Disqualify Distributee | Fifth Amendment | Binder Agreement

Original Content

Karma For Deadbeat Dad

Karma For Deadbeat Dad

In Estate of Dally, a Surrogate Court recently agreed with a decedent’s mother’s motion to disqualify the father from sharing in his son’s estate.

The son died on April 21, 2008 at the age of 17, as the result of injuries he sustained when he fell from a roof. His “presumptive distributees” were his parents. In this proceeding the mother sought to “compromise causes of action” arising from her son’s death and to disqualify the father as a distributee based on abandonment. An “infant’s compromise” is a civil proceeding or motion for obtaining court approval of the settlement of an infant’s claim – even if it is a settlement relating to the infant’s death. Legally, an “infant” is a person under age eighteen. In New York State, an infant’s case cannot be settled without the approval of a judge, not even if the parent wants to accept the settlement.

In support of her motion for summary judgment, the mother submitted an affidavit stating that: “(1) from the date of the decedent’s birth on July 2, 1990 the father was nowhere to be found and, unbeknownst to her, he was married at the time to someone else; (2) nonetheless, she and the father had three additional children together; (3) for the first eight years of his life the decedent had health issues related to chronic as thma and, during those years, the father never gave any assistance or support to the decedent; (4) between 1990 and 1992, although she was employed, she was required to seek public assistance and food stamps to support the decedent even though the father was gainfully employed; (5) in 2002, the decedent and his brother were removed from the petitioner’s home and placed in a juvenile home, she fought for their return in Family Court, visited them every day, and the father never made any appearance during this time; and, (6) sometime after 2000, when the decedent was about 10 years old, the petitioner obtained a child support order from Family Court and the father began to make involuntary payments although he often fell into arrears.”

“The mother also relates an incident when the father attacked her with a knife in the presence of her children when the decedent was about four years old, resulting in an order of protection against him and ACS intervention. In essence the petitioner alleges that the decedent’s father was not involved in decedent’s life in any meaningful way as a parental figure and provided no financial support for him until she was forced to take him to court to obtain an order for child support. Accordingly, she asserts that the court should determine that the father both abandoned and failed to support the decedent and should be disqualified as a distributee.”

According to the decision, the father offered no evidence in opposition to the mother’s motion, but nevertheless wanted to share in the settlement of his dead son’s wrongful death lawsuit.

Pursuant to New York’s Estates, Powers and Trusts Law Section 4-1.4 (a)(1), a parent may be disqualified from sharing in the estate of a deceased child where the parent, while the child was under the age of 21, either failed or refused to support the child or abandoned the child.

Here, the Court reasoned that because the “statutory criteria of EPTL 4-1.4 is set forth in the disjunctive, proof of either will result in disqualification of the parent. The disqualification extends to sharing in the settlement proceeds allocated to the cause of action for the decedent’s wrongful death and sharing in those proceeds allocated to the cause of action for the decedent’s conscious pain and suffering. The obvious intent and purpose of EPTL 4-1.4 is to prevent a parent, who has not been a part of a child’s life, from showing up to share the spoils of the child’s death.”

The Court found that it was “undisputed that the father was not a part of the decedent’s life in any meaningful way and only saw him, if at all, sporadically and under less than ideal circumstances. The petitioner’s allegations, which have not been rebutted, portray the father as being almost entirely absent from the decedent’s life and providing no meaningful support to decedent, financial or otherwise. Accordingly, the father is determined to have abandoned the decedent. In view of this determination, the court need not address the issue of failure to support in this contested accounting proceeding.”

The father was disqualified from sharing in the settlement.

Pleading the Fifth Did Not Prevent Summary Judgment

Pleading the Fifth Did Not Prevent Summary Judgment

In Lipman v. Shapiro, A Manhattan Commercial Division judge recently granted a defendant summary judgment, even though he invoked his Fifth Amendment privilege and refused to answer any questions at his deposition.

The plaintiff, David Lipman, brought fraud and tortious interference claims against the defendant Ira Shapiro, claiming Shapiro had breached an agreement to compensate him for marketing services in connection with the sales of condominium units at 20-22 East 22nd St. The property developer, a joint venture controlled by Shapiro, agreed to sell two units and convey the proceeds to Lipman as his full compensation. Just before the 2008 real estate crash, the buyers agreed to purchase the two adjoining units for $6.3 million, but they refused to close eight months later, when there was a sharp decline in Manhattan real estate prices. The joint venture controlled by Shapiro that made the deal with Lipman had gone bankrupt. Lipman sued Shapiro personally.

In the action, Shapiro refused to testify because his attorney had received a phone call from the Manhattan office of the U.S. Attorney inquiring about the same bankrupt property Shapiro owned and managed that was at issue in the case.

At his deposition, Shapiro was asked to read each paragraph of Lipman’s complaint and state whether each allegations was true. Shapiro instead pled his Fifth Amendment right as to each allegation.

The Fifth Amendment (Amendment V) to the United States Constitution is part of the Bill of Rights and protects a person against being compelled to testify against himself in a criminal case. “Pleading the Fifth” is a colloquial term for invoking the privilege that allows a witness to decline to answer questions where the answers might be self-incriminating. No adverse factual inference may permissibly be drawn for having done so in a criminal case. In a civil action, witnesses still enjoy their Constitutional right against self-incrimination. This right against self-incrimination is an important one, because if a witness fails to invoke the Fifth Amendment in a civil action and thereafter provides an incriminating answer, that answer can be used against the witness in a subsequent criminal case.

The Court here recognized that it is “well-established that a party’s invocation of the Fifth Amendment in a civil or administrative proceeding may form the basis of an adverse factual inference. As such, Lipman argued that he should be entitled to an adverse inference with respect to each allegation in the complaint Shapiro refused to refute. This was especially because Lipman’s motion relied heavily on allegations in the complaint, which were not supported by any documentary evidence.

Notwithstanding this adverse inference, the Court concluded that “a party’s invocation of its Fifth Amendment rights cannot be the deciding factor of a case,” citing law which recognized that “silence may only be one of a number of factors which the finder of fact considers in making its determination. That a defendant in a civil suit assumes a substantial risk when he chooses to assert his privilege does not, however, mean that the plaintiff is relieved of his obligation to prove a case before he becomes entitled to a judgment.”

Accordingly, the Court held that while it may draw inferences against Shapiro, it may not use his silence as the deciding factor and “may not simply deem true all of the allegations in the Complaint.”

The Court concluded that Lipman had “put forth little or no evidence supporting his claims outside of his own testimony. Even if the Court were to afford plaintiff an adverse inference, his claims still fail.”

Binder of Sale Was Unenforceable

Binder of Sale Was Unenforceable

In 929 Flushing LLC v. 33 Development Inc., a buyer sought specific performance of a “short form agreement” titled “Binder of Sale” for real property. The seller moved to dismiss the buyer’s complaint, and vacate the notice of pendency filed against the property.

Specific performance is an order of a court which requires a party to perform a specific act, usually what is stated in a contract. It is an alternative to awarding money damages, and is classed as an “equitable remedy” commonly used to force a sale of real property.

A notice of pendency is a document recorded in the County where real property is located, providing notice of a pending action regarding an interest in the property. Typically when someone is disputing ownership or a right to real property, they would file a notice of pendency to alert potential buyers or creditors that there is a pending legal issue to be addressed about this property.

The Court here found that at “execution of the Binder on May 4, 2015, both parties were represented by counsel.” However, the parties to the lawsuit were different from the parties signing the Binder. “The terms of the Binder set forth, inter alia, the address of the property to be sold, and the purchase price of $3,820,000; $382,000 of which (inclusive of the Binder deposit) was to be paid in ‘cash on signing more formal contract’ as a 10 percent ‘cash down payment’. The Binder stated a closing date of August 18, 2015, and included a “Contract Signing” provision which specified:

If offer is accepted by owner, usual formal contract shall be signed and delivered by the seller and purchaser at the office of the seller’s attorney or the office of the broker on or before May 18th, 2015.

Upon execution of the Binder, the $500.00 deposit was paid and acknowledged in the Binder.

The buyer argued the Binder created a legally enforceable contract requiring the sale of the property. Although the Court recognized the well-established law that a real estate binder of sale “can be enforced as a contract where it identifies the parties, describes the subject property, and recites the essential terms and is signed by the party to be charged,” the Court disagreed with the buyer because, among other things, no long form contract regarding the property’s sale was ever executed.

“In this case, the Binder clearly indicates that the execution of ‘the usual formal contract’ by May 18, 2015, was intended as a condition precedent to the formation of a binding agreement to sell at the stated price. As Defendant did not sign a ‘formal’ contract, it incurred no obligation to sell. Finally, a binder does not satisfy the statute of frauds in the event that essential terms are left open for further negotiation. That the parties continued negotiating well past the purported signing date stated in the Binder, coupled with buyer’s proffer of significant changes in the terms of the contract proffered by seller, further indicates a lack of reliance on the Binder and a failure to agree on the terms set forth therein. Defendant’s motion to dismiss the complaint is thus granted, given that a viable signed writing was never executed by the parties at bar and no evidence has been presented that would indicate the parties intended to be bound under the terms of the Binder.”

Thus, the Binder, on its face, was unenforceable as a contract as it was simply an agreement to agree, and neither the plaintiff nor defendant were even identified therein.

Original Content