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Recent Decision Notification: McPadden v. McPadden

Posted by Arnold A. Arpino | Aug 13, 2015 | 0 Comments

In a beautifully written decision by the Honorable James Hudson Acting Supreme Court Justice in Suffolk County, Hudson ruled that siblings were entitled to summary judgment on the issue of liability over a dispute over the disposition of their late parents home.

In McPadden v. McPadden, 02096/2014, Justice Hudson eloquently opens his decision by quoting Plato.  "Let parents bequeath to their children not riches, but the spirit of reverence."  Hudson further goes on, "The Court cannot help but observe that Plato's immortal sentiment, if sincerely felt, would calm the discord in what should be a loving family."

Brief Factual History: In the late 90's, in contemplation of declining health and the expenses involved in attending to same, the McPadden's gathered their children and met with an attorney to discuss the preservation of assets.   As a result,  the mother executed a deed in 2002 transferring fee simple to Thomas McPadden (the son, and defendant), with the mother retaining a life estate for the premises.  Further, an agreement between the mother and the defendant provided that "Thomas McPadden further agrees that in the event of a sale of the property during the lifetime of Anna A. McPadden, he will divide his share of the net proceeds into eight shares and shall retain on such equal share for himself and shall give one equal share to each of his siblings who survive him... Thomas McPadden further agrees that within two years from the date of death of Anna A. McPadden, he shall pay to his siblings the sum of money equal to 7/8ths of 75% of the appraised value of the property."  Mrs. Anna McPadden passed away in 2011, and her husband predeceased her.  Plaintiffs made a demand for their shares under the agreement.  Defendant has not complied with this request.  He claims that he purchased the subject parcel from the decedent for the sum of $150,00.00, via an oral contract, and provides a deed filed in 2008 reflecting the removal of the life estate. 

Discussion: Justice Hudson ruled that the plaintiff's (the siblings of the defendant) have standing to maintain this action although they were not the original signatories on the agreement.   Since the plaintiff's were intended beneficiaries of the contract, and not just incidental beneficiaries, the plaintiffs are allowed to enforce their claims (see, Lawrence v. Fox, 20 N.Y. 268, E.P. Smith 268 [1859])

Further, Justice Hudson ruled that although the sale of real property must be in writing to be enforceable, the law in New York is equally emphatic that such a contract may be rescinded by the parties via a parol agreement.  This rule, however, comes with the following exception "A written agreement or other written instrument which contains a provision to the effect that it cannot be changed orally, cannot be changed by an executory agreement unless such executory agreement is in writing and signed by the party against whom enforcement of the change is sought or by his agent. (G.O.L. 15-301[1])

The defendant contends that the 2008 deed constituted the writing required for the purposes of G.O.L 15-301(1). However, the 2008 deed merely conveyed the life estate to the defendant, and did not disturb the conveyance of fee simple from the 2002 deed. (see, Ubriaco V. Martino, 36 A.D.3d 793, 828 N.Y.S.2d 490 [2nd Dept. 2007])

Justice Hudson also found the defendants defenses of latches, and summary judgment not being an appropriate remedy with discovery outstanding to also be without merit based on decisional authority. 

Conclusion: Plaintiff's are granted summary judgment on the issue of liability.  However, the issue of damages does not lend itself to summary relief. 

Justice Hudson commended the attorneys for the plaintiff and the defendant for their eloquence and scholarship of their respective briefs.

Attorney for the plaintiff's John J. Vizzi, Esq., Klein & Vizzi LLP, West Babylon NY

Attorney for the defendant Kimberly Schechter, Esq., Novick & Associates, Huntington NY

About the Author

Arnold A. Arpino

Managing Shareholder focusing on Creditor's Rights, Real Estate, & Non-Taxable Estate Planning.


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Arnold A. Arpino & Associates, P.C., is a full service law firm that represents individuals and businesses in a variety of different practice areas. Our firm regularly appears in the Courts throughout Long Island, New York City, and the Hudson Valley.