Adams v. McDaniel, 2009 NY Slip Op 31273(U) (N.Y. Sup. Ct. 6/3/2009)
| Citation | 2009 NY Slip Op 31273 |
| Decision Date | 03 June 2009 |
| Docket Number | 114905/08,Motions Seq. No 01 |
| Parties | HAROLD H. ADAMS, JR., as TRUSTEE of the HUEL D. ADAMS, Jr., TRUST, Plaintiff, v. K.C. McDANIEL, as EXECUTRIX of the ESTATE OF MARY ANNE SWINT BENNETT, and the ESTATE OF MARY ANNE SWINT BENNETT, Defendants. |
| Court | United States State Supreme Court (New York) |
MEMORANDUM DECISION
In this action, plaintiff` Harold H. Adams, Jr., as trustee of the Huel D. Adam, Jr. `Trust ("plaintiff'), seeks an order, pursuant to CPLK $3213, for summary judgment in lieu of complaint against defendants K.C. McDaniel ("Ms. McDaniel"), in her capacity as executrix of the Estate of Mary Anne Swint Bennett, and the Estate of Mary Anne Swint Bennett (the "Bennett Estate") (collectively, "defendants").
In response, defendants cross move for summary judgment dismissing the underlying Complaint filed in South Carolina, pursuant to CPLR $3212.
Mary Anne Swint Bennett ("Ms. Bennett"), a resident of New York City, passed away on November 15, 1995. Ms. McDaniel, Ms. Bennett's attorney during her life, served as executrix of the Bennett Estate from 1995 until her discharge in May 2002.
At the time or her death in 1995, Ms. Bennett held a purchase money mortgage from Huel Adams ("Mr. Adams") on her former residence, which required monthly payments. Mr. Adams failed to make several payments. While serving as executrix, Ms. McDaniel pursued the collection of the monics owed. In the course of her collection effort, Ms. McDaniel was advised and offered as an excuse for nonpayment that Mr. Adams was psychiatrically disabled and that his affairs were in the hands of a trustee. The collection efforts were settled after the Huel D. Adams Trust (the "Trust") paid the Mortgage in full. On November 26, 2001, Ms. McDaniel sent the note, mortgage and a statement of release and satisfaction to the Bennett Estate's attorneys, who, upon information and belief, delivered them to the law firm representing Mr. Adams or his trustee.
Ms. McDaniel's discharge as executrix was delayed by a contested accounting proceeding. A setlement of the accounting proceeding was reached in 2001, six years after Ms. Bennett's death, and submitted for approval by New York County Surrogate Renee R. Roth ("Surrogate Roth"). On January 15, 2002, Surrogate Roth, issued an order stating that the matters in dispute were settled (see the "Settlement Order"). Thereupon, Ms. Mcnaniel submitted her final accounting and request for discharge. On May 29, 2002, Surrogate Roth accepted Ms. McDaniel's final accounting (see the "Discharge Order"). The Discharge Order states:
[A]fter making the payments and distributions directed by the surrogate and alter complying in all respects with the provisions of the decree: K.C. McDaniel as Executrix of the Estate of Mary Anne Swint Bennett be and hereby is released and forever discharged of and from all claims, liability and accountability whatsoever for her acts, transactions and omissions, if any, as such Executrix, including all matters and things continued in the account as filed herein and in this decree. The Discharge Order was entered on May 30, 2002.
In October 2002, Carol H. Gunter, counsel for Mr. Adams, contacted Ms. McDaniel by telephone and in writing and advised that she could not find the mortgage-satisfaction papers ("October 2002 letter"). Ms. McDaniel advised counsel that she had been discharged as executrix of the Rennet Estate and was not in a position to have any further dealings with its assets. She referred counsel lo Ms. Bennett's residual legatees for any further issues ill regard to the note and mortgage.
On January 30, 2003, Elizabeth Van Doren Gray, counsel for Mr. Adams, demanded that Ms. McDaniel provide a recordable satisfaction of the mortgage. The letter states: "It is my understanding that you are the Executrix of the Estate of Ms. Bennett and, as such, arc obligated as her legal representative to provide this mortgage satisfaction" ("January 2003 letter). Again, Ms. McDaniel advised counsel that she had been discharged as the executrix since May 2002 and did not have the authority to have any further dealings with the assets of the Bennett Estate. She further suggested that counsel approach the residual legatees.
Plaintiff contends that after the Trust paid the mortgage, the mortgage was not recorded as satisfied. On four separate occasions, plaintiff tried to have Ms. McDaniel satisfy the mortgage, to no avail. As a result, plaintiff sought judicial intervention to have the mortgage deemed satisfied.
On May 15, 2003, plaintiff filed a Summons and Complaint against defendants in South Carolina. Neither Ms. McDaniel nor the Rennet Estate answered [he Complaint.
On March 4, 2004, plaintiff filed a "Motion for Judgment by Default." On June 10, 2004, the South Carolina Court of Common Pleas, Ninth Circuit (the "South Carolina court") granted plaintiff's motion, ordering that the mortgage be marked as satisfied and finding defendants liable, jointly arid severally, for $25,000 in penalties and $3,264.88 in costs and fees ("Default Judgment").
Plaintiff now requests that this Court enter summary judgment against defendants on the basis of the Default Judgment. Citing South Carolina's long-arm statute (South Carolina Code Annotated $36-2-803), plaintiff contends that the South Carolina court had personal jurisdiction over Ms. McDaniel. As Ms. McDaniel was the executrix and represented the Bennett Estate, she performed services and or conducted business within the state of South Carolina, thus meeting the requirements for jurisdiction under $36-2-803. Accordingly, the Default Judgment against Ms. McDaniel was properly entered.
Defendants argue that it is "beyond dispute" that Ms. McDaniel was not the executrix at the time the underlying South Carolina Complaint was filed in May 2003, or at the time the Default Judgment was entered in June 2004. Ms. McDaniel had been discharged as executrix in May 30, 2002, a lull year prior to the commencement of the underlying lawsuit, defendants contend, citing the Discharge Order. Defendants also contend that at no time did Mr. Adams, his trustee or any of their attorneys appear or raise any issue in the New York County Surrogate's Court or in regard to the final accounting or discharge of Ms. McDaniel.
First, defendants argue that there is no evidence that the South Carolina court had personal jurisdiction over Ms. McDaniel. Plaintiff fails to enumerate the specific section of South Carolina's long-arm statute on which he relies. A closer look at $365-2-803 demonstrates that there is no specific mention of an executor, and there is no indication that Ms. McDaniel "transacted any business" in the state of South Carolina. Ms. Bennett was a resident of New York, and Ms. McDaniel never traveled to South Carolina to conduct any business as an executrix, in regard to the note and mortgage or otherwise. This matter was litigated solely in the Surrogate's Court of New York County, defendants argue.
Defendants further argue that plaintiff does not cite any facts or caselaw that suggests that Ms. McDaniel should be deemed to have minimum contacts with South Carolina. Due process IS not satisfied unless a non-domiciliary has "minimum contacts" with the forum state, defendants contend. The test has come to rest on whether a defendant's "conduct and connection with the forum State" are such that it "should reasonably anticipate being haled into court there." In her affidavit ("McDaniel Aff. I"), Ms. McDaniel states that she was the executrix of the estate of Ms. Rennett, a resident of New York State; that she never went to South Carolina to transact any business; that she never solicited any business from anyone in South Carolina in connection with the probate process; and that she was discharged from her duties as executrix in May 2002. After her discharge, Ms. McDaniel "certainly was not transacting any type of business in South Carolina." Defendants also argue that in the absence of any evidence to the contrary, it is clear that Ms. McDaniel does not have sufficient minimum contacts such that the South Carolina court could obtain personal jurisdiction over her, pursuant to §36-2-803, especially after May 30, 2002. Consequently, the Default Judgment, entered in 2004, is not entitled to full faith and credit in New York State.
Second, defendants argue that there is no evidence that Ms. McDaniel was properly served with a copy of the underlying Summons and Complaint. In fact, the Default Judgment simply states: "The Plaintiff asserts that the Defendants failed to respond to the Summons and Complaint filed on May 15, 2003."2 Defendants also contend that plaintiffs moving papers do not contain an affidavit of service or any other proof of service.
Defendants contend that Ms. McDaniel was never served with the underlying Complaint, pursuant to CPLR §308. Her only notice of this action was a letter, dated March 2, 2004, that she received from the latest firm to represent Mr. Adams ("March 2, 2004 letter"). The letter indicated that a motion for default judgment was under way in Charleston, South Carolina. In response to the March 2, 2004 letter, Ms. McDaniel sent a letter to the South Carolina court, dated March 19, 2004, explaining that she never received or accepted service in the underlying action, and that she was discharged from the position of executrix more than a year ago ("March 19, 2004 letter"). Ms. McDaniel also included a copy of the Surrogate's Discharge Order with the March 19, 2004 letter. Ms. McDaniel "heard nothing further," defendants contend (cross-motion, ¶ 20). In the absence of proof of proper service, plaintiffs claims must be dismissed.
Third, defendants argue that although CPLR §3213 provides that, upon denial of summary judgment in lieu of`a complaint, the moving and...
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