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Brown v Sawicki 2012 NY Slip Op 31480(U) May 15, 2012 Sup Ct, Suffolk County Docket Number: 2006-02064 Judge: Jeffrey Arlen Spinner Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF' THE STATE OF NEW YORK TRIAL TERM PART XXI - COUNTY OF SUFFOLK

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i EDWARD
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T. BROWN Individually And As Executor Of The Estate Of THOMAS W. BROWN, Plaintiff, - against -

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Index No.: Calendar No.: Trial Date;

2006-02064 2009-00759-EQ

, ST ANLEY SAWICKI Individually And As Executor Of The Estate Of VICTOR GRAZIANO As Surviving Tenant By Entirety Of JACQUELINE GRAZIANO,

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February 7, 2012

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Defendant

HON. JEFFREY ARLEN SPINNER, Justice OfThe Supreme Court: This is an action sounding in equity, commenced by the filing of a Notice of Pendency, Summons and Verified Complaint on January 20, 2006. Plaintiff sued Defendant, seeking a reconveyance of certain real property, alleging a lack of consideration for the conveyance, imposition of a constructive trust upon the real property and recovery of reasonable use and occupancy thereof. The matter had originally been claimed for a jury trial but at the time of commencement of the trial, the parties waived a jury, instead proceeding to a bench trial. Both parties were represented by very capable and well respected counsel, both of whom were fully prepared to try the matter and who competently did so. The essential facts in this matter are not in dispute. Plaintiff's Decedent THOMAS W. BROWN, was the owner, in fee simple, of real property known and described as 36 5th Street, West Islip, Town ofIslip, New York and designated as District 0500 Section 457.00 Block 03.00 Lot 030.000 on the Land & Tax Map of Suffolk County (the "Property"). Decedent had obtained fee title to the Property by Deed dated June 23, 1964 which was recorded with the Suffolk County Clerk on July 3, 1964 in Liber 3370 of Conveyances, Page 356. On May 16, 1990, Decedent caused to be prepared a Last Will & Testament whereby he devised all but the sum of$ 5,000.00 ofllis estate to PlaintifTEDWARD T. BROV/N, who was one of his sons. Thereafter and on September 19, 2002, Decedent executed a Deed (the "2002 Deed"), for no consideration, wherein he conveyed the Property to VICTOR GRAZIANO and JACQUELlNE GRAZIANO as Tenants 8y The Entirety, reserving unto himself a LIfe Estate. This Deed was recorded with the Clerk of Suffolk County on October 7, 2002 on Libel' 12213 of Conveyances, Page 359. It is this 2002 Deed that brings these parties to C011l1.

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Decedent THOMAS W. BROvVN (known as "Tom") was a wIdower, his wife having passed away in 1960. Decedent's sister Rose had been friendly with JACQUELINE GRAZIANO (then known as JACQUELlNESAWICKI) when all ofthem had lived in Brooklyn. After Decedent purchased the Property, Ms. Sawicki (called "Jacky") moved into the dwelling as well. She resided upstairs while he occupied the ground noor oethe home. Decedent and Jacky kept company with each other though testimony indicates that there was no romantic relationship between them; apparently their relationship was purely platonic. She accompanied him to family functions and holiday celebrations. For many years, Decedent has expressed to his son, Plaintiff EDWARD T BROWN (known as "Teddy") that he was concerned about Vhal ",'"ould happen to Jacky ifhe predeceased her. Teddy assured his fnther that he would act in accord with his Wishes; that is, Jacky could stay in the house so long as she lived. Apparently, this was discussed betveen father and so all no less than fifteen occasions over a twenty year period and according to pJaintiO"s testimony, he fully intended to honor his Jnther's wishes. Plaintiff called Stephen Kretz Esq. as his first witness. Attorney Kretz testified that Decedent had been a long time client of his law firm and a close friend of his late partner. Attorney Kretz had an extensive conference with Decedent vhich resulted in his drafting of the May 16, 1990 Will. According to the testimony, Tom came to the office with Jacky and "he seemed concerned about her weH-being and he seemed solicitous of her needs." The Will made no provision for Jacky, the only two legatees being Tom's two sons. Attorney Kretz testified that sometime in 2001, Tom and Jacky appeared at his office without prior notice or an appointment. Tom stated that he "needed something" while Jacky stated that Tom wanted to convey title to the Property to her. Attorney Kretz took Decedent aside, out of Jacky's presence and explained what Jacky had requested whereupon Decedent stated "That's not what I want to do, I didn't know that's what she wanted." He opined that Decedent, though quite elderly, seemed competent, aware and oriented. At10rney Kretz did not prepare a Deed nor any other instrument for Decedent. The COUli is acquainted with Attorney Kretz, is aware of his excellent reputation and completely credits his testimony, finding it to be wholly credible and completely above reproach. Pla1l1tillthen testified on his own behalf. As Executor of the estate of Decedent, he waived the so-called Dead Man's Statute [see CPLR

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