Sokol v. Murphy

• Decision Date: 06 May 2015
• Citation: 7 N.Y.S.3d 901 (Mem),2015 N.Y. Slip Op. 03823,128 A.D.3d 672
• Parties: Henry SOKOL, appellant, v. Bonnie MURPHY, etc., respondent.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 672

7 N.Y.S.3d 901 (Mem)

2015 N.Y. Slip Op. 03823

Henry SOKOL, appellant

v.Bonnie MURPHY, etc., respondent.

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

May 6, 2015.

Martin Law, P.C., Wappingers Falls, N.Y. (Michael A. Martin of counsel), for appellant.

Gellert, Klein & MacLeod, LLP, Poughkeepsie, N.Y. (Roderick J. MacLeod of counsel), for respondent.

Opinion

In an action, inter alia, in effect, for a judgment declaring that the plaintiff is a named remainder beneficiary under a trust entitled the “Wendell Grapentine and Claire F. Grapentine Irrevocable Trust,” dated December 18, 1996, as amended on November 9, 1999, and February 28, 2001, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Brands, J.), dated May 16, 2014, which denied his motion for summary judgment on the causes of action alleging conversion, breach of fiduciary duty, and fraud, and to impose a constructive trust, and granted the defendant's cross motion for summary judgment dismissing those causes of action and, in effect, declaring that the unambiguous language contained in the second amendment to the trust dated February 28, 2001, evidenced the surviving grantor's intention to disinherit the plaintiff from the class of children to inherit as remainder beneficiaries under the trust.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Dutchess County, for the entry of a judgment, inter alia, declaring that the unambiguous language contained in the second amendment to the trust dated February 28, 2001, evidenced the surviving grantor's intention to disinherit the plaintiff from the class of children to inherit as remainder beneficiaries under the trust.

The plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on his motion for summary judgment on the causes of action alleging conversion, breach of fiduciary duty, and fraud, and to impose a constructive trust (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). Thus, the Supreme Court properly denied the plaintiff's motion, regardless of the sufficiency of the defendant's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).

Further, the Supreme Court properly granted the defendant's cross motion for summary judgment dismissing the complaint and, in effect, declaring that the unambiguous language contained in the second amendment to the subject trust dated February 28, 2001 (hereinafter the second amendment), evidenced the surviving grantor's intention to disinherit the plaintiff from the class of children to inherit as remainder...