In the Matter of the Estate of Audrey M. Medway

• Court: New Jersey Superior Court Appellate Division
• Decided: November 20, 2024
• Docket: A-3305-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3305-22

IN THE MATTER OF THE ESTATE OF AUDREY M. MEDWAY, DECEASED. _______________________

Submitted September 10, 2024 – Decided November 20, 2024

Before Judges Firko and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. 22- 375.

Adam Medway, appellant pro se.

Torzewski & McInerney, LLC, attorneys for respondent Maryalice Raushi (Jennifer L. McInerney, of counsel and on the brief).

PER CURIAM

In this intra-family dispute, defendant Adam Medway, Jr. (Adam) appeals

from the June 15, 2023 Chancery Division order, granting summary judgment dismissing his complaint to remove his sister, Maryalice Raushi, as executrix of

his mother, Audrey M. Medway's estate.1 We affirm.

I.

Viewed in the light most favorable to the non-moving party, the pertinent

facts are as follows. Templo Fuente De Vida Corp. v. National Union Fire

Insurance Co. of Pittsburgh, 224 N.J. 189, 199 (2016). In the decades prior to

her death, Audrey executed three wills, two general durable power of attorneys

(POA), and made two trust appointments. On October 10, 2006, Audrey

executed a will (2006 will) and named her husband, Adam D. Medway, Sr., as

executor and trustee, with Maryalice as alternate executrix and trustee , a POA

designating Adam Sr. and Maryalice as her attorneys-in-fact, and appointing

Maryalice as trustee of the Audrey Medway Revocable Living Trust.

Upon Adam Sr.'s passing, on December 4, 2014, Audrey executed a

second will, named Maryalice as the executrix and trustee of her estate of her

will (2014 will) and trustee of the Patience Medway Supplemental Needs Trust.

Thereafter, Audrey named Maryalice as her attorney-in-fact in a POA on April

24, 2015. In a third will dated October 7, 2021 (2021 will), Maryalice was again

1 We refer to the parties and children by their first names because of their common surname. No disrespect is intended. A-3305-22 2 named the executrix and trustee of Audrey's estate. In the 2021 will, Audrey

distributed her personal property and residual estate to her children in equal

shares.

At the age of eighty-six, Audrey Medway died testate on February 21,

2022. She was survived by her six adult children: Maryalice, Evan, William,

Adam, Jr., Nelia, and Samuel. Audrey was predeceased by her daughter,

Patience, who did not leave a surviving spouse or issue.

After Audrey's passing, contentious litigation ensued. Adam filed a

caveat against the probate of the 2021 will. Two weeks later, Maryalice filed

an order to show cause (OTSC) and verified complaint to set aside the caveat

and probate the 2021 will. That same day, Adam, then self-represented, filed an

OTSC and verified complaint to remove Maryalice as executrix and obtain

discovery of all his siblings' banking and credit card financial documents.

Shortly thereafter, Adam and Samuel submitted separate certifications

consenting to the admission of the 2021 will.2 They both objected to the

appointment of Maryalice as executrix, arguing that she was "unfit" to be

appointed executrix because: (1) the Morristown property was transferred from

2 Samuel did not file a separate caveat but filed an opposition to Maryalice's OTSC. A-3305-22 3 Audrey and Adam Realty Corporation to Maryalice for $50,000.00, which was

"severely" under the fair market value "believed to have been approximately

$900,000.00;" (2) Maryalice's counsel was a fact witness because he attested to

the Morristown property deed; (3) Maryalice was the listing agent for the

Bernardsville property marketed at $575,000.00; (4) since 2017 Maryalice

earned $72,000.00 for managing four rental properties in Bernardsville that

generated rental income of $73,000.00 per year; and (5) Maryalice managed all

of Audrey's personal accounts and business accounts related to the investment

properties from 2018 through 2022.

Following a hearing, on May 25, 2022, the trial court entered an order

admitting the 2021 will to probate, appointing Maryalice as executrix,

permitting distributions from the estate to only pay bills and ordinary

administrative expenses, and setting written discovery on Adam's complaint

concerning Maryalice's actions as attorney-in-fact for Audrey.

The parties exchanged discovery in accordance with the court's order. In

Maryalice's responses to defendant's interrogatories, she certified that she did

not act as attorney-in-fact for Audrey. Maryalice served documents responsive

to the notice to produce and served additional documents two weeks later.

A-3305-22 4 Although represented by counsel, Adam filed a self-represented motion to

extend discovery. Shortly thereafter, Adam, no longer represented by counsel,

filed a motion to compel answers to interrogatories, produce a listing of the

family's properties, and serve supplemental written discovery. Samuel also

moved to remove Maryalice as listing agent for the real property. Maryalice

cross-moved for a protective order.

In a September 29, 2022 order, the court denied Adam's motion to compel

discovery but permitted Adam to serve Maryalice a deficiency letter outlining

in detail the interrogatories and document production propounded by Adam's

former counsel that required a response and medical authorization forms to

obtain Audrey's medical records. The court also granted Maryalice's request for

a protective order with regard to responses to Adam's supplemental

interrogatories and ordered Adam to refrain from using inflammatory language

in future correspondence. Lastly, the court denied Samuel's motion to remove

Maryalice as a listing agent and prohibited Maryalice from paying herself a

salary for the real estate business until addressed by the court upon motion by

Maryalice.

Adam filed yet another motion to file and serve an amended complaint to

add his siblings and the family's contractor as defendants, compel Maryalice to

A-3305-22 5 comply with his deficiency letter and provide an accounting of her actions as

executrix, award attorney fees and legal expenses, and distribute the

$100,000.00 life insurance policy benefits to the beneficiaries. In a November

18, 2022 order, the court denied Adam's requests for leave to amend and to

remove Maryalice as executrix. However, the court directed Adam to "provide

an appropriate deficiency letter" addressing only the previous interrogatories

and document production propounded by Adam's former counsel and obtain

"proper" medical authorizations.

Adam filed two more discovery motions on December 14, 2022 and

December 21, 2022, seeking a response to his November 17 deficiency letter,

sanctions for repeated failure to respond to his discovery requests, removal of

Maryalice as executrix, an injunction preventing the estate's banks from letting

Maryalice withdraw sums greater than $1,000.00 without the approval of two

beneficiaries, and an order that Maryalice pay her attorney's fees out of her part

of the inheritance. In response, Maryalice cross-moved to strike and limit

Adam's additional discovery demands.

Shortly before the hearing date, Adam retained counsel. In a January 23,

2023 order, the court struck Adam's second deficiency letter, entered a

protective order, prohibited Adam from propounding any further discovery, and

A-3305-22 6 found Adam in violation of litigant's rights for using harassing language in

pleadings and letters directed to Maryalice in contravention of the court's

September 29, 2022 order. Since Adam had retained new counsel, the court

provided Adam with another opportunity to serve the medical authorization

forms upon Maryalice and ordered her to provide an updated informal

accounting of her administration of Audrey's estate. Maryalice served defendant

with an informal accounting of the administration of Audrey's estate.

In a February 27, 2023 order, we denied Adam's motion for leave to file

an interlocutory appeal. Adam, on behalf of his attorney, served subpoenas on

Maryalice's attorney, among others. Counsel withdrew from representation

shortly thereafter.

Prior to the close of discovery, depositions were not conducted and

discovery was not extended. The court granted Adam's counsel's request to

withdraw as counsel.

Maryalice moved for summary judgment, seeking the dismissal of Adam's

complaint. In her supporting certification, Maryalice attested, among other

things, that the $250,000.00 withdrawal was a transfer Audrey made following

the maturation of a certificate of deposit with Lakeland Bank to Audrey's

investment account with Merrill Lynch. Maryalice also submitted letters from

A-3305-22 7 two physicians in support of her motion. In a July 19, 2022 letter, Audrey's

primary care physician, Thomas Cioce, D.O., stated Audrey "was of sound mind

and fully competent at the time of her visit [on November 23, 2021] with no

questions as to her mental status." Craig M. Rosen, M.D., Audrey's cardiologist,

stated in a July 20, 2022 letter that Audrey was his patient from 2005 until 2022

and during that time, "she was cognitively intact with normal behavior" and

"completely capable of making her own decisions."3

In a letter brief, Samuel opposed Maryalice's motion, arguing Maryalice

did not respond to his answer to her complaint and, therefore, the issues

remained outstanding. Accordingly, Maryalice's motion should be denied

because there were "significant and genuine issues of material fact."

Adam also opposed Maryalice's motion and cross-moved for summary

judgment. He also sought responses to 169 interrogatory questions and to

3 The record also contains a letter dated December 16, 2022, from Dr. Rosen to Adam. Rosen stated that he examined Audrey for "fifteen minutes" "twice a year" for "many years." According to Rosen,"[Audrey] was very pleasant and even after her stroke seemed to have her mental faculties." Rosen never performed a full mental status examination and further provided he did not talk with her long enough to form an opinion regarding her ability to make financial decisions. We are unable to discern from the record if this letter was annexed as an exhibit to any motion filed with the trial court.

A-3305-22 8 conduct depositions, the termination of Maryalice's salary for managing the

rental properties since they were sold, and an award of counsel fees and costs.4

After hearing arguments, in an oral opinion rendered on June 15, 2023,

the court granted summary judgment in favor of Maryalice, individually and as

executrix, as to her complaint and against Adam and Samuel's complaint,

dismissing Adam's complaint with prejudice. The court denied Adam's cross-

motion. Before addressing the merits of the parties' arguments, the court noted

defendants had not filed a counterstatement of undisputed material facts

pursuant to Rule 4:46-2(b).5 Therefore, Maryalice's statement of material facts

was deemed admitted.

Notwithstanding the procedural deficiency, the court then addressed the

merits of the summary judgment motion. The court reasoned that Samuel's

4 Adam also sent a surreply to his cross-motion and an additional motion with a filing fee to the court's chambers. The court found the surreply, sent two days before the return date, was not permitted by the court rules. Also, the additional motion was not accompanied by a notice of motion nor properly filed with the clerk's office. Thus, the submissions were not considered by the court. 5 Rule 4:46-2(b) requires a party opposing a motion for summary judgment to "file a responding statement either admitting or disputing each of the facts in the movant's statement." Rule 4:46-2(b) provides that "all material facts in the movant's statement which are sufficiently supported will be deemed admitted for purposes of the motion only, unless specifically disputed by citation conforming to the requirements of paragraph (a) demonstrating the existence of a genuine issue as to the fact." A-3305-22 9 certification from the prior year contained "bald unsupported allegations" and

was insufficient in opposing a summary judgment motion.

The court noted Adam's certification argued for the extension of discovery

and found that "ship had sailed" because there were multiple extensions of the

discovery end date, Adam failed to abide by prior discovery orders, and no

extension was sought before discovery concluded. The court found Adam did

not produce competent evidence to refute Maryalice's certification that she never

acted as attorney in fact under the durable POA. The court found that Audrey

"trusted" Maryalice based on Maryalice's appointment as a fiduciary in three

wills, two POAs, and two trusts. Citing to the governing law, the court further

reasoned "there ha[d] been no evidence whatsoever, or even the suggestion of

malfeasance, during the course of the . . . estate's existence." A memorializing

order was entered by the court.

II.

Adam now argues on appeal that the trial court erred in granting summary

judgment because Maryalice failed to answer all interrogatories, he was

discriminated against as a handicapped individual, depositions were not

completed, and a trial should have been conducted. We are not persuaded by

Adam's arguments, and therefore, we affirm.

A-3305-22 10 We review a grant of summary judgment de novo, applying the same

standard as the trial court. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). That

standard requires us to "determine whether 'the pleadings, depositions, answers

to interrogatories and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact challenged and that

the moving party is entitled to a judgment or order as a matter of law.'" Branch

v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-2(c)).

"Summary judgment should be granted . . . 'against a party who fails to make a

showing sufficient to establish the existence of an element essential to that

party's case, and on which that party will bear the burden of proof at trial.'"

Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986)). We do not defer to the trial court's legal

analysis or statutory interpretation. RSI Bank v. Providence Mut. Fire Ins. Co.,

234 N.J. 459, 472 (2018); Perez v. Zagami, LLC, 218 N.J. 202, 209 (2014).

Having reviewed the record and the applicable law, we conclude Adam

failed to comply with the procedural requirements of Rule 4:46-2. First,

Maryalice's statement of undisputed material facts was properly deemed

admitted by the court pursuant to Rule 4:46-2(b). Second, Adam's pleading was

technically not a cross-motion. Rule 1:6-3(b) provides that "[a] cross-motion

A-3305-22 11 may be filed and served by the responding party together with that party's

opposition to the motion and noticed for the same return date only if it relates to

the subject matter of the original motion." (emphasis added). Thus, Adam's

"cross-motion" to extend discovery was wholly unrelated to Maryalice's

summary judgment motion and contravened the court rules.

We next address the merits of Adam's argument — whether summary

judgment was improperly granted because discovery was incomplete, and no

trial was held. Adam's contention lacks merit.

We reviewed the motion record and considered "the competent evidential

materials" in the light most favorable to Adam despite the lack of compliance

with Rule 4:46-2(b). Templo, 224 N.J. at 199.

"The law is well settled that '[b]are conclusions in the pleadings without

factual support in tendered affidavits, will not defeat a meritorious application

for summary judgment.'" Brae Asset Fund, L.P. v. Newman, 327 N.J Super.

129, 134 (App. Div. 1999) (alteration in original) (quoting United States Pipe &

Foundry Co. v. American Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App.

Div. 1961)). Samuel's stale certification offered no controverted facts that

created genuine issues of material facts to be presented to a reasonable

A-3305-22 12 factfinder. Likewise, Adam presented nothing more than bald assertions with

no factual support in the record.

A self-serving assertion, unsupported by documentary proof, "is

insufficient to create a genuine issue of material fact." Heyert v. Taddese, 431

N.J. Super. 388, 414 (App. Div. 2013). Thus, Adam's insufficient certification

was not enough to defeat summary judgment; and as the non-moving party,

Adam "must produce sufficient evidence to reasonably support a verdict in [his]

favor." Invs. Bank v. Torres, 457 N.J. Super. 53, 64 (App. Div. 2018), aff'd and

modified by 243 N.J. 25 (2020); see also Sullivan v. Port Auth. of N.Y. & N.J.,

449 N.J. Super. 276, 279-80 (App. Div. 2017) (explaining that "bare

conclusions" lacking "support in affidavits" are "insufficient to defeat [a]

summary judgment motion"). Therefore, based on our de novo review, we hold

there was no genuine factual dispute warranting a denial of Maryalice's motion

for summary judgment.

To the extent we have not addressed any of Adam's remaining arguments,

it is because they lack sufficient merit to warrant discussion in a written opinion.

R. 2:11-3 (e)(1)(E).

Affirmed.

A-3305-22 13