McCormick v. Lischynsky
| Decision Date | 14 May 2021 |
| Docket Number | Civil Action No. 19-10433-FDS |
| Citation | 539 F.Supp.3d 225 |
| Parties | Dora Jean MCCORMICK, individually and as personal representative of the estate of Patrick Kenneth McCormick, Plaintiff, v. Sara C. LISCHYNSKY, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Philip M. Giordano, Russell A. Haverty, Sophia E. Kyziridis, Reed & Giordano, P.A. Giordano & Company, P.C., Boston, MA, for Plaintiff.
Christopher A. Callanan, Stevenson McKenna & Callanan LLP, Boston, MA, for Defendant.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This case involves the alleged theft of assets by a former domestic partner. Patrick McCormick was in a relationship with defendant Sara Lischynsky for several years, during which time he opened a bank account that named her as a joint account holder and designated her as the beneficiary of one of his life-insurance policies. The two broke off their relationship in 2016, and Patrick committed suicide in February 2017. After Patrick's death, Lischynsky received the proceeds from Patrick's life-insurance policy and withdrew all of the money from the bank account.
Plaintiff Dora Jean McCormick, Patrick's mother, was later appointed as personal representative of his estate. She has brought suit against Lischynsky, alleging a variety of tort and contract claims, both personally and on behalf of the estate. Jurisdiction is based on diversity of citizenship.
Defendant has moved for summary judgment. For the following reasons, the motion will be granted in part and denied in part.
The following facts are as set forth in the record and are undisputed except as noted.
Patrick McCormick and Sara Lischynsky were involved in a romantic relationship for some period of time, ending in 2016. (Def. Ex. 1 at ¶ 7; Def. SMF ¶ 2). At some point during that relationship, the two jointly purchased a condominium at 23 Taft Street, Dorchester, Massachusetts. (Def. Answer ¶ 7; Def. Ex. 4 ("Dora Dep.") at 49).
On November 21, 2010, while Patrick and Lischynsky were dating, Patrick opened a Joint Savings Account, Joint Free Checking Account, and Joint Visa Check (debit) card at Digital Federal Credit Union ("DCU"). (Def. Ex. 5).1 Each account listed Lischynsky as the joint account holder. (Pl. Ex. B ("Lischynsky Dep.") at 46; see also Def. Ex. 4 at 54). They were opened in connection with the obtaining of a loan to purchase a jointly-owned car. (Pl. Ex. B at 46).
According to the terms and conditions applicable to all DCU joint accounts:
If there is more than one owner, all agree with each other and with you that all sums now paid in or hereafter paid in by any one or all account owner(s) including all dividends thereon, if any, are and shall be owned by all account owner(s) jointly regardless of their net contributions with a right of survivorship and shall be subject to withdrawal or receipt by any of the account owner(s). Any such payment shall be valid and shall discharge you from any liability. Further, you may mail all Credit Union statements and notices to the Prime Member's last known address and this shall constitute notice to all owners.
(Def. Ex. 8). Lischynsky never made a deposit into the account, or even accessed it, before July 2017. (Def. Ex. 7 ("Lischynsky Dep.") at 112; Pl. Ex. B at 215). Patrick managed his and Lischynsky's shared expenses and so he made the withdrawals and deposits into the account. (Pl. Ex. B at 47).2
Patrick also purchased two life-insurance policies with the Massachusetts Mutual Life Insurance Company ("MassMutual"). (Def. Ex. 12). One policy named his estate as the beneficiary, and the other named Lischynsky. (Id. at 189, 195; Def. Ex. 4 at 84). The policies state that "[u]nless otherwise requested, all named [b]eneficiaries will be considered primary [b]eneficiaries and proceeds shall be paid equally and in one sum." (Def. Ex. 12 at 198).
Patrick was also the designated beneficiary of a life-insurance policy purchased by Lischynsky during their relationship but was removed by her upon their breakup. (Pl. Ex. B at 195).
The relationship between Patrick and Lischynsky ended in February 2016. (Pl. Ex. B at 73). On August 24, 2016, the two executed a buy-out agreement in which she sold him her interest in the Dorchester condominium for $40,000. (Pl. Ex. O).
They also appear to have entered into a further agreement as part of the breakup in September of that year. (Def. Ex. 7 at 106). That agreement was, at least in part, recorded in an e-mail exchange. (Def. Ex. 14). An e-mail drafted by Patrick stated:
In exchange for $40,000 to be funded by a refinance of 23 Taft St # 2 in Dorchester, MA, as well as $2,000 to be paid directly from Patrick McCormick and in addition the transfer of joint accounts from Capital One to Sara Lischynsky which have already taken place, it is understood that virtually all financial matters between the two will be considered resolved. Any property that one may have in hand will be considered their own going forward with only the following exceptions.
(Id. at 1).3 It then proceeded to list various exceptions. Among other things, it stated that Lischynsky would return any items in her possession that have an emotional attachment for Patrick and would return specific items of his that were at her parents’ house. (Id. ). It further stated that:
Anything already known to be in [Lischynsky's] possession is considered her property once the financial transactions mentioned are completed. The purpose of this statement is to establish that any day to day items one may currently have that are not of a personal nature is [sic] their own, and any future sale or change in value of that item is not something that the other would be entitled to take part in.
(Id. ). The same exception was noted for anything already known to be in Patrick's possession. (Id. ).
The e-mail also provided that Patrick would continue to pay the full amount of Lischynsky's cellphone bill until the phone contract expired. (Id. ). The e-mail noted that the agreement would not be considered "finalized and done" until "[Lischynsky] has received both the $2,000 direct payment and $40,000 refinance payment, and the joint accounts that have already been received," and further noted that "[o]nly when all of those conditions are met will this be considered resolved." (Id. ).
The e-mail concluded with the following: "[t]he purpose of this statement is to make sure that both Patrick and [Lischynsky] have an equal understand [sic] of what has transpired, and that once the funds have been received by [Lischynsky] both parties will consider all outstanding financial matters completely resolved, but for the exceptions noted above." (Id. ).
Lischynsky responded with an e-mail stating, "I am in agreement with the aforementioned proposal in today's email." (Id. at 2). Neither e-mail specifically referred to the DCU accounts or either person's life-insurance policies. (See Def. Mem. at 6-7; Pl. Opp. at 6).4
Lischynsky informed Dora that she signed Patrick's copy of the agreement and returned it to him, although Dora has been unable to find such a signed copy. (Def. Ex. 4 at 66, 74-75). There were no further financial discussions or negotiations between Lischynsky and Patrick after September 2016, and no further communication at all after November 3, 2016. (Pl. Ex. B at 128, 149).
At some point before his death, Lischynsky received the $40,000 and $2,000 payments from Patrick that were specifically mentioned in the e-mail exchange. (Def. Ex. 7 at 107).
Through his job, Patrick also had a 401(k)-retirement account managed by Fidelity Investments. (Pl. Ex. G). His estate was designated as the beneficiary of the account. (Def. Ex. 4 at 84-85). On January 23, 2017, Fidelity sent Patrick a confirmation of activity notice, informing him that his account had been updated to allow Fidelity to deposit proceeds from his retirement account into the DCU checking account. (Pl. Ex. G). On February 6, 2017, $24,999.47 was transferred into Patrick's DCU checking account from his Fidelity account. (Def. Ex. 6; Def. Ex. 4 at 58). The parties dispute the reason why Patrick made that transfer. (Compare Pl. Opp. at 11, with Def. Reply at 2).
At some point between 8:00 p.m. on February 6 and 10:42 a.m. on February 7, 2017, Patrick committed suicide. (Def. Ex. 3).
Dora was appointed as the personal representative of Patrick's estate. (Def. Ex. 2). At some point after Patrick's death, Dora brought the DCU checking account to Lischynsky's attention. (Def. Ex. 7 at 190). According to Lischynsky, in order to understand her rights in the account, she asked a representative from DCU and a friend who was a lawyer, as well as searched on Google, what "right of survivorship" concerning joint bank accounts meant. (Id. at 190, 194). On July 3, 2017, she withdrew $24,791.18, the entirety of its contents, from the DCU checking account and closed it. (Pl. Ex. J; Pl. Ex. B at 161, 173). She did not inform Dora that she did so. (Pl. Ex. B at 161).
On July 10, 2017, in response to a letter from MassMutual informing her that she was the beneficiary on one of Patrick's policies, Lischynsky completed the MassMutual Life Insurance Claim Form, and thereafter received the policy's proceeds, which amounted to approximately $25,000. (Id. at 196; Def Ex. 13 at 45-49). She also did not notify Patrick's estate of her receipt of those proceeds. (Pl. Ex. B at 196).
On October 3, 2017, Dora sent Lischynsky a letter asking her to send $23,919.47 to Patrick's estate. (Pl. Ex. K). That amount represented the $24,999.47 that was transferred into the DCU account from Patrick's 401(k) account, less the amount Patrick had agreed to pay for Lischynsky's cellphone bill pursuant to their separation agreement. (Id. ). Dora's letter stated that the money from the DCU account was Patrick's, pursuant to the separation agreement, and that his father could testify that Patrick transferred the money in anticipation of purchasing...
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