In re Elam

• Decision Date: 01 June 2016
• Citation: 2016 N.Y. Slip Op. 04215,140 A.D.3d 754,34 N.Y.S.3d 97
• Parties: In the Matter of Keith Edward ELAM, also known as Guru, deceased. Lana Vayda, etc., et al., respondents; John Mosher, appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 754

34 N.Y.S.3d 97

2016 N.Y. Slip Op. 04215

In the Matter of Keith Edward ELAM, also known as Guru, deceased. Lana Vayda, etc., et al., respondents; John Mosher, appellant.

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

June 1, 2016.

Robert S. Lewis, P.C., Nyack, N.Y., for appellant.

Markewich and Rosenstock LLP, New York, N.Y. (Eve Rachel Markewich, Lawrence M. Rosenstock, and Heather M. Barney of counsel), for respondents.

RANDALL T. ENG, P.J., WILLIAM F. MASTRO, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.

In a probate proceeding in which Lana Vayda and Patricia Elam, administrators of the estate of Keith Edward Elam, also known as Guru, petitioned pursuant to SCPA 2103

, inter alia, to recover certain property on behalf of the estate, John Mosher appeals from a decree of the Surrogate's Court, Rockland County (Walsh II, S.), dated March 12, 2014, which upon, among other things, a decision of the same court dated February 3, 2014, made after a nonjury trial, in effect, granted the petition, and, inter alia, directed that he, in effect, deliver to the estate the sum of $30,000 purportedly received by him from the AFTRA Health Fund Group Life Insurance Policy of Keith Edward Elam, also known as Guru, and the sum of $25,688 purportedly received by him from the AFTRA Retirement Fund of Keith Edward Elam, also known as Guru, enjoined him, among other things, from utilizing certain writings and recordings of Keith Edward Elam, also known as Guru, and directed that he turn over the subject writings, recordings, and related materials to the estate.

ORDERED that the decree is modified, on the law and the facts, (1) by deleting the second, third, eleventh, and twelfth decretal paragraphs thereof, (2) by deleting from the fifteenth decretal paragraph thereof the words “in the total amount of $169,850.36 for the following unauthorized transactions” and substituting therefor the words “in the total amount of $114,162.36 for the following unauthorized transactions”, (3) by deleting from the fifteenth decretal paragraph thereof the provisions “(f) $30,000 received by Mosher from Keith Elam's AFTRA Health Fund Group Life Insurance Policy”; and “(g) $25,688.00 received by Mosher from Keith Elam's AFTRA Retirement Fund”, and (4) by deleting from the sixteenth decretal paragraph thereof the words “the amount of $169,850.36” and substituting therefor the words “the amount of $114,162.36”; as so modified, the decree is affirmed, without costs or disbursements.

Lana Vayda and Patricia Elam (hereinafter together the petitioners), as administrators of the estate of Keith Edward Elam, also known as Guru (hereinafter the decedent), filed a petition pursuant to SCPA 2103

, inter alia, to recover, on behalf of the estate, certain property held by John Mosher, a former business partner of the decedent. After a nonjury trial, the Surrogate resolved credibility issues in favor of the petitioners, granted the petition in its entirety, and issued a decree directing Mosher, among other things, to, in effect, deliver certain assets to the estate. Mosher appeals.

“ ‘[I]n a nonjury trial, evaluating the credibility of the respective witnesses and determining which of the proffered items of evidence are most credible are matters committed to the trial court's sound discretion’ ” (Goldstein v. Guida, 74...