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Grosso v. Radice

March 16, 2009


The opinion of the court was delivered by: Seybert, District Judge


On August 28, 2007, Plaintiffs Claudia Grosso ("Grosso"), Adam D. Gershenson ("Adam"), Melissa T. Gershenson ("Melissa"), and Spencer T. Gershenson ("Spencer") ("collectively, "Plaintiffs") commenced this action against Deborah Radice, in her individual capacity ("Radice" or "Defendant"), alleging breach of contract and breach of fiduciary duty. Pending before the Court is Defendant's motion for summary judgment, Plaintiffs' motion for partial summary judgment on the breach of contract claim, Plaintiffs' motion for a stay, and Plaintiffs' motions for sanctions. For the reasons stated below, Defendant's motion for summary judgment is GRANTED in part and DENIED in part, Plaintiffs' motion for summary judgment is DENIED, Plaintiffs' motion for sanctions is DENIED, and Plaintiffs' motion for a stay is DENIED.


I. Facts

The following facts are taken from the Parties' 56.1 Statements and Counter-Statements and the exhibits attached thereto. Although the Parties agree on very little, the following facts are undisputed unless otherwise noted.

Grosso is the ex-wife of Ira Gershenson ("Decedent"), who passed away on April 25, 2003. (Def.'s R. 56.1 Stmt ¶¶ 2, 22). Adam, Melissa, and Spencer are Grosso and the Decedent's children. (Id.) Defendant Radice is Decedent's daughter and Grosso's step-daughter. (Id. ¶ 3.)

Pursuant to the divorce decree between the Decedent and Grosso, the Decedent was required to provide an $80,000.00 insurance policy on behalf of Adam, Melissa, and Spencer (hereinafter, the "Insurance Policy"). (Id. ¶ 16.) At some point, the Decedent allowed the life insurance policy to lapse. (Id. ¶ 18.) In May of 2003, Radice made a payment to Grosso in the amount of $341.84 from Radice's personal checking account. (Pls.' R. 56.1 Stmt ¶ 5). Radice sent Grosso a letter with the check (the "May 2003 letter"), which stated,

This check is an advance on the $80,000 to which we have agreed you are entitled to receive from my father's estate. The $80,000.00 is in lieu of the life insurance policy that my father was ordered to maintain, for the benefit of Adam, Melissa, and Spencer, in your divorce decree and which he had allowed to lapse. The $341.84 will be deducted [from] the $80,000 once the estate is settled. Deposit of this check constitutes your agreement to the terms set forth above. (Id. ¶ 6.)

Radice was the named Executrix in the Decedent's Last Will and Testament (hereinafter, the "Will"). (Def.'s R. 56.1 Stmt ¶ 4.) The Decedent's Will required Radice, as the Executrix, to pay Adam, Melissa, and Spencer the proceeds of an Individual Retirement Account held at Maspeth Federal Savings Bank (the "Retirement Account"). (Id. ¶ 15.) However, the Retirement Account no longer existed at the time of the Decedent's death. (Id.)

II. State Court Action

In July of 2004, Plaintiffs filed an action against Defendant in the Supreme Court for the State of New York, County of Nassau (the "State Court Action").*fn1 In the State Court Action, Plaintiffs sued Defendant in her capacity as Executrix of the Decedent's estate, Custodian of the Uniform Gift to Minors Account ("UGMA") for the benefit of Spencer, "Attorney-in-Fact" for the Decedent, and as Custodian/Trustee of other accounts for Adam and Melissa, and in her individual capacity. The Honorable F. Dana Winslow dismissed Plaintiffs' actions against Defendant in her capacity as Executrix on the grounds that Defendant was never appointed as Executrix because there was nothing left in the Decedent's estate to probate, and thus Defendant could not be sued in her capacity as Executrix. Justice Winslow dismissed the claims against Defendant in her personal capacity, in her capacities as Custodian/Trustee for other accounts on behalf of Adam and Melissa, and as attorney-in-fact for the Decedent for lack of personal jurisdiction. Finally, Justice Winslow dismissed Plaintiff's claims against Defendant in her capacity as Custodian of the UGMA account for the benefit of Spencer for failure to state a claim. Plaintiffs' state court complaint alleged that Defendant breached a fiduciary duty to Spencer by allegedly failing to roll-over funds in one or more of the Decedent's accounts into Spencer's UGMA account. Justice Winslow held that Plaintiffs failed to allege the standard of care against which the conduct of the defendant is to be measured, the defendant's failure to conform to the applicable standard of care in the management of the UGMA assets and a proximate causal relation between the defendant's deviation from the applicable standard of care and the loss suffered by the plaintiff.

Grosso v. Estate of Ira Gershenson, et al., Index No. 009437/04, at 13 (N.Y. Sup. Ct. Jan. 17, 2005).

The Appellate Division of the State of New York, Second Department, affirmed. See Grosso v. Estate of Gershenson, 822 N.Y.S.2d 150 (N.Y. App. Div. 2d Dep't 2006).


I. Standard of Review on Summary Judgment

"Summary judgment is appropriate where there is no genuine dispute concerning any material facts, and where the moving party is entitled to judgment as a matter of law." Harvis Trien & Beck, P.C. v. Fed. Home Loan Mortgage Corp. (In re Blackwood Assocs., L.P.), 153 F.3d 61, 67 (2d Cir. 1998) (citing Fed. R. Civ. P. 56(c)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986).

"The burden of showing the absence of any genuine dispute as to a material fact rests on the party seeking summary judgment." McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed. 2d 142 (1970). "In assessing the record to determine whether there is a genuine issue to be tried as to any material fact, the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee, 109 F.3d at 134.

"Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must 'set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 256). "Mere conclusory allegations or denials will not suffice." William v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). Indeed, when a motion for summary judgment is made, it is time to "to put up or shut up. . . . [U]nsupported allegations do not create a material issue of fact." Weinstock, 224 F.3d at 41 (internal citations omitted).

II. Defendant's Motion for Summary Judgment

Defendant argues that she is entitled to summary judgment because Plaintiffs' Complaint is barred by res judicata, collateral estoppel, the Rooker-Feldman doctrine, accord and satisfaction, the statute of limitations, the probate exception, and the domestic relations exception. Defendant additionally argues that Plaintiff cannot maintain her ...

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