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New York County, Surrogate's Court: July 18, 2023

Decision & Orders signed:July 13, 2023

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Surrogate Mella ESTATE OF JOSEPH D. SCOTT, JR., Deceased (17-4536/F) — In this turnover proceeding by the co-Executors of the estate of decedent Joseph Scott, Jr.,1 Respondents, who are the fiduciaries of the estates of decedent’s parents, move for summary judgment dismissing the petition. The motion, which was unopposed,2 is granted in part and denied in part as set forth below. After a modification on an appeal of this court’s prior decision resolving Respondents’ motion to dismiss (Matter of Scott, 200 AD3d 450 [1st Dept 2021]), only two claims remain as grounds for turnover: one for conversion regarding certain personal property; and the other for unjust enrichment regarding two further claims: (a) the value of certain improvements to and maintenance of a house in Amagansett, New York (Amagansett House) allegedly paid by decedent, and (b) three checks totaling $410,000 (two from 2014, from the decedent to his parents. That appeal eliminated from this case the claim of constructive trust over the Amagansett House, which had sought specific performance of an alleged oral agreement (id.).

Respondent-Movants seeking summary dismissal of these remaining claims have the burden of showing entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact (Ferluckaj v. Goldman Sachs & Co., 12 NY3d 316 [2009]; Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). This is true regardless of the filing of opposition, and the “[f]ailure to make such showing requires denial of the motion” (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; Tulino v. Pipa, 162 AD3d 709 [2d Dept 2018]).

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