Delaney v. Delaney

2025 NY Slip Op 31894(U)

• Court: New York Supreme Court, New York County
• Decided: May 30, 2025
• Docket: Index No. 151093/2024
• Status: Unpublished

Opinion

Delaney v Delaney 2025 NY Slip Op 31894(U) May 30, 2025 Supreme Court, New York County Docket Number: Index No. 151093/2024 Judge: David B. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 05/30/2025 04:33 PM INDEX NO. 151093/2024 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 05/30/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DAVID B. COHEN PART 58 Justice ---------------------------------------------------------------------------------X INDEX NO. 151093/2024 ANDREW DELANEY, MOTION DATE 02/09/2024 Plaintiff, MOTION SEQ. NO. 001 -v- JOHN DELANEY, DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 were read on this motion to/for JUDGMENT - SUMMARY IN LIEU OF COMPLAINT .

In this action brought on by motion for summary judgment in lieu of complaint pursuant

to CPLR 3213, two brothers, both self-represented, contest certain assets belonging to their late

mother.

BACKGROUND FACTS

Maura Delaney (a/k/a Maura Rubencamp) died in November 2016. Insofar as is relevant

here, her will left $1000 to her son Andrew Delaney, plaintiff here; a 2004 car to her son George

Delaney (aka George Masters); her "art collection" to George; and certain other property,

including her home in Ulster County, to her sons George and John, the defendant here, as joint

tenants with rights of survivorship (NYSCEF No. 28).

Shortly after Ms. Delaney died, her son George passed away as well. As a result, John

became the sole owner of Ms. Delaney’s home. More than seven years later, on March 20, 2024,

Andrew became the voluntary administrator of his brother George's estate (NYSCEF No. 50).

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On January 11, 2023, the Surrogate of Ulster County entered a final decree settling Ms.

Delaney's estate (NYSCEF No. 34). A portion of that decree ordered "that the 2004 Mercedes-

Benz (valued at $5,071) be transferred to the Estate of George Delaney, in kind,” and an attached

schedule lists the "Devise" to George of the "Art collection," without specifying an estimated

value (NYSCEF No. 33).

The motion papers filed by plaintiff here place a $15,000 value on the art collection

(NYSCEF No. 25), but no supporting evidence is given for this valuation. The Surrogate’s

decree is the alleged "judgment" on which plaintiff seeks summary judgment here.

Plaintiff’s principal claim is that defendant misappropriated the car from George's estate,

by selling it and keeping the proceeds for himself, and by keeping the art collection for

himself rather than turning it over to plaintiff on behalf of their brother George. Defendant

acknowledges the sale of the car, but says it was worth much less than $5,000. He also

quarrels with the value of the art collection, which he asserts primarily consists of works by their

mother, who was an artist. He also asserts counterclaims (NYSCEF No. 16).

ANALYSIS

CPLR 3213 provides:

When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting paper in lieu of a complaint.

* * *

If the motion is denied, the moving and answering papers shall be deemed the complaint and answer, respectively, unless the court orders otherwise.

A document may be considered an instrument for the payment of money only if a prima

facie case may be made out by the instrument and a failure to make payments required by the

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instrument. If outside proof is needed, and when the instrument “requires something in addition

to the defendant’s explicit promise to pay a sum of money, CPLR 3212 is unavailable”

(Weissman v Sinorm Dell, Inc., 88 NY2d 437, 444 [1996] [citations omitted]).

Here, there is no basis for finding that the Surrogate's decree constitutes an instrument for

the payment of money only or a “judgment” which can be enforced in this manner, as it does not

contain an explicit promise to pay a set sum of money (see Matter of Estate of Peck, 191 AD3d

537 [1st Dept 2021] [plaintiff failed to establish entitlement to summary judgment in lieu of

complaint as right to payment could not be determined solely from face of debt instruments];

Chiarella v Chiarella, 16 Misc 3d 575 [Sup Ct, Queens County 2007] [denying summary

judgment in lieu of complaint as document at issue was trust agreement, which did not require

payment of specific amount of money]).

Moreover, plaintiff has not established the value of either the car or the art collection in

order for a calculation to be made as to his alleged damages, and defendant has asserted various

defenses and counterclaims (see e.g. Engel v Boymelgreen, 80 AD3d 653 [2d Dept 2011] [letter

did not qualify pursuant to CPLR 3213 as it did not contain promise by defendant to pay specific

sum to plaintiff by set date]).

Accordingly, it is hereby

ORDERED that plaintiff’s motion for summary judgment in lieu of complaint is denied;

and it is further

ORDERED that the plaintiff’s moving papers, consisting of the summons with exhibits

(NYSCEF 1-10), amended notice of motion and exhibits (NYSCEF 25-40), and memorandum of

law in reply and exhibits (NYSCEF 42-46) are hereby deemed the complaint in this action and

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the defendant’s answering papers, consisting of opposition papers and exhibits (NYSCEF 47-

51), are hereby deemed the answer.

5/30/2025 DATE DAVID B. COHEN, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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