Cite as: Matter of Roxanne Paino, 2010-647/B, NYLJ 1202588872306, at *1 (Surr., SUF, Decided August 22, 2012)

Surrogate John M. Czygier, Jr.


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Decided: August 22, 2012


Attorneys for Petitioners: Novick & Associates, P.C., Huntington, NY.

Attorney for Respondent: Patrick J. Carle, Esq., Suffern, NY.





Within the context of the underlying SCPA 2103 proceeding, respondent moves for summary judgment pursuant to CPLR 3212, seeking dismissal of the amended petition as she contends there are no material issues of fact warranting a trial and is entitled to judgment as a matter of law. Petitioners oppose the instant application. For the reasons set forth below, the application is denied.


Decedent died on December 31, 2009. His will was duly admitted to probate on March 29, 2010 and letters testamentary issued thereupon to petitioners, his daughters. The underlying turnover proceeding was commenced on or about April 28, 2010. Respondent, decedent's girl friend, timely filed her answer to the allegations. Thereafter, petitioners were granted leave to amend their petition and respondent filed an amended answer. With CPLR Article 31 disclosure complete, respondent filed the instant application seeking judgment as a matter of law.

Applicable Law and Discussion




Summary judgment is designed to eliminate from the trial calendar litigation that can be resolved as a matter of law (see Andre v. Pomeroy, 35 NY2d 361). The court's burden is not to resolve issues of fact, but merely to determine if such issues exist (see Dyckman v. Barrett, 187 AD 2d 533). It is a drastic remedy that will only be awarded where there is no triable issue of fact (see Barclay v. Denckla, 182 AD2d 658). The court, therefore, must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person of her day in court (see Russell v. A. Barton Hepburn Hospital, 154 AD2d 796).

The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Zarr v. Riccio, 180 AD2d 734). Failure to make out a prima facie case requires a denial of the motion regardless of the sufficiency of opposing papers (see Winegrad v. New York University Medical Center, 64 NY2d 851). If, however, this burden is satisfied, the burden of going forward shifts to the opposing party to establish the existence of material issues of fact requiring a trial (see Romano v. St. Vincent's Medical Center, 8 AD2d 467), by the tender of evidentiary proof in admissible form (see Friends of Animals, Inc. v. Associated Fur Manufactures Inc., 46 NY2d 1065).

Where, as here, the transfer is alleged to be a gift, respondent, as donee, bears the burden of proving by clear and convincing evidence that the gift was voluntary and knowingly made by the decedent, uninfluenced by fraud, duress or coercion (see Gordon v. Bialystoker Center, 45 NY2d 692) and is required to establish three essential elements: donative intent, delivery and acceptance (see Matter of Szabo, 10 NY2d 94). To establish title to property through a gift inter vivos each and every element of a valid gift must be established with great probative force (see Matter of Abramowitz, 38 AD2d 387, aff'd 32 NY2d 654) and requires a showing of the intent of the decedent to pass a present right to property, thereby vesting the grantee with dominion and control (see Estate of MacGregor, 119 AD2d 909).

The controversy in question involves an annuity policy




purchased by decedent shortly before his death from American Skandia. The policy application and contract were attached as exhibits to various submissions made in connection with this proceeding. Respondent asserts that decedent was competent and fully understood the nature of the transaction when he purchased an annuity on February 12, 2008, which provided for monthly systematic withdrawals of $1,000 payable to him. Although petitioners claim that their father was confused and forgetful a few weeks prior to that February date, respondent states that there is nothing in the record to refute the testimony of the broker who stated that decedent was lucid and clearly understood the ramifications of purchasing this annuity with her as the owner. Based upon the record, respondent argues that all the elements of a completed gift have been satisfied; thereby entitling her to summary judgment. Further, she claims that petitioners' alternate theory of recovery, the imposition of a constructive trust, should be dismissed as well as it too is unsupported by the facts of record.

In response, petitioners contend that decedent purchased this annuity for his benefit, naming respondent as the owner solely to receive an added benefit, namely a 6½ percent bonus of principal. They further contend that decedent's understanding was that he could change the name of the annuity owner at any time. Thus, they argue that this transaction does not satisfy the elements of a completed gift, as decedent never intended to give up control of the assets used to purchase the annuity. Moreover, they claim that there are factual issues concerning the element of "acceptance" of the purported gift by respondent, as she did not believe the money was hers. Alternatively, they contend that decedent transferred funds into this annuity with respondent named as owner for convenience purposes, that respondent promised to hold the funds for the benefit of decedent and that she will be unjustly enriched if allowed to retain these funds. Based upon the foregoing, they contend that there are material issues of fact warranting denial of the motion.

The uncontroverted facts establish that on or about February 12, 2008 decedent purchased an annuity through American Skandia under Policy No. E0671883. This annuity was purchased




with funds previously held in an investment account solely owned by decedent in which petitioners (25 percent each) and respondent (50 percent) were the designated beneficiaries. Pursuant to the terms of the annuity contract, many of the material terms of the annuity are incorporated by referring to the information provided on the enrollment form/application. The information contained on the application includes, for example, the annuitant, beneficiary, and participant/owner. Based upon this information, the policy was issued with decedent named as annuitant and primary beneficiary and respondent named as the owner. The relevant annuity/contract information is contained on a "Schedule," which is attached to the contract. By separate document, which appears to have been executed on the same date as the annuity application, systematic withdrawals of $1,000 per month where scheduled to begin in February of 2008 payable to decedent. This document was signed by respondent, as policy owner.

It is unclear from this record whether the petitioners or respondent are the rightful recipients of the funds under the terms of this annuity. Pursuant to the terms of the annuity contract, the annuity is subject to the payment of certain monthly withdrawals, which were paid to decedent during his lifetime. It appears that after his death these monthly annuity payments were being made to respondent.

The completed annuity application names Joseph Paino as annuitant and beneficiary and does not name any other individual as either an annuitant or beneficiary. The terms peculiar to this particular policy are set forth on a schedule. The "Schedule" lists Joseph Paino as the sole annuitant. Further, the "Contingent Annuitant" is listed "as named in any enrollment form or later changed." Similarly, the "Beneficiary" is also listed "as named in any enrollment form or later changed," although there is also a default designation. Under the terms of the annuity, although the death benefit is payable to the beneficiary upon the death of the owner, there does not appear to be a clearly stated contingent arrangement where the annuitant, who is not the owner, dies.

As the application and annuity agreement appear to be used in connection with a wide range of products, it is unclear from




the record who, if anyone, is entitled to monthly payments after the death of this decedent or if the death benefit is payable immediately to a defined individual. This is further complicated by the apparently conflicting language governing this policy. For example, under "Definitions" in the annuity contract, "Beneficiary" is defined as the person designated as the recipient of the death benefit or certain annuity payments after the annuitant's death, yet the application indicates that the death benefit for American Skandia Annuities is payable upon the death of the owner, which in this case are two different individuals. Although these two provisions may be harmonized, questions of fact exist with respect to whom and when the death benefit is payable and the propriety of monthly payments to the policy owner, who is not decedent's spouse.


Thus, it does not appear that the mere labeling of individuals sufficiently defines their respective rights under the terms of this policy. Moreover, based upon the foregoing, respondent has failed to establish that she is entitled to judgment as a matter of law. Accordingly the motion is denied. The parties are directed to appear for conference on September 27, 2012 at 9:30 am at the Surrogate's Court to address all outstanding issues.

This decision constitutes the order of the court.