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Lewis v. DiMaggio

Supreme Court of New York, Third Department

June 15, 2017

ELLIOT M. LEWIS et al., Appellants- Respondents,
VIOLET DiMAGGIO, Also Known as ANN VIOLET DiMAGGIO, Individually and as Executor of the Estate of NANCY M. CHRISTOFARO, Deceased, Respondent- Appellant, and MARGARET MURPHY PETERSON, as Executor of the Estate of MARY IOCOVOZZI, Deceased, Respondent.

          Calendar Date: April 24, 2017

          Murphy & Lambiase, Goshen (George A. Smith of counsel), for appellants-respondents.

          Barclay & Damon, LLP, Elmira (Brian J. Maggs of counsel), for respondent-appellant.

          Smith, Sovik, Kendrick & Sugnet, PC, Syracuse (Brady J. O'Malley of counsel), for respondent.

          Before: McCarthy, J.P., Egan Jr., Rose and Clark, JJ.


          ROSE, J.

         Cross appeal from an order of the Supreme Court (O'Shea, J.), entered May 12, 2015 in Chemung County, which, among other things, granted motions by defendant Violet DiMaggio and Mary Iocovozzi for summary judgment dismissing the amended complaint.

         Nancy M. Christofaro (hereinafter decedent) executed a will in 1992 directing that, as relevant here, the majority of her estate was to be distributed equally between her two adopted adult children, Mary Lewis and Joseph O. Christofaro (hereinafter Christofaro) [1]. The 1992 will was drafted by Lewis' husband, an attorney, and listed her as the executor of decedent's estate. Two years prior to her death, however, after decedent's relationship with Lewis had become strained, decedent contacted her niece, Mary Iocovozzi, [2] who was also an attorney, to assist her in drafting a new will and revising her estate plan. As part of her new estate plan, decedent executed a second will in August 2007 and a third will in October 2007. Both of these wills, which, among other things, explicitly disinherited Lewis, made bequests to decedent's sisters, defendant Violet DiMaggio and Rose Seppi, designated DiMaggio as the executor of her estate and provided that her residuary estate was to be split equally between plaintiffs, who are the now-deceased Christofaro and five of her six grandchildren. Decedent also established a testamentary trust for the benefit of her sixth grandchild, who was not named in the will, but to whom she felt a strong attachment, and she funded that trust with the entire proceeds of an annuity that had originally designated Lewis and Christofaro as the beneficiaries.

         When decedent died in 2009, Lewis filed a petition to admit the 1992 will to probate. After letters testamentary were issued to Lewis, DiMaggio filed a petition to, among other things, admit decedent's October 2007 will to probate. Ultimately, Surrogate's Court (Buckley, S.) revoked the letters testamentary issued to Lewis and granted DiMaggio's petition, finding that, at the time the October 2007 will was executed, decedent was "in all respects competent to make a will and not under restraint." Plaintiffs then commenced this action in 2012 alleging that, prior to her death, decedent was "vulnerable to overreaching" and that defendants had seized upon this vulnerability and wrongfully diverted assets that would have been a part of decedent's estate by the use of fraud and undue influence. Plaintiffs also alleged a separate claim against DiMaggio for breach of her fiduciary duty as executor for failing to take action to recover such assets.

         Prior to joinder of issue, defendants each moved to dismiss the amended complaint. Supreme Court denied defendants' motions and, on appeal, this Court affirmed (115 A.D.3d 1042, 1044-1045 [2014]). After defendants answered and extensive discovery was had, they each moved for summary judgment. DiMaggio, in her motion, also sought costs and sanctions against plaintiffs. Plaintiffs then cross-moved for partial summary judgment, requesting that Supreme Court deem as admitted the facts set forth in their notice to admit. DiMaggio thereafter moved to, among other things, hold plaintiffs in contempt for failing to file a note of issue and compel plaintiffs to produce certain audio recordings they had made of decedent. Ultimately, Supreme Court granted defendants' motions for summary judgment, denied plaintiffs' cross motion and that part of DiMaggio's motion that sought costs and sanctions, and dismissed the amended complaint. Additionally, the court determined that DiMaggio's other motions were moot. Plaintiffs now appeal and DiMaggio cross-appeals.

         Initially, we find that Supreme Court properly denied plaintiffs' cross motion for partial summary judgment seeking to deem as admitted the facts set forth in their notice to admit. The notice to admit improperly sought admission of obviously disputed matters that go to the heart of the controversy (see CPLR 3123 [a]; Nationstar Mtge., LLC v Davidson, 116 A.D.3d 1294, 1296 [2014], lv denied 24 N.Y.3d 905');">24 N.Y.3d 905 [2014]; Eddyville Corp. v Relyea, 35 A.D.3d 1063, 1066 [2006]).

         Turning to defendants' motions for summary judgment, plaintiffs do not take issue with Supreme Court's determination that defendants met their initial summary judgment burdens. Rather, plaintiffs contend that, in opposition to defendants' motions, they raised triable issues of fact regarding undue influence and fraud, as well as their standing to maintain this action, by tendering, among other proof, an affidavit and deposition testimony of Lewis describing decedent's alleged confusion during the two years prior to her death, decedent's changes to her estate plan during that period and alleged conversations with decedent regarding the latter's intentions concerning certain assets. Plaintiffs also offered an affidavit by a forensic document examiner who opined that certain of decedent's signatures were not authentic.

         In his affidavit, the forensic document examiner averred that he had conducted an examination of three documents purportedly signed by decedent - specifically, a savings account agreement that transferred funds previously held jointly by decedent and Lewis into decedent's individual account, a joint savings account agreement that transformed the individual account back into a joint account and added DiMaggio as a joint holder with the right of survivorship, and a funeral home contract. The examiner also reviewed documents that were known to contain the authentic signatures of decedent and DiMaggio. Based upon his review, the examiner opined that the signatures on the three documents at issue were not written by decedent and, more specifically, that the signatures on the joint and individual savings account agreements were actually written by DiMaggio. Although Supreme Court disregarded the examiner's affidavit, we note that, where an expert affidavit is offered to show that a signature was forged, "the expert opinion must be in admissible form and state with reasonable professional certainty that the signature at issue is not authentic" (Banco Popular N. Am. v Victory Taxi Mgt., 1 N.Y.3d 381, 384 [2004]). In our view, the examiner's affidavit meets this minimal standard.

         In light of the examiner's affidavit, we initially find that plaintiffs raised triable issues of fact as to whether extraordinary circumstances exist to permit them to maintain this action (see Matter of Van Patten, 190 A.D.2d 322, 326 [1993]; Inman v Inman, 97 A.D.2d 864, 865 [1983]; compare Castor v Pulaski, 117 A.D.3d 1552, 1554 [2014]). We also find that the examiner's affidavit raised triable issues of fraud as to DiMaggio (see generally Matter of Colverd, 52 A.D.3d 971, 973-974 [2008]), as well as breach of her fiduciary duty (see generally Matter of Carbone, 101 A.D.3d 866, 868 [2012]), notwithstanding the competing affidavits submitted by bank employees averring that they personally witnessed decedent sign her own name on the bank documents. As to Iocovozzi, however, neither the examiner's affidavit nor the other evidence in the record, including Lewis' affidavit, adequately raises any issue of fraud committed ...

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