[*1]
Bohn v McCumiskey
2015 NY Slip Op 50535(U) [47 Misc 3d 1210(A)]
Decided on April 16, 2015
Supreme Court, Nassau County
Marber, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 16, 2015
Supreme Court, Nassau County


Lauren Bohn & ERICH J. BOHN individually, and as 50% heirs at law of the Estate of ERICH A. BOHN, Plaintiffs,

against

Maria Bohn McCumiskey a/k/a, Maria Bohn, individually, and as trustee of the ERICH A. BOHN Irrevocable Trust and as Proposed Executor of the Estate of ERICH A. BOHN, and The Erich A. Bohn Irrevocable Trust, Defendants.




014918/12



Law Office of Alan C. Stein, P.C.



Attorneys for Plaintiffs



479 South Oyster Bay Road



Plainview, New York 11803



(516) 932-1800



Law Offices of Anthony DeCarolis, Esq.



Attorneys for Defendant



Avalon Bay Communities, Inc.



53 East Main Street



Oyster Bay, NY 11771



(516) 922-7870


Randy Sue Marber, J.

Papers Submitted:



Notice of Motion..................................................x



Affirmation in Opposition....................................x



Reply Affirmation................................................x



Upon the foregoing papers, the motion by the Defendant, Maria Bohn McCumiskey, seeking an Order, pursuant to CPLR § 3212, granting her summary judgment dismissing the Plaintiffs' complaint, is determined as hereinafter provided.



The Plaintiffs commenced this action by filing a Summons and Complaint on or about December 7, 2012 in the Office of the Nassau County Clerk. The Plaintiffs' complaint, in the First Cause of Action, seeks to declare the ERICH A. BOHN (the "Decedent") Irrevocable Trust invalid, remove the Defendant as the Trustee of the Trust and Executor of the will of ERICH A. BOHN, nullify any transfers of real or personal property made to the Trust and reform the Trust to provide distribution in accordance with the will which existed prior to October, 2011. The Second Cause of Action seeks damages in the sum of $1,000,000. The Third Cause of Action seeks punitive damages in the sum of $1,000,000. The Fourth Cause of Action seeks counsel fees. The Fifth Cause of Action seeks treble damages pursuant to General Business Law § 349. The Sixth Cause of Action alleges conversion and seeks damages in the amount of $1,000,000.



In support of the instant motion for summary judgment, the Defendant submits, inter alia, the transcript from the Examination Before Trial ("EBT") of the Plaintiff, Lauren Bohn ("Lauren"), the EBT transcripts of the non-party witnesses, Susan Rush and Karen Converso, a copy of the Last Will and Testament of Eric A. Bohn, executed on October 20, 2011, and the EBT transcript of the Defendant.



The Defendant argues that the gravamen of the Plaintiffs' complaint is that the Decedent suffered from dementia and lacked testamentary capacity. However, they fail to set forth any evidence to show that he did, in fact, suffer from dementia and/or that he lacked testamentary capacity. The Defendant refers to the EBT transcript of the Plaintiff, Lauren, where she testifies that she knew that her grandfather, the Decedent, had dementia because the nurse at Oyster Bay Manor, whose name she did not know, said so. (See EBT transcript annexed to the Notice of Motion as Exhibit "B" at p. 39, l. 2-10) The Plaintiff, Lauren, further testified that she didn't know what dementia was. (Id. at p. 39, l. 11-17) The Defendant also refers to the EBT transcript of non-party witness, Susan Rush, a Licensed Practical Nurse at Oyster Bay Manor, the assisted living facility where the Decedent resided. Ms. Rush testified at her EBT that she spoke to the Decedent every day for short periods, that he always recognized her when she went into his room, that he always recognized his family members and that throughout his residency at Oyster Bay Manor the Decedent was able to articulate what he wanted and what he didn't want in a meaningful way to the staff. (See EBT transcript annexed to the Notice of Motion as Exhibit "C" at p. 20, l. 17-25, p. 21, l. 2-12)



The Defendant argues that even though there is no evidence of dementia, if the Decedent was diagnosed with dementia it does not establish a lack of testamentary capacity. The Defendant further argues that the presence of a paralegal and attorney during the execution of the Trust and the Decedent's will provides a presumption of compliance. She also relies on the EBT transcript of Karen Converso, the paralegal present at the execution of the Decedent's will and the self-proving Affidavit annexed to the Decedent's Last Will and Testament. Ms. Converso testified [*2]that she was present during the execution of the Decedent's will and that Dennis Brody, Esq. was also present. (See EBT transcript annexed to the Notice of Motion as Exhibit "D" at p. 27, l. 3-11) The self-proving Affidavit, which was signed by Ms. Converso and Mr. Brody, contemporaneously with the execution of the will, states that the Decedent "could read, write and converse in the English language and was suffering from no defect of sight, hearing or speech, or from any other physical or mental impairment that would affect Testatrix's (sic) capacity to make a valid will." (See Affidavit attached to the Last Will and Testament annexed to the Notice of Motion as Exhibit "E")



The Defendant also argues that the Plaintiffs' claims of undue influence are unsupported. The Defendant argues that the testimony of Susan Rush indicates that the Decedent was very capable of expressing what he did and did not want and that the fact that he executed his will and trust in the presence and with the assistance of an attorney and a paralegal adds credence to the fact that he had free will and that he was doing what he chose to do.



The Defendant argues that it is notable that the will executed by the Decedent, approximately one year prior to the instrument in question, contained no provision for the Plaintiffs and the instrument now in question provides for a gift of $50,000 to the Plaintiff, Eric A. Bohn.



The Defendant also argues that an additional factor to consider is that the attorney that prepared the will and trust was not her attorney. She asserts that she had no prior connections with Dennis Brody, Esq. and that a neighbor referred him. Thus, the Plaintiffs fall short of establishing undue influence.



Finally, the Defendant argues that the Plaintiffs' fraud claim and claim brought pursuant to the General Business Law § 349 should be dismissed. The Defendant argues that the Plaintiffs fail to allege any statement made by her upon which the Decedent relied to support a claim for fraud. The Defendant further argues that the General Business Law claim is without merit and inapplicable to the facts alleged in this case, because it does not relate to consumer oriented conduct.



In opposition, the Plaintiffs first argue that the Defendant's motion for summary judgment should be dismissed because it does not contain an Affidavit of a party with personal knowledge of the facts. The Court finds this argument without merit. A separate Affidavit is not necessary in support of a motion for summary judgment when sworn transcripts are submitted. The Defendant properly submits the pleadings and deposition transcripts as additional support for her motion for summary judgment.



With regard to their claim that the Decedent lacked capacity to execute his Last Will and Testament and Trust, the Plaintiffs argue that because the Defendant had an appointment with the law firm of Franchina & Giordano to discuss guardianship of the Decedent, she should be estopped from arguing that the Decedent was not incapacitated. The Plaintiffs refer to the deposition transcript of Thomas F. Werring, an attorney at Franchina & Giordano at the time in question, where he testifies that the Decedent was competent to sign the Will, but whether he was competent to handle his financial affairs "is a whole different ball game." (See EBT transcript annexed to the Affirmation in Opposition as Exhibit "B" at p. 11, l. 10-18) The Plaintiffs admit that a guardianship proceeding was never filed.



The Plaintiffs further rely on the Expert Affirmation of Alan Nelson, M.D., dated January 20, 2015. Dr. Nelson states that he was the Decedent's primary care physician from 2003 through 2009. He states that "during various appointments at my office, I noticed that Mr. Bohn had issues of forgetfulness" and "that in 2009 he was under medicated for agitated confusion." (See [*3]Expert Affidavit annexed to the Affirmation in Opposition. at ¶ 7) Dr. Nelson states that he considered the Decedent to be a passive person, that he didn't follow medical advice, he didn't take medications as he was supposed to and he would follow instructions of anyone that accompanied him. (Id.) Dr. Nelson stated that when he last examined the Decedent in 2009, it was clear he had diminished capacity.



The Plaintiffs also rely on the deposition testimony of Ms. Rush, where she testified that the Decedent was forgetful at times and the forgetfulness could have started before 2011. (See EBT transcript annexed to the Notice of Motion as Exhibit "C" at p. 14, l. 25, p. 15, l. 2-3, p. 19, l. 2-13)



With regard to their claim of duress and undue influence, the Plaintiffs allege that the Defendant acted in a calculated course of conduct meant to persuade the Decedent to provide her with sole dominion, control and use of his finances and affairs. In support of this argument, the Plaintiffs assert that the Defendant resumed her relationship with the Decedent in 2001 after two years of being estranged. The Plaintiffs assert that all mail sent by the law firm Franchina & Giordano, having to do with the Decedent, was mailed to the Defendant's address. The Plaintiffs assert that on January 7, 2011, the Decedent executed a Last Will and Testament, Power of Attorney, Health Care Proxy and Authorization to Release, whereby the Defendant was named Executrix, Health Care Proxy, Attorney in fact pursuant to a Power of Attorney and primary beneficiary to various life insurance and annuities, and no provisions were made for either of the Plaintiffs.



The Plaintiffs allege that during the Decedent's residency at Oyster Bay Manor, and prior to her being named Attorney in fact pursuant to a Power of Attorney, the Defendant directed Oyster Bay Manor not to permit the Plaintiff, Lauren, to visit or have contact with the Decedent. The Plaintiffs contend that pursuant to the deposition testimony of Susan Rush, the case management notes state that the Plaintiff, Lauren, was not to have contact with the Decedent and that the Defendant directed the facility to prohibit such contact.



The Plaintiffs allege that the Defendant took over the Decedent's finances before she had his Power of Attorney and that she signed numerous checks in the Decedent's name. The Plaintiffs further allege that on September 9, 2011, only eight months after executing a Will, Power of Attorney and Health Care Proxy with Mr. Werring, the Decedent retained Denis Brody, Esq. to prepare an Irrevocable Trust, Last Will and Testament, Living Will, Health Care Proxy and Power of Attorney. The Plaintiffs allege that it is clear that the Defendant retained Mr. Brody because she paid $6,500.00 towards his retainer.



The Irrevocable Trust named the Defendant as Trustee and directed that all of the Decedent's assets be transferred to the Trust. The sole beneficiary of the Trust was the Defendant, with the exception of $50,000.00 payable to the Plaintiff, Eric J. Bohn. The Plaintiffs argue that the Defendant purposely had the Decedent create a trust so she could avoid probate and not have to provide notice to all parties. The Plaintiffs further assert that the Defendant signed the Decedent's name on checks after his death on October 7, 2012.



The Plaintiffs also allege that the Defendant changed the Decedent's nursing home, primary care physician and did not allow the Plaintiff, Lauren, to have contact with the Decedent for the purpose of obtaining control over the Decedent's financial affairs.



In Reply in further support of her motion, the Defendant contends that she has set forth sufficient proof to establish her prima facie entitlement to summary judgment and the Plaintiffs [*4]have failed to set forth proof sufficient to defeat summary judgment. The Defendant argues that while she relies on the deposition testimony of Ms. Rush, where she states that the Decedent always recognized her, his family members and was able to articulate what he did and did not want, the Plaintiffs rely on only a small portion of her testimony where she states that the Decedent was occasionally forgetful. The Defendant contends that occasional forgetfulness does not establish lack of capacity. The Defendant argues that the Plaintiffs wholly fail to controvert the self-proving affidavits attached to the Decedent's Will and the testimony of Karen Converso, the paralegal present at the execution of the will.



The Defendant contends that the Plaintiffs argument that she had a meeting to discuss guardianship is irrelevant, yet it actually refutes the Plaintiffs' claims. The Defendant contends that she did not even know what a guardianship was until after her meeting with Mr. Werring. (See Affidavit annexed to the Reply Affirmation) The Defendant asserts that a guardianship proceeding was not commenced because Mr. Werring determined, and informed her, that the Decedent was competent and that he could get help with his financial affairs by executing a Power of Attorney. (Id.) The Defendant also asserts that she was never instructed how to sign checks as an Attorney in fact pursuant to a Power of Attorney and that is why she signed checks in the Decedent's name to pay his bills after his death. (Id.)



The Defendant argues that the Expert Affirmation of Dr. Nelson should be precluded because the Plaintiffs failed to disclose this expert pursuant to CPLR § 3101 (d) (1). The Defendant asserts that despite a proper demand, the Plaintiffs failed to serve disclosure of any expert witness before the filing of the Note of Issue.



The Defendant argues that even if the Court admits Dr. Nelson's Affirmation, reliance on such is flawed. The Defendant contends that Dr. Nelson last examined the Decedent two years prior to him signing the documents in question and he does not opine that the Decedent had dementia. She further argues that Dr. Nelson is not a legal expert and cannot give an expert opinion on whether the Decedent had the legal capacity to execute the documents at issue.



Finally, the Defendant points out that the Plaintiffs completely failed to address the branch of her motion seeking to dismiss the claims sounding in fraud and under the General Business Law § 349.



The standards for summary judgment are well settled. A court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is, therefore, entitled to judgment as a matter of law. (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]) Thus, when faced with a summary judgment motion, a court's task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial. (Miller v. Journal-News, 211 AD2d 626 [2nd Dept. 1995])



The burden on the party moving for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact. (Ayotte v. Gervasio, 81 NY2d 1062 [1993]) If this initial burden has not been met, the motion must be denied without regard to the sufficiency of opposing papers. (Id.; Alvarez v. Prospect Hosp., supra) However, once this initial burden has been met by the movant, the burden shifts to the party opposing the motion to submit evidentiary proof in admissible form sufficient to create material issues of fact requiring a trial to resolve (Id.). Mere conclusions and unsubstantiated allegations or assertions are insufficient. (Zuckerman v. City of New [*5]York, 49 NY2d 557, 562 [1980])



The guides for determining testamentary capacity depend on its own factual situation, but in general, the testator must have sufficient intelligence and capacity to understand the nature and consequences of his testamentary act, to know the nature and extent of his property and those who may have just or natural claims upon his bounty in its disposition. (In re Horton's Will, 26 Misc 2d 843 [N.Y.Sur. 1960]) "One need not have perfect mind or memory." (Id.) Less capacity is required to make one's will than to make a contract. (Matter of Estate of Ashley, 33 AD2d 1023 [2nd Dept. 1970])



An allegation of undue influence "must show that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist." (Matter of DiDomenico, 101 AD3d 998 [2nd Dept. 2012]



Here, the evidence submitted by the Defendant, establishes her prima facie entitlement to summary judgment dismissal of the complaint. First, she established that there is no evidence, other than one sentence from a deposition transcript that the Decedent was sometimes forgetful, that the Decedent suffered from dementia or that he lacked testamentary capacity to execute the documents in question. The claim that the Decedent was sometimes forgetful does not come close to meeting the standard to prove testamentary incapacity.



Second, the Defendant establishes that the Decedent was not under undue influence when executing his Will and Trust and that there is no evidence to show that he was under the Defendant's undue influence. Finally, the Defendant sufficiently establishes that the Plaintiffs' complaint fails to state a cause of action for fraud and their claim under the General Business Law § 349.



In opposition, the Plaintiffs unsuccessfully rebut the Defendant's prima facie entitlement to summary judgment by failing to raise a triable issue of fact. The Plaintiffs failed to provide any admissible evidence to establish that the Decedent suffered from dementia or lacked capacity to execute a will and trust. In fact, some of the testimony submitted by the Plaintiffs actually support the Defendant's position. At his EBT, Mr. Werring testified that the Decedent had the capacity to execute a will. (See EBT transcript annexed to the Affirmation in Opposition as Exhibit "B", p. 11, l. 10-18)



Furthermore, the Expert Affidavit of Dr. Nelson, submitted by the Plaintiffs is without merit and fails to raise an issue of fact. First, the Plaintiffs failed to disclose Dr. Nelson as an expert pursuant to CPLR § 3101 (d) (i), and as such, should be precluded. However, even if this Court admits and considers the Affidavit of Dr. Nelson, it fails to raise a triable issue of fact.



Nowhere in Dr. Nelson's Affidavit did he opine that the Decedent had dementia or any other condition that would influence his testamentary capacity. Dr. Nelson stated that the Decedent was forgetful and that he appeared to be easily influenced by others, but provided no information as to how he made such a determination. Dr. Nelson's Affidavit is filled with speculative and conclusory accusations that the Defendant steered the Decedent away from his medical practice in order to gain greater control over the Decedent's treatment and to more easily influence him. Dr. Nelson provides absolutely no facts to support these assertions.



Finally, despite his lack of legal expertise and the fact that he last saw the Decedent [*6]in 2009, two years prior to him executing the documents in question, he opines that "it is questionable whether Mr. Erich A. Bohn had the capacity to enter the Irrevocable Trust and Last Will and Testament."



Since Dr. Nelson's Affidavit fails to set forth any objective medical evidence to support his conclusions, it does not sufficiently raise a triable of fact to defeat summary judgment.



The Plaintiffs also fail to submit any evidence to sufficiently show that the Decedent was under undue influence. When considering all of the Plaintiffs' allegations as true, including but not limited to, the allegations that the Defendant, did not allow the Plaintiff, Lauren, to see the Decedent; that she changed his physician and moved him from Oyster Bay Manor to Cold Springs; that she personally paid Denis Brody to draft the Decedent's Will and Trust; and, that she signed the Decedent's name on checks to pay his bills, it still does not establish that the Decedent executed his Will and Trust under undue influence.



Finally, the Plaintiffs fail to set forth any arguments or evidence to rebut the branch of the Defendant's motion, which seeks to dismiss the fraud claim and the claim brought pursuant to General Business Law § 349.



Accordingly, it is hereby



ORDERED, that the motion by the Defendant, seeking an Order, pursuant to CPLR § 3212, granting her summary judgment dismissing the Plaintiffs' complaint is GRANTED.



This constitutes the Decision and Order of the Court.



DATED:Mineola, New York



April 16, 2015



________________________________



Hon. Randy Sue Marber, J.S.C.



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