The Court has received and considered the following submissions on Petitioner George Suttle’s motion for summary judgment pursuant to CPLR §3212(b) for an Order (1) dismissing Respondent/Creditor James Pillmeier’s claim against the Estate and (2) granting Petitioner’s petition to turn-over personal and real property of the Decedent in the possession and control of the Respondent: 1. Petitioner’s Notice of Motion, Affirmation in Support, Statement of Material Facts and Exhibits A through G filed on May 20, 2022; 2. Respondent’s Affirmation in Opposition, Respondent’s Memorandum of Law in Opposition, Response to Statement of Material Facts, and Exhibits A through G filed on June 1, 2022; 3. Petitioner’s Affirmation in Reply and Response to Statement of Material Facts of Respondent filed on June 7, 2022. Background Decedent Robert L. Wiggins died on May 30, 2020, leaving a Last Will and Testament dated April 29, 2019 (the “Will,” see Petitioner’s Ex. A). Section 3.05 of the Will instructed Decedent’s executor to distribute his entire probate estate to the Trustee of the Robert L. Wiggins Irrevocable Trust dated April 9, 2015 to hold and administer according to the provisions of that trust. Section 3.06 provided that if the pour-over to the aforementioned trust failed, then Decedent’s estate would be distributed by five specific bequests (one of them being Decedent’s residence at 272 Union Street, Montgomery, New York) with the residuary estate being distributed as follows: to George Suttle (25 percent), to Kevin Decker (25 percent), to James Pillmeier (25 percent), to Samuel Dickson (12.5 percent) and to The Matthew Shepard Internment Foundation (12.5 percent). Upon probate of the Will, and pursuant to Section 3.01, this Court issued Letters Testamentary dated April 26, 2021 to Petitioner George Suttle, without objection. Petitioner filed the instant proceeding to recover Decedent’s real property (the “Condominium” located at 2921 Sunflower Circle West, Palm Springs, CA 92262) and Decedent’s personal property (Bank of America checking account/checkbook/credit and debit cards, Chase checking account/checkbook/credit and debit cards, and personal property located in the Condominium) allegedly under the possession and control of the Respondent, James Pillmeier. (See Petitioner’s Ex. C). Respondent Pillmeier had known the Decedent for most of his life, as the Decedent was his childhood schoolteacher. Respondent Pillmeier considered the Decedent to be a “very dear friend” of his. (See Petitioner’s Statement of Material Facts, Respondent’s Response to Statement of Material Facts; Deposition Transcript of Respondent James Pillmeier at Petitioner’s Ex. G). Shortly before the commencement of this turnover proceeding, Respondent Pillmeier had filed a claim against the Decedent’s estate in the amount of $595,722.00. (See Respondent’s Ex. B). Pursuant to Respondent’s Affidavit in Support of Claim, the claim was for “unpaid compensation owed to me in connection with personal services that I rendered to [the Decedent] prior to his death.” (See Respondent’s Ex. B). In short, Respondent took care of the elderly Decedent as a live-in assistant and helped him with every-day life. The Respondent did this for a period of approximately eight years from 2012 through Decedent’s death in May 2020. During the first four years, the Respondent paid a nominal rent of $500.00 per month to the Decedent and no rent at all during the last four years. During this time, the Respondent also had access to all of the Decedent’s bank accounts, credit and ATM cards, etc., which he used, allegedly with the Decedent’s knowledge and permission. (See Petitioner’s Statement of Material Facts, Respondent’s Response to Statement of Material Facts; Deposition Transcript of Respondent James Pillmeier at Petitioner’s Ex. G). As to the alleged “compensation” to be paid by the Decedent, the Respondent stated that he had an “…unmemorialized [sic], yet express oral agreement with the Decedent that I would provide the aforementioned services on an ongoing basis in exchange for payment from the Employer’s estate subsequent to his death.” (See Respondent’s Ex. B). Respondent further stated that, “Subsequent to Decedent’s death, I would inherit the balance of the compensation due to me in connection with performing these acts, in addition to my share of the Decedent’s estate that had already been set forth in the Decedent’s Last Will and Testament” and further, “My receipt of such compensation would be in addition to any amount received from my Employer under the terms of any Last Will and Testament, Trust or similar document that would transfer ownership of my Employer’s assets to me at the time of his death.” (See Respondent’s Ex. B). As to the amount of compensation alleged to be due, Respondent calculated the amount of $595,722.00 pursuant to the Medicaid Live-In Care Rate average in Orange County, New York, for each year he alleged to have provided care. (See Respondent’s Ex. B). Significantly, however, Respondent failed to produce any evidence of Decedent’s agreement to this rate of compensation/consideration in return for the alleged services that Respondent would provide. Furthermore, Respondent offered no evidence of any “compensation” for services being paid by the Decedent during his lifetime. According to the non-party Affidavit of Samuel D. Dickson, the Decedent “told” him that he would pay Respondent for his services subsequent to his death and that he was further “told” that this payment from the Decedent’s estate would be in addition to the gift left to him under the Will and that he was further “told” that the Decedent “would be making arrangements to give his recently purchased Palm Springs, California, condominium to [Respondent] in partial payment for the services that [Respondent] provided to the Decedent.” (See Respondent’s Ex. B). According to the similar non-party Affidavit of Brian Pawelski, the Decedent “told” the same things to him as the Decedent had alleged “told” to Samuel D. Dickson. (See Respondent’s Ex. D). According to a purported voicemail message left for Respondent by the Petitioner, Petitioner stated that he believed it was the Decedent’s “desire” that Respondent receive the Condominium, however, none of Decedent’s estate planning documents ever provided for that. (See Respondent’s Ex. B). Significantly, the Respondent, himself, never alleged that the Decedent agreed to transfer his Condominium at any time, before death or after death. (See Respondent’s Ex. B). The Will, executed by the Decedent thirteen months prior to his death, sets forth a detailed testamentary scheme for the administration and distribution of this estate and makes no provision for other compensation or property transfers to Respondent James Pillmeier upon Decedent’s death. (See Petitioner’s Ex. A). The Defendant’s Will also contained a “no contest” or in terrorem clause that would function to lapse a beneficiary’s interest under the Will in the event of, among other things, a beneficiary filing a claim against the estate, as well as lapsing the interest of any beneficiary who assisted any other beneficiary who filed a claim against the estate. (See Petitioner’s Ex. A, Section 6.03). Analysis A. Respondent/Creditor’s claim against the Estate. Along with the turnover of certain items of Decedent’s property, Petitioner seeks summary judgment dismissing the Respondent’s claim against the Decedent’s estate. Generally, all issues relating to the validity and enforceability of a claim against an estate would be adjudicated in the accounting proceeding. See SCPA §1808. However, the Surrogate’s Court may issue the equivalent of a declaratory judgment as to matters within its scope of jurisdiction (i.e., estates and the affairs of decedents) in making a complete and equitable disposition of a case. See In re Estate of Dolloff, 49 Misc 3d 440 (Sur. Ct. 2015); SCPA §201(3). Since the parties have conducted discovery and set forth their proof and arguments concerning the claim, the Court will adjudicate the claim at this time. (1) Respondent’s claim fails for lack of a contract. This Court finds that the alleged agreement that the Respondent would provide “personal services” to the Decedent in exchange for compensation is too vague and indefinite to support the existence of a contract to compensate the Respondent during the Decedent’s lifetime or after death. Such “employment for life” promises have been found to be unenforceable as too vague and indefinite to support the existence of a contract. See, e.g., Lowinger v. Lowinger, 287 AD2d 39, 45 (1st Dept. 2001) (holding that alleged promises such as an unspecified amount of financial support or a ‘wonderful house’ or of an inheritance for plaintiff’s children equal to that of defendant’s other grandchildren, which would remain indefinite until the defendant’s death, must fail as not subject to specific measurement); see also, Dombrowski v. Somers, 41 NY2d 858 (1977) (holding that witnesses’ testimony that they heard the decedent say that he would “take care of” the plaintiff in return for the services she provided to the decedent during his life “are too vague to spell out a meaningful promise” and, even if they were not, standing alone, they would be legally insufficient to support a finding that there was a contract to compensate plaintiff during her lifetime rather than one to do so by bequest). Significantly, Respondent failed to present any evidence (or even an allegation) as to the rate of compensation, method of computation or amount of payment(s) that Decedent agreed to give him, at any time. See, e.g., Matter of Kittay, 118 AD2d 647 (2d Dept. 1986) (holding that the alleged agreement, which contained no specifics as to the form, frequency and amount of payment, was too vague to spell out a meaningful promise); Saunder v. Baryshnikov, 110 AD2d 511, 512 (1st Dept. 1985) (holding that vagueness as to material details, including the form, frequency and amount of payment actually promised/agreed to “rendered the assertion of a contract meaningless” and unenforceable). Regarding the alleged agreement to convey the Condominium to the Respondent, the Court notes that the Respondent, himself, never specifically alleged such an agreement to exist. Instead, the alleged agreement was relayed through the hearsay affidavits of Samuel D. Dickson and Brian Pawelski to whom the Decedent allegedly “told” or “shared” the intention that he “would be making arrangements to give his recently purchased Palm Springs, California, condominium to [Respondent] in partial payment for the services that [Respondent] provided to the Decedent.” (See Respondent’s Exhibits C and D). Notwithstanding the truth or admissibility of these statements, they are merely precatory statements of intention, which constitute nothing more than an unenforceable “agreement to agree.” See Dragon Head LLC v. Elkman, 118 AD3d 424 (1st Dept. 2014). (2) Assuming that an oral agreement existed, Respondent’s claim would still be unenforceable under applicable Statutes of Fraud. (a) Respondents’ claim is unenforceable pursuant to EPTL §13-2.1(a)(2). Pursuant to the Estates Powers and Trust Law’s “Statute of Frauds,” every agreement, promise or undertaking to make a testamentary provision of any kind is unenforceable unless it or some note or memorandum thereof is in writing and subscribed by the party to be charged therewith, or by his lawful agent. See EPTL §13-2.1(a)(2). Here, Respondent’s claim, whether for compensation in the form of money or in the form of real property, relied upon an alleged agreement for, or promise of, a testamentary gift (i.e., a transfer following the Decedent’s death). Since the alleged agreement/promise was not in writing and signed by the Decedent, it is unenforceable pursuant to EPTL §13-2.1(a)(2).1 (b) Respondent’s claim is unenforceable pursuant to GOL §5-701. General Obligations Law §5-701(a)(1) provides that, “Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking: (1) By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime.” See, e.g., Estate of Barr, 252 AD2d 875 (3d Dept. 1998) (alleged oral agreement to provide services including home maintenance, yard work, transportation, shopping, food preparation and companionship, which were to be paid after the decedent’s death, was unenforceable pursuant to GOL §5-701[a][1]); Matter of Kittay, 118 AD2d 647 (2d Dept. 1986) (alleged oral agreement to “take care of” and “support” decedent for the rest of her life was unenforceable pursuant to GOL §5-701[a][1]). Similar to Barr and Kittay, supra, Respondent’s alleged contract for after-death compensation in return for “personal services” performed during Decedent’s lifetime is unenforceable because it is not in writing, not signed by the Decedent and not to be performed within one year or completed before the end of a lifetime. Although part performance may take an otherwise unenforceable contract out of the Statute of Frauds found in GOL §5-701, this principle does not apply to a contract that is unenforceable because it is incapable of performance within one year. Revson v. Claire’s Stores, Inc., 120 F. Supp. 2d 322, 325 (S.D.NY 2000). Even assuming it were capable of performance within one year, Respondent failed to meet the standard of showing that his performance of the oral agreement was “unequivocally referable” to the oral agreement. In order to do so, Respondent needed to demonstrate that his conduct was “unintelligible or at least extraordinary” and explainable only with reference to the oral agreement. Lowinger v. Lowinger, 287 AD2d 39, 45 (1st Dept. 2001). In other words, there must be a showing of detrimental reliance, i.e., a party changing position to their own prejudice because of the contract, so as to give rise to an estoppel. Messner Vetere Berger McNamee Schmetterer Euro RSCG Inc. v. Aegis Grp. PLC, 93 NY2d 229, 235-36 (1999). Here, Respondent’s conduct in providing personal care to the Decedent was not “unequivocally referable” to the alleged oral agreement because of (1) the close friendship and near lifelong familiarity between the Respondent and the Decedent and/or (2) Respondent’s failure to show that he detrimentally relied or changed his position to his own prejudice by, for example, sacrificing a career, other opportunities or other employment to take care of the Decedent in sole reliance upon the alleged oral agreement. Instead, the record before this Court demonstrated a relationship based upon mutual affection and mutual convenience. (c) Respondent’s claim is unenforceable pursuant to GOL §5-703. General Obligations Law §5-703 creates a separate statute of frauds provision for conveyances and contracts concerning real property. Like GOL §5-701, such transactions (other than a lease not exceeding one year) are required to be in writing; however, subsection 5-703(4) contains a statutory part performance exception, providing that “[n]othing in this section abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance.” See GOL §5-703(4). “Accordingly, under certain circumstances, specific performance of an unwritten agreement can be compelled when there has been sufficient part performance which is unequivocally referable to the agreement. Messner Vetere Berger McNamee Scmetterer EURO RSCG Inc. v. Aegis Grp. PLC, 974 F. Supp. 270, 273-74 (S.D.NY 1997). However, as discussed supra, Respondent’s alleged performance was not “unequivocally referrable” to any alleged agreement to transfer the Condominium. Furthermore, as discussed supra, nor was the alleged agreement to transfer the Condominium anything more than an unenforceable agreement to agree. London Paint & Wallpaper Co. v. Kesselman, 158 AD3d 423, 424 (1st Dept. 2018) (barring the use of the part performance exception to GOL §5-703 due to the presence of an unenforceable agreement to agree). (3) Respondent cannot recover under a theory of contract implied in fact or implied in law. As discussed in the case of Estate of Argersinger: “A contract implied in fact may result as an inference from the facts and circumstances of the case, although not formally stated in words * * * and is derived from the ‘presumed’ intention of the parties as indicated by their conduct * * *” (Jemzura v. Jemzura, 36 NY2d 496, 503-504, 369 N.Y.S.2d 400, 330 N.E.2d 414 [citations omitted]). “[I]n order to infer the existence of a contract from the actions of the parties it must appear that they actually intended to form a contract” (European Am. Bank v. Cain, 79 AD2d 158, 163, 436 N.Y.S.2d 318), and “the burden of proving the existence, terms and validity of a contract rests on the party seeking to enforce it” (Paz v. Singer Co., 151 AD2d 234, 235, 542 N.Y.S.2d 10). In Argersinger, the respondent and the decedent had been close friends for a number of years prior to the decedent’s stroke. The decedent moved-in with the respondent following his stroke and the respondent took care of him; however, the respondent failed to show that she ever received or sought any compensation for her services during decedent’s lifetime, or that decedent intended to pay for those services. As a result, the Argersinger court found a lack of evidence from which it could be inferred that the parties intended to form a contract and, thus, there was no contract implied in fact. See Est. of Argersinger, 168 AD2d 757, 758 (3d Dept. 1990). Similarly, in Matter of Est. of Lasek [144 Misc 2d 813, 814 (Sur. Ct. 1989)], the claimant, who had lived with the decedent and sought compensation for services rendered “as a practical nurse and for household duties and chores” for six years leading up to the decedent’s death, had no basis for an implied contract claim against the decedent’s estate where (1) the parties were free to enter into an express contract for personal services, but never did, and (2) although the decedent paid for the household expenses, the claimant was never characterized as an employee or at any time considered to be working for hire. In declining to recognize an implied contract for personal service between unmarried persons living together, the Lasek court cited to the Court of Appeals case of Marone v. Marone, which explained the sound reasoning behind such a holding as follows: Historically, we have required the explicit and structured understanding of an express contract and have declined to recognize a contract which is implied from the rendition and acceptance of services (Rhodes v. Stone, supra; Vincent v. Moriarty, 31 App.Div. 484, 52 N.Y.S. 519, supra; see, also, Matter of Adams, supra). The major difficulty with implying a contract from the rendition of services for one another by persons living together is that it is not reasonable to infer an agreement to pay for the services rendered when the relationship of the parties makes it natural that the services were rendered gratuitously (Matter of Adams, supra, 1 AD2d at p. 262, 149 N.Y.S.2d 849; Robinson v. Munn, 238 NY 40, 43, 143 N.E. 784). As a matter of human experience personal services will frequently be rendered by two people living together because they value each other’s company or because they find it a convenient or rewarding thing to do (see Marvin v. Marvin, 18 Cal.3d 660, 675-676, n. 11, supra, 134 Cal.Rptr. 815, 557 P.2d 106). For courts to attempt through hindsight to sort out the intentions of the parties and affix jural significance to conduct carried out within an essentially private and generally noncontractual relationship runs too great a risk of error. Absent an express agreement, there is no frame of reference against which to compare the testimony presented and the character of the evidence that can be presented becomes more evanescent. There is, therefore, substantially greater risk of emotion-laden afterthought, not to mention fraud, in attempting to ascertain by implication what services, if any, were rendered gratuitously and what compensation, if any, the parties intended to be paid. Morone v. Morone, 50 NY2d 481, 488 (1980). Here, similar to Argersinger, the Decedent and Respondent had known each other for decades and the Respondent considered the Decedent a “very dear friend.” (See Petitioner’s Ex. G). As in both Argersinger and Lasek, the Respondent lived with the Decedent for eight years and took care of the Decedent and the household, but never entered into a contract for personal services although they were free to do so. Additionally, Respondent failed to demonstrate that he sought any compensation for his services during decedent’s lifetime, or that the Decedent actually intended to pay for those services. Only now, for the purposes of asserting his claim, does the Respondent hold himself out as an “employee”; however, Respondent presented no evidence of holding himself out as an employee of the Decedent or as a personal services worker for hire prior to the Decedent’s death. Accordingly, as in Argersinger and Lasek, this Court declines to find a contract implied in fact for personal services between the Decedent and the Respondent. Distinguishing a contract implied in fact from a contract implied by law, the Argersinger court continued as follows: “[A] contract is implied by law where none in fact exists to prevent the unjust enrichment of one party and to render as much as deserved (quantum meruit) to the other party in the interest of equity * * *. [T]he remedy does not arise unilaterally upon the furnishing of services and is not available when the services were offered at no charge; there must be an inferable expectation by both parties that [respondent] would be paid for [the] services” (Super v. Abdelazim, 139 AD2d 863, 864, 527 N.Y.S.2d 591 [citation omitted]). Est. of Argersinger, 168 AD2d 757, 758 (3d Dept. 1990). In Argersigner, the court ultimately deemed that the facts did not give rise to a contract implied in law because, despite the fact that the decedent paid for household expenses, there was no evidence of any expectation that respondent’s services would be compensated, nor did the court find that the decedent was unjustly enriched by respondent’s generosity. Argersinger, 168 AD2d at 758. Similarly here, there is no evidence to infer that there was expectation by both parties that the Respondent would be paid over $500,000.00 for services by the time of Decedent’s death or following his death. Furthermore, it is important to recall that Respondent’s claim was based upon an alleged agreement for compensation after Decedent’s death, which constituted a contract or promise for a testamentary provision and violated the statute of frauds under EPTL §13-2.1(a)(2). In New York, a party may not assert an action under a theory of contract implied by law or “quasi-contract” in order to circumvent the writing requirement of a statute of frauds. See, e.g., United Res. Recovery Corp. v. Ramko Venture Mgmt., Inc., 584 F. Supp. 2d 645, 658 (S.D.NY 2008). For these reasons, any claim for contract implied by law (also referred to as quantum meruit, unjust enrichment or quasi-contractual recovery) must fail in this case. B. Petitioner’s turnover proceeding. Upon the record presented here, the Petitioner is entitled to summary judgment on the turnover petition based upon the Respondent’s admissions in pleading and at his deposition. Conclusion For the reasons discussed above, it is hereby ORDERED that the Petitioner’s motion for summary judgment is granted; and it is further ORDERED that the Verified Claim of Respondent/Claimant James Pillmeier, verified on March 18, 2021, is hereby disallowed in its entirety; and it is further ORDERED that the Verified Petition seeking turnover of the Decedent’s property herein is granted; and it is further ORDERED that the Petitioner shall submit a proposed Decree for settlement on notice to the Respondent. This constitutes the Decision and Order of the Court. Dated: August 10, 2022
