In re Proceeding for Turnover of Prop. Withheld in the Estate of Loew
| Decision Date | 21 December 2012 |
| Docket Number | No. 355665/D.,355665/D. |
| Citation | 38 Misc.3d 1206,2012 N.Y. Slip Op. 52377,966 N.Y.S.2d 347 |
| Parties | In the Matter of Proceeding for Turnover of Property Withheld in the ESTATE OF Jacqueline Gebhard LOEW, a/k/a Jacqueline Loew, Jacqueline G. Loew and Jacqueline A. Loew, Deceased. |
| Court | New York Surrogate Court |
OPINION TEXT STARTS HERE
Michael J. Sullivan, Esq., Novick & Assoc., P.C., Huntington, for petitioner.
Tip Henderson, Esq., Glen Cove, for respondent.
Henry Charles Desci, Jr., Esq., Williston, for respondent.
In this discovery proceeding, the petitioner, Cynthia Frank, moves for partial summary judgment for the turnover of Two Hundred Thousand Dollars ($200,000.00) transferred by the decedent, Jacqueline Loew, to the respondent, Gregory Tull, on or about February 1, 2008, together with interest at the statutory rate of nine (9%) percent from November 25, 2011. The respondent, Gregory Tull, has cross-moved: (i) to amend his answer to assert the defense of statute of limitations with respect to the $200,000.00 transfer and (ii) for summary judgment dismissing the petition in its entirety on the basis of statute of limitations.
The decedent, Jacqueline Loew, died on March 4, 2009, a domiciliary of Nassau County. She was survived by her three children, Cynthia Frank, William Tull, Jr., and Gregory Tull (hereinafter “Cynthia,” “William,” “Gregory”). The decedent left a last will and testament dated December 22, 2006. Pursuant to the terms of her will, the decedent's residuary estate is divided equally among her three children. The will nominated Gregory as executor. Preliminary letters testamentary issued to Gregory on August 26, 2009. The will was admitted to probate by decree dated December 21, 2010, and letters testamentary issued to Gregory on the same date.
Thereafter, Cynthia petitioned for the issuance of limited letters of administration to commence a SCPA 2103 discovery proceeding against Gregory. Cynthia filed her petition for limited letters of administration on September 22, 2010. Gregory opposed Cynthia's application and filed objections claiming that Cynthia's allegations were conclusory. By decision dated January 26, 2011 (Dec. No. 27004), the court granted Cynthia's application for limited letters of administration, and limited letters issued to Cynthia on February 23, 2011. Pursuant to an Order to Attend signed on June 17, 2011, Gregory was examined on July 19, 2011. Thereafter, on November 25, 2011, Cynthia filed a Petition for the Turnover of Property, and a citation returnable on January 4, 2012 issued thereon.
Cynthia's petition seeks the turnover of the following: (i) Two Hundred Thousand ($200,000.00) Dollars transferred by the decedent to Gregory and his wife, Diana, by check number 6531 in or about January 2008 from decedent's Citibank checking account; (ii) Thirty–Six Thousand ($36,000.00) Dollars transferred to a neighbor, Anthony Congero, Gregory's father-in-law, Frank Arculeo, and mother-in-law, Francine Arculeo, by checks numbered 6407, 6408 and 6409, each in the amount of $12,000.00 on or about July 28, 2007, and thereafter transferred by such individuals to Gregory and Diana Tull; and (iii) “The Slow Day” painting by John George Brown, which was sold by Gregory on or about September 27, 2004 through Christie's for $22,000.00.
Gregory served and filed an Answer asserting that all of the transfers were, in fact, gifts made by the decedent to him. In addition, as to the $36,000.00 transfer and the transfer of “The Slow Day” painting, Gregory raised the affirmative defense of statute of limitations in his answer.
Cynthia has now moved for partial summary judgment with respect to the transfer by the decedent of $200,000.00 to Gregory by check number 6531, in fact, dated February 1, 2008. Cynthia argues that summary judgment should be granted because Gregory will not be able to establish by clear and convincing evidence that the transfer was a gift and not a loan. Cynthia relies primarily on Gregory's testimony at his deposition that he and the decedent were the only persons present on or about February 1, 2008 when the purported gift was allegedly made and the check was delivered to him. Cynthia also asserts that Gregory testified that he, not the decedent, advised the decedent's accountant, Alan Kotokowski, that the decedent had made a $200,000.00 gift to him. Mr. Kotokowski has submitted an affidavit, annexed to Cynthia's moving papers, in which he confirms that he never had a conversation with the decedent regarding the $200,000.00 transfer and Gregory was his only source of information that the transfer was a gift. Mr. Kotokowski prepared a gift tax return for the decedent for 2008 based upon the information provided by Gregory. In addition to her own affidavit, Cynthia's motion is supported by the affidavits of her husband, Bob Frank (hereinafter “Bob”), and her brother, William. According to Bob, the decedent expressed concern that Gregory was constantly seeking financial assistance from her. Additionally, William avers that his mother never mentioned to him that she had made a $200,000.00 gift to Gregory.
Thus, Cynthia argues that summary judgment should be granted because Gregory has not offered any evidence, other than his own testimony, which she claims is barred by CPLR 4519, in support of his claim that the transfer was a gift.
Gregory has cross-moved to amend his answer to include the affirmative defense of statute of limitations with respect to the $200,000.00 transfer and for summary judgment dismissing the petition entirely on the grounds of statute of limitations. Gregory argues that Cynthia's assertion that his testimony is barred by CPLR 4519 to defend a summary judgment motion is incorrect. In addition, Gregory states that Cynthia's analysis is flawed because it mistakenly assumes that there must be a witness to the transaction in order to prove the transfer is a gift. Gregory asserts that there are a number of ways by which a gift may be proved. Gregory also alleges that discovery is not yet complete, and, therefore, Cynthia's motion is premature. He argues that the depositions of Cynthia, her husband, Bob, and his brother, William, will produce evidence supportive of his claim that the transfer was a gift. Gregory further asserts that his claim that the $200,000.00 is a gift is consistent with prior gifts his mother made to him and her other children, including Cynthia. None of these prior transfers were ever identified as gifts in notations on the checks or in a separate document. Gregory asserts that it is significant that his mother made a $280,000.00 loan to him three days after the $200,000.00 transfer and in a separate document evidenced the transaction as a loan. According to Gregory, the loan was made to help him purchase a retirement home in South Carolina, prior to his New York home being sold. When his New York home was sold, he repaid the decedent $280,000.00 with interest. Gregory claims that if the decedent wanted to treat the $200,000.00 transfer as a loan and not a gift, she certainly was aware of how to memorialize a loan, especially given the proximity in time between the two transfers.
Additionally, Gregory claims that in 2006 he convinced the decedent to change her will so that his siblings would receive more of her estate. In 2004, the decedent had executed a will under which Gregory would inherit the decedent's home, all her personal property and one-third of her residuary estate. According to Gregory, the decedent's house was worth approximately $1,000,000.00. He suggested that she divide her estate equally among her children, but that she gift him money from time to time for his retirement and the purchase of a retirement home. Gregory states that, in accordance with their conversation, the decedent executed a new will and gifted him $135,000.00 in 2007, $36,000.00 to others in 2007 which was then regifted to him and $200,000.00 in 2008. Gregory points out that the decedent executed the gift tax return for her 2007 gifts and asserts that she would have executed the gift tax return reflecting the 2008 gifts; however, she was in a coma and died on March 4, 2009.
In any event, Gregory claims that the statute of limitations is a bar to recovery of the $200,000.00 and $36,000.00 transfers because the statute of limitations expired one year from the date of the decedent's death. He argues that Cynthia has admitted that she did not demand the turnover until November 25, 2011, beyond the date the statute ran. In addition, Gregory argues that the cause of action to recover The Slow Day painting is time-barred since the statute of limitations expired in October 2007 while the decedent was still alive.
In response to Gregory's cross-motion, Cynthia not only disputes the allegations made by Gregory, but also argues that the statute of limitations was tolled from the time of Gregory's appointment as preliminary executor until she received limited letters of administration. She further claims that Gregory was the decedent's attorney-in-fact and that there was no repudiation so the statute of limitations has not run with respect to The Slow Day painting. Gregory argues that the gift of The Slow Day painting was made by the decedent, individually, and was not received or sold by him as attorney-in-fact.
Gregory filed an answer to the petition on March 7, 2012. On March 23, 2012, Cynthia moved for partial summary judgment and asked for the imposition of interest “at the statutory rate of nine percent from November 25, 2011, when petitioner first made demand for turnover of the funds.” That statement apparently prompted Gregory's cross-motion to amend his answer to include the statute of limitations defense to the $200,000.00 transfer. Gregory's answer already interposed the defense of statute of limitations to the transfers of $36,000.00 and The Slow Day painting. Gregory claims that he did not raise the...
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