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testimonyaffidavitmotionsummary judgmentwilldivorce
affidavitmotionsummary judgmenttrustlease

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In re Katz, 154 A.D.3d 687, 62 N.Y.S.3d 441, 2017 N.Y. Slip Op. 06945

Facts

Sondra Katz divorced her first husband and married Arnold Katz in 1984. They purchased her ex-husband's share of their former marital residence in Brooklyn in 1987, but the deed only listed Sondra's name. In 2013, Sondra transferred the residence to herself and Arnold as part of a reverse mortgage. Shortly before her death, she executed a will devising her interest in the residence to her children. Following her death, Arnold Katz and the executors of her estate filed petitions in Surrogate's Court regarding the ownership of the residence and the turnover of exempt property.

Issue

The main legal issues were whether Arnold Katz owned the Brooklyn residence in fee simple and whether the 2013 deed transferring the residence was valid.

1 genuine issue of material fact precluded summary judgment on spouse's motion seeking declaration that he owned the residence in fee simple; 2 genuine issue of material fact precluded summary judgment on motion by executors seeking declaration that deed subsequently transferring residence to decedent and her husband was null and void; and 3 exempt property to which spouse was entitled vested upon the decedent's death and never became part of the estate.

Rule

The court applied the principles of inter vivos gifts, which require intent, delivery, and acceptance, as well as the provisions of EPTL 5–3.1 regarding exempt property.

The elements of a valid inter vivos gift are an “intent on the part of the donor to make a present transfer; delivery of the gift, either actual or constructive to the donee; and acceptance by the donee” (Gruen v. Gruen, 68 N.Y.2d 48, 53, 505 N.Y.S.2d 849, 496 N.E.2d 869; see McCarthy v. Kaminski, 131 A.D.3d 950, 15 N.Y.S.3d 892). “A deed is presumed to have been ‘delivered and accepted at its date,’ although the presumption must yield to opposing evidence” (Matter of Humann, 136 A.D.3d 1036, 26 N.Y.S.3d 304, quoting M&T Real Estate Trust v. Doyle, 20 N.Y.3d 563, 568, 964 N.Y.S.2d 480, 987 N.E.2d 257). “A qualified beneficiary under EPTL 5–3.1 may not be deprived of the exemptions without valid consent, release, estoppel or waiver” (Matter of Dito, 218 A.D.2d 737, 737, 630 N.Y.S.2d 575).

Analysis

The court found that Katz presented sufficient evidence of donative intent through the 2013 deed and accompanying affidavit. However, the executors raised triable issues of fact regarding Sondra's intent, particularly in light of her will and testimony from the reverse mortgage closing. This led to the conclusion that genuine issues of material fact precluded summary judgment for both parties regarding the ownership of the Brooklyn residence.

Here, Katz satisfied his prima facie burden of proving the existence of an inter vivos gift by clear and convincing evidence. Among other things, Katz established donative intent by submitting the 2013 deed, which the decedent validly executed on the day she and Katz closed on the reverse mortgage, and an accompanying affidavit in which the decedent handwrote “LOVE + AFFECTION” as her reason for conferring the Brooklyn residence in the absence of consideration. In opposition, however, the executors raised triable issues of fact as to the decedent's intent.

Conclusion

The Appellate Division affirmed the Surrogate's Court's order, holding that genuine issues of material fact precluded summary judgment on both Katz's and the executors' motions, and confirmed that the exempt property vested in Katz upon Sondra's death.

Therefore, the Surrogate's Court properly denied summary judgment to both Katz and the executors regarding the ownership of the Brooklyn residence (see Shybunko v. Geodesic Homes, Inc., 65 A.D.3d 581, 584, 883 N.Y.S.2d 596).

Who won?

Arnold Katz prevailed in part, as the court affirmed the turnover of $25,000 in exempt property, ruling that it vested in him upon the decedent's death and never became part of the estate.

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