Matter of Imperato
In a probate proceeding in which the executrix of the estate of Thomas G. Imperato petitioned pursuant to
Ordered that the decree is modified, on the law, (1) by deleting the provision thereof granting the petitioner‘s motion for summary judgment on the petition, and substituting therefor а provision denying the motion, and (2) by deleting the provision thereof denying that branch of the cross motion of Alfred Zucaro and the Estate of Maria Zucaro which was for summary judgment dismissing the cause of action alleging conversion,
The petitioner, as executrix of the estate of Thomas G. Imperato (hereinafter the decedent), commenced this proceeding pursuant to
Thе petitioner moved for summary judgment on the petition. Zucaro and the Estate of Maria Zucaro (hereinafter together the appellants) opposed the motion and cross-moved for summary judgment dismissing the petition. The Surrogate‘s Court granted the petitioner‘s motion and denied the appellants’ cross motion. We modify.
To establish a cause of action sounding in fraud, a plaintiff must establish: (1) that the defendant made a misrepresentation or a material omission of fact which was false and which the defendant knew to be false; (2) that the misrepresentation was made for the purpose of inducing the plaintiff to rely upоn it; (3) that there was justifiable reliance of the plaintiff on the misrepresentation or material omission, and (4) injury (see Lama Holding Co. v Smith Barney, 88 NY2d 413 [1996]; Northeast Steel Prods., Inc. v John Little Designs, Inc., 80 AD3d 585, 585 [2011]; Shao v 39 Coll. Point Corp., 309 AD2d 850, 851 [2003]).
Here, the petitioner failed to meet her prima facie burden of establishing her entitlement to judgment as a matter of law on the cause of action alleging fraud. The petitioner failed to еstablish, prima facie, that Zucaro made a misrepresentation or material omission of fact which was justifiably relied upon by either the petitioner or the decedent (see Summit Dev. Corp. v Interstate Masonry Corp., 140 AD3d 1152, 1153 [2016]). Accordingly, that branch of the petitioner‘s motion which was for summary judgment on the cause of action alleging fraud should have beеn denied, without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Furthermore, the petitioner failed to meet her prima facie burden of establishing her entitlement to judgment as a matter of law on the causes of action alleging breach of fiduciary duty
The Surrogate‘s Court properly denied that branch of the appellants’ cross motion which was for summary judgment dismissing cause of action alleging fraud, as the appellants failed to make a prima facie showing of their entitlement to judgment as a matter of law dismissing that cause of actiоn. In support of that branch of the cross motion, the appellants established that $120,000 of the funds that Zucaro removed from the Totten trust were placed into his personal account and that he executed an interest-bearing promissory note dated December 4, 2003, in which Zucaro promised to pay the sum of $120,000 to the decedent “in trust for the Alfred Zucaro Revocable Trust.” The term of the note was two years, and Zucaro made various monthly interest payments to thе decedent during the two-year period. However, the decedent died prior to the expiration of the two-year period. According to Zucarо, since the decedent died before the expiration of the two-year period, the $120,000 principal was payable to the Alfred Zucaro Revocable Trust, and not the decedent‘s estate.
The evidence presented by the appellants in support of their cross motion revealed triable issues of fact, inter alia, as to whether Zucaro fraudulently withheld from the petitioner that, pursuant to the terms of the promissory note, if the decedent died priоr to the expiration of the two-year period, the $120,000 principal would be payable to the Alfred Zucaro Revocable Trust, and not the decedent‘s estate (see Smith v Ameriquest Mtge. Co., 60 AD3d 1037, 1039 [2009]). Under these circumstances, the Surrogate‘s Court properly denied that branch of the appellants’ cross motion which was for summary judgmеnt dismissing the cause of action alleging fraud, without regard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).
The appellants also failed tо satisfy their prima facie burden of establishing their entitlement to judgment as a matter of law dismissing the constructive trust and breach of fiduciary duty causes of action. With respect to the cause of action to impose a constructive trust, the appellants failed to meet their prima facie burden of demonstrating that they were not
A cause of action alleging conversion must be commenced within three years of the alleged conversion (see
Finally, the parties’ arguments with respect to the appellants’ counterclaims are not properly before this Court. Neither the petitioner nor the aрpellants moved in the Surrogate‘s Court with respect to the counterclaims and, therefore, this Court may not search the record and award summary judgment with respect to those counterclaims (see Rosenzweig v Friedland, 84 AD3d 921, 926 [2011]; State Farm Fire & Cas. Co. v Browne, 12 AD3d 361, 362 [2004]).
The appellants’ remaining contentions are without merit.
Hall, J.P., Austin, Sgroi and Connolly, JJ., concur.