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McGregor v. McGregor

Supreme Court, Kings County

February 7, 2017

Robert McGregor, Plaintiff,
v.
Arnold McGregor, Defendant.

          Attorney for Plaintiff, Jaroslawicz & Jaros, LLC

          Michelle Holman, Esq, Attorney for Defendant

          Francois A. Rivera, J.

         The 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 Arnold McGregor.

         THE PARTIES

         Plaintiff, Robert McGregor (hereinafter plaintiff) is the brother of the defendant Arnold McGregor (hereinafter defendant).

         BACKGROUND

         On 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.

         Essentially 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.

         Prior 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.

         THE TRIAL

         On July 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. [1]

         At the 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.

         Plaintiff's testimony

         Plaintiff 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.

         Plaintiff 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 ...


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