Matter of Gallardo 2018 NY Slip Op 34569(U) May 1, 2018 Surrogate's Court, Richmond County Docket Number: 2016-945/A Judge: Robert J. Gigante 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. SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ----------------------------------------------------------------------------X
In the Matter of the Estate of
ARMODIO GALLARDO, File No. 2016-945/A
Deceased.
----------------------------------------------------------------------------X
In this SCPA §2103 'Petition for Turnover' entertained on April 6, 2017, Petitioner,
Irma Rubi (hereinafter "Irma") Decedent's spouse, and Administratrix of his estate,
sought to compel Delia Gallardo, Decedent's ex-wife (hereinafter referred to as "Delia")
to turn over decedent's interest in proceeds or value in two NYC taxi medallions held
under the Gallardo Taxi Corporation. Delia, by a verified 'Answer to the Turnover
Petition' filed August 3, 2017, sought to dismiss Irma's petition in its entirety as well as
other relief. Delia further filed a motion for summary judgment pursuant to CPLR 3212
on October 18, 2017 which was returnable on November 15, 2017 seeking to once again
dismiss Irma's petition in its entirety alleging the action has no merit, the cause of action
is time barred and this court lacks subject matter jurisdiction, as well as other related
relief. Irma thereafter filed a Notice of Cross-Motion for Summary Judgment on
December 11, 2017, which was made returnable on February 7, 2018 seeking to grant
summary judgment in her favor and in opposition to Delia's motion. Delia responded by
filing an Affirmation in Opposition to Cross-Motion and in Reply to Opposition on
December 20, 2017. Oral argument was heard on February 7, 2018. At the crux of both
sets of papers are references to "The Separation and Settlement Agreement dated
August 23, 2002, which is incorporated but not merged in the Judgment of Divorce
[* 1] I
I I entered November 15, 2004," (hereinafter "Separation Agreement") between Armodio I
Gallardo (hereinafter "Decedent") and Delia.
FACTS
Decedent and Delia were married on August 29, 1985. They entered into a
Separation Agreement on August 23, 2002. Said Agreement was incorporated but not
merged into a divorce decree, which was dated November 15, 2004. The Separation
Agreement recited that the Husband (our Decedent) was not represented by counsel.
The pertinent articles of the fully executed Separation Agreement are as follows:
Article 1: "Living Separate and Apart- The Husband shall be required to leave the
Marital residence no later than September 14, 2002. The Wife shall have sole and
exclusive possession of the marital residence until such time as the marital residence is
appropriately transferred by the signing of a Quit Claim deed by the Husband to the Wife
with the Children as survivors of the property."
Article 11: "Full Disclosure -Husband has been advised and is hereby advised
that he has the right to secure independent legal counsel to review this agreement
before signing it."
Article 12: "Representation of Income-The Husband is retired and receives social
security benefits. He has also been paid a "salary" from Gallardo's Taxi Corporation for
several years even though the Wife is the sole owner of the Corporation. During these
years, the husband has been receiving "income" as is reported in the Gallardo corporate
Tax return and Husband's personal tax returns in the amount of $10,000.00 plus cash
payments not reported plus social security of approximately $27,500 per year."
[* 2] Article 16: "Waiver of Estate Rights- The right of either party to take under any
testamentary disposition, including any testamentary substitute, which is presently in
effect is likewise waived in all respects and any such pre-existing testamentary
disposition is hereby revoked by the testator of such will and renounced by the party in
whose favor such testamentary devise or bequest has been made. The only exception
to this, is if the Husband predeceased the wife, and for whatever reason, has failed to
execute a valid Quit Claim Deed and any other documents necessary to provide that the
Wife have sole legal claim to the marital property with rights of survivorship to the
children of the marriage."
Article 33: "Personal Property- Distribution of Medallions- The Parties
acknowledge that during the course of the marriage, the parties purchased two New
York City Taxi Medallions which still exist to date and are operated through the Gallardo
Taxi Corporation. The parties agree that said Corporation is solely owned by the Wife.
However, the Parties further acknowledge that when the Wife agrees to sell the
Medallions, the Husband will receive a 50% share of the price received minus any fees
associated from transferring of the medallions or any other fees including broker or
attorney fees. The net sum received after all expenses for the sale shall be split 50/50
between the parties subject to all appropriate outstanding taxes and any other expenses
owned by the corporation."
There is no record of the Decedent taking any steps to set aside the Separation
Agreement. The Decedent died intestate on July 19, 2009. Irma was appointed
Administratrix of Decedent's estate on February 1, 2017 and her letters were limited to
commencing a turnover proceeding, which is the proceeding before us.
[* 3] I I
I' I !
Discussion
Summary judgment should be granted only where it is clear that no triable issue
of fact exists (Matter of Goldberg, 180 AD2d 528). Initially, it is necessary for the movant
to make a prima facie showing that he or she is entitled to summary judgment as a
matter of law (Zuckerman v City of New York, 49 NY2d 557). The objectant opposing
summary judgment must then present affirmative proof that their claims are real and
capable of being established at trial (Stainless, Inc. v Employers Fire Ins., 69 AD2d 27).
"Summary judgment is a drastic remedy and should not be granted if there is any doubt
as to the existence of a triable issue (see, Rotuba Extruders v Ceppos, 46 NY2d 338).
It is not up to the court to determine issues of credibility or the probability of success on
the merits, but rather whether there exists genuine issues of fact (see, Capelin Assoc. v
Globe Mfg. Corp., 34 NY2d 338)" (Hantz v Fishman, 155 AD2d 415).
Irma's position focuses on seeking to enforce the provision of the Separation
Agreement, specifically Article 33, which states "However, the Parties further
acknowledge that when the Wife agrees to sell the Medallions, the Husband will
receive a 50% share of the price received minus any fees associated from transferring
of the medallions or any other fees including broker or attorney fees," with the emphasis
being on the words "when the wife agrees ... " She argues that the provision is not "if'
she decides to sell, but rather "when" meaning, it has to happen. She also argues that
since the Decedent was not represented by counsel and Delia received the marital home
Free access — add to your briefcase to read the full text and ask questions with AI
Matter of Gallardo 2018 NY Slip Op 34569(U) May 1, 2018 Surrogate's Court, Richmond County Docket Number: 2016-945/A Judge: Robert J. Gigante 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. SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ----------------------------------------------------------------------------X
In the Matter of the Estate of
ARMODIO GALLARDO, File No. 2016-945/A
Deceased.
----------------------------------------------------------------------------X
In this SCPA §2103 'Petition for Turnover' entertained on April 6, 2017, Petitioner,
Irma Rubi (hereinafter "Irma") Decedent's spouse, and Administratrix of his estate,
sought to compel Delia Gallardo, Decedent's ex-wife (hereinafter referred to as "Delia")
to turn over decedent's interest in proceeds or value in two NYC taxi medallions held
under the Gallardo Taxi Corporation. Delia, by a verified 'Answer to the Turnover
Petition' filed August 3, 2017, sought to dismiss Irma's petition in its entirety as well as
other relief. Delia further filed a motion for summary judgment pursuant to CPLR 3212
on October 18, 2017 which was returnable on November 15, 2017 seeking to once again
dismiss Irma's petition in its entirety alleging the action has no merit, the cause of action
is time barred and this court lacks subject matter jurisdiction, as well as other related
relief. Irma thereafter filed a Notice of Cross-Motion for Summary Judgment on
December 11, 2017, which was made returnable on February 7, 2018 seeking to grant
summary judgment in her favor and in opposition to Delia's motion. Delia responded by
filing an Affirmation in Opposition to Cross-Motion and in Reply to Opposition on
December 20, 2017. Oral argument was heard on February 7, 2018. At the crux of both
sets of papers are references to "The Separation and Settlement Agreement dated
August 23, 2002, which is incorporated but not merged in the Judgment of Divorce
[* 1] I
I I entered November 15, 2004," (hereinafter "Separation Agreement") between Armodio I
Gallardo (hereinafter "Decedent") and Delia.
FACTS
Decedent and Delia were married on August 29, 1985. They entered into a
Separation Agreement on August 23, 2002. Said Agreement was incorporated but not
merged into a divorce decree, which was dated November 15, 2004. The Separation
Agreement recited that the Husband (our Decedent) was not represented by counsel.
The pertinent articles of the fully executed Separation Agreement are as follows:
Article 1: "Living Separate and Apart- The Husband shall be required to leave the
Marital residence no later than September 14, 2002. The Wife shall have sole and
exclusive possession of the marital residence until such time as the marital residence is
appropriately transferred by the signing of a Quit Claim deed by the Husband to the Wife
with the Children as survivors of the property."
Article 11: "Full Disclosure -Husband has been advised and is hereby advised
that he has the right to secure independent legal counsel to review this agreement
before signing it."
Article 12: "Representation of Income-The Husband is retired and receives social
security benefits. He has also been paid a "salary" from Gallardo's Taxi Corporation for
several years even though the Wife is the sole owner of the Corporation. During these
years, the husband has been receiving "income" as is reported in the Gallardo corporate
Tax return and Husband's personal tax returns in the amount of $10,000.00 plus cash
payments not reported plus social security of approximately $27,500 per year."
[* 2] Article 16: "Waiver of Estate Rights- The right of either party to take under any
testamentary disposition, including any testamentary substitute, which is presently in
effect is likewise waived in all respects and any such pre-existing testamentary
disposition is hereby revoked by the testator of such will and renounced by the party in
whose favor such testamentary devise or bequest has been made. The only exception
to this, is if the Husband predeceased the wife, and for whatever reason, has failed to
execute a valid Quit Claim Deed and any other documents necessary to provide that the
Wife have sole legal claim to the marital property with rights of survivorship to the
children of the marriage."
Article 33: "Personal Property- Distribution of Medallions- The Parties
acknowledge that during the course of the marriage, the parties purchased two New
York City Taxi Medallions which still exist to date and are operated through the Gallardo
Taxi Corporation. The parties agree that said Corporation is solely owned by the Wife.
However, the Parties further acknowledge that when the Wife agrees to sell the
Medallions, the Husband will receive a 50% share of the price received minus any fees
associated from transferring of the medallions or any other fees including broker or
attorney fees. The net sum received after all expenses for the sale shall be split 50/50
between the parties subject to all appropriate outstanding taxes and any other expenses
owned by the corporation."
There is no record of the Decedent taking any steps to set aside the Separation
Agreement. The Decedent died intestate on July 19, 2009. Irma was appointed
Administratrix of Decedent's estate on February 1, 2017 and her letters were limited to
commencing a turnover proceeding, which is the proceeding before us.
[* 3] I I
I' I !
Discussion
Summary judgment should be granted only where it is clear that no triable issue
of fact exists (Matter of Goldberg, 180 AD2d 528). Initially, it is necessary for the movant
to make a prima facie showing that he or she is entitled to summary judgment as a
matter of law (Zuckerman v City of New York, 49 NY2d 557). The objectant opposing
summary judgment must then present affirmative proof that their claims are real and
capable of being established at trial (Stainless, Inc. v Employers Fire Ins., 69 AD2d 27).
"Summary judgment is a drastic remedy and should not be granted if there is any doubt
as to the existence of a triable issue (see, Rotuba Extruders v Ceppos, 46 NY2d 338).
It is not up to the court to determine issues of credibility or the probability of success on
the merits, but rather whether there exists genuine issues of fact (see, Capelin Assoc. v
Globe Mfg. Corp., 34 NY2d 338)" (Hantz v Fishman, 155 AD2d 415).
Irma's position focuses on seeking to enforce the provision of the Separation
Agreement, specifically Article 33, which states "However, the Parties further
acknowledge that when the Wife agrees to sell the Medallions, the Husband will
receive a 50% share of the price received minus any fees associated from transferring
of the medallions or any other fees including broker or attorney fees," with the emphasis
being on the words "when the wife agrees ... " She argues that the provision is not "if'
she decides to sell, but rather "when" meaning, it has to happen. She also argues that
since the Decedent was not represented by counsel and Delia received the marital home
in the Separation Agreement, for Delia to also solely to decide when and whether or not
to sell the Medallions, would be unconscionable.
[* 4] Delia argues that the terms of the Separation Agreement are quite clear and
again, citing that same sentence of Article 33, provides her interpretation stating that it
is up to her alone to decide when to sell the Medallions and she cannot be forced to do
so. She further argues that the statute of limitations has expired in trying to modify the
terms of the Separation Agreement.
Both sides make compelling and zealous arguments regarding the intent of the
parties with respect to the terms and conditions of the Separation Agreement and have
established triable issues of fact. After having reviewed all of the papers heretofore
submitted herein, both in support of the motion and in opposition thereto, and after
having heard oral arguments, the Court denies summary judgment and sets this matter
down for June 6, 2018 at 11 :00 am for a conference with a member of the law
department. At that time a discovery schedule will be set and a hearing date irected.
This decision shall constitute the Order of the Court.
Dated: May/ , 2018
[* 5]