New Law - Powers of Attorney in New York
Take a look at the new law applicable to powers of attorney in New York. You will have to go to the New York State Legislature search page , type in the bill number (A06421B), select 2008 from the pop-up menu, and check off the box for "Text." The effective date is currently March 1, 2009 - so you have a month to get up to speed!
Westchester Surrogate's Court Examines Equitable Claims
A recent decision from the Westchester County Surrogate’s Court, Edelman v Hatami is an entertaining read. The decision addresses the Statute of Frauds, and provides a good example of how litigants will attempt to employ the equitable doctrines of promissory estoppel and constructive trust in estate litigation.
In Edelman the defendant sought recovery against a decedent’s estate, claiming breach of contract, promissory estoppel, and constructive trust. According to the decision, the defendant met the decedent sometime in 1995 or 1996, when the defendant became a tenant in a building owned by the decedent. At that time, the defendant was in her early 30s, and the decedent was in his late 60s. They developed what the Court described as an “intimate” relationship that lasted until the decedent died in September 2004 at the age of 77. According to the defendant, in exchange for certain services rendered on her part, the decedent orally agreed to pay her living expenses for a three-year period, to pay her law school tuition, and to transfer to her the apartment in which she resided. The services allegedly provided to the decedent included ensuring that decedent was cared for and fed healthy, nutritious meals; monitoring the decedent's medical and physical condition; acting as the decedent's personal confidant concerning all aspects of the decedent’s life; and, acting as decedent's business confidant. The Court dismissed all of the defendant’s claims.
The Court’s dismissal of the defendant’s breach of contract, promissory estoppel and quasi-contract claims was based, in part, on its determination that the services provided by the defendant were consistent with the “intimate” relationship that the decedent and the defendant shared. The Court also noted that the defendant received substantial benefits from the decedent in the course of their relationship, such as an allowance of approximately $5,000 per month, nearly $200,000.00 in credit card charges over a period of several years, and a year-long all-expense-paid trip to England. The Court’s dismissal of the defendant’s constructive trust claim was based on the defendant’s failure to demonstrate a necessary element of a constructive trust; a transfer on the defendant’s part in reliance on a promise of the decedent. If you enjoy reading the decision, stay tuned, as it appears that the defendant may be taking an appeal.
What is a Trial or Hearing on the Merits?
Be careful before you start answering this question. When it comes to applying CPLR §4519, commonly referred to as the Dead Man’s Statute, easy answers are sometimes hard to find.
CPLR §4519 precludes testimony upon an objection at “the trial of an action or the hearing upon the merits of a special proceeding,” where 1) the witness has a financial interest in the outcome of the litigation; 2) she is to be examined about a personal transaction or communication of the decedent; 3) she is to be examined as a witness on her own behalf; and, 4) the testimony sought to be elicited is against the fiduciary or survivor of the decedent or a person deriving his title from the decedent. The principle purpose of the statute is to prevent fraudulent claims which could easily be asserted against a decedent’s estate – since the decedent cannot give his version of the transaction or conversation, the financially interested witness is not permitted to give her version. There is no shortage of commentary concerning the Dead Man’s Statute and a great number of cases examine its application (see Matter of Wood 52 NY2d 139 [1981]; Sepulveda v Aviles, 308 AD2d 1 [1st Dept 2003];Matter of Radus, 140 AD2d 348 [2d Dept 1988]; Matter of Miller 97 AD2d 581 [3d Dept 1983]; Estate of Breitman, 4/7/99 NYLJ 35, [col. 5] [Sur Ct, Nassau County 1999]; Matter of Dunbar, 139 Misc 2d 955 [Sur Ct, Bronx County 1988]; See also Radigan, The Dead Man’s Statute – Alive and Well in the Surrogate’s Court, 50 NY St BJ 470 [1980]; Brooks, It’s Time to Kill the Dead Man’s Statute, NYLJ, July 18, 1988, at 1, col 1).
By its plain language, CPLR §4519 has no application at any stage of a proceeding or action other than at “a trial or a hearing on the merits.” It is clear that the statute has no application during pre-trial discovery at a deposition pursuant to Article 31 of the CPLR. Similarly, it has no application in examinations held pursuant to SCPA §§1404, 2211, or at an examination during the inquisitorial stage of a discovery proceeding (see Philips v Kantor & Co., 31 NY2d 307 [1972]; Lemlich v Lemlich, 266 AD 748 [2d Dept 1943]; Wall Street Assoc. v Brodsky, 295 AD2d 262 [1st Dept 2002]).
What about a hearing on a preliminary injunction? Is that considered a “trial or hearing on the merits” within the meaning of CPLR §4519.
Recently, in Matter of Tschernia (18 Misc 3d 1114[A] [Sur Ct, Nassau County 2007]), Surrogate Riordan addressed whether the statute should apply to bar testimony at a hearing on a preliminary injunction. There, the petitioner sought a preliminary injunction restraining the preliminary executrix from selling a substantial parcel of real property. His petition sought a declaration that he was the owner of the subject real property, or in the alternative, to impose a constructive trust on the real property. In an effort to meet his burden on the preliminary injunction, the petitioner sought to testify as to his transactions with the Decedent. Surrogate Riordan held that the Dead Man’s Statute applied to bar the petitioner’s testimony, focusing on the fact that a hearing on a preliminary injunction is not merely a discovery, disclosure, or fact gathering proceeding, but is aimed at determining whether a provisional remedy will be afforded based, in part, on weighing the likelihood of success on the merits. He observed as follows:
Unlike in the inquisitorial stage of a proceeding, the protection of the Dead Man's Statute may be raised when the testimony is offered in evidence at the trial on the merits as to the issue of title, or is used as a basis for the determination of title. Unlike a pretrial deposition or the inquisitorial stage of an SCPA 2103 proceeding, the preliminary injunction hearing is not inquisitorial in nature. Presumably, the testimony [the petitioner's] attorney attempted to elicit from [the petitioner] was to help demonstrate that he is likely to succeed at trial. It would be incongruous for the court to allow [the petitioner] to testify at the preliminary injunction hearing on matters about which he would be disqualified, upon a proper objection, from testifying at trial.
Surprisingly, it appears as though Tschernia may be the only reported case that squarely addresses the application of the Dead Man’s Statute at a hearing on a preliminary injunction. While the plain language of the statute can potentially be construed to preclude its application at a hearing on a preliminary injunction, the result in Tschernia follows the logic of relevant case-law and the policy underlying the Dead Man’s Statute.
