Goldberg v. Rosenberg

• Decision Date: 23 April 2014
• Citation: Goldberg v. Rosenberg, 2014 NY Slip Op 2750, 116 A.D.3d 919, 983 N.Y.S.2d 833 (N.Y. App. Div. 2014)
• Parties: Sanford B. GOLDBERG, appellant, v. Gail ROSENBERG, etc., respondent, et al., defendants.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 919

983 N.Y.S.2d 833

2014 N.Y. Slip Op. 02750

Sanford B. GOLDBERG, appellant,

v.Gail ROSENBERG, etc., respondent, et al., defendants.

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

April 23, 2014.

Bleakley Platt & Schmidt, LLP, White Plains, N.Y. (Robert D. Meade of counsel), for appellant.

Henry & Regan–Henry, White Plains, N.Y. (John V. Henry of counsel), for respondent.

In an action, inter alia, to set aside an amendment to a trust, the plaintiff appeals from an order of the Supreme Court, Westchester County (Tolbert, J.), entered June 15, 2012, which granted the motion of the defendant Gail Rosenberg to dismiss the complaint in its entirety.

ORDERED that the order is affirmed, with costs.

This action involves a dispute between the plaintiff and his sister, the defendant Gail Rosenberg, over the distribution of the property of their deceased mother (hereinafter the decedent) pursuant to the terms of a pour-over trust. The plaintiff seeks to set aside an amendment in 2004 to the terms of the pour-over trust, limiting his share of the trust to a $1,000 savings bond.

In 1999, the plaintiff's parents both executed a pour-over trust with the assistance of their lawyer, Martin Hersh. The original terms of the decedent's pour-over trust provided that, upon the decedent's death, if her husband predeceased her, the trust estate would be equally divided between her three children, the plaintiff, Gail Rosenberg, and Walter Goldberg. The decedent appointed herself as trustee, Rosenberg as successor trustee, and her son Walter Goldberg as alternate successor trustee.

The plaintiff's father died in January 2003. In December 2004, the decedent, with the assistance of Hersh, amended her trust to distribute, upon her death, her cooperative apartment in Brooklyn and her jewelry to Rosenberg, to distribute savings of $1,000 each to the plaintiff and other relatives, and to distribute the remainder of her property upon her death equally to Rosenberg and Walter Goldberg.

In 2009, the decedent moved to New Jersey and lived in an adult community. She died on July 26, 2010, survived by her three children. The decedent's will was admitted to probate in New Jersey over the plaintiff's objection.

The plaintiff seeks to set aside the 2004 amendment to the pour-over trust, alleging overreaching and undue influence, lack of capacity, and fraud, and seeks an accounting and to remove Rosenberg as trustee. The gravamen of the plaintiff's contentions, as alleged in the complaint, was that “[u]pon information and belief, at the time of the execution of the Alleged Amended Trust, the defendant Rosenberg and others manipulated [the decedent], made fraudulent misrepresentations to her, and insinuated themselves into [the decedent's] life, using their family or other close personal relationships, as well as [the decedent's] deteriorated condition, to create for themselves a position of trust and confidence with [the decedent], so dominating her life and overcoming her free will as to cause her to be unable to resist the influence of defendants to dispose of her property and possessions in a manner contrary to her true wishes.”

Rosenberg moved to dismiss the complaint in its entirety, inter alia, pursuant to CPLR 3211(a)(7) for failure to state a cause of action. The plaintiff, in opposition, acknowledged that there was ongoing animosity between himself and Rosenberg, but alleged that during frequent visits and conversations between himself and the decedent, the decedent stated that she was proud of all of her children and grandchildren and wanted them taken care of...