Gitelson v. Quinn

• Decision Date: 03 June 2014
• Citation: 118 A.D.3d 403,987 N.Y.S.2d 329,2014 N.Y. Slip Op. 03942
• Parties: Christine GITELSON, Plaintiff–Appellant, v. Mary L. QUINN, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 403

987 N.Y.S.2d 329

2014 N.Y. Slip Op. 03942

Christine GITELSON, Plaintiff–Appellant,

v.Mary L. QUINN, Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

June 3, 2014.

Bailey & Sherman, P.C., Douglaston (Edward G. Bailey of counsel), for appellant.

Kurre Levy Schneps LLP, Manhasset (Michael A. Levy of counsel), for respondent.

TOM, J.P., SWEENY, MANZANET–DANIELS, FEINMAN, CLARK, JJ.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 30, 2012, which granted defendant's motion for summary judgment dismissing the complaint, reversed, on the law, without costs, and the motion denied.

We agree with the motion court that the parties made a mutual rather than a unilateral mistake. Contrary to plaintiff's claim, the mistake was material, and not a mere mistake about value ( cf. Simkin v. Blank, 19 N.Y.3d 46, 55, 945 N.Y.S.2d 222, 968 N.E.2d 459 [2012] ). However, contrary to the dissent's conclusion, the issue of mutual mistake is essential to the determination of this case.

The dissent acknowledges that there was an oral agreement in this case, and that the agreement was conditioned upon defendant commencing a lost will proceeding. That such proceeding ultimately became moot does not make it, as the dissent posits, a condition upon which performance under the agreement depended. Plaintiff met her obligations under the agreement to pay one half of the decedent's funeral expenses and attorneys fees for the proceeding. Defendant did, as required, commence a lost will proceeding. Both parties thus fulfilled the terms of the oral agreement. It was only less than one month before the hearing on the lost will proceeding was to commence that defendant's husband found the original will in the same box which defendant had searched prior to entering into the agreement. It was at that point that defendant attempted to abrogate the contract. It is noteworthy that defendant, in her motion for summary judgment dismissing the complaint argued that the contract should be rescinded due to a mutual mistake as to the existence of the original will. The question of mutual mistake, therefore, is central to the disposition of this case.

Defendant's alleged negligence in searching for the original 1991 will, the absence of which formed the basis of the oral agreement to commence a lost will proceeding, is an important factor in determining whether the doctrine of mutual mistake may be invoked to rescind this otherwise valid oral agreement. “ ‘Mistake, to be available in equity, must not have arisen from negligence, where the means of knowledge were easily accessible.’ ” ( DaSilva v. Musso, 53 N.Y.2d 543, 551, 444 N.Y.S.2d 50, 428 N.E.2d 382 [1981][citation omitted] ). The doctrine of mutual mistake “may not be invoked by a party to avoid the consequences of its own negligence” ( P.K. Dev. v. Elvem Dev. Corp., 226 A.D.2d 200, 201, 640 N.Y.S.2d 558 [1st Dept.1996] ).

Here, at a minimum, the record presents triable issues of fact as to whether defendant was negligent in her search for the original will. Defendant acknowledged as much when she stated that, when she looked in the box for the will, “the stuff ... was so mixed up that when I went through it I missed” the will. The parties' mistaken belief that the original of their late brother's 1991 will could not be found arose from defendant's failure to rememberthat her brother had given her the original and that she had placed it in a box in her house for safekeeping. Whether defendant was negligent or less than diligent in her search of the very same box where her husband subsequently found the original will are questions that should be determined by a jury. Under such circumstances, defendant was not entitled to summary judgment dismissing the complaint based on mutual mistake.

All concur except TOM, J.P. who dissents in a memorandum as follows:

TOM, J.P. (dissenting).

I respectfully disagree with the majority and conclude that the oral agreement between the parties was not enforceable under the circumstances of this case.

The parties, who are sisters, assert an interest in real property comprising the substantial portion of the estate of their deceased brother, Joseph Dinko. Their dispute arises out of decedent's execution of two wills. The first, made in 1990, left a certain parcel of real property located in the County of Queens to plaintiff, defendant and a nephew in equal shares, with the rest of his estate to be divided equally between plaintiff and defendant. That instrument was superseded by a will executed in 1991 that left all of his property to defendant.

Dinko, one of 10 siblings, died on February 12, 2003, leaving neither a widow nor children. By that time, the parties had forgotten about the 1991 will and proceeded under the impression that the 1990 will, a copy of which was in plaintiff's possession, was the operative instrument. While their attempt to find the original was unsuccessful, they did locate a copy of the 1991 will. Efforts were then made by defendant to locate the original of the 1991 will but to no avail. Because the original 1991 will could not be located, the parties consulted with a lawyer, and plaintiff agreed to support defendant's effort to probate the copy of the 1991 will and to share expenses related to the lost will proceeding; in return, defendant agreed to share the estate equally.

While the agreement was never reduced to writing nor submitted to the Surrogate, the parties do not dispute its material terms, which are mutually beneficial. If the original 1991 will could not be located, Dinko would be deemed to have died intestate, resulting in his property being divided among his nine surviving siblings rather than just the two sisters party to this action. Furthermore, Dinko had been an alcoholic, requiring hospital treatment on numerous occasions, and the parties reasoned that if they were united in the attempt to probate a copy of his 1991 will, their siblings would be less likely to challenge it.

At the time of the parties' agreement, they both believed that an original will could not be found and no discussion was had concerning what would happen if the original were found. Shortly before the scheduled commencement of trial in the lost will proceeding, plaintiff learned that defendant's husband had located the original of Dinko's 1991 will. Defendant called plaintiff and told her that the original of Dinko's 1991 will had been found, that she no longer needed to proceed with the lost will proceeding, and that she would no longer share Dinko's estate. Defendant sent plaintiff a check representing the expenses that plaintiff had paid, plus interest, but plaintiff returned it. Defendant submitted that instrument for probate, and the entirety of the Dinko estate was awarded to her pursuant to its terms. While the proceedings before Surrogate's Court are not included in the record, it does contain a waiver of process and consentto probate the original 1991 will,...