Trepuk v. Frank

86 A.D.2d 578, 446 N.Y.S.2d 321, 1982 N.Y. App. Div. LEXIS 15105

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 1982
• Status: Published

Opinions

Order of the Supreme Court, New York County (Kirschenbaum, J.) entered March 2,1981, granting summary judgment to defendant affirmed, with costs. This case arises out of a fraud allegedly committed by defendant some 55 years ago while acting as one of the executors of his stepfather’s estate. Plaintiff Trepuk is defendant’s sister. Both are stepchildren of Joseph H. Steinhardt, the deceased. The other plaintiffs are Trepuk’s son and the estate of a deceased son. The deceased died in December, 1926. His will was admitted to probate in February, 1927. Thereafter defendant qualified as one of the two executors of his estate. It is contended that the executors filed a false estate tax return, which indicated that the estate was insolvent; that they falsely represented that the stock of a corporate owner of real property of which deceased was the sole shareholder was worthless and that the remaining assets of that corporation were worth $35,146.44, whereas they were worth considerably more; that the stock in a produce corporation of which deceased was a 50% shareholder was worthless, and that a leasehold held by deceased could be sold only at one half its value and therefore resulted in a liability to the estate in an amount in excess of $20,000. Plaintiffs assert that defendant converted the assets of the estate to his own use and they seek an accounting and damages. As indicated in the dissent of our brother Kupferman, a motion was made to dismiss the complaint bottomed on the claim that the action was barred by the Statute of Limitations. Ultimately, the complaint was upheld (44 NY2d 723). After some discovery, and after the case had been placed on the calendar, defendant moved for summary judgment. Special Term granted the motion. We affirm. It is axiomatic that upon a motion for summary judgment, issue finding rather than issue determination is the key (Firedoor Corp. of Amer. v Reliance Elec. Co., Haughton Elevator Div., 56 AD2d 523). To demonstrate the existence of an issue of fact, one is required to lay bare his proof. However, here plaintiffs have done no more than make reference to their complaint and the prior holding of the Court of Appeals. On the other hand, defendant has appended to his papers the report of the transfer tax appraiser showing the value of each item of property possessed by Steinhardt at the time of his death. Additionally, there is appended the order of the Surrogate approving that report. In their brief to this court plaintiffs make reference to a sworn statement by one Ludwig Levey “an employee of the Defendant’s Corporation for 46 years and treasurer for 30 years, [as] presenting a clear triable issue”. Levey’s affidavit is not part of the record nor is any reference to its content made in the brief. Again, reference is made to “direct and expert testimony”. However, not only is no affidavit except that of Trepuk submitted; there is no indication of what is expected to be proven by direct testimony and what is expected to be proven by expert testimony. In sum, there is no evidence that any issue of fact exists. While fraud, like negligence, is essentially a jury question, on a motion for summary judgment some tangible evidence indicating the existence of an issue of fact must be submitted. In the absence of such evidence summary judgment is warranted (Andre v Pomeroy, 35 NY2d 361). Plaintiffs rely heavily on the prior determination of the Court of Appeals to defeat this motion. However, that determination held only that there was no proof that plaintiffs actually discovered the “fraud” prior to 1973, a year before the action was brought. That proof was sufficient to warrant a holding that the action was not time barred. Concur — Sullivan, Lupiano and Bloom, JJ.; Kupferman, J. P., and Bims, J., dissent in separate memoranda as follows.