The opinion of the court was delivered by: Kenneth M. Karas, District Judge
ORDER ADOPTING REPORT & RECOMMENDATION
Plaintiff Pamela Lynne Dobbs ("Plaintiff") brings this diversity action against her brother, Defendant Alfred John Dobbs, II ("Defendant"), alleging that Defendant improperly claimed as his own assets that belong to the estate of the Parties' father, Alfred J. Dobbs ("Dr. Dobbs"), who passed away on September 13, 2005. Principally, Plaintiff asserts that Defendant improperly claimed survivorship interests in certain assets when, in fact, Dr. Dobbs had named Defendant as joint-holder of accounts and beneficiary of certain other assets only so that Defendant could act as attorney-in-fact to manage Dr. Dobbs' legal and financial affairs in Dr. Dobbs' final years.
Defendant moves for summary judgment on all five claims in Plaintiff's Second Amended Complaint, those being for: (1) constructive trust; (2) conversion; (3) fraud; (4) intentional infliction of emotional distress; and (5) negligent infliction of emotional distress. Magistrate Judge Mark D. Fox, to whom this Motion was referred, recommended that the Court deny the Motion as to the constructive trust and conversion claims and grant summary judgment as to all other claims. For the reasons stated in the Report and Recommendation ("R&R") of Magistrate Judge Fox and in this Order, Defendant's Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART.
Plaintiff filed her initial Complaint on August 11, 2006. Plaintiff filed an Amended Complaint on October 24, 2006, and a Second Amended Complaint on March 2, 2007.
On July 16, 2007, Defendant filed this Motion for Summary Judgment on all claims. The Motion was fully briefed on September 4, 2007, and referred to Magistrate Judge Fox for a report and recommendation.*fn1 On January 2, 2008, Magistrate Judge Fox issued the R&R. Defendant filed timely objections to the R&R ("Obj."), contending that Magistrate Judge Fox erred in denying the Motion as to the constructive trust and conversion claims.*fn2 Plaintiff did not object to any aspect of the R&R, but filed a response to Defendant's Objections on January 24, 2008.
The Court adopts the background facts as set forth by Magistrate Judge Fox (R&R 1-5), and presumes the Parties' familiarity with them.
In review of a magistrate judge's report and recommendation, a court may "accept, reject, or modify, in whole or in part, the findings or recommendations." 28 U.S.C. § 636(b)(1). The Court reviews de novo those parts of the R&R to which a party has submitted timely, specific objections, see Fed. R. Civ. P. 72(b)(3), and reviews the balance for clear error only. See Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003).
Summary judgment may be granted where it is shown that there is "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court must view all evidence in the light most favorable to the non-moving party and must draw all reasonable inferences in the non-movant's favor. See Tufariello v. Long Island R.R. Co., 458 F.3d 80, 85 (2d Cir. 2006). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Segal v. City of New York, 459 F.3d 207, 211 (2d Cir. 2006). Where the movant shows prima facie entitlement to summary judgment, "the burden shifts to the non-movant to point to record evidence creating a genuine issue of material fact." Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006). "[T]he non-movant cannot rest on allegations in the pleadings and must point to specific evidence in the record to carry its burden on summary judgment." Id.; see also McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 n.4 (2d Cir. 2006) ("[S]peculation alone is insufficient to defeat a motion for summary judgment."). The materiality of the facts is governed by substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At summary judgment, the court is not charged with weighing the evidence and determining its truth, but only with determining whether there is a genuine issue for trial. See Westinghouse Elec. Corp. v. N.Y. City Transit Auth., 735 F. Supp. 1205, 1212 (S.D.N.Y. 1990); see also Castro v. Metro. Transp. Auth., No. 04-CV-1445, 2006 WL 1418585, at *2 (S.D.N.Y. May 23, 2006). The Court's goal should be to "isolate and dispose of factually unsupported claims . . . ." Celotex Corp., 477 U.S. at 323-24.
Plaintiff's first cause of action seeks the imposition of a constructive trust over assets alleged to be held by Defendant for benefit of Dr. Dobbs' estate. Magistrate Judge Fox concluded that Defendant had not shown entitlement to summary judgment on this claim because there were disputed issues of fact regarding "the circumstances under which Dr. Dobbs transferred to Defendant a joint interest in, and/or named him the sole beneficiary of, his assets." (R&R 11.) Defendant objects to this conclusion, contending that there is no disputed issue of fact as to any element of the constructive trust claim, and that he is therefore entitled to summary judgment. (Obj. 3-12.) The Court thus reviews the disposition of the claim de novo.
A constructive trust is an equitable formulation that converts the holder of legal title into a trustee if retaining the beneficial interest would be unjust. See Counihan v. Allstate Ins. Co., 194 F.3d 357, 360 (2d Cir. 1999); see also Simonds v. Simonds, 380 N.E.2d 189, 193 (N.Y. 1978) ("When property has been acquired in such circumstances that the holder of the legal title ...