Opinion
9694/2010
09-14-2011
Vitaly Raczok, Plaintiff, v. Kevin M. Capasso and MARIE MARTIN, Defendants.
Plaintiff Ted Raczok, as Executor of the Estate of Vitaly Raczok, was represented by Brian J. Zimmet, Esq. of Zimmet Bieber LLP. Defendants Kevin M. Capasso and Marie Martin were represented by William R. Bronner, Esq.
Plaintiff Ted Raczok, as Executor of the Estate of Vitaly Raczok, was represented by Brian J. Zimmet, Esq. of Zimmet Bieber LLP. Defendants Kevin M. Capasso and Marie Martin were represented by William R. Bronner, Esq.
, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on defendants Kevin M. Capasso's and Marie Martin's motion for an order, pursuant to CPLR §§ 322 and 3212, for judgment dismissing the Verified Complaint, and on Plaintiff's cross motion for an order, pursuant to CPLR 3025, granting Plaintiff leave to serve an Amended Complaint:
-Notice of Motion
Affirmation
Exhibits 1-4
Exhibit A
-Defendants' Memorandum of Law
-Notice of Cross Motion
Affidavit in Opposition to Defendants' Motion for Summary Judgment and in Support of Plaintiff's Cross Motion for Leave to Serve and File a First Amended Verified Complaint
Affirmation Opposing Defendants' Motion for Summary Judgment and in Support of Plaintiff's Cross Motion for Leave to Serve and File a First Amended Verified Complaint
Exhibits A-V
-Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment and in Support of Plaintiff's Cross Motion for Leave to Serve a First Amended Verified Complaint
-Second Affirmation of William Bronner
Exhibit 2
-Defendants' Reply Memorandum of Law
Plaintiff Ted Raczok, as Executor of the Estate of Vitaly Raczok, was represented by Brian J. Zimmet, Esq. of Zimmet Bieber LLP. Defendants Kevin M. Capasso and Marie Martin were represented by William R. Bronner, Esq.
The Verified Complaint alleges, among other things, that on March 15, 2010, defendant Marie Martin advised Vitaly Raczok, now-deceased ("decedent"), while he was hospitalized and bedridden, that in order for she and defendant Kevin M. Capasso to pay his medical bills and maintain his property at 2 David Lane, Wurtsboro, New York, Mr. Raczok would have to sign documents authorizing Defendants to take care of his affairs (see Verified Complaint, ¶ 15); that Marie Martin "represented that the documents presented to Plaintiff for execution were, in fact, the appropriate documents for such purposes" (see id. at ¶ 16); that unbeknownst to Vitaly Raczok, the documents presented to him by defendant Martin were a deed transferring decedent's property to Kevin M. Capasso, and a power of attorney naming Capasso as attorney-in-fact (see id.,at ¶ 18.)
The Verified Complaint further alleges that the representations were false when made since execution of the deed was not necessary for defendant Martin to maintain the property, and because execution of the power of attorney was not necessary for Martin to pay the medical bills (see id. at ¶¶ 20, 21); and that Martin's false representations were made with the intent to have Vitaly Raczok transfer the property for defendant Kevin Capasso's "sole benefit" (see id. at ¶ 22); that on March 15, 2010, based upon his deteriorating physical and mental condition, Vitaly Raczok was "dependent upon" defendants Marie Martin and Kevin Capasso (see id. at ¶ 29); and that Vitaly Raczok trusted Defendants "based upon their familial relationship"(see id. at ¶ 41). Defendant Marie Martin was the sister of decedent's deceased wife (sister-in-law) (see id. ¶ at 5), and defendant Kevin M. Capasso was the son of decedent's deceased wife (his stepson and Marie Martin's nephew) (see id. at ¶ 4).
Ted Raczok was decedent's son, and is the executor of his estate; Vitaly Raczok died on November 8, 2010. The Verified Complaint seeks, among other things, a declaratory judgment that the deed to Capasso is null and void, and that Plaintiff has title to the subject real property. Although the Verified Complaint does not identify specific causes of action, Defendants concede that the Verified Complaint sets out three "arguments for overturning the deed", namely that decedent lacked mental capacity to execute the deed, that Defendants fraudulently misrepresented the nature of the documents that decedent executed, and that Defendants exercised undue influence over decedent. (See Defendants' Memorandum of Law, pg. 3.)
On April 16, 2010, decedent filed the Verified Complaint. On May 26, 2010, Defendants moved pursuant to CPLR 322 (a) for an order directing the production of evidence of the authority of Plaintiff's attorney to begin the action. Defendants then served their Answer and Counterclaim the next day on May 27, 2010. On June 1, 2011, after multiple adjournments, Defendants' CPLR 322 motion was marked off the calender for failure to appear. On June 24, 2011, Defendants served the instant motion seeking to renew their motion for an order pursuant to CPLR 322, and for an order granting them summary judgment dismissal of the Verified Complaint pursuant to CPLR 3212.
In the first branch of their motion, Defendants contend that they are entitled to an order dismissing the action, pursuant to CPLR 322(a), which provides,
"Where the defendant in an action affecting real property has not been served with evidence of the authority of the plaintiff's attorney to begin the action, he may move at any time before answering for an order directing the production of such evidence. Any writing by the plaintiff or his agent requesting the attorney to begin the action or ratifying his conduct of the action on behalf of the plaintiff is prima facie evidence of the attorney's authority."Here, even putting aside the issue of whether the instant motion should be deemed to have been made "before answering" (see generally Pallotta v. Saltru Assoc. Joint Venture, NY (32 Misc 3d 1208[A], 2011 NY Slip Op [U], *2 [Sup Ct, Kings County 2011] [holding that "[i]f a previously marked-off motion is to be treated as if made when the prior motion was made, the movant should be required to make the showing required to vacate a default order, i.e., reasonable excuse for the default and a meritorious position on the motion"]), Defendants fail to demonstrate that they were not "served with evidence of the authority of the plaintiff's attorney to begin the action".
In support of the motion, Defendants submit a copy of the Verified Complaint along with a signed Verification by decedent Vitaly Raczok. Defendants also submit a copy of decedent Vitaly Raczok's affidavit. Each writing constitutes prima facie evidence of the attorney's authority (see Graham v Andrews, 11 Misc 649, 650 [Super Ct, City of New York 1895] [holding that a verification of a complaint is a "written request" to the attorney to commence the action and "a written recognition" of the attorney's authority to do so"]; see also Chase Manhattan Bank v Beckerman, 271 AD2d 392, 393 [2d Dept 2000]; Matter of McGovern [Olson], 180 Misc 508, 512 [Sup Ct, Albany County 1943], rev'd on other grounds 266 AD 985 [3d Dept], rev'd on other grounds 291 NY 104 [1943].)
CPLR 322(a) derives from rules and statutes adopted well over a century ago, apparently limited at that time to actions in ejectment. (See Stewart v Butler, 27 Misc 708, 708-09 [Sup Ct, NY County 1899]; Graham v Andrews, 11 Misc at 650; Howard v Howard, 11 How. Pr. 80 [Sup Ct, NY County, 1855].) The rule is "seldom used because where one attorney asks for proof of another's authority, such proof is usually supplied, thus obviating the need for motion practice." (1-10 Warren's Weed New York Property § 10.07 [2][b].)
In light of Defendants' execution of a stipulation to substitute Ted Raczok, as executor of the estate of Vitaly Raczok, for decedent, addressed below, Defendants do not now claim that Plaintiff's counsel does not have the authority of his client.
Accordingly, the branch of Defendants' motion seeking an order, pursuant to CPLR 322, dismissing the action is DENIED.
In their motion for summary judgment pursuant to CPLR 3212, Defendants first contend that "there is no evidence that Plaintiff had been medicated when he executed the deed", or that he otherwise lacked mental capacity to execute the deed.
"A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact. Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution." (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; see also CPLR 3212; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].)A defendant must establish, at least prima facie, the basis for an affirmative defense (see CPLR 3018 [b]), or must negate, at least prima facie, an essential element of the plaintiff's cause of action. (See Fotiou v Goodman, 74 AD3d 1140, 1141 [2d Dept 2010]; Vittorio v U-Haul Co., 52 AD3d 823, 823 [2d Dept 2008]; Velasquez v Gomez, 44 AD3d 649, 650-51 [2d Dept 2007]; Restrepo v Rockland Corp., 38 AD3d 742, 743 [2d Dept 2007]; Pappalardo v Long Is. R.R. Co., 36 AD3d 878, 880 [2d Dept 2007]; England v Vacri Construction Corp., 24 AD3d 1122, 1124 [3d Dept 2005]; Calderone v Town of Cortlandt, 15 AD3d 602, 602-03 [2d Dept 2005].)
In support of their motion, Defendants submit, among other things, the affirmation of Sandra Karas, Esq., who affirms under the penalty of perjury that she "maintains a casual acquaintanceship with [defendant] Marie Martin"; that she has never represented Marie Martin as an attorney; that she has never represented defendant Kevin Capasso; that she has never had any professional or personal relationship with William Bronner, the attorney who represents Defendants; that in late February or early March, 2010, Marie Martin called her "to advise that her brother-in-law, Vitaly Raczok . . . had been hospitalized, and that he had been asking for someone to procure an attorney to represent him"; that she "agreed to visit Mr. Raczok at a hospice on the grounds of St. Vincent's Medical Center in New York"; and that she visited decedent "on a couple of occasions".
Ms. Karas asserts further that she "found that [Mr. Raczok] was always communicative", but that "because his larynx had been removed some years previously, he could not talk"; that "he communicated by gestures and by writing on paper or on a slate"; that decedent was "not bedridden"; that he "would typically sit in a chair, with his legs up on another chair"; that she "saw no indication that he had been medicated in any way that could affect his competence"; that decedent "explained" to her that he had terminal lung cancer, and that he was "thinking about what he wanted to do with certain assets, and how he intended to provide for his step-son, Kevin Capasso"; that on March 9, 2010, decedent "specifically requested that [she] prepare a deed to implement his intent to give a house he owned in Wurtsboro, New York, in the Catskill Mountains area, to Kevin Capasso, because he would not be going there anymore and because he wanted Kevin to have it"; and that he also "asked [her] to prepare a durable power of attorney to Kevin Capasso".
Ms. Karas further affirms that on March 15, 2010, she returned to the hospice, and presented the deed to decedent; that she "again painstakingly explained what was involved in the transfer of the Wurtsboro house"; that she "satisfied [herself] that he fully understood what [she] had said"; that "[a]t the end of [her] explanation, [she] asked if he had any questions", and that decedent shook his head, and motioned for a pen; and that decedent signed the deed in her presence.
In Crawn v Sayah (31 AD3d 367 [2d Dept 2006]), the plaintiff sought to cancel a deed executed by a decedent on the ground that the decedent lacked mental capacity (see id. at 368 [Miller, J., concurring in part and dissenting in part].) The complaint alleged that decedent was 79 years old, was suffering from a critical illness and from "an extreme form of dementia" with "no understanding of the nature of his surroundings." (Id. at 368-369.) It was further alleged that, while decedent was in such condition, the defendant removed him from a health care facility and transported him to an attorney's office where the decedent executed a deed.
On the defendant's motion for summary judgment, the Second Department held that the defendant met her prima facie burden, establishing that the deed was properly executed through the submission of the "affirmation of the attorney who prepared the deed and witnessed its execution". (See id. at 368 [memorandum opinion].) The defendant was not required to submit any evidence regarding the decedent's mental condition at the time of execution of the deed as part of her prima facie showing on summary judgment. (See id. at 369 [Miller, J., concurring in part and dissenting in part].)
The majority, responding to criticism from the dissent that "the majority confuse the ultimate burden of proof at trial, on the one hand, with the shifting burdens that are involved on a motion for summary judgment, on the other hand" (see id. at 370), notes that "[a] party's competence is presumed and the party asserting incapacity bears the burden of proving incompetence" (id. [quoting Feiden v Feiden, 151 AD2d 889, 890 (3d Dept 1989)].)
Indeed, in order to demonstrate that a person with an affliction is incompetent, "it must be shown that, because of the affliction, the person was incompetent at the time of the transaction." (See Feiden v Feiden, 151 AD2d at 890.) The inquiry is "whether the person's mind was so affected as to render him wholly and absolutely incompetent to comprehend and understand the nature of the transaction" (id. [internal quotation marks and citations omitted]), or whether the person, due to his mental condition, was "unable to control his conduct" (see Smith v Comas, 173 AD2d 535, 535 [2d Dept 1991].)
As such, here, Defendants sufficiently establish prima facie entitlement to summary judgment dismissing Plaintiff's claim that decedent lacked capacity through submission of Sandra Karas's affirmation, which establishes due execution of the deed. (See Crawn v Sayah, 31 AD3d at 368; see also Brown v Graziano, 51 AD3d 962, 963 [2d Dept 2008].)
Even so, Ms. Karas's affirmation itself raises significant questions. Ms. Karas does not provide any information as to whether she was compensated for her legal services, and, if so, by whom. It is not clear whom she was representing at the time of execution of the deed. She does not provide the name of any other person who was present during her meeting with decedent at which he executed the deed. While she affirms that decedent communicated solely "by gestures and by writing on paper or on a slate", she does not submit any of decedent's writings with her affirmation. She does not describe how decedent "explained" to her that he was "thinking about what he wanted to do with certain assets, and how he intended to provide for his step-son, Kevin Capasso". She does not describe how decedent "specifically requested that [she] prepare a deed to implement his intent to give a house he owned in Wurtsboro, New York, in the Catskill Mountains area, to Kevin Capasso, because he would not be going there anymore and because he wanted Kevin to have it".
In opposition, Plaintiff's executor points to decedent's affidavit dated July 6, 2010, which contradicts Ms. Karas's version of the events, and was submitted in opposition to a prior motion made by Defendants and in support of decedent's prior cross-motion to have his deposition taken. Decedent avers, among other things, that between February 17, 2010 and April 12, 2010, he "was hospitalized and continuously under the care of doctors"; that "he was bedridden and was receiving substantial drugs and medication which drained [him], both physically and mentally"; that he "cannot be clearer that at no point did [he] intend to make a gift or to transfer the [property] to Capasso"; that Ms. Karas was not his attorney; and that "[o]nce he discovered the effect of the [d]ocuments, [he] immediately sought to cancel and rescind the transfer of the [property] and retained the services of Zimmet Bieber LLP to initiate the underlying action"; that Defendants have "done nothing but take advantage of me while I was hospitalized"; that as "Martin is my sister-in-law, I relied on our familial relationship and signed the documents without reading them"; and that Martin "misrepresented the legal effect of the documents";
"[S]tatements of a decedent are not rendered inadmissible under the Deadman's Statute' (see CPLR 4519), when offered in opposition to a motion for summary judgment." (See Lauriello v Gallota, 59 AD3d 497,498 [2d Dept 2009].) Indeed, "hearsay testimony which violates the Dead Man's Statute (CPLR 4519) may be admitted for the purpose of opposing a motion for summary judgement." (See Johnson v Pollack, 261 AD2d 585, 586 [2d Dept 1999]; see also Phillips v Joseph Kantor & Co., 31 NY2d 307, 315 [1972]; Friedman v Sills, 112 AD2d 343, 344 [2d Dept 1984].) "Invocation of the Dead Man's Statute is expressly limited by statute to the trial of the action or the hearing upon the merits of a special proceeding' (CPLR 4519), since further evidence may be revealed prior to trial through disclosure or otherwise and the statutory objection may be waived". (See Silvestri v Iannone, 261 AD2d 387, 388 [2d Dept 1999].)
Since hearsay testimony violating the Dead Man's Statute is admissible to oppose summary judgment, an affidavit submitted by the decedent prior to his death, which would also be inadmissible at trial (see Friedman v Sills, 112 AD2d at 345), should be considered in opposition to summary judgment, especially since no depositions have been held. Indeed, the Dead Man's Statute has no applicability to an "affidavit of personal knowledge of the decedent himself." (See Friedman v Sills, 112 AD2d at 345.)
In this regard, this case must be distinguished from Manufacturers Hanover Trust Company v Manufacturers and Traders Trust Company (174 AD2d 548 [1st Dept 1991]), where the First Department would not consider a dead person's affidavit "from a prior, discontinued action" in opposition to a summary judgment motion on the ground that the affidavit was inadmissible hearsay. Here, the decedent's affidavit was submitted in this action, and is therefore not inadmissible hearsay with respect to the instant summary judgment motion. Indeed, CPLR 3212(b) specifically provides for consideration of affidavits, which are hearsay, on a summary judgment motion. (See also Siegel, NY Prac § 281, at 480 [5th ed] ["Affidavits are the primary source of proof" considered on a motion for summary judgment].)
In Manufacturers Hanover Trust Company v Manufacturers and Traders Trust Company, the First Department did not hold that the affidavit was inadmissible because the affiant was deceased, but because it was submitted in a different action. (See Friedman v Sills, 112 AD2d 345; see also CPLR 4517.) CPLR 3212(b), like CPLR 3117, permitting the use of depositions, and CPLR 4517, permitting the use of prior trial testimony, is a statutory exception to the hearsay rule.
Although a decedent's affidavit may be inadmissible at the time of trial (see Friedman v Sills, 112 AD2d at 345), that does not mean it cannot be considered in opposition to summary judgment. For the same reasons that hearsay of a decedent's statement is considered in opposition to summary judgment, i.e., further evidence may be revealed prior to trial through disclosure and the objection may be waived (see Silvestri v Iannone, 261 AD2d at 388), the decedent's own sworn statement is admissible here. Moreover, it should be noted that decedent was never deposed; had he been deposed, the transcript presumably would have even been admissible at trial. (See CPLR 3117[a][3][i], [c].) Similarly, a statement properly sworn should not be deemed to lose all probative value because the affiant subsequently dies, and the Court has found no authority that so holds.
Plaintiff's executor also points to a hand-written letter from decedent, purportedly mailed in 2006, which the executor contends demonstrates decedent's intent with respect to the subject property. Even assuming the admissibility of this letter, it is not probative of whether decedent had legal capacity to execute the deed in March 2010, and does not preclude a finding that Vitaly Raczok changed his mind in 2010.
Significantly, even though decedent was in hospice receiving medical care and treatment, Plaintiff's executor fails to submit any medical evidence with respect to decedent's physical and mental condition at the time of the execution of the deed.
Nonetheless, decedent's affidavit is sufficient, in the absence of disclosure, to demonstrate the existence of triable issues of fact. The Court need not make any determination at this time whether Plaintiff's executor may rely upon decedent's affidavit to oppose any renewed motion for summary judgment after completion of appropriate disclosure.
In any event, regardless of the admissibility of decedent's affidavit, the Court concludes that summary judgment should be denied pursuant to CPLR 3212(f).
In this regard, the executor submits Marie Martin's affidavit, which was proffered by Defendants on a prior motion, that she was present on the date of decedent's execution of the deed and durable power of attorney, and that nonparty Reverend Father Raymond Pierini was "present for at least part of the process". Ms. Martin's affidavit is silent as to whether defendant Kevin Capasso was present. The executor also submits Kevin Capasso's affidavit, submitted on a prior motion, in which he avers that "[w]hile Victor was in the hospice, Victor asked me to accept a Power of Attorney", but does not indicate whether he was present at the time of the execution of the deed or power of attorney. Ms. Karas's affirmation is silent on the issue of who was present during execution of the deed or power of attorney, does not state by whom she was retained or paid to perform legal services, and indicates that she "maintains a casual acquaintanceship" with defendant Martin.
Since it appears that "facts essential to justify opposition to a motion for summary judgment are exclusively within the knowledge and control of the movant", including facts regarding the circumstances of decedent's execution of the deed and power of attorney, summary judgment should be denied. (See Juseinoski v New York Hospital Medical Center of Queens, 29 AD3d 636, 637 [2d Dept 2006].) Indeed, this is especially so where, as here, "the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion." (See id.) Indeed, none of the parties have been deposed. Although not parties to the action, Plaintiff's executor should be given an opportunity to serve subpoenas in order to depose Ms. Karas, as the preparer of and notary to the deed, and Father Pierini, a witness. (See e.g. Matter of the Estate of Delisle, 149 AD2d 793 [3d Dept 1989] [holding that decedent's financial affairs and dealings with witnesses and preparers of a will are relevant to claims of lack of capacity, fraud, duress, and undue influence].)
Accordingly, the branch of Defendants' motion for summary judgment dismissal of Plaintiff's claim that decedent lacked capacity to execute the deed is DENIED, with leave to renew after appropriate disclosure in accordance with this Decision and Order.
Defendants also move for an order granting them summary judgment dismissal of Plaintiff's claim of fraud on the ground that the circumstances constituting the fraud are not sufficiently stated "in detail" pursuant to CPLR 3016(b).
"To sustain a cause of action alleging fraud, a party must show a misrepresentation or a material omission of fact which was false and known to be false by the defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury." (Cayuga Partners, LLC v 150 Grand, LLC, 305 AD2d 527, 527-28 [2d Dept 2003].) "To state a legally cognizable claim of fraudulent misrepresentation, the complaint must allege that the defendant made a material misrepresentation of fact; that the misrepresentation was made intentionally in order to defraud or mislead the plaintiff; that the plaintiff reasonably relied on the misrepresentation, and that the plaintiff suffered damages as a result of its reliance on the defendant's misrepresentation." (P.T. Bank Central Asia v ABN AMRO Bank, N.V., 301 AD2d 373, 376 [1st Dept 2003].)
"In addition, in any action based upon fraud, the circumstances constituting the wrong shall be stated in detail.' " (Id. [quoting CPLR 3016(b)].) "Bare allegations of fraud, which merely list the material elements of fraud without any supporting detail, are insufficient to satisfy the pleading requirements of CPLR 3016[subd. [b])." (Gorman v Gorman, 88 AD2d 677, 678 [3d Dept 1982].) Confusing and ambiguous allegations are insufficient. (Perla v Marine Midland Realty Corp., 61 AD2d 837, 837 [2d Dept 1978].) However, "the specificity requirement of the statute is relaxed where ... it is alleged that the particular circumstances of the claimed fraud are exclusively within the defendant's knowledge." (Etzion v Etzion, 62 AD3d 646, 652 [2d Dept 2009] [citations and internal quotation marks omitted].)
Here, the Verified Complaint alleges in sufficient detail the allegations of fraud, and, in any event, since the circumstances of the claimed fraud may be exclusively within the knowledge of Defendants or individuals who may have acted at the behest of Defendants, i.e., Ms. Karas, the requirement of specificity is relaxed.
Moreover, Defendants do not attach their own affidavits to their motion, and do not point to any evidence negating the allegations of fraud in the Verified Complaint. Again, Ms. Karas's affidavit is silent as to, among other things, whether Marie Martin or Kevin Capasso was present during the execution of the documents. As such, Defendants fail to demonstrate prima facie entitlement to summary judgment dismissal of the alleged claim of fraud.
In any event, even assuming that Ms. Karas's affidavit would carry Defendants' prima facie burden, decedent's affidavit sufficiently demonstrates the existence of triable issues of fact. Moreover, summary judgment must be denied pursuant to CPLR 3212(f).
Accordingly, the branch of Defendants' motion seeking summary judgment dismissal of Plaintiff's claim of fraud is DENIED, with leave to renew after appropriate disclosure in accordance with this Decision and Order.
Defendants also move for an order granting them summary judgment dismissal of Plaintiff's claim that decedent's execution of the deed was procured through undue influence.
"Undue influence is the product of persistent and subtle suggestion imposed upon a weaker mind and calculated, by the exploitation of a relationship of trust and confidence, to overwhelm the victim's will to the point where it becomes the willing tool to be manipulated for the benefit of another." (Matter of Mildred M.J., 43 AD3d 1391,1392 [4th Dept 2007][quoting Matter of Collins, 124 AD2d 48, 53 (4th Dept 1987)].) The burden of proving undue influence "rests with the party asserting its existence." (See Feiden v Feiden, 151 AD2d at 891.)
However, "if a confidential relationship exists, the burden is shifted to the beneficiary of the transaction to prove the transaction fair and free from undue influence." (Matter of Connolly, 193 AD2d 602, 603 [2d Dept 1993].) Where "the relations between the contracting parties appear to be of such a character as to render it certain that they do not deal on terms of equality but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from an overmastering influence, or on the other from weakness, dependence, or trust justifiably reposed, unfair advantage in a transaction is rendered probable, there the burden is shifted, the transaction is presumed void, and it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood." (See Matter of Gordon v Bialystoker Center and Bikur Cholim, Inc., 45 NY2d 692, 698-99 [1978].) "The existence of a family relationship does not, per se, create a presumption of undue influence; there must be evidence of other facts and circumstances showing inequality or a controlling influence, and the party alleging undue influence must show not only that the accused party had motive and opportunity but must also show that the accused party in fact exercised such influence." (Matter of Mildred M.J., 43 AD3d at 1391 [internal quotation marks and citations omitted].)
Again, Defendants' contention that the Verified Complaint does not sufficiently allege "in detail" the circumstances giving rise to a claim of undue influence pursuant to CPLR 3016(b) is without merit.
Defendants also contend that they are entitled to summary judgment because they did not exert undue influence over decedent. However, allegations that decedent, who was in hospice care and could not speak verbally, executed a power of attorney naming Capasso, his stepson, as attorney-in-fact on the same date that he executed a deed selling Capasso the subject property for nominal consideration, at least, raise the question whether the relationship between decedent and Defendants was of such character that Defendants should have the burden to demonstrate lack of undue influence.
Again, Ms. Karas's affidavit, the only evidence submitted on Defendants' motion, is silent as to whether either Defendant was present at the time decedent executed the challenged documents. As such, particularly since Defendants have not established that they do not have the burden of proof, Defendants fail to demonstrate prima facie that they did not procure decedent's execution of the documents through undue influence.
In any event, for reasons already stated herein, decedent's affidavit demonstrates the existence of triable issues of fact, and summary judgment must be denied pursuant to CPLR 3212(f).
Accordingly, the branch of Defendants' motion for summary judgment dismissal of Plaintiff's claim of undue influence is DENIED, with leave to renew after appropriate disclosure in accordance with this Decision and Order.
Plaintiff's Cross-Motion to Amend Verified Complaint
As noted above, on November 8, 2010, plaintiff Vitaly Raczok died. On August 2, 2011, counsel for Ted Raczok, the executor of the estate of Vitaly Raczok, and counsel for Defendants executed a stipulation amending the caption to substitute Ted Raczok, the executor of the estate of Vitaly Raczok, for Plaintiff. (See Notice of Cross Motion, Exhibit V.) However, the parties never submitted the stipulation to the Court, and the caption has not, therefore, been amended in court records.
Accordingly, the caption shall be amended to read as follows:
XIn his motion, plaintiff Ted Raczok, as Executor of the Estate of Vitaly Raczok, seeks to amend the Verified Complaint to add new causes of action.
TED RACZOK, as Executor of the Estate of VITALY RACZOK, Plaintiff,
-against-
KEVIN M. CAPASSO and MARIE MARTIN, Defendants.
X
"Generally, in the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit." (Sampson v Contillo, 55 AD3d 591, 592 [2d Dept 2008][internal quotation marks and citations omitted].) And, in determining a motion to amend a pleading, "the legal sufficiency or merits of a pleading will not be examined unless the insufficiency or lack of merit is clear and free from doubt." (See Lucido v Mancuso, 49 AD3d 220, 227 [2d Dept 2008].) The proponent of an amended pleading need only demonstrate that the proposed amended pleading fits within a cognizable legal theory as a cause of action or defense, but is not required to make an evidentiary showing that the amendment has merit. (See James v Government of Saint Lucia, 23 Misc 3d 1110[A], 2009 NY Slip Op 50700[U], at *4-*5 [Sup Ct, Kings County 2009].)
Here, Plaintiff proffers a proposed First Amended Verified Complaint containing additional causes of action that sufficiently fit within cognizable legal theories as causes of action. In opposition, Defendants do not claim that the proposed causes of action do not fit within any cognizable legal theories, and do not assert any prejudice. Indeed, there has been no disclosure in this case.
Accordingly, Plaintiff's cross-motion to amend the complaint is GRANTED, and the First Amended Verified Complaint attached as Exhibit L is hereby deemed served upon Defendants.
In sum, the caption shall be amended in accordance with this Decision and Order. The branch of Defendants' motion for an order pursuant to CPLR 322 is denied. The branch Defendants' motion for an order pursuant to CPLR 3212 for summary judgment dismissal of Plaintiff's Verified Complaint is denied, with leave to renew after appropriate disclosure in accordance with this Decision and Order. Plaintiff's cross-motion is granted, and the First Amended Verified Complaint is deemed served upon Defendants. Defendants shall interpose an amended answer to the First Amended Verified Complaint within 30 days of the date of this Decision and Order. The parties shall appear for a Preliminary Conference on October 7, 2011.
___________________
Jack M. Battaglia
Justice, Supreme Court