunt." (Letter from Jakoby to the Court, Ex. D, February 7, 2006) Eventually, without the opposition of Andrew College, Abercrombie was substituted for Ms. Murphy as Plaintiff in this case.8 (Order, Feb. 22, 2006)

E. The Fight over Ms. Murphy's Will

The day after Ms. Murphy's death, Abercrombie, assisted by the same counsel originally representing Ms. Murphy in this action, filed a Petition in Surrogate's Court in New York seeking the issuance of Letters of Administration. (Letter from Jakoby to the Court, Ex. B, Feb. 7, 2006) In this application, Abercrombie asserted that Ms. Murphy died without a Will. (Id.) She also claimed that Ms. Murphy's estate included the Property, which she represented had a value of approximately $4,000,000, as well as Ms. Murphy's interest in this action, which she described as being brought to "rescind a deed" based on undue influence and fraud. (Id.) However, Abercrombie did not mention in the application that the contested deed related directly to the very property that she claimed was already part of Ms. Murphy's estate. Nonetheless, Abercrombie was appointed Administratix of Ms. Murphy's estate on December 23, 2005. (Letter from Jakoby to the Court, Feb. 24, 2006)

Abercrombie's claim that Ms. Murphy died intestate may be inaccurate as Andrew College claims knowledge of a Will allegedly executed on February 11, 1998 by Ms. Murphy. This Will names former Andrew College president Kirk Treible as executor (and a neighbor as Alternate Executor). (See Letter from Jacoby to the Court, Feb. 7, 2006, Ex. C) Indeed, after discovering that Abercrombie...

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