Lambert v. Sklar

• Decision Date: 31 January 2012
• Citation: 91 A.D.3d 917,937 N.Y.S.2d 318,2012 N.Y. Slip Op. 00755
• Parties: George LAMBERT, etc., et al., appellants, v. Martin SKLAR, et al., respondents.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00755
91 A.D.3d 917
937 N.Y.S.2d 318

George LAMBERT, etc., et al., appellants,
v.
Martin SKLAR, et al., respondents.

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

Jan. 31, 2012.

[937 N.Y.S.2d 318]

Giaimo Associates, LLP, Kew Gardens, N.Y. (Joseph O. Giaimo of counsel), for appellants.

Jed R. Schlacter, New York, N.Y., for respondents.

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.

[91 A.D.3d 917] In an action, inter alia, to recover damages for fraud, the plaintiffs appeal from an order of the Supreme Court, Westchester County (O. Bellantoni, J.), entered July 14, 2010, which granted the defendants' motion for summary judgment, in effect, dismissing the cause of action alleging fraud, and, in effect, denied their cross motion for summary judgment, in effect, on the cause of action alleging fraud.

ORDERED that the order is affirmed, with costs.

[937 N.Y.S.2d 319]

The decedent, Jack Rovello, died intestate on June 27, 1997, leaving a widow and two infant children. At the time of his death, the decedent and the defendant Martin Sklar were the co-owners of the defendants Betsy & Adam, Ltd. (hereinafter Betsy & Adam), and Betsy & Adam Sales, Inc. (hereinafter B & A Sales). After the decedent's estate was judicially settled by a final decree of the Surrogate's Court in 1999, his widow allegedly discovered a check register which identified payments made by the decedent to the defendant businesses between 1995 and 1997 totaling at least $2,896,393, and payments made by the defendant businesses to the decedent totaling $426,393.

The plaintiffs, the Estate of Jack Rovello (hereinafter the estate) and the public administrator assigned to administer the estate, commenced this action, inter alia, to recover damages for [91 A.D.3d 918] fraud, alleging, among other things, that the defendants defrauded the estate by concealing from the public administrator the fact that the defendant businesses were indebted to the decedent at the time of his death. On a prior appeal, this Court modified an order of the Supreme Court, Westchester County, dismissing all causes of action asserted in the complaint as time-barred, and reinstated the cause of action alleging fraud ( see Lambert v. Sklar, 30 A.D.3d 564, 817 N.Y.S.2d 378). The defendants then moved for summary judgment dismissing that cause of action. The Supreme Court, inter alia, denied that motion as premature, and this Court affirmed...