Opinion
2008-4513A
09-21-2011
Anna Patamoussis and MARIA LEONARDOS, Plaintiffs, v. Despina Leonardos, as Administrator of the Estate of MIHAIL N. LEONARDOS, a/k/a/ MIKE N. LEONARDOS, Defendant.
Coritsidis, Sotirakis & Saketos, PLLC, by John Sotirakis, Esq., for plaintiffs Maniatis, Dimopoulis & Lombardi, LLP, by Gus Dimopoulis, Esq., for defendant
Coritsidis, Sotirakis & Saketos, PLLC, by John Sotirakis, Esq., for plaintiffs
Maniatis, Dimopoulis & Lombardi, LLP, by Gus Dimopoulis, Esq., for defendant
Margarita Lopez Torres, J.
Mihail N. Leonardos, a/k/a Mike N. Leonardos (the decedent), died intestate on July 30, 2008. The decedent was survived by his second wife, Despina Leonardos (the defendant), and their two daughters, Alexandra and Paraskevi, as well as by a third daughter, Maria Leonardos (Maria), from a prior marriage. Limited letters of administration in the decedent's estate were issued to the defendant on June 5, 2009. The gross value of the decedent's estate is estimated to be approximately $4,800,000.00.
Pursuant to the provisions of EPTL §4-1.1(a)(1), each of the decedent's three daughters will be entitled to one-sixth of his estate.
Maria was born on x x, 1987, the only child of the decedent's first marriage to Anna Patamoussis (Anna, and together with Maria, the plaintiffs). On August 24, 1993, the decedent and Anna entered into a stipulation of settlement (the Stipulation) in connection with the dissolution of their marriage, which Stipulation memorialized, inter alia, the parties' agreement regarding the custody and support of Maria. The Stipulation was incorporated by reference, but was not merged, into the judgment of divorce entered on April 18, 1994.
On June 24, 2010, the plaintiffs filed a summons and complaint against the defendant, as administrator of the decedent's estate, in the Supreme Court of the State of New York, Nassau County. The complaint enumerates six causes of action, all of which are predicated on alleged breaches of the Stipulation. On July 23, 2010, the defendant filed a notice of motion to dismiss the complaint, pursuant to CPLR §3211(a)(1), (5) and (7). The instant action was transferred to this Court from Supreme Court, Nassau County, by an order dated December 23, 2010, and entered on May 9, 2011. Following a conference with this Court, at which they conveyed their inability to reach a settlement, the parties agreed to accept the Court's decision hereon based on the papers submitted.
The plaintiffs are residents of Nassau County, while at the time of his death the decedent was a resident of Kings County.
Prior to filing the instant complaint, the plaintiffs served on the defendant, as administrator of the decedent's estate, two verified claims against the estate, which are based on the same alleged breaches of the Stipulation enumerated herein. Said claims were rejected by the defendant, as fiduciary, in May 2009. The plaintiffs did not further pursue their claims in Surrogate's Court, either pursuant to a proceeding under SCPA §1809 for a determination of the validity of their claims, or in the context of an accounting proceeding.
The Complaint and Instant Motion to Dismiss
The plaintiffs seek money damages from the defendant, as administrator of the decedent's estate, for six causes of action arising out of claimed breaches of the Stipulation. The defendant moves to dismiss each claim, asserting that, based on the express terms of the Stipulation, no breach occurred and consequently no losses were incurred by the plaintiffs. The defendant's motion to dismiss is grounded upon the provisions of CPLR §3211(a)(1), (5) and (7), to wit, that a defense to the complaint exists based on documentary evidence, that the cause of action may not be maintained due to a number of affirmative defenses, and that the pleading fails to state a cause of action. The First Cause of Action:
The plaintiffs allege that the decedent breached Article X of the Stipulation by failing to maintain in effect, until the date of Maria's emancipation, a life insurance policy in the amount of $200,000.00 (the life insurance policy). The defendant does not dispute that the decedent surrendered the life insurance policy prior to Maria's emancipation, as defined in the Stipulation, but avers that Maria was emancipated on the date of the decedent's death, and thus the life insurance policy was no longer required to be in effect. The Second Cause of Action:
The plaintiffs assert that, as a result of the decedent's failure to maintain the life insurance policy, Maria was deprived of monthly support following the decedent's death and during her alleged minority, which support is alleged to total $8,768.75. In opposition, the defendant again asserts that Maria was emancipated at the time of the decedent's death, and further counters that the terms of the Stipulation require payment of support for Maria only during the decedent's lifetime.
Pursuant to Article VIII (b) of the Stipulation, the decedent was required to pay Anna $150 per week, for a total of $600.00 per month, in child support for Maria. The instant complaint appears to miscalculate the monthly amount of child support alleged to be owed, as the amount requested in the second cause of action does not equal the product of nineteen months of child support at $600.00 per month.
The Third Cause of Action:
The plaintiffs allege that, on the date of his death, the decedent was $3,000.00 in arrears on his monthly child support obligations. In response, the defendant avers that the plaintiffs' proof of this claim is barred by the provisions of CPLR §4519, the so-called "Dead Man's Statute." The Fourth Cause of Action:
The plaintiffs allege that the decedent and Anna had an oral agreement, pursuant to which the decedent was obligated to contribute fifty percent (50%) of the costs of Maria's college tuition. On the date of the decedent's death, Maria had recently enrolled in an eighteen-month course of training in cardiovascular technology at Sanford-Brown Institute (SBI), for which the decedent's share of tuition is alleged to equal approximately $15,587.50.
The defendant counters that Article IX of the Stipulation required the decedent to contribute to Maria's college education only "in accordance with his financial means," rather than as a fixed proportion of such costs. The defendant asserts that any oral modification of the decedent's support obligations is unenforceable as specifically precluded by the terms of Article XIX, which requires modifications and amendments to the Stipulation to be in writing. The defendant further avers that Maria's attendance at SBI was not the equivalent of attendance at "college," as such term was intended in the Stipulation. The Fifth Cause of Action:
The plaintiffs assert that, pursuant to Article IX of the Stipulation, the decedent was obligated to contribute to the "incidental expenses" associated with Maria's attendance at college, which the plaintiffs allege included payments on Maria's car, in the amount of $460.00 per month. The plaintiffs allege that Maria is entitled to the ten monthly car payments remaining to be paid at the date of the decedent's death.
In response, the defendant asserts that the terms of the Stipulation do not mandate a finding that car payments are expenses "incidental" to attendance at "college," and further asserts that the decedent's obligation to provide support for Maria terminated upon his death. Again, the defendant avers that Maria was emancipated on the date of the decedent's death, as she was not attending a "college." The Sixth Cause of Action:
The plaintiffs seek an award of $10,000.00 in attorneys' fees, pursuant to the default provisions of Article XIII(c) of the Stipulation, and pursuant to the provisions of DRL §237(c) for "willful" default. In opposition, the defendant asserts that there has been no default under either the terms of the Stipulation or the referenced statute, and thus the plaintiffs' claim for award of attorneys' fees is without merit.
Discussion
Upon consideration of a motion to dismiss pursuant to CPLR §3211, "the pleading is to be afforded a liberal construction." Leon v. Martinez, 84 NY2d 83, 87 (1994). The Court shall accept as true the facts as alleged in the complaint, and shall afford the plaintiffs "the benefit of every possible inference," determining "only whether the facts as alleged fit within any cognizable legal theory." Id. at 88.
A motion to dismiss a cause of action pursuant to CPLR §3211(a)(1), on the ground that the action is barred by documentary evidence, "may be appropriately granted only where the documentary evidence utterly refutes [the plaintiffs'] factual allegations, conclusively establishing a defense as a matter of law." Goshen v. Mutual Life Insurance Company of New York, 98 NY2d 314, 326 (2002). See also Sullivan v. State of New York, 34 AD3d 443 (2d Dep't. 2006). On a motion to dismiss pursuant to CPLR §3211(a)(7), "[i]f the plaintiff can succeed upon any reasonable view of the allegations, the cause of action may not be dismissed." Hayes v. Wilson, 25 AD3d 586, 587 (2d Dep't 2006).
The defendant has also asserted, as further grounds for dismissal, the provisions of CPLR §3211(a)(5), which sets forth a variety of affirmative defenses including, inter alia, res judicata, collateral estoppel, payment and release. The particulars of the defendant's reliance thereon are not elucidated in the instant motion, and the Court cannot speculate on the basis for such reliance.
Documentary evidence which may be considered pursuant to CPLR §3211(a)(1) includes judicial records, mortgages, deeds and contracts, the contents of which are "essentially undeniable." Fontanetta v. John Doe 1, 73 AD3d 78, 85 (2d Dep't 2010). Both parties herein rely for support of their respective contentions on the specific terms of the Stipulation, which was annexed to the complaint. The Stipulation, as incorporated into but not merged with the judgment of divorce, "operate[s] as a contractual obligation binding on the parties." Matter of Gravlin v. Ruppert, 98 NY2d 1, 5 (2002); see also Tillim v. Fuks, 221 AD2d 642 (2d Dep't 1995).
See also Bronxville Knolls v. Webster Town Ctr. Partnership, 221 AD2d 248 (1st Dep't 1995) (integrated mortgage and note constitute documentary evidence); 150 Broadway NY Assoc., L.P., v. Bodner, 14 AD3d 1 (1st Dep't 2004) (lease constitutes documentary evidence); Crepin v. Fogarty, 59 AD3d 837 (3d Dep't 2009) (deed constitutes documentary evidence).
Hence, the Stipulation is subject to ordinary principles of contract interpretation. Scalabrini v. Scalabrini, 242 AD2d 725, 726 (2d Dep't 1997). Where parties memorialize their agreement "in a clear and complete document," such agreement shall be enforced in accordance with its express terms. Vermont Teddy Bear Co. V. 538 Madison Realty Co., 1 NY3d 470, 475 (2004). The Stipulation must be read as a whole, and the construction of its unambiguous provisions is an issue of law within the province of the Court. See Matter of Westmoreland Coal Co. v. Entech, Inc., 100 NY2d 352 (2003); Katina v. Famiglietti, 306 AD2d 440 (2d Dep't 2003). Further, it is for the Court to determine, in the first instance, whether particular language in the Stipulation is ambiguous and "susceptible of two or more reasonable interpretations." Around the Clock Delicatessen, Inc. v. Larkin, 232 AD2d 514, 515 (2d Dep't 1996). Thus, this Court turns to the provisions of the Stipulation in order to determine whether by its clear and unambiguous terms there is demonstrated to be "no significant dispute" between the parties, and by its own terms operates as a definitive contradiction of the plaintiffs' factual allegations, requiring dismissal of the complaint. Yew Prospect, LLC, v. Sulzman, 305 AD2d 588, 589 (2d Dep't 2003).
The decedent's obligations of support are enumerated in Articles VIII, IX and X of the Stipulation. The decedent was obligated "during his lifetime," pursuant to Article VIII(b), to pay weekly support in the amount of $150.00 to Anna "as and for the support of the unemancipated child [Maria] of the parties .... continuing until the emancipation of the child, as emancipation' is hereinafter defined." The provisions of Article IX(d) required that the decedent, "provided that [his] then financial circumstances shall permit, ... make payments and contributions in accordance with his financial means toward the expenses of the college education of [Maria] who shall desire to attend undergraduate college, such expenses to include room, board, tuition, fees, books, materials and incidental expenses normally incurred in connection with such educational pursuits." Pursuant to Article X(a) of the Stipulation, the decedent was obligated to "maintain in full force and effect" certain policies of life insurance, as enumerated on Schedule A thereof, "until [Maria] is emancipated."
The term "emancipation" is defined in Article XI of the Stipulation, which provides that Maria's "emancipation" is deemed to have occurred upon the earliest of (a) May 6, 2008, her 21st birthday, unless on such date Maria shall then have been "pursuing a reasonably continuous course of college," and in that case until the later to occur of her 22nd birthday or completion of college, (b) her marriage, (c) her entry into military service, (d) her commencement of full-time employment, or (e) her death.
It is undisputed that Maria was not emancipated in March 2007, at which time the decedent surrendered the life insurance policy. Both parties acknowledge that Maria attended both Long Island University, from 2004 to 2006, and Nassau Community College, from 2007 to 2008, prior to her enrollment at SBI, and that the decedent paid 50% of the tuition at both institutions. On the date of the decedent's death, seventeen months later, Maria was 21 years old and had recently enrolled in the cardiovascular technology program at SBI. It is the plaintiffs' contention that Maria's enrollment at SBI constituted a "reasonably continuous course of college" as contemplated by Article XI.
In opposition, the defendant asserts that SBI is not a "college," as such term is commonly understood. The defendant asserts that the course of study in which Maria was enrolled was a certificate program, and relies for further support on the language in Article IX(d), which sets forth the decedent's obligations of support for Maria's attendance at an "undergraduate college." The defendant would have this Court determine, as a matter of law, that Maria's decision to leave her studies at Nassau Community College in the spring of 2008 triggered her emancipation, despite her subsequent enrollment in the cardiovascular training program at SBI.
"The words and phrases used in an agreement must be given their plain meaning so as to define the rights of the parties." Scalabrini, supra, at 726. Case law which interprets the meaning of the word "college" is limited. Both parties rely on Matter of Kelly, 285 NY 139 (1941), in which the Court of Appeals ruled that, where a decedent had agreed to pay $100 per month in support of his son "so long as the boy shall remain in college," the decedent had not "unequivocally" assumed an obligation to support his son during his post-graduate education. The Court of Appeals evaluated the term "college," noting that
[it] is not a word of art which, by common understanding, has acquired a definite, unchanging significance in the field of education. Its meaning varies with its context. Though at times it is used to denote any institution of higher learning, including institutions for professional or post-graduate study, it is frequently used, perhaps I should say ordinarily used, in this country, to denote an "undergraduate" school for instruction in liberal arts having a course of study commonly requiring four years for completion and leading to a bachelor's degree.Id. at 141-142. Other courts have noted the paucity of relevant law regarding the meaning of the word "college," and have themselves relied on the language in Kelly in determining whether support obligations are triggered by a child's attendance at a particular type of institution. See
Hacker v. Hacker, 137 Misc 2d 819 (Sup. Ct. New York County 1987); Robinson v. Gerny, N.Y.L.J., June 28, 2007, at 23 (col. 1) (Sup. Ct. Suffolk County).
In Hacker, the court reviewed a separation agreement which similarly tied the definition of "emancipation" to the child's pursuit of a "college education." In denying the plaintiff's motion to punish the defendant father for contempt for his failure to provide child support during the child's attendance at a professional acting school, the court found that such a program was not the equivalent of a "college education." The court noted that the definitions of "college"
contained in Black's Law Dictionary and the Random House American College Dictionary, relied upon by the plaintiff therein, excluded schools related to "technical arts or those studies preparatory to admission to the professions." Id. at 822.
In Robinson, the court granted the defendant father's motion to dismiss a complaint for child support arrears, finding that his obligation of support was not triggered by the child's enrollment in a graduate program of veterinary medicine after completion of only three years of undergraduate study. The court in Robinson stated that, in the absence of a specific definition of the term "college" in the separation agreement, "the word college' denotes attendance at an undergraduate program resulting in a bachelor's degree."
The plaintiffs assert that the Court of Appeal's language in Kelly does not mandate a reading of the word "college" to require Maria's attendance at a four-year undergraduate college, in a program conferring a bachelor's degree. Rather, the plaintiffs assert, the ruling in Kelly acknowledges that the particulars of a case may lead to a determination that the term "college" is expansive enough to include non-degree diploma and certificate programs. Further, the plaintiffs assert that the Stipulation itself does not limit the term "college" to a particular course of study. The defendant asserts, however, that Kelly establishes the proposition that the word "college" refers to a four-year undergraduate program, and further that just such a program is anticipated by the terms of Article IX(d), which employs the phrase "undergraduate college" in establishing the decedent's obligation to pay for expenses incidental thereto.
The rulings in both Kelly and Robinson may be distinguished from the particulars of the instant case, in that the defendant fathers therein were found to be relieved of their support obligations during their children's post-graduate study. The facts of the instant case are more akin to those in Hacker, in which the child left her undergraduate studies at UCLA in order to pursue acting. In Hacker, though, the court particularly noted that the acting school in question characterized itself in its promotional literature as a "technical arts" program. Hacker, supra at 822. The defendant appends a print-out of the SBI program description from its website, and notes that graduates thereof are awarded certificates rather than degrees. The plaintiffs counter that SBI is a nationally accredited, multi-campus school, and is a "career oriented post-secondary institution specializing in healthcare fields."
The decedent and Anna entered into the Stipulation when Maria was only six years old, and the word "college" is not defined therein. An assertion that the parties to the Stipulation intended the word "college" in its most general sense, to encompass Maria's post-secondary education, is not inherently unreasonable. Although the Stipulation references "undergraduate college" in establishing the decedent's obligation to contribute to tuition and incidentals, the term is limited neither by a specific time frame nor course of study. The Court of Appeals in Kelly noted that the word "college" is not a term of art, possessed of a "definite, unchanging significance in the field of education." In the seventy years since the ruling in Kelly, the options for post-secondary education and training have expanded significantly. High school graduates may choose to attend a traditional liberal arts college or university, a certificate-granting technical program such as SBI, a community or junior college awarding associates' degrees, a vocational or trade college, a seminary, or an art and design institute, to name only a few of such options. Many of these post-secondary educational programs, whether or not they may be characterized as "college" in the sense asserted by the defendant, offer courses and degrees with credits which may accepted upon transfer to traditional "colleges." In addition, such post-secondary programs may have particular entrance or admissions requirements, scholarship or financial aid offerings, or core curricular requirements similar to traditional "colleges."
The National Center for Education Statistics is a federal entity located within the United States Department of Education, and has primary responsibility for collecting and analyzing data relating to education in the United States. Even a cursory review of the historical data relating to post-secondary education in the United States reveals not only a vast increase in the number of high school graduates pursuing post-secondary educations in the last fifty years, but also demonstrates the myriad criteria which are considered in evaluating the nation's population of post-secondary students, including particular definitions of terms such as "college," "university," "degree-granting institutions," and "higher education institution," to name a few.
In order to permit dismissal of the plaintiffs' claims pursuant to CPLR §3211(a)(1) and (7), the Stipulation must "flatly contradict" the plaintiffs' claims. See Well v. Yeshiva Rambam, 300 AD2d 580 (2d Dep't 2002). This Court finds that the term "college," as used in the Stipulation without definition or limitation, is ambiguous and reasonably susceptible of more than one interpretation; such ambiguity must be construed against the defendant. See Wright v. Evanston Insurance Co., 14 AD3d 505 (2d Dep't 2005). It cannot be said, as a matter of law, that the term "college," as used in the Stipulation, may only be read to encompass enrollment at a traditional liberal arts college or university in a four-year program leading to the award of a diploma in the liberal arts or sciences. Accordingly, the defendant's motion to dismiss the plaintiffs' first cause of action, asserting the decedent's breach of the Stipulation by failing to maintain the life insurance policy in effect during Maria's alleged minority, is denied.
Nonetheless, the plaintiffs are seeking not only the proceeds of the life insurance policy, but additionally allege the loss of post-date-of-death support in the form of claimed monthly child support, car payments and tuition, as set forth in the plaintiffs' second, fourth and fifth causes of action. The plaintiffs seek a money judgment for these alleged post-date-of-death obligations, in addition to the full value of the life insurance policy.
There is no common law or statutory obligation on the part of a parent to support a child after the parent's death. See Keehn v. Keehn, 137 AD2d 493 (2nd Dep't 1988). Where support obligations are alleged to survive the death of the responsible party, the separation agreement must clearly so provide. See Cohen v. Cronin, 39 NY2d 42 (1976). Based on a reading of the Stipulation as a whole, it is clear that the decedent intended to provide for Maria's support while she remained unemancipated. By the clear terms of the Stipulation, however, the decedent's itemized support obligations were limited to his lifetime. The Stipulation evinces no ambiguity in its terms, clearly establishing the parties' intent that the proceeds of the life insurance policy were to provide for Maria's support in the event of the decedent's death during her minority. Article VIII of the Stipulation specifically limits the decedent's monthly child support obligations to the period of his lifetime; further, the language of Article IX links the decedent's obligation to contribute to Maria's tuition and expenses incidental to her enrollment in college to his current financial situation. The Stipulation as a whole cannot reasonably be read, expressly or by implication, to provide that the proceeds of the life insurance were intended to supplement, rather than replace, the support to which Maria was entitled while her father was alive. See, e.g., Matter of Riconda, 90 NY2d 733 (1997).
The ultimate resolution of Maria's status, required to resolve the plaintiffs' first cause of action for proceeds of the life insurance policy, does not affect this Court's decision regarding the causes of action for post-date-of-death child support, car payments and tuition. In the event that Maria ultimately is determined to have been unemancipated at the time of the decedent's death, and thus entitled to the proceeds of the life insurance policy, said proceeds will be available, as was clearly intended, to offset the continued costs of Maria's support following the decedent's death, until the date of her claimed emancipation. Accordingly, the defendant's motion to dismiss the second, fourth and fifth causes of action set forth in the complaint, for monthly child support, car payments and tuition calculated subsequent to the decedent's date of death, is granted.
With respect to the plaintiffs' third cause of action, seeking payment of $3,000.00 in child support alleged to have been in arrears on the date of the decedent's death, the plaintiffs append as evidence a copy of a personal check from the decedent, dated June 17, 2008 (the personal check). The memo line of the personal check displays a handwritten notation, the legible portion of which states "BAL 3000." The plaintiffs contend that the decedent fell behind in his child support obligations under Article VIII for an unspecified period in 2005, which shortfall was never fully remedied. It is their assertion that the notation on the personal check reflects the decedent's acknowledgment of his outstanding debt in the amount of $3,000.00. The defendant neither specifically denies the alleged debt nor claims payment and release in satisfaction thereof; rather, she counters that the personal check is evidence prohibited by the terms of CPLR §4519. While the provisions of CPLR §4519 may operate to disqualify the testimony of an interested witness with respect to transactions with a decedent, said provisions are not applicable to documentary evidence. The introduction of documentary evidence signed by a decedent is permitted under the statute if it is authenticated by a source other than an interested witness's testimony concerning the related transaction. Matter of Press, 30 AD3d 154 (1st Dep't 2006). Further, the statute by its terms is only applicable "upon the trial of an action or the hearing upon the merits of a special proceeding," and evidence which may be excluded at trial may be considered on a motion for summary judgment in determining whether there exists a triable issue of fact. See Philips v. Joseph Kantor & Co., 31 NY2d 307 (1972). Accordingly, the defendant's motion to dismiss the plaintiffs' claim for child support, in the amount of $3,000.00, alleged to have been past due at the date of the decedent's death, is denied.
The defendant also seeks to dismiss the plaintiffs' sixth cause of action, for an award of attorneys' fees for default pursuant to Article XIII(c) of the Stipulation, and for "willful" breach pursuant to DRL §237(c). As it has determined that the plaintiffs' first and third causes of action are not subject to dismissal pursuant to CPLR §3211(a)(1) and (7), the claims for the decedent's breach of the Stipulation remain before this Court. Accordingly, the defendant's motion to dismiss the plaintiffs' sixth cause of action, for an award of attorneys' fees pursuant to Article XIII (c) of the Stipulation, is denied.
This constitutes the decision and order of the Court.
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HON. MARGARITA LÓPEZ TORRES
Surrogate
Date: September 21, 2011
Brooklyn, New York