Submitted - January 19, 2018
Jeffrey E. Michels, New York, NY, for appellant.
S. Seidel, Forest Hills, NY, for respondents Helene Zaltz and
Leonard R. Sperber, Garden City, NY (Michelle S. Stein of
counsel), for respondent Adelle Lawrence.
WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL SANDRA L. SGROI
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action, inter alia, to recover damages for breach of contract
and to impose a constructive trust, the plaintiff appeals
from an order of the Supreme Court, Kings County (Ellen M.
Spodek, J.), dated June 3, 2015. The order, insofar as
appealed from, upon renewal, in effect, vacated a prior
determination in an order of the same court dated June 2,
2014 (Jack M. Battaglia, J.), denying the motion of the
defendant Adelle Lawrence for summary judgment dismissing the
second amended complaint insofar as asserted against her and
denying that branch of the separate motion of the defendants
Helene Zaltz and Israel Zaltz which was for summary judgment
dismissing the second amended complaint insofar as asserted
against them, and thereupon granted the defendants'
that the order dated June 3, 2015, is affirmed insofar as
appealed from, with one bill of costs.
Elsie Rokeach had four children: the plaintiff, Sheila
Berniker Seidenfeld, Leonard Rokeach, and the defendants
Helene Zaltz and Adelle Lawrence. In 1982, Max died
intestate. A primary asset of Max's estate was real
property in Brooklyn (hereinafter the Brooklyn property).
That property consisted of two living spaces, and a meeting
space that was used as a synagogue. One of the living spaces
was occupied by Max and Elsie.
course of administering Max's estate, the children agreed
that Sheila, Leonard, and Adelle would each waive his or her
intestate share of Max's estate in favor of their mother,
Elsie, in exchange for her promise that she would leave them
each 16.5% of the Brooklyn property upon her death. It was
further agreed that, because Elsie could not live alone,
Helene and her husband Israel Zaltz (hereinafter together the
Zaltzes), would occupy the second living space in the
Brooklyn property and make improvements to it and that, if
they did so until Elsie's death, they would receive the
remaining 50% of the property. This understanding was
memorialized in a 1986 agreement between Elsie and the
Zaltzes, although Sheila, Leonard, and Adelle also signed as
interested parties (hereinafter the 1986 agreement). The
Brooklyn property was legally held by Elsie and the Zaltzes
in 50% shares as tenants-in-common.
and 1997, Elsie made 12 deposits of $10, 000 each to
brokerage accounts. The memo section of each of the checks
indicates that they were gifts to Helene, Adelle, or
Adelle's sons. According to Sheila, in mid-2005, Adelle
and Israel both told her that, upon Elsie's death, a
portion of the assets in one brokerage account, which was
held in the names of Helene and Adelle, would go to Sheila.
2000, Elsie transferred her 50% interest in the Brooklyn
property to Helene. In 2002, Helene told Sheila that the
purpose of the transfer was to improve Elsie's Medicaid
eligibility, but that Sheila and her siblings would
nevertheless receive their 16.5% shares of the property upon
Elsie's death. In January or February of2005, Helene sold
the Brooklyn property, and she and Israel purchased a home in
Lawrence. Elsie moved to an assisted living facility and, in
August 2005, she died. Elsie's will did not mention the
1986 agreement, and Helene declined to disburse 16.5% of the
proceeds of the sale of the Brooklyn property to Sheila.
Helene and Adelle also declined to transfer the proceeds of
the brokerage account to Sheila.
2009, Sheila, as co-executor of Elsie's estate, commenced
a turnover proceeding in the Surrogate's Court, Queens
County, to recover the proceeds of the sale of the Brooklyn
property and the brokerage accounts. The Zaltzes and Adelle
separately moved for dismissal of Sheila's petition. In
an order dated August 26, 2010, the Surrogate's Court
granted the motions and directed dismissal of Sheila's
petition on the ground that each of her causes of action was
either time-barred or constituted a dispute between living
persons which was not within the jurisdiction of the
Surrogate's Court. Sheila appealed that order to this
Court, which affirmed the dismissal (see Matter of
Rokeach, 101 A.D.3d 1022).
November 2010, Sheila commenced this action against Adelle
and the Zaltzes, seeking a share of the Brooklyn property and
the proceeds of one of the brokerage accounts. She also
alleged that, when Max died, Helene and Adelle told her that
the net value of his estate was only approximately $32, 000.
Sheila alleged that she waived her share of Max's estate
in favor of Elsie based on that representation. She claimed
that Max's estate actually was worth a far greater amount
and that, had she known the true value of the estate, she
would not have waived her share of it. Sheila's
complaint, and her second amended complaint, which is ...