Sanzone v. Najjar (In re Najjar)
| Decision Date | 15 July 2022 |
| Docket Number | File No. 2015-752/A,B,C |
| Citation | 2022 NY Slip Op 50663 (U) |
| Parties | In the Matter of the Estate and Trust of Rosamond M. Najjar, Deceased. v. MARCIA NAJJAR, Respondent. DONNA SANZONE, as Co-Executrix of the Estate of Rosamond M. Najjar, and ROBERT NAJJAR, Petitioners |
| Court | New York Surrogate Court |
Unpublished Opinion
Adams Leclair LLP, by Paul L. Leclair, Esq. of Counsel, appearing for the Petitioners Robert Najjar, as beneficiary of the Estate of Rosamond M. Najjar, and Donna Sanzone, Co-Executor of the Estate of the Estate of Rosamond M. Najjar.
Underberg & Kessler LLP, by David M. Tang, Esq., and Ericka B. Elliott, Esq., of Counsel, for the Respondent Marcia Najjar, co-executor of the Estate of Rosamond M Najjar.
Christopher S. Ciaccio, S.
Petitioners Donna Sanzone and Robert Najjar, children of the decedent Rosamond M. Najjar, commenced a proceeding to compel their sister Marcia to produce an accounting of her activities as executor of their late mother Rosamond's estate and as trustee of an irrevocable trust created by their mother before she passed away in 2015.
Donna and Robert also asserted a cause of action for unjust enrichment and requested a declaration determining ownership of funds in several bank accounts jointly titled at Rosamond's death in her name and in the name of daughter Marcia and now retained by Marcia, as well as the ownership of personal effects (including artworks, jewelry, heirlooms photographs, and recipes) also retained by Marcia that once belonged to Rosamond and which the petitioners claim should now be brought into the Estate.
The petition also alleges breach of fiduciary duty and sought a surcharge and removal of Marcia as trustee and co-executor (with Donna) for actions Marcia took, namely: (1) failure to sell the Trust's Exxon Mobil Corp. stock on a timely basis; (2) failure to account for and distribute Trust assets on a timely basis; and (3) failure to timely file the New York State tax returns, causing the Estate to incur tax penalties and interest.
Finally the petition sought an Order directing Marcia to pay her own attorney's fees, which, the petition claims, were unreasonable, excessive, and unnecessary.
Following a determination by the Appellate Division, Fourth Department, that there are questions of fact that precluded summary judgment, [1] this court conducted a non-jury trial on December 6, 7 and 8, 2021.
What follows are the court's Findings of Fact and Conclusions of Law based on the testimony it deems credible and accurate.
FINDINGS OF FACT [2]
Decedent Rosamond Najjar ("Rosamond") died of congestive heart failure on September 5, 2014, less than a month before her ninetieth birthday. She was survived by three children: Donna Sanzone, Robert Najjar, and Marcia Najjar.
Rosamond executed three Wills. The first was executed on March 16, 1998, which left her estate, including all personal property, to her three children in equal shares.
A second Will was executed in December 2013. It also directed distribution of her estate in equal shares to her children.
A third superseding Will was executed on June 27, 2014, which again directed equal distribution of both personal property and her residuary estate to her three children.
This third Will was admitted to probate on April 15, 2015 and named Donna and Marcia as co-executors.
Marcia's background included a bachelor's degree in physics from the University of Rochester; three Master's Degrees from the New York Chiropractic College; courses in technology and computer science at Rochester Institute of Technology and SUNY Brockport; employment as a teacher and coach in various school districts, and twenty-five years in the computer industry.
The Trust was created in 1985 as an irrevocable trust for Decedent's lifetime benefit, and upon her death, the assets of the Trust were to be distributed equally among the three children.
The Trust was amended and restated in December 2013 and again on June 25, 2014.
The Trust provided for distribution of the trust balance to Rosamond's children in equal shares upon her death.
The Declaration of Trust, as amended, named Rosamond as trustee and Marcia as successor trustee.
Marcia became sole Trustee of the Trust in 2014 upon Decedent's resignation.
On March 7, 2013, Decedent executed a Power of Attorney ("POA") appointing Robert and Marcia as co-agents to act together on her behalf.
In May of 2014, using his Power of Attorney, Robert transferred $20,000.00 from ESL joint account -6754 to Rosamond's personal account (-6770), following which two electronic checks in the amount of $12,000.00 each were created - one to Donna and one to Robert - and issued from an account maintained by Decedent and Marcia. No check was issued to Marcia in that amount. Marcia closed ESL account -6754 on September 5, 2014.
Rosamond executed a Revocation of Power of Attorney on May 29, 2014, which removed Robert and left Marcia as sole agent. On May 30, 2014, Rosamond executed another Power of Attorney, which appointed Marcia as the sole power of attorney for Decedent.
Only Rosamond made deposits made to the three accounts. She initially opened the accounts in her name only.
Key Bank Account ending in -1048
On March 30, 2013, Marcia's name was added to Rosamond's name on KeyBank checking account (-1048). Before, the account was in Rosamond's name, alone.
A form entitled "The Account Express Plan" and bearing the indication of account ending in -1048, was received as Exhibit M. Under the heading "Legal Title of the Account" it lists the names of Rosamond N. Najjar and Marcia Jean Najjar. It is signed by both Rosamond and Marcia and is dated March 29, 2013.
The form states that "I (meaning all signers below) understand that all deposit accounts opened by me will be owned by me (or by us, if more than one person signs below) in the same capacity." Then in parentheses, it states "For example if we open a joint account, all other accounts opened by us under this Plan will be jointly owned by us."
It goes on to state that
The form further states that the accounts opened under "this Plan are subject to the Deposit Account Agreement" and that the persons whose signatures are on the forms "acknowledge receiving a copy of the agreement..."
It indicates that the account was opened by one Jan Gremke, a Key Bank officer. She had no recollection of opening an account for Marcia and Rosamond. It was her custom and practice in over 40 years as a bank employee opening accounts to explain to customers what is meant by a "joint account" and the "right of survivorship," which is, that when one account owner dies, the other account owner takes possession of all the money in the account.
A document entitled "Deposit Account Agreement and Funds Availability Policy (effective May 1, 2012)" (Respondent's Exhibit "N") was produced by Marcia, however, nothing in the document referenced its applicability to account number ending in -1048.
The KeyBank -1048 account was Rosamond's primary checking account which she used to pay her bills. Rosamond wrote the checks drafted against that account. Marcia, under Rosamond's direction, occasionally assisted Rosamond in writing checks. Marcia once used this account to pay a student loan, but only after she received Rosamond's permission. The account was not used to pay Marcia's bills.
KeyBank account -1478
Rosamond also maintained a second KeyBank saving account called the "Key Gold Money Market Savings Account," as evidenced by a document entitled "Deposit Receipt for KEY GOLD MONEY MARKET SAVINGS" (Exhibit AA). The document shows the account number (ending in -1478); the "Opening Deposit;" the date opened (June 19, 2013); two names at the top of the document (the account holders) as being "ROSAMOND NAJJAR" and "MARCIA J NAJJAR."
It has one signature, that of Rosamond's, on a line authorizing payment of overdrafts.
It states that "This account is governed by the provisions of the Deposit Account Agreement established by the Bank at which you opened your Account," and among the topics listed as subject matter in the Account Agreement is "joint accounts."
A document entitled Key Center Receipt for account -1478 (Exhibit O) was produced. Under the heading, "Ownership," it stated "joint." It listed Rosamond and Marcia under the heading, "Legal Title of Account." The account opening date is listed as June 19, 2013.
A second version of Exhibit AA was produced, this one unsigned and received as Exhibit Z, but bearing all other information as on the face of Exhibit AA. Additionally, attached to it is a document entitled "Deposit Account Agreement and Funds Availability Policy." The effective date is June 7, 2013. This document was given to Marcia and to Rosamond at the time the account was opened or shortly thereafter.
The Deposit Account Agreement states that ...
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