Opinion
No. P–222/89B.
2012-11-5
In the Matter of the ESTATE OF Arcangelo PINTO, a/k/a Arcangelo M. Pinto, a/k/a Mike Pinto, Deceased.
Weitz & Luxenberg, by David Kaufman, Esq., for Movant/Respondent. Ronald J. Mazzucco, for Petitioner.
Weitz & Luxenberg, by David Kaufman, Esq., for Movant/Respondent. Ronald J. Mazzucco, for Petitioner.
Conigatti & Ryan, LLP, by Michael J. Ryan, Esq., for Anna Pinto.
ROBERT J. GIGANTE, J.
Movant, Weitz & Luxenburg, P.C., is seeking an order for leave of court to amend their answer pursuant to CPLR § 3025(b). They argue that discoverable facts arose after filing the original answer and are now seeking to include the affirmative defenses of statute of limitations, laches, waiver, and estoppel. Movant has also filed a motion for summary judgment on the construction of Arcangelo Pinto's will.
The Petitioner, Peter Pinto, the son of the Decedent, objects to both motions. Petitioner asserts that leave to amend would be prejudicial, untimely, and meritless. Petitioner opposes summary judgment because triable issues of fact exist.
FACTS
The Decedent, Arcangelo Pinto, executed a will on September 28, 1988. Article Third of his will provides, “All of my property, real and personal, tangible and intangible, wheresoever situated is bequeathed to my spouse, and should my spouse predecease me, then to my children, Peter L. Pinto, Silvestro D. Pinto, and Anna F. Pinto, per stirpes, except that:
(A) All jewelry belonging to my wife is bequeathed to my daughter, Anna F. Pinto, and all jewelry belonging to me shall be divided between my three children per stirpes, and
(B) Any interest I might have in any ongoing lawsuit, action at law, or in equity or any chose, chose in action or settlement thereof shall be bequeathed to my three children, per stirpes, except that 1% of any amount realized is bequeathed to my Godson, Mirko Anzalone to be his absolutely and forever.”
Decedent's will was offered for probate approximately seven months after his death. Waivers and consents were executed by all the distributees, including the Petitioner, designating the Decedent's daughter, Anna Pinto, as Executrix. Letters testamentary were issued to the Executrix on June 20, 1989.
Following the Decedent's death, Weitz & Luxenburg commenced an action in Supreme Court based on Decedent's asbestos exposure. The litigation resulted in a settlement of $687,643.90, as set forth in the Special Master's Allocation Order. The settlement funds from the litigation were made available for distribution starting April 1, 1991. A Supreme Court order entered on January 5, 1998 provided that all future settlements should be allocated sixty percent for conscious pain and suffering, twenty percent for wrongful death, and twenty percent for loss of consortium. Distributions were made by Weitz & Luxenburg periodically to the Decedent's surviving spouse, Rose Pinto, for over twenty years.
Decedent's son petitioned the Court to determine the validity, construction, and effect of Article Third of Decedent's will on December 20, 2010. The construction of Article Third would determine Petitioner's rights to the proceeds of the asbestos settlement.
MOTION TO AMEND ANSWER
Movant filed an answer to the will construction petition on February 9, 2011 and subsequently began discovery. During Petitioner's November 3, 2011 deposition, testimony surfaced regarding a 1994 conversation amongst numerous distributees regarding the asbestos litigation. That conversation prompted Movant's motion to amend to include the statute of limitations, estoppel, laches and waiver affirmative defenses. Movant asserts that the statute of limitations, laches, waiver and estoppel defenses were not raised in the Feb. 7, 2011 answer because the accrual date of the cause of action was unknown until Petitioner's November 2011 deposition. Movant filed the motion to amend in July 2012, although a note of issue was filed on May 21, 2012. Petitioner asserts that the affirmative defenses are without merit, prejudicial and untimely.
The Court has broad discretion whether to grant or deny leave to amend under CPLR § 3025(b). “Leave to amend a pleading pursuant to CPLR § 3025(b) should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit, or unless prejudice or surprise to the opposing party results directly from the delay in seeking leave to amend.” Seidman v. Industrial Recycling Props., Inc., 83 AD3d 1040.
Movant's affirmative defenses are not without merit. Movant was unable to raise the affirmative defenses in the initial answer because of insufficient facts regarding the Petitioner's knowledge of his possible distribution under the will. Pursuant to CPLR § 3211(e), the statute of limitations and estoppel defenses may be raised in a pre-answer motion to dismiss or a responsive pleading. Laches and waiver are not expressly covered by CPLR § 3211(e) and can be raised in a responsive pleading. See CPLR § 3018(b). Movant has not waived the statute of limitations, estoppel, laches, and waiver defenses and is entitled to include these defenses in an amended answer. These affirmative defenses could potentially be dispositive of the will construction proceeding, and therefore are not patently devoid of merit. See Hickey v. Hutton, 182 A.D.2d 801;see also Balzac v. Jerome, 104 A.D.2d 1015.
Prejudice may be present where a party has undertaken “some change in position or hindrance in the preparation of its case which could have been avoided had the original pleading contained the proposed amendment.” Whalen v. Kawasaki Motors Corp., U.S.A., 92 N.Y.2d 288. However, other than pointing to the general inconvenience of the delay, Petitioner has not met its burden in demonstrating some change in position or hindrance in the preparation of its case. See Hickey v. Hutton, supra; see also Getz v. Getz, 130 A.D.2d 710.
Finally, Petitioner has taken issue with the timeliness of the motion to amend because it was made two months after the note of issue was filed. However, there is no hard and fast time limit regarding filing a note of issue and amending a pleading. The length of the delay in this case is comparatively less than other cases where leave to amend was granted after a note of issue and certificate of readiness had been filed. In Perkins v. New York State Electric & Gas Corp., 91 A.D.2d 1121, the court granted a motion to amend five months after the note of issue was filed. “Mere lateness is not a basis for denying amendment unless the lateness is coupled with significant prejudice to the other side.” Giuffre v. DiLeo, 90 AD3d 602.
MOTION FOR SUMMARY JUDGMENT
Movant asserts summary judgment should be granted because there are no triable issues of fact regarding the interpretation of Article Third of the will. Movant submits that testator clearly intended his entire estate, including the proceeds of any litigation, to pass to his wife. Decedent's children and godson would only have an interest in the proceeds of any litigation if Decedent's spouse predeceased him. Movant further submits, that because Rose Pinto survived the Decedent the contingency never took effect and the settlement proceeds have been properly distributed to Rose Pinto over the last twenty-two years.
In response, Petitioner raises an issue of fact that precludes granting summary judgment for the construction of the will. Petitioner believes that Movant's argument is specious. He contends that Article Third subsection (b) is an exception rather than a contingency and argues that distribution of settlement proceeds to the children was not contingent on Rose Pinto predeceasing testator. Petitioner submits that testator intended his children share the proceeds of any litigation regardless of his wife's survival, as was the distribution of jewelry in Article Third (b) of his will.
Summary judgment should not be granted where there is any doubt as to the existence of triable issues. State Bank of Albany v. McAuliffe, 97 A.D.2d 607. Indeed, if a genuine issue of fact is found to exist, summary judgment must be denied. Werfel v. Zivnostenska Banka, 287 N.Y. 91. In this case, testator's intent is an issue of fact requiring a hearing to consider extrinsic evidence on the issue. In light of the known facts and circumstances, testator's intent regarding Article Third is not clear. Where “... a will provision remains ambiguous, extrinsic evidence may be considered in discerning the testator's intent.” Matter of White, 65 AD3d 1255.
Movant also argues that Petitioner's will construction proceeding is barred by the statute of limitations, laches, estoppel, and waiver. Summary judgment is inappropriate on these grounds because there are issues of fact regarding Petitioner's understanding of his rights as a distributee. Petitioner's deposition recalling a 1994 conversation amongst his family members about the distribution of the lawsuit proceeds poses a question of fact rather than an issue of law that will determine when he potentially knew his rights as to the litigation proceeds.
Movant asserts that Weitz & Luxenburg is not a proper party in the will construction proceeding because a different attorney drafted and offered the will for probate. Contrary to Movant's assertion, Weitz & Luxenberg is a proper party to this action because of their involvement in the distribution of settlement funds and is not entitled to dismissal on those grounds. Movant further asserts that the will has been properly interpreted for the last twenty-two years under the Kaiser rule pertaining to wrongful death proceeds, which takes into consideration the dependency of Decedent's spouse and next of kin and the number of years of anticipated dependency. Matter of Kaiser, 198 Misc. 584. However, the interpretation of Article Third of the will is at the core of this matter and undeniably issues of fact exist which must be decided at a hearing. Accordingly summary judgment must be denied.
CONCLUSION
After review of all the papers heretofore submitted herein, both in support of and in opposition to the motion and after listening to oral argument, this Court grants Movant's motion for leave to amend their answer. Additionally, because there are triable issues of fact in this construction proceeding summary judgment is denied. This matter is scheduled for November 28, 2012 at 11:00 a.m. for a conference.
This decision shall constitute the Order of the Court.