Barone v. Cox

• Decision Date: 20 February 1976
• Citation: 51 A.D.2d 115,379 N.Y.S.2d 881
• Parties: Michael BARONE, Respondent, v. Kevin COX, Administrator CTA of Estate of Lillian D. Pierce, Deceased, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 881

379 N.Y.S.2d 881

51 A.D.2d 115

Michael BARONE, Respondent, v. Kevin COX, Administrator CTA of Estate of Lillian D. Pierce Deceased, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Feb. 20, 1976.

Offermann, Fallon, Mahoney & Cassano, Buffalo (Leo J. Fallon, Buffalo, of counsel), for appellant.

Eugene C. Tenney, Buffalo, for respondent.

Before MOULE, J.P., and CARDAMONE, SIMONS, DILLON and WITMER, JJ.

OPINION

WITMER, Justice.

On this appeal from an order denying a motion to vacate a default judgment we are again called upon to state the duty of a creditor upon suing and entering judgment against an alleged debtor who the creditor knows or has reason to believe is incapable of protecting her interests. The judgment, in the sum of $10,034, was entered on June 11, 1970 against Lillian B. Pierce, defendant, who died on December 26, 1972. The Public Administrator for Erie County, Kevin D. Cox, was appointed administrator c.t.a. of her estate, apparently in early 1975, and he promptly moved to vacate the judgment.

The motion was supported by affidavits by Kevin D. Cox and Edna Y. McCurdy, defendant's daughter. It appears that defendant's heirs are Mrs. McCurdy and a grandson and three granddaughters, and that the only asset left by the deceased defendant is a residence property at 49 Haviland Place in Hamburg, New York, occupied by Mrs. McCurdy and her husband.

Mrs. McCurdy avers that prior to 1965 the plaintiff had invested money in a business enterprise in which her husband was a principal; that the venture was unsuccessful; and that plaintiff exerted 'strong pressure and duress' upon her to make good his loss. Mrs. McCurdy avers that in compliance with plaintiff's demand she executed a promissory note in the sum of $10,000, payable to plaintiff, dated June 11, 1965, and forged the name of her mother, the defendant, as a co-maker thereof and delivered it to plaintiff. Plaintiff denies knowling that defendant's name was forged. Mrs. McCurdy does not assert that he knew of it, but she claims that her mother, the defendant judgment debtor, did not know about the note and that the note does not represent any money loaned or advanced by plaintiff to her or to the defendant. Plaintiff does not deny these assertions.

It appears that in 1967 defendant's mind was deteriorating seriously and such deterioration continued progressively until her death. In 1969 she was having hallucinations and was senile and disoriented to such an extent that she needed institutional care 24 hours per day. In October of that year she was committed to E. J. Meyer Memorial Hospital for examination in the Psychiatric Clinic. The Clinic reported that she should not be in a mental institution but in one for the aged and infirm,; and in February, 1970 she was admitted to the Erie County Home for the Aged at Wende, New York, where she remained until the month of her death. The affidavits and supporting documents present a clear Prima facie showing that defendant was incapable of protecting her interests, at least from February, 1970 onward.

Mrs. McCurdy avers that plaintiff frequently spoke to her about paying the note, and that shortly after defendant's admittance to the Home for the Aged, she told plaintiff thereof and he replied, 'My God, the county will take everything'. Plaintiff denies making the latter statement, but does not deny that Mrs. McCurdy told him that her mother was in the County Home for the Aged.

Thereafter, on April 30, 1970, without notice to Mrs. McCurdy, plaintiff served a summons and complaint upon defendant in an action against her alone on said promissory note, and on June 11, 1970 he entered judgment against her upon her default in answering. Mrs. McCurdy states that she saw a notice in the newspaper of the entry of the judgment.

In opposition to the administrator's motion to vacate the judgment, plaintiff submitted his own affidavit and that of his attorney. He does not deny the circumstances giving rise to the note; but, in effect, he relies on alleged laches on the part of the defendant, since four or five years elapsed before effort was made to vacate the judgment. He urges that Mrs. McCurdy's statement that she forged the note is inadmissible, since her mother has died; and he also points to the facts that although it is contended that defendant's mind began to deteriorate in 1967 no committee was named for her and she was not committed to a mental institution, suggesting the inference that she was, therefore, not incompetent. Part of the attorney's affidavit is clearly based upon hearsay and to that extent lacks validity. It is interesting to note, however, that through his attorney the plaintiff claims that prior to April, 1970 he had conversations with Mrs. McCurdy in which She promised to pay the note. Nowhere does plaintiff allege that he ever contacted the defendant about making the note or paying it. In October, 1970, in August, 1972 and in September, 1973 plaintiff's attorney wrote to Mrs. McCurdy and her husband demanding payment of the note and threatening to sell the residence in which they lived, owned by decedent in her lifetime, unless the judgment was paid.

The record presented a strong Prima facie showing not only that defendant was incapable of protecting her interests at the time when the...