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Wright v. Millington

United States District Court, E.D. New York

March 25, 2014

Jennifer Beare and Richard Wright, Plaintiffs,
Zsa Zsa Millington, Defendant


TUCKER L. MELANCON, District Judge.


As a result of the lengthy and convoluted history of this case, the undersigned felt that a short section, a prologue if you would, in advance of the Court's ruling would be of assistance in understanding this Court's ruling and its rational and reasons therefore. This missive is not intended to repeat what is contained in the body of the ruling that follows, but rather is intended to set the stage for the ruling.

This case arises from the transfer of plaintiff-decedent Leatrice Harris' ("Harris") real property located at 225-28 109 Avenue, Queens Village, NY, 11429 (the "Property") from Harris to defendant Zsa Zsa Millington ("Millington") in July 2007. Plaintiff has asserted causes of action for (1) conversion, (2) fraud, (3) unjust enrichment, (4) breach of fiduciary duty, (5) quiet title, (6) reformation, (7) constructive trust, and (8) punitive damages. [Fifth Am. Compl., Rec. Doc. 127].

On August 15, 2007, while Harris was still alive, the initial Complaint was filed in her name against defendant Millington. [Rec. Doc. 1]. Plaintiff's First Amended Complaint was filed on October 9, 2007. [Rec. Doc. 8]. Following Harris' death on October 28, 2007 [ See Rec. Doc. 15], her daughter Jennifer Beare ("Beare") was appointed administrator of Harris' estate and Richard Wright ("Wright") was appointed plaintiff administrator C.T.A. pursuant to N.Y. Surr. Ct. Proc. Act § 707(c). On March 17, 2008, the Court granted Beare's motion to be substituted as plaintiff in her capacity as administrator and Wright in his capacity as administrator C.T.A. of Harris' estate. [Rec. Doc. 21]. The Court notes that Beare and Millington share a long and, at times, contentious relationship pre-dating this lawsuit that appears to stem from disagreements concerning the closeness of their respective relationships with Harris. [ See, e.g., Beare Aff., Rec. Doc. 184-18 at 2-11]. After being substituted as plaintiff administrator, Beare filed a Third Amended Complaint[1] on August 15, 2008. [Rec. Doc. 31]. On July 6, 2011, plaintiff filed a Fourth Amended Complaint [Rec. Doc. 116], which included newly asserted allegations concerning the alleged transfer of Harris' Florida property to Millington, among others. Based on defendant's objections [Rec. Doc. 125], on October 19, 2011 plaintiff filed a Fifth Amended Complaint [Rec. Docs. 126 and 127], which omitted the newly-asserted allegations that had been included in the Fourth Amended Complaint.

Defendant was initially represented by attorney Alfred Polizzotto, whom the Court allowed to withdraw on September 18, 2008. [Rec. Doc. 34]. Subsequently, defendant was represented by attorney Paul Golden, whom the Court also allowed to withdraw on June 19, 2013. [Rec. Doc. 163]. Since June 19, 2013, defendant Millington has been appearing pro se. [ See Rec. Doc. 176].

Defendant's Motion for Summary Judgment was filed on September 19, 2013 [Rec. Doc. 168] and plaintiff's Opposition thereto was filed on October 2, 2013 [Rec. Doc. 175]. On November 21, 2013, the Court conducted a hearing during which it sanctioned plaintiff's former attorney, Wright, for multiple failures to comply with Court orders. [Rec. Doc. 191]. As part of the Court's sanctions, Wright was not allowed to continue in his dual roles in the litigation and was required to withdraw as attorney of record, although he was allowed to maintain his party representative status as administrator C.T.A. pursuant to N.Y. Surr. Ct. Proc. Act § 707(c). [Rec. Doc. 191]. On December 10, 2013, Wright withdrew as attorney of record and plaintiff's current attorney, Paul Shneyer ("Shneyer"), entered his appearance. [Rec. Docs. 203, 205, and 206].

On December 12, 2013, after Shneyer was substituted as plaintiff's counsel, the Court conducted a telephone conference [Rec. Doc. 208], during which it extended two of plaintiff's deadlines and granted plaintiff permission to file a Motion to Amend the Complaint, Allow Additional Discovery, and Amend the Pretrial Order to add Witnesses and Exhibits, which plaintiff's attorney Shneyer then filed on January 10, 2013, [Rec. Doc. 222]. On February 24, 2013, the Court granted plaintiff's request to add her former attorney Wright as a witness and to add any evidence already exchanged during discovery to its exhibit list, but denied plaintiff's Motion to Amend in all other respects. [Rec. Doc. 235].[2] The Court allowed plaintiff's attorney to file his Motion to Amend, requesting additional relief, and deferred ruling on the present motion for summary judgment until after deciding plaintiff's Motion to Amend in order to give plaintiff's newly substituted counsel Shneyer an opportunity to become acquainted with the full record of the case and request any additional relief he deemed necessary or appropriate.


Before the Court are pro se defendant Millington's Motion for Summary Judgment and Memorandum of Law in Support [Rec. Doc. 168][3], plaintiff's Opposition to Defendant's Motion for Summary Judgment [Rec. Doc. 175][4], and defendant's Response to Plaintiff's Opposition [Rec. Doc. 190]. For the reasons set forth below, defendant's Motion for Summary Judgment will be granted as to all of plaintiff's claims and denied with respect to defendant's counterclaims, asserted by defendant for the first time in her Motion for Summary Judgment, based on plaintiff's alleged litigation misconduct.


a. Rule 56 Statements

Pursuant to Local Rule 56.1(a), defendant Millington, as the moving party, submitted a statement of allegedly undisputed facts. [Rec. Doc. 168 at 23-41]. Plaintiff failed to respond with "a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, " as required by Local Rule 56.1(b). Rather, plaintiff's Opposition includes a section entitled "Factual Background, " setting forth several independent factual allegations. [Rec. Doc. 175 at 1-17]. Pursuant to Local Rule 56.1(d), defendant has provided a citation for almost every factual allegation in her Rule 56 Statement; plaintiff has provided citations for less than two thirds of her asserted undisputed facts.

Defendant argues that the Court must accept all her allegations as true because of plaintiff's failure to respond properly. [Rec. Doc. 190 at 12-13]. "A district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules, " may review the record independently, and should disregard factual assertions that are unsupported by the record regardless of whether the assertion was opposed by the non-moving party. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001). The Court has thoroughly reviewed the evidence cited in the parties' factual statements. Despite plaintiff's failure to properly respond to defendant's proposed statement of undisputed facts, the Court has only accepted as true defendant's properly supported factual allegations that are not contradicted by plaintiff's properly supported factual allegations.[5] The Court views disputed facts in the light most favorable to the non-moving plaintiff.

b. Statement of Facts

On July 2, 2007, Harris signed a quitclaim deed (the "Deed") conveying the real property located at 225-28 109 Avenue, Queens Village, NY, 11429 (the "Property") to defendant Millington for "one dollar and other valuable consideration." [Rec. Doc. 184-1]. The Deed was executed before and duly acknowledged by notary public Frank M. Dix and was later filed in the appropriate conveyance records, transferring record title of the Property to defendant.[6]

The parties dispute Harris' physical condition at the time the Deed was signed, although the fact that Harris herself signed the Deed is not in dispute.[7] [ See Rec. Doc. 175 ¶¶ 7, 95]. Defendant testified in her deposition that although Harris was in bed when she signed the Deed, she was in good physical condition on the day she signed the Deed; defendant testified that Harris "was by the kitchen area [when notary Frank Dix arrived] and then she headed to the small bedroom" and got into bed. [Millington Dep., Rec. Doc. 184-7 at 18-19]. Plaintiff points to evidence (1) that Harris was resting in bed during the middle of the day and (2) that Harris was admitted to the hospital for a "routine biopsy examination" two days later, on July 4, 2007, at which time she was experiencing symptoms of ...

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