Building Doorman Sues Estate To Enforce Decedent’s “Promise”

Was Dismissal Warranted Based Upon the Statute of Frauds?

Jose  Padilla was employed as a doorman in a residential building where James Clayton Larmett (decedent) and his late wife Linda lived. Padilla alleged that he knew the couple for approximately twenty-eight years and became close with them through regularly assisting them with day-to-day affairs and caring for their pets. After Linda Larmett passed away in 2016, Padilla alleged that he cared for Larmett, would sleep over in his apartment, assist in finding appropriate aid to care for him, was designated as his health care proxy and was given a power of attorney to better help James with his needs.

Padillla’s complaint in Supreme Court alleged that, on May 1, 2020, Larmett said he would leave him one-fourth of his estate “in consideration for all the help [Padilla] had given him over the past twenty-eight years” and that on January 25, 2021, Larmett “promised to change his will and leave [Padilla] one-third of his estate”.

Larmett passed on February 15, 2021 without changing his will. Shortly thereafter, the will that was executed in 2016 was offered for probate in New York County Surrogate’s Court. On July 26, 2021, Padilla submitted a notice of claim to the executor for one-third of the estate, which was rejected by written notice dated August 6, 2021. Padilla then commenced suit in Supreme Court on September 29, 2021 asserting a single claim for breach of contract for the Larmett’s failure to change his will, and demanding an accounting to determine the value of the estate and a judgment equal to one-third of the estate. The estate moved to dismiss the complaint.

Breach of an alleged oral promise to make a will or testamentary provision is not a viable cause of action, because it would be barred by the statute of frauds. But Padilla submitted an affidavit annexing two “will questionnaires”: one dated 4/5/2020, which inferred that  Larmett wanted to give him one-fourth of his estate; and another dated 1/29/2021, giving Padilla one-third of his estate.

Padilla claimed the two will questionnaires were signed by Larmett and submitted to “`Legal Shield’, a pre-paid legal service that employed the services of a law firm to prepare and supervise execution of a client’s last will and testament”. But that the wills were not prepared and executed in accordance with those will questionnaires “[d]ue to illness along with the advent of Covid-19 restrictions.”

Even if the statute of frauds defect was remedied by that evidence, the claim would be dismissed if the writings failed to evince a clear and unambiguous manifestation of Larmett’s intention to renounce the future power of testamentary disposition. And if those writings were unclear as to his intent, parol evidence could be taken to resolve any ambiguity. But Padilla submitted that the writings were unambiguous with regard to Larmett’s intent. And the estate argued that the writings were not necessarily unequivocal. Specifically, the estate claimed that, because wills are ambulatory in nature, any agreement purporting to surrender the power of revocation required a threshold showing of clear and unambiguous evidence to give effect to this surrender of rights. And that threshold was not met. Thus, it was not a question that the Court could resolve on a motion to dismiss.

Alternatively, the estate argued that the matter should be removed to the Surrogate’s Court pursuant to CPLR 325(e), which states: “Where an action pending in the supreme court affects the administration of a decedent’s estate which is within the jurisdiction of the surrogate’s court, the supreme court, upon motion, may remove the action to such surrogate’s court upon the prior order of the surrogate’s court.”

Supreme Court and Surrogate’s Court have concurrent jurisdiction in matters involving decedents’ estates. And, wherever possible, all litigation involving the property and funds of a decedent’s estate should be disposed of in the Surrogate’s Court.

Here, although Padilla was entitled to commence the action in Supreme Court pursuant to SCPA § 1810, the relief requested — namely, an accounting of the estate and a determination that he was entitled to one-third of the estate — could be obtained in the Surrogate’s Court. Accordingly, in such a situation, Supreme Court ordinarily refrains from exercising its concurrent jurisdiction and the court first assuming jurisdiction should retain it to the exclusion of the other. Additionally, contrary to Padilla’s contentions, the Court found that his suit would clearly affect the administration of the estate and that the Surrogate’s Court, which is the Court that first retained jurisdiction, was better suited to adjudicate the matter.

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