128 A.D.3d 838
N.Y. App. Div.2015Background
- Decedent William Raccioppi died in 2003; a 1953 deed showed he held title to Brooklyn property jointly with Annabelle Raccioppi (who died 1970).
- Petitioner (his daughter Irene Clogher) obtained letters of administration in 2010 and filed a petition seeking turnover of the property, alleging a 2006 deed transferring the property to Laverne and Christopher Modeste was forged.
- The 2006 deed was executed by Elizabeth Raccioppi (the decedent’s wife), through attorney-in-fact Robert Cicale, and signed in the name “Annabelle Raccioppi also known as Elizabeth Raccioppi.”
- A 1994 will of the decedent was later filed that purported to devise the property to Elizabeth at the decedent’s death; the petitioner challenges the will’s validity as fraudulent/forged.
- Respondents moved for summary judgment dismissing the petition, claiming Elizabeth acquired title at decedent’s death (via the will) and that they were bona fide purchasers; petitioner cross-moved asserting forgery of the deed and will.
- Surrogate’s Court denied both motions; Appellate Division affirmed, finding triable issues about forgery of the deed and insufficient proof to establish the will’s validity and decedent’s testamentary capacity.
Issues
| Issue | Plaintiff's Argument (Clogher) | Defendant's Argument (Modeste) | Held |
|---|---|---|---|
| Validity of 2006 deed (forgery) | Deed is forged and void; property remains estate asset | Deed is valid and transferred title to respondents | Triable issue exists whether deed was forged; summary judgment denied for both sides |
| Bona fide purchaser protection | N/A — purchaser status defeated if deed forged | Respondents claim they are bona fide purchasers for value without notice of fraud | Respondents made prima facie showing but petitioner raised triable issue of forgery, so protection not resolved on summary judgment |
| Effect of 1994 will (did title vest in Elizabeth at decedent’s death?) | Will is fraudulent/forged; cannot be relied on to show Elizabeth held title | Will devised property to Elizabeth, so she held title at death and could validly transfer in 2006 | Respondents failed to prove due execution and testamentary capacity; will’s validity unresolved — triable issue remains |
| Removal of letters of administration / appointment of public administrator | N/A — petitioner opposes removal | Respondents sought revocation and public administrator appointment to probate will | Requests denied; respondents did not justify revocation or appointment on these facts |
Key Cases Cited
- Anderson v. Blood, 152 N.Y. 285 (establishes bona fide purchaser protection absent notice of prior fraud)
- Marden v. Dorthy, 160 N.Y. 39 (a forged deed is void and conveys no title)
- Public Administrator of Kings County v. Samerson, 298 A.D.2d 512 (forged deed conveys no title; bona fide purchaser status defeated by forgery)
- Karan v. Hoskins, 22 A.D.3d 638 (discusses bona fide purchaser protection and forgery issues)
- Waxson Realty Corp. v. Rothschild, 255 N.Y. 332 (title given by will vests at testator’s death)
- Matter of Buchting, 111 A.D.3d 1114 (proponent of will must prove due execution and testamentary capacity)
- Matter of Templeton, 116 A.D.3d 781 (presumption of regularity when drafting attorney supervises execution)