Attorney for Plaintiff, Jaroslawicz & Jaros, LLC
Michelle Holman, Esq, Attorney for Defendant
Francois A. Rivera, J.
following is the decision, order and judgment after a
non-jury trial in the above captioned matter on the
plaintiff's claim for damages against the defendant
Robert McGregor (hereinafter plaintiff) is the brother of the
defendant Arnold McGregor (hereinafter defendant).
March 27, 2012, plaintiff commenced the instant action by
filing a summons, complaint and a notice of pendency with the
Kings County Clerk's office (KCCO). The complaint
contains twenty-two allegations of fact in support of three
causes of action. The first cause of action alleges fraud.
The second cause of action is for an accounting. The third
cause of action is for conversion. On December 5, 2012,
defendant joined issue by verified answer.
the subject of this action is a property located at 355 South
5th Street, Brooklyn, New York (hereinafter the subject
property) which was owned at one time by James McGregor
(hereinafter the decedent). Plaintiff has alleged that the
decedent is his and the defendant's half-brother.
Plaintiff has also alleged that the defendant fraudulently
and improperly conveyed the subject property from the
decedent to himself by using an invalid power of attorney.
to his death on August 22, 2010, the decedent executed two
separate power of attorney forms authorizing the defendant to
act on his behalf. With the decedent's knowledge and
consent the defendant utilized one of the power of attorney
forms to execute a deed transferring the subject property
from the decedent to himself. Plaintiff alleges that the
power of attorney did not confer upon the defendant the
authority to transfer the property to himself. The plaintiff
contends that the transfer was invalid and that he, as a
distributee of the decedent's estate, is entitled to a
proportionate share of the subject property.
22nd and 30th of 2015, the Court conducted a trial. The
plaintiff, the defendant and their mother, Gloria Herminia
Davis (hereinafter Davis) testified. At the close of all
evidence the Court directed the parties to submit requests
for findings of fact pursuant to CPLR 4213. Plaintiff
included as an annexed exhibit, a certified copy of the
decedent's death certificate with the proposed findings
of fact. 
close of evidence the defendant moved to conform the
pleadings to the proof and assert an affirmative defense of
lack of standing. By order dated February 2, 2016 the Court
granted the defendant's motion. Both parties submitted
post trial memorandums of law on the issue of standing.
testified that he met the decedent as an adult when the
decedent introduced himself as a brother. The decedent did
not provide him with anything showing that they were actually
brothers. Plaintiff had been told by his mother that his
father had apparently had children with someone else.
traveled to New York at the defendant's request when the
decedent was admitted to the hospital. He stayed a few weeks
in New York assisting with the needs of the decedent
including cleaning up the ...