Banker v. Banker, 2009 NY Slip Op 50701(U) (N.Y. Sup. Ct. 1/26/2009)
| Decision Date | 26 January 2009 |
| Docket Number | 2004-207. |
| Citation | 2009 NY Slip Op 50701 |
| Parties | ARNOLD BANKER, Plaintiff, v. WALBURGA BANKER, CARL A. BANKER, GLENN A. BANKER, AND LOUIS M. BANKER, Defendants, DELAWARE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff, ESTATE OF WALBURGA BANKER, ARNOLD L. BANKER, CARL A. BANKER, GLENN A. BANKER AND LOUIS M. BANKER, Defendants. DELAWARE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff, v. ESTATE OF WALBURGA BANKER, ARNOLD L. BANKER, CARL A. BANKER, GLENN A. BANKER AND LOUIS M. BANKER, Defendants. |
| Court | New York Supreme Court |
Richard A. Harlem, Esq, Oneonta, NY, Attorney for Plaintiff.
Michael B. Mendelson, Esq., Delhi, NY, Amy B. Merklen, Esq, Assistant County Attorney, Delhi, NY, Attorney for Defendant.
The first action in this case is for partition of real property owned by the parties as tenants in common. In the second action Delaware County Department of Social Services is attempting to collect on a claim for Medicaid paid. Plaintiff, Arnold L. Banker (hereafter Arnold, Jr.), in the first action above and one of the defendants in the second action has filed a motion for summary judgment in both actions. The individual defendants join in the motion for summary judgment in the second action against the plaintiff Department of Social Services (DSS). In the first action the defendants oppose summary judgment and cross claim for an accounting by Arnold Jr. as managing partner of a partnership known as Peaceful Valley Campsites.
In the DSS action the Assistant County Attorney has submitted to the Court a letter in which she states that DSS does not oppose the motion for summary judgment. The DSS claim was based upon Medicaid payments that might be made for Walburga Banker, a defendant in the DSS suit, who is now deceased. The letter also states that the Department did not actually expend any money for Walburga's medical care. Thus the DSS claim is moot. Summary Judgment is granted against DSS in the second action and the complaint is dismissed with prejudice.
However, both Arnold Jr. and his three brothers, Louis, Carl and Glenn Banker have filed cross claims in the DSS action. The CPLR provides that when a complaint is dismissed by the Court it may sever and preserve any counter claims and cross claims for trial. CPLR §3019(d) and 3217(c); Siegel, Practice Commentary, McKinney's Cons. Laws of NY, Book 7B, CPLR §3019:20 at 221 and §3217:14 at 747. The cross claims assert matters that should be preserved for determination and thus are severed. In their cross motion in the first action, defendants also request that the two actions be consolidated for trial. CPLR §602. Since the first action and the severed cross claims involve common questions of law and fact, they are hereby consolidated.
The genesis of the dispute between the four Banker brothers lies in the estate of their father, Arnold A. Banker (hereafter Arnold, Sr.) and an action taken by his widow Walburga Banker after her husband's death to deed to Arnold Jr. her interest in the real property owned b y her husband. Arnold Sr. died on March 29, 1997 without a will.
For purposes of this proceeding the court will take judicial notice of the papers recorded in the Delaware County Surrogate's Court in the Estate of Arnold A. Banker, File No. 97-079. Fisch on New York Evidence, §1066 at 603.
Since he died without a will Arnold, Sr.'s estate passed by intestacy to his widow and their four sons. EPTL §4-1.1. The principal asset of the estate was a 330 acre parcel of real property on which was located the marital residence and which was operated by Arnold Sr. as a sole proprietor as Peaceful Valley Campsites. Shortly after his father's death Arnold Jr. on November 23, 1998 took over management of the campsites. (Accounting p.6 attached to Arnold Jr. Affidavit) Two of Arnold, Sr.'s sons, Arnold Jr. and Louis were appointed administrators of his estate. Arnold Jr. was suspended as administrator by order of the Delaware County Surrogate, dated March 18, 2003.
In the New York Estate Tax proceeding in Arnold Sr.'s estate it was determined that Walburga inherited 56.5552% of the real property and each son 11.8612%. This was because Walburga received $50,000 plus one half the residue under EPTL §4-1.1. On February 25, 1999 Walburga sold her share of the real property to Arnold Jr. in exchange for a self cancelling installment note (SCIN) in the amount of $278,478 at 6% interest. Arnold Jr. was to pay his mother $1669.62 per month until her death. (Wood Affidavit, Exhibits B & C). Walburga reserved in the deed the right to reside in the residence on the property for life. Walburga suffered a stroke and entered the Roscoe Nursing Home in April 2003. (Harlem Affidavit, Exhibit G, Paragraph 6).
In March 2004 Arnold Jr. began the first action against his mother and three brothers for partition of the real property claiming he owned 68.4164% of the real estate representing his original share of 11.8612% plus his mother's share of 56.5552% transferred to him. Walburga died on May 22, 2005. The action also asserted that Walburga transferred to Arnold Jr. in the deed the household appliances, furniture, furnishings and that the three brothers removed and converted the same and demanded their return or damages in the alternative (Harlem, Exhibit 0).
Defendant's in their answer dated March 29, 2004 ask for dismissal of the complaint and assert as a defense that "the deed sued on herein was obtained from defendant Walburga Banker by the fraud of the plaintiff". A counterclaim is also asserted on behalf of Walburga that Arnold had defaulted in making payments on the SCIN note. The answer is verified by Louis M. Banker and not Walburga. (Harlem Affidavit, Exhibit P).
In the Amended Answer and Cross Claim, dated July 5, 2006, in the DSS suit defendants also assert three Cross claims against Arnold Jr. 1) that Arnold Jr. as manager of the Peaceful Valley Campsites partnership should account for the operations of the partnership, 2) that Arnold Jr. and Louis entered into a partnership to operate a gravel pit on the real property and Arnold Jr. should account for the profits and losses of that partnership and 3) again asserting that Arnold Jr is in default on the note to Walburga. This Amended Answer expands the defense of fraud to include undue influence practiced upon Walburga by Arnold Jr. to secure the deed and SCIN note. Again the Amended Answer is verified by Louis and not Walburga. (Harlem, Exhibit M).
In his Amended Answer and Cross Claim, dated April 25, 2006, to the DSS suit Arnold Jr. asserts four cross claims against his three brothers: 1) for a declaration that Arnold Jr. owns a 68.4164% interest in three parcels of real property which were deeded on December 17, 2003 by Louis, as Administrator of the estate of Arnold, Sr., to himself, Carl and Glenn out of the large 330 acre Peaceful Valley real property, 2) for a money judgment for 68.4164% of the fair rental value of said three parcels from December 17, 2003 to date, 3) to set aside and cancel the said three deeds as being without fair consideration and 4) for an accounting by Louis, as administrator of the estate of Arnold Sr. and his removal and surcharge. (Harlem Exhibit L).
Summary Judgment can only be granted when there are no triable issues of fact. Phillips v Joseph Kantor & Co. 31 Ny2d 307 (1972); Wanger v Zeh 45 Misc 2d 93 aff'd 26 AD2d 729 (3d Dept. 1966). The affidavits and other materials submitted must be examined in the light most favorable to the party opposing the motion. Robinson v Strong Memorial Hospital 98 AD2d 976 94th Dept. 1983).
The claims by defendants that Arnold Jr. procured the deed from his mother by fraud or undue influence must be dismissed. The defendants who claim fraud and undue influence have the burden of proof on this issue. Matter of Schillinger, 258 NY 186 (1932); Matter of Simon NYLJ 5/11/01, p.24, col.6 (Surr. Ct.-Suffolk Co.). The elements of fraud are misrepresentation of a material fact, deception and resultant injury. To establish undue influence defendants must show motive, opportunity, and exercise of undue influence. Snyder v Puente 297 AD2d 432 (3d Dept. 2002); Matter of Simon, supra. A close confidential relationship between the person alleged to have been unduly influenced and the influencer may create a presumption of undue influence and shift the burden to the alleged influencer. Matter of Jarsky, NYLJ, 8/25/03, p.26 col.2 (Surr. Ct. Nassau Co.). The relation of mother and son is such a confidential relation particularly where, as here Arnold Jr. held a power of attorney from his mother (Harlem, Exhibit 6, Paragraph 10). It is important to recognize that the alleged fraud and undue influence would have been practiced by Arnold Jr. on his mother by persuading her to deed the property to him, and not his brothers.
The claims of fraud and undue influence practiced by Arnold Jr on his mother Walburga are set forth in the answer in the first action and the Amended Answer and Cross Claim in the second action. (Harlem, Exhibit M and O). Significantly these answers are verified by Louis, not Walburga. Since both were filed after Walburga's stroke there is no way to know if Walburga agreed with the claims made that she was defrauded or unduly influenced.
Rather the best proof is what she told her attorney, Francis W. Wood, Esq., a well respected attorney in the area, who knew and had represented Arnold, Sr. and Walburga Banker for several years. In his affidavit he states that Walburga came to his office about February 25,1999. She was accompanied by Arnold Jr., but Wood had him leave and met with Walburga alone. She expressed her desire to transfer her interest in the property to her son Arnold because the campground was not "productive enough to provide sustenance for all the boys." Wood states that Walburga "was a person of tough determination" and that she "was totally competent in...
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