Preview
FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021
NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
–––––––– ––––––––––––––– ––––– X
Index No.
MICHAEL E. CIRENZA, as Executor of the Estate 609648/2021
of Anne Regina Cirenza, and GERARD X.
McCARTHY, Justice Assigned:
(Driscoll, J.)
Plaintiffs,
Motion Sequences 006 and 007
-against-
KATHLEEN FLYNN, JEFFREY D. MUNJACK and
JDM FINANCIAL GROUP, ELIZABETH
ANDRONICA DEFALCO, GREGORY
ANDRONICA, and JOYCE McCARTHY,
Defendants.
– – – – – – – – – – – – – – – – – – – – – – – – – – –– X
PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO MOTIONS FOR
SUMMARY JUDGMENT BY KATHLEEN FLYNN AND THE JDM DEFENDANTS
Attorney for Plaintifs
1425 RXR Plaza
East Tower, 15th Floor
Uniondale, New York 11556
(516) 663-6600
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TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ....................................................................................................... ii
PRELIMINARY STATEMENT ..................................................................................................1
COUNTER-STATEMENT OF FACTS ......................................................................................2
POINT I DEFENDANTS FAIL TO SATISFY THE LEGAL STANDARD
REQUIRED FOR SUMMARY JUDGMENT TO BE GRANTED ......................14
POINT II THE UNREBUTTED TESTIMONY OF PLAINTIFFS’ EXPERT
CREATES AN ISSUE OF ACT PRECLUDING SUMMARY
JUDGMENT ..........................................................................................................16
POINT III EVEN SETTING ASIDE PLAINTIFFS’ EXPERT TESTIMONY,
THE MOVING DEFENDANTS FAIL TO DEFEAT PLAINTIFFS’
CLAIMS AGAINST FLYNN................................................................................18
A. Undue Influence .........................................................................................18
B. Breach of Fiduciary Duty...........................................................................24
C. Fraud ..........................................................................................................28
POINT IV FLYNN FAILS TO DEFEAT THE REMAINDER OF
PLAINTIFFS’ CLAIMS AGAINST HER ............................................................32
POINT V JDM DEFENDANTS ALSO FAIL TO DEFEAT PLAINTIFFS’
CLAIMS AGAINST THEM FOR AIDING AND ABETTING
FLYNN ..................................................................................................................34
A. Actual Knowledge .....................................................................................34
B. Substantial Assistance ................................................................................38
POINT VI THE MOVING DEFENDANTS ALSO FAIL TO DEFEAT
PLAINTIFFS’ CLAIM FOR DECLARATORY RELIEF ....................................42
CONCLUSION ............................................................................................................................45
WORD COUNT CERTIFICATION..........................................................................................46
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TABLE OF AUTHORITIES
Page(s)
Cases
Alvarez v Prospect Hosp.,
68 NY2d 320 (1986) ........................................................................................................... 14, 16
Arbor Asset Management, LLC v Singh,
189 AD3d 527 (1st Dept 2020) ................................................................................................. 36
Bank Hapoalim (Switzerland) Ltd. v Banca Intesa S.p.A.,
2008 NY Slip Op 52596(U) (Sup Ct, NY County 2008) .......................................................... 40
Beach v TCM Management, LP,
No. 603611/08, 2015 WL 2127116 (Sup Ct, NY County May 05, 2015) ................................ 40
Bioenergy Life Science, Inc. v Ribocor, Inc.,
No. 650602/2014, 2018 WL 3439161 (Sup Ct, NY County July 16, 2018) ............................ 16
Bonczyk v Williams,
119 AD3d 1124 (3d Dept 2014) ............................................................................................... 23
Briarpatch Ltd., L.P. v Briarpatch Film Corp.,
2013 N.Y. Slip Op. 31263 (Sup Ct, NY County June 1, 2013) ................................................ 41
C.f. Bank of N.Y. Mellon Trust Co., N.A. v Merrill Lynch Capital Services, Inc.,
99 AD3d 626 (1st Dept 2012) ................................................................................................... 36
Canandaigua Nat. Bank and Tr.Co. v Palmer,
39 Misc 3d 1211(A) (NY City Ct 2013) ............................................................................. 33, 35
Columbia Technology Corp. v. Yoo,
2022 NY Slip Op 30226(U) (Sup Ct, NY County 2022) .................................................... 35, 39
DiBacco v State,
46 AD2d 461 (3d Dept 1975) ................................................................................................... 31
Dundes v Fuersich,
2006 NY Slip Op. 51962(U) (Sup Ct, NY County 2006) ......................................................... 16
Estate of Tillinger,
2010 NY Slip Op 50303(U) (Sur Ct, Bronx County 2010) ...................................................... 31
F.Garofalo Elec. Co. v. New York Univ.,
300 AD2d 186 (2002) ............................................................................................................... 14
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Fitzpatrick House III, LLC v. Neighborhood Youth & Family Services,
55 AD3d 664 (2d Dept 2008) ................................................................................................... 33
Foran v Computershare, Inc.,
187 AD3d 538 (1st Dept 2020) ................................................................................................. 33
Geary v Hunton & Williams,
257 AD2d 482 (1st Dept 1999) ................................................................................................. 30
Glick & Dolleck, Inc. v Tri–Pac Export Corp.,
22 NY2d 439 (1968) ................................................................................................................. 14
Gordon v. Bialystoker Center & Bikur Cholim, Inc.,
45 N.Y.2d 692 (1978) ............................................................................................................... 23
Greenberg v. Wiesel,
186 A.D.3d 1336 (2d Dep’t 2020) ............................................................................................ 25
Henik v Darconte,
189 AD3d 797 (2d Dept 2020) ................................................................................................. 23
Hernandez v Tepan,
92 AD3d 721 (2d Dept 2012) ................................................................................................... 15
Hochheiser v Alin,
2018 NY Slip Op 50401(U) (Sup Ct Suffolk County 2018) .................................................... 34
In Re Chinsky,
268 N.Y.S. 719 (Sur. Ct. Kings Cty. 1934) .............................................................................. 21
In re Donovan,
47 A.D. 2d 923, 367 N.Y.S.2d 56 (1975) ................................................................................. 21
In re Elmore,
42 AD2d 240, 346 N.Y.S.2d 182 (1973) .................................................................................. 19
In re Greenberg,
34 AD3d 806 (2d Dept 2006) ................................................................................................... 23
In re Malloy,
278 NY 429, 17 N.E. 2d 108 (1938) ......................................................................................... 27
In re Nealon,
57 AD3d 1325 (3d Dept 2008) ................................................................................................. 21
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In re Stein,
2018 N.Y. Slip Op. 30055(U) (Sur Ct, NY County 2018) ....................................................... 23
In re Will of Ehrensberger,
2015 NY Slip Op 50669(U) (Sur Ct, Broome County 2015) ................................................... 24
Joe v. Orbit Indus., Ltd.,
269 AD2d 121 (1st Dept 2000)................................................................................................. 23
JPMorgan Chase & Co. v Travelers Indem. Co.,
73 AD3d 9 (1st Dept 2010) ................................................................................................. 37, 39
Kovel v Glenwood Management Corp.,
No. 159560/2017, 2021 WL 1267288 (Sup Ct, NY County. Mar. 30, 2021) .......................... 17
Macnish-Lenox,
2007 NY Slip Op 52055(U) ................................................................................................ 38, 39
Marinello v Marinello,
2020 NY Slip Op 32923(U) (Sup Ct, Kings County Sept.3, 2020) .......................................... 41
Matter of Bullock,
172 AD3d 853 (2d Dept 2019) ................................................................................................. 19
Matter of Demaio,
2014 N.Y. Slip Op. 50691(U) (Sur Ct, Queens County 2014) ................................................. 14
Matter of Gnirrep,
2 A.D. 2d 404, 156 N.Y.S. (3d Dep’t 1956) ............................................................................. 21
Matter of Lainez,
79 AD2d 78 (2d Dept 1981) ..................................................................................................... 27
Matter of Panek,
237 AD2d 82 (4th Dept 1997) ............................................................................................ 18, 19
Matter of Rosasco,
31 Misc.3d 1214(A) (Surr. Ct. N.Y. Cty. 2011) ....................................................................... 22
Matter of Rosen,
296 AD2d 504 (2d Dept 2002) ................................................................................................. 19
Matter of Smith,
2010 N.Y. Slip Op. 51286(U) (Sur Ct, Bronx County 2010) ................................................... 14
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McBride v KPMG Intern.,
135 AD3d 576 (1st Dept 2016)................................................................................................. 40
Mendez v. Harvey-Lewis,
2023 NY Slip Op 31841(U) (Sup Ct, NY County May 31, 2023) ............................... 20, 31, 34
Moyer v Briggs,
47 AD2d 64 (1st Dept 1975) ..................................................................................................... 15
Nasar v Trustees of Columbia Univ. in City of New York,
122 AD3d 449 (1st Dept 2014) ................................................................................................. 32
Nathel v Siegal,
592 F Supp 2d 452 (SD NY 2008) (applying New York law) ................................................. 39
New York City Tr. Auth. v Morris J. Eisen, P.C.,
276 AD2d 78 (1st Dept 2000) ................................................................................................... 28
Norcast S.ar.l. v Castle Harlan, Inc.,
147 AD3d 666 (1st Dept 2017) ................................................................................................. 31
Ostad v Nehmadi,
2011 N.Y. Slip Op. 50565(U) (Sup Ct, NY County 2011) ....................................................... 32
Oster v. Kirschner,
77 AD3d 51 (1st Dept 2010) ..................................................................................................... 35
Petrone v Davidoff Hutcher & Citron, LLP,
150 AD3d 776 (2d Dept 2017) ................................................................................................. 33
Phillips v Joseph Kantor & Co.,
31 NY2d 307 (1972) ................................................................................................................. 15
Pisciotto v. Dries,
306 AD2d 262 (2d Dept 2003) ................................................................................................. 32
Pludeman v Northern Leasing Sys., Inc.,
10 NY3d 486 (2008) ................................................................................................................. 29
RCSUS Inc. v SGM Socher, Inc.,
2022 NY Slip Op 30926(U) (Sup Ct, NY County 2022) .......................................................... 41
Rizer v Breen,
2007 N.Y. Slip Op. 30639(U) (Sup Ct, NY County 2007) ....................................................... 39
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Robinson v. Strong Memorial Hosp.,
98 AD2d 976 (4th Dept 1983) ................................................................................................. 15
Rollwagen v. Rollwagen,
63 N.Y. 504 (1876) ................................................................................................................... 22
Scollo ex rel. Scollo v Nunez,
2007 N.Y. Slip Op. 51469(U) (Sup Ct, Queens County 2007) ................................................ 40
Sepulveda v Aviles,
308 AD2d 1 (1st Dept 2003) ..................................................................................................... 15
Shapiro v Ansell Perry, Inc.,
291 AD2d 301 (1st Dept 2002) ................................................................................................. 17
Shelley v Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.,
2009 N.Y. Slip Op. 51559(U) (Sup Ct, NY County 2009) ....................................................... 29
Silvercreek Mgmt., Inc v. Citigroup, Inc.,
346 F. Supp 3d 473 (S.D.N.Y. 2018)....................................................................................... 38
Simpson & Simpson, PLLC v. Lippes Mathias Wexler Friedman LLP,
130 AD3d 1543, 14 N.YS. 3d 258 ............................................................................................ 38
Sokolin LLC v Cozzi,
2012 NY Slip Op 31410(U) (Sup Ct, Suffolk County 2012) ............................................. 35, 39
State v Grecco,
43 AD3d 397 (2d Dept 2007) ................................................................................................... 39
Syncora Guarantee Inc. v Alinda Capital Partners LLC,
2013 NY Slip Op. 31489(U) (Sup Ct, NY County 2013) ................................................... 35, 38
U.S. Bancorp Equip. Fin., Inc. v Rubashkin,
2011 NY Slip Op 50100(U) (Sup Ct, Kings County 2011) ...................................................... 40
United States Life Ins. Co. in City of New York v Shields,
171 AD3d 1262 (3d Dept 2019) ............................................................................................... 31
Valentin v C.G. Bretting, Mfg., Co.,
278 AD2d 230 (2d Dept 2000) ........................................................................................... 16, 17
Vill. of Mamaroneck v Craig,
2016 NY Slip Op 51158(U) (Sup Ct, Westchester County 2016) ............................................ 32
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Vincent T. v Virginia G.,
2012 NY Slip Op 52515(U) (Sur Ct, Broome County 2012) ................................................... 15
Weber v. Burman,
880 N.Y.S.2d 228 (Sup. Ct. Nassau Cty. 2008)........................................................................ 21
WF Kosher Food Distributors, Ltd. v Laish Israeli Food Co., Ltd.,
2012 NY Slip Op 33476(U) (Sup Ct, NY County 2012) .......................................................... 39
Rules
CPLR 1001(a) ............................................................................................................................... 43
CPLR 3016(b) ............................................................................................................................... 28
Other Authorities
1 NY Jur 2d Accounts and Accounting § 31 ................................................................................ 34
N.Y. JUR. DECLJUDS § 211 ....................................................................................................... 44
N.Y. Pattern Jury Instructions 7:55............................................................................................... 21
NYPRAC-COMM § 8:145 ........................................................................................................... 43
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PRELIMINARY STATEMENT
Plaintiffs Michael E. Cirenza (“Cirenza”) as Executor of the Estate of Anne Regina Cirenza
(“Gina”), and Gerard X. McCarthy (“Gerard,” together with Cirenza, “Plaintiffs”) respectfully
submit this memorandum of law, along with the Affirmation of John Farinacci (“Farinacci Aff.”)
and the exhibits annexed thereto, as well as the Affirmation of Cirenza (“Cirenza Aff.”) and the
exhibit annexed thereto, in opposition to the motions filed by: (i) defendants Jeffrey D. Munjack
(“Munjack”) and JDM Financial Group (“JDM,” together with Munjack, “JDM Defendants”); and
(ii) defendant Kathleen Flynn (“Flynn”), both of which seek summary judgment as to Plaintiffs’
Second Amended Complaint (“SAC”).
This action arises as a result of Flynn having unduly influenced Maureen McCarthy
(“Decedent”), and/or having forged Decedent’s signature, to designate Flynn as the primary
beneficiary of a TD Ameritrade (“TD”) retirement account owned by Decedent, valued in excess
of $600,000 when Decedent died (the “Account”). This purported change of beneficiaries
contravened Decedent’s long-standing financial plan that her four siblings (including both
Plaintiffs) would each receive 25% of the Account. Instead, upon Decedent’s death, Flynn received
79% of the Account, defendants Gregory Andronica (“Greg”), Elizabeth Andronica DeFalco
(“Beth”), and Joyce McCarthy (“Joyce”) each received 7%, and Plaintiffs received nothing.
Flynn was the long-time friend and roommate of Decedent, who died on February 4, 2017.
Decedent was survived by her siblings, Gina, Gerard, and Patricia Andronica (“Patricia”), and was
predeceased by her brother, Michael Cirenza (“Michael”). Greg and Beth are Decedent’s nephew
and niece, respectively, and Joyce is Decedent’s sister-in-law (having been married to Michael
until his death).
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Importantly, when this purported change to the Account was made, Decedent was dying
from brain cancer, heavily medicated, and unable to consent to such a dramatic departure from her
existing financial plan. After Decedent died, Flynn held herself out to Plaintiffs as the fiduciary of
Decedent’s estate (despite that there was no Will nominating her as executor) and as a true
beneficiary of the Account. In fact, she was neither. Thereafter, Flynn collected and distributed
79% of Decedent’s Account to herself, and facilitated the distribution of the remainder to Greg,
Beth and Joyce.
Flynn was aided in her wrongdoing by JDM Defendants, who served as financial advisor
to both Flynn and Decedent for years, and had a pecuniary interest in retaining Flynn’s business
after Decedent’s death. Among other bad acts, JDM Defendants assisted Flynn with completing
and submitting two invalid beneficiary change forms to TD, dated January 10, 2017 (the “January
10th Form”) and January 30, 2017 (the “January 30th Form,” together, the “Forms”) respectively.
These Forms were forged by Flynn or executed by Decedent as a result of undue influence and
fraud perpetrated by Flynn. JDM Defendants assisted Flynn in completing and submitting these
Forms with knowledge of her bad acts. They also assisted Flynn (and the other false beneficiaries)
with collecting and distributing the misappropriated funds after Decedent’s death.
Based on these and other allegations in Plaintiffs’ SAC, Plaintiffs bring claims against
Flynn for, inter alia, fraud, conversion, undue influence, and breach of fiduciary duty, and claims
for aiding and abetting both fraud and breach of fiduciary as to JDM Defendants. Plaintiffs also
seek a declaratory judgment that the pre-existing 2006 form (the “2006 Form”) naming Plaintiffs,
Patricia and Michael as beneficiaries controls the disposition of the Account.
Flynn and JDM Defendants devote the bulk of their motions to the contention that Plaintiffs
have failed to plead their claims. This is misplaced, because this Court already considered JDM
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Defendants’ prior motion to dismiss and determined that Plaintiffs properly pled claims of aiding
and abetting both fraud and breach of fiduciary duty, as well as the underlying torts.
Further, whether Plaintiffs have established their claims at this stage of the action is
irrelevant to summary judgment. Instead, the relevant question is whether JDM Defendants and
Flynn have met their prima facie burdens. To satisfy this burden, the moving defendants must do
more than merely point out purported gaps in Plaintiffs’ proof. Instead, they must affirmatively
establish the absence of any triable issues of fact as to Plaintiffs’ claims against them. In the
alternative, to the extent such claims sound in theories of aiding and abetting a tort, JDM
Defendants may also affirmatively establish the absence of triable issues as to the underlying tort
claims against Flynn, in which case the claims for aiding and abetting would also fail.
In examining the defendants’ submissions, it is indisputable they have failed to eliminate
issues of fact as to Plaintiffs’ underlying claims against Flynn, as they fail to address several key
issues. For instance, neither Flynn nor JDM Defendants eliminate issues of fact as to whether
Flynn forged both Forms, or whether Flynn made statements holding herself out as a fiduciary of
the estate and as a beneficiary of the Account following Decedent’s death. To be clear, JDM
Defendants do not even touch upon these issues, and Flynn makes only passing mention of the
same. Likewise, JDM Defendants make no mention at all of Decedent’s weakened cognitive and
physical health at the time the Forms were executed. Accordingly, it strains credulity for either
Flynn or JDM Defendants to submit that they have eliminated all triable issues as to the claims
against Flynn.
It is equally absurd for JDM Defendants to suggest the claims against them for aiding and
abetting Flynn should be summarily dismissed. As mentioned above, JDM Defendants’ motion is
conspicuously absent any mention of Decedent’s weakened physical and cognitive state when she
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purportedly designated new beneficiaries for the Account, when she was actively dying from
metastatic cancer and under the influence of numerous medications. It likewise fails to address the
extent to which Munjack was aware of Decedent’s impaired condition when the Forms were
purportedly executed and submitted to JDM Defendants for processing. For JDM Defendants to
seek summary judgment without even addressing two issues so central to the allegations against
them is disingenuous.
Even assuming arguendo the defendants met their prima facie burdens (they did not),
summary judgment must nonetheless be denied, as the record is replete with triable issues.
First, the findings of Plaintiffs’ handwriting expert indicate that both Forms were forged.
This is especially important because both Flynn and JDM Defendants not only failed to submit
their own expert report, they also neglected to depose Plaintiffs’ expert or to address his report in
their motions. As applicable authority will show, where the non-movant’s expert remains so
completely unrebutted, his report is presumed true for purposes of summary judgment and creates
a triable issue of fact. This alone warrants denial of both motions in their entirety.
Second, both Flynn and JDM Defendants contend that, on January 31, 2017, Decedent sent
an email to Munjack to confirm her signature on the January 30th Form was satisfactory. This, they
suggest, is evidence of her capacity and intentions. However, the record reflects that not a single
person saw Decedent email anyone during her hospital stay, and Decedent was not physically
capable of texting, as she lacked even the strength to hold her own cell phone up to her ear.
Moreover, the record will show (through the expert’s report and testimony) that the signature on
the January 30th Form was actually more controlled than Decedent’s usual signature during that
same time period, which also belies the contention that Decedent signed with her non-dominant
hand, as alleged by Flynn and JDM Defendants.
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In view of the above, both motions ring hollow. Both fail to address so many factual issues
that strike at this action’s core, and are instead brimming with conclusory generalizations and straw
man arguments, all of which are identified and debunked below. The Court should deny both
motions in their entirety.
COUNTER-STATEMENT OF FACTS
The Court is respectfully referred to Plaintiffs’ Counter-Statements of Material Facts,
submitted in response to the Statements of Material Fact by both Flynn and JDM Defendants. In
addition to the facts stated therein, Plaintiffs provide the following set of facts.
According to Flynn, Decedent and Flynn were friends, and began sharing a living space in
1990. (NYSCEF Doc No. 143 [Deposition Transcript of Kathleen Flynn (“KF”)] at 50:18-21;
NYSCEF Doc No. 150 [Deposition Transcript of JDM Defendants (“JDM”)] 68:10-12). They
maintained separate bedrooms and each contributed an equal amount to living costs associated
with their apartment. (KF 68:10-12; 147:2-13). Contrary to both counsel’s assertion that Flynn
was Decedent’s “partner” (JDM Mem. at 1; Flynn Mem. at 1), Flynn herself never testified they
were partners of any kind. To the contrary, she repeatedly described Decedent as her “friend,” both
in testimony and in Decedent’s medical records. (KF 79:24-80:16; see NYSCEF Doc No. 106
[Deposition Transcript of Kathleen Flynn Surrogate’s Court (“KF Sur.”)] 22:15-17;1 Exh. A at
OBJMSK000360). Moreover, Decedent herself described Flynn as her “friend” in medical
records. (Id. at OBJMSK000353).
In 2005, Decedent and Flynn became clients of JDM Defendants. (KF 15:18-20).
Importantly, Munjack owed a fiduciary duty to both Flynn and Decedent. (JDM 20:11-14). This
duty arose from JDM’s Client Agreement for Discretionary Services, which specifies that JDM
1
Unless otherwise stated, all references to “Exh.” are to exhibits annexed to the Farinacci Aff.
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enters into a “confidential relationship” with its clients. (JDM 10-28:17; Exh. B; Exh. C). It also
arose from a limited power of attorney, contained in JDM’s package of IRA Custodial Agreements,
pursuant to which Decedent appointed JDM as her agent and attorney-in-fact. (JDM 40:14-41:21;
Exh. D).
As part of JDM’s professional services, Munjack apprised Decedent of the financial
vulnerabilities Flynn might face upon her death, and vice versa. (JDM 43:4-44:2). To illustrate
these vulnerabilities and possible solutions, he provided Flynn and Decedent with annual
projections of their respective financial futures. (JDM 43:3-45:14; KF 48:20-50:4; Exh. E).
It is with this knowledge that Decedent, year after year, opted not to make Flynn the
beneficiary of the Account. (KF 8:20-50:4). Instead, Decedent arranged to leave the Account in
equal parts to her four siblings, including Plaintiffs. (JDM 55:16-56-23; Exh. F). Likewise, Flynn
designated her own family members (and not Decedent) as beneficiaries of her respective
retirement account. (KF 48:20-50:4). Although there was a period of time in which Decedent
allegedly owned a life insurance policy of which Flynn was the beneficiary, Decedent let the policy
lapse before her death, and no copy of the policy has ever been produced. (KF 18:22-19:13).
In 2012, Decedent became sick with kidney cancer and had a kidney removed. (KF 61:13-
62:25; 31:4-9). In September 2016, Decedent’s cancer spread and her health took a turn for the
worse. (JDM 61:13-62:25).
On January 10, 2017, just days before Decedent’s final hospitalization as detailed below,
the suspect January 10th Form was purportedly executed, naming Flynn as 100% beneficiary of
the Account. (KF 61:13-62:25).
Importantly, Flynn admits that Decedent did not fill out the form herself. The form was
allegedly filled out at their apartment by Flynn, who happened to have a blank change of
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beneficiary form on hand for just such an occasion. (KF 76:18-80:16; 79:24-80:16). On the Form,
which is entirely in Flynn’s handwriting, Flynn identified herself as Decedent’s “friend.” (KF
79:24-80:8).
Although Decedent had allegedly previously expressed a desire to leave some portion of
the Account to Joyce, the January 10th Form did not accomplish that task. (Exh. G). Per Flynn, the
topic of leaving money to Joyce, as discussed previously at Michael’s funeral, “[j]ust didn’t come
up.” (KF 238:2-9).
Instead, the January 10th Form purported to designate Flynn as 100% beneficiary of the
Account. (Id.). By this change, Flynn stood to receive nearly $700,000 from the Account on
Decedent’s death. (KF 40:13-18).
On January 13, 2017, Decedent was admitted to the hospital. (KF 102:6-13). Two days
later, Decedent lost the use of her right hand, which was her dominant hand. (KF 110:8-10; 110:22-
25). Throughout her hospital stay and leading up to her death, Decedent experienced right-sided
weakness and never regained use of her right arm. (Exh. A at OBJMSK002999).
On January 16, Decedent had an umbrella procedure and told the doctor she could not sign
the consent form because her right arm was not working, so Flynn signed in her stead. (KF 223:3-
226:7). Flynn admits that instead of signing her own name to the document as Decedent’s agent,
she inexplicably forged Gina’s signature on the form. KF 230:7-232:17; Flynn 21.
Thereafter, Decedent’s health quickly declined. (KF 133:7-19; 135:16-18; Exh. H at
OBJ000377). She was reported to have an intermittent altered mental status (KF 139:4-12), and
when asked questions by her physicians to test her cognitive state, Decedent could not answer
other than to state her name (KF 123:20-124:8; Exh. I at OBJANDRONICA000325). Further,
although Decedent had her cell phone, she was unable to (and did not try to) make any calls or
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send any emails. (KF 130:21-131:4). On January 19, Decedent underwent a craniotomy. (KF 36:7-
14).
With Decedent unable to write, Flynn began to fill out forms on Decedent’s behalf. For
instance, Flynn completed a patient questionnaire dated January 24, 2017, wherein she
misrepresented herself as Decedent’s “sister.” (KF 225:11-227:10; Exh. A at OBJMSK000280-2).
Although Flynn recognizes the signature on the form as hers, she incredibly claims lack of recall
why she wrote down “sister” in the “relationship” field, which appears right next to her admitted
signature and is clearly in Flynn’s handwriting. (Id.).
During Decedent’s hospitalization, Plaintiffs observed Flynn exhibiting an indifference
toward Decedent’s comfort and well-being. (Deposition Transcript of Gerard McCarthy [“GM”]
168:24-170:23). For instance, although Decedent was dehydrated, Flynn did not want the hospital
to give her IV fluids. (Id.). Instead, Flynn wanted Decedent to be transferred immediately to
hospice. (Id.) While Flynn spent much time in Decedent’s hospital room, she paid Decedent little
attention, focusing instead on her own text message conversations with others. (Deposition
Transcript of Michael Cirenza [“MC”] 82:18-23).
On January 26, 2017, Decedent was on corticosteroids as well as medication for pain,
nausea, and seizures. (KF 128:19-129:3). She was also wearing a fentanyl patch. (KF 135:19-
136:7). That day, Decedent had a seizure, became non-responsive, and was rushed into emergency
care. (KF 124:14-126:18). She was described by the doctor as “unconscious or non-verbal.” (Exh.
A at OBJMSK003003).
That evening, January 26, Flynn (and not Decedent, who had already been determined to
lack capacity) emailed the January 10th Form to JDM. (Exh. J). Flynn’s own testimony creates an
issue of fact as to whether the Form was actually signed on January 10 or backdated, and as to why
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Flynn waited more than 2 weeks to submit the January 10th Form to JDM. She first testified at her
deposition that Decedent was home in their Apartment all day on January 10, 2017, where the
January 10th Form was signed, and could not remember why she waited until January 26th to submit
it. (KF 62:15; 118:3-6). Yet in her affidavit filed in support of her motion, Flynn now changes her
tune and avers the January 10th Form was “not submitted right after completion because Kathy and
Maureen went to a radiologist appointment that day.” NYSCEF Doc No. 159 at ¶ 27.
On January 27, 2017, Decedent remained largely non-responsive to her doctors’ questions.
(KF 128:5-8). When asked where she was, she answered incorrectly. (KF 126:7-11). She was
described as “somnolent and mildly confused,” and “unable to enumerate pain.” (Exh. A at
OBJMSK000421). The attending doctor stated Decedent’s “confusion is likely multifactorial—
disease, polypharmacy, including opioids, Baclofen.” Id. On the same date, Decedent’s Attending
Physician issued a Do Not Resuscitate (“DNR”) Order indicating Decedent was “without
capacity,” and the information concerning the consequences of the DNR Order was provided to
Decedent’s “agent” instead. (Id. at OBJMSK000357-358). In addition, though Flynn denied ever
using Decedent’s health care proxy or making medical decisions for Decedent, Flynn (who also
falsely identified herself as Decedent’s sister in the medical records) actually affirmatively
declined to hydrate Decedent and she was moved towards “comfort care.” (Id. at OBJMSK000280-
81; OBJMSK000420; KF 33:25-34:3).
Munjack knew Decedent was ill and dying. (JDM 31:19-24; 72:17; 73:15). He also knew
that, notwithstanding her prior receipt of JDM’s financial projections, Decedent had never before
indicated an intention to designate Flynn as a beneficiary on the Account. (JDM 69:23-70:13). In
fact, Munjack found it “interesting” that Decedent was making this change after so many years.
(JDM 69:16-22). Nonetheless, Munjack accepted the January 10th Form from Flynn without
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speaking to Decedent. (JDM 67:11-17; 72:2-3).
On January 28, 2017, Decedent had a concerning “mental status,” and it was determined
she was “too lethargic” and thus it was dangerous for her to take oral medications. (Exh. A at
OBJMSK002995).
On January 29, 2017, at 9:09a.m., Flynn emailed Munjack and told him Decedent was
looking at hospice care, as the cancer had become “aggressive” and there was no other treatment
available (JDM 72:17;73:15; Exh. K). In that same email, Flynn claimed Decedent wanted to add
Greg, Beth and Joyce as beneficiaries of her Account and sought Munjack’s advice on how best
to do so. (JDM 73:2-20; Exh. K).
By this point, Munjack understood Decedent to be “seriously ill.” (JDM 83:9-16).2
Knowing this, and unsure whether Decedent could sign legal documents given her ill health, he
replied to Flynn that “if [Decedent] can sign the distribution paperwork,” JDM could distribute the
money to her “ASAP” and she could then gift it to her family members. (JDM 76:17-77:18;78:6-
11; Exh. L). He also told Flynn (and not Decedent) he would call her the next day because he had
“some additional thoughts.” (Exh. M).
At this time, Munjack still had not discussed any of this with Decedent. (JDM 78:15-21).
On January 30, 2017, at 11:23a.m., Flynn received a call from Munjack. (KF 183:8-23;
Exh. N). Interestingly, neither Flynn nor Munjack recalls what was said on that call. (JDM 75:6-
18; KF 183:17-23). Minutes later, at 11:29a.m., JDM’s Head of Operations, Jessica Rosenberg,
emailed Flynn (again, not Decedent) a blank beneficiary designation form and asked Flynn to
return the form to her once completed. (JDM 82:13-23; Exh. O).
2
In fact, Decedent was seriously ill on January 29. Decedent did not understand her own diagnosis and was unable
to make medical decisions for herself, which was confirmed by Decedent’s family members. Exh. I at
OBJANDRONICA000342.
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At 1:07p.m., after Flynn already informed Munjack that Decedent wanted to add Joyce,
Greg and Beth as beneficiaries, Rosenberg emailed the completed January 10th Form, naming
Flynn as 100% beneficiary of the Account, to TD. She did so notwithstanding that the January
10th Form was now in conflict with Decedent’s intent, as alleged by Flynn and conveyed to
Munjack (Exh. P).
Later that day, TD informed JDM it was rejecting the January 10th Form for fraud concerns,
since Decedent’s purported signature did not match prior paperwork. (Exh. Q). Up to this point,
Munjack’s only communications regarding the changes to the
Preview
FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU –––––––– ––––––––––––––– ––––– X Index No. MICHAEL E. CIRENZA, as Executor of the Estate 609648/2021 of Anne Regina Cirenza, and GERARD X. McCARTHY, Justice Assigned: (Driscoll, J.) Plaintiffs, Motion Sequences 006 and 007 -against- KATHLEEN FLYNN, JEFFREY D. MUNJACK and JDM FINANCIAL GROUP, ELIZABETH ANDRONICA DEFALCO, GREGORY ANDRONICA, and JOYCE McCARTHY, Defendants. – – – – – – – – – – – – – – – – – – – – – – – – – – –– X PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO MOTIONS FOR SUMMARY JUDGMENT BY KATHLEEN FLYNN AND THE JDM DEFENDANTS Attorney for Plaintifs 1425 RXR Plaza East Tower, 15th Floor Uniondale, New York 11556 (516) 663-6600 1 of 54 FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ....................................................................................................... ii PRELIMINARY STATEMENT ..................................................................................................1 COUNTER-STATEMENT OF FACTS ......................................................................................2 POINT I DEFENDANTS FAIL TO SATISFY THE LEGAL STANDARD REQUIRED FOR SUMMARY JUDGMENT TO BE GRANTED ......................14 POINT II THE UNREBUTTED TESTIMONY OF PLAINTIFFS’ EXPERT CREATES AN ISSUE OF ACT PRECLUDING SUMMARY JUDGMENT ..........................................................................................................16 POINT III EVEN SETTING ASIDE PLAINTIFFS’ EXPERT TESTIMONY, THE MOVING DEFENDANTS FAIL TO DEFEAT PLAINTIFFS’ CLAIMS AGAINST FLYNN................................................................................18 A. Undue Influence .........................................................................................18 B. Breach of Fiduciary Duty...........................................................................24 C. Fraud ..........................................................................................................28 POINT IV FLYNN FAILS TO DEFEAT THE REMAINDER OF PLAINTIFFS’ CLAIMS AGAINST HER ............................................................32 POINT V JDM DEFENDANTS ALSO FAIL TO DEFEAT PLAINTIFFS’ CLAIMS AGAINST THEM FOR AIDING AND ABETTING FLYNN ..................................................................................................................34 A. Actual Knowledge .....................................................................................34 B. Substantial Assistance ................................................................................38 POINT VI THE MOVING DEFENDANTS ALSO FAIL TO DEFEAT PLAINTIFFS’ CLAIM FOR DECLARATORY RELIEF ....................................42 CONCLUSION ............................................................................................................................45 WORD COUNT CERTIFICATION..........................................................................................46 i 2 of 54 FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 TABLE OF AUTHORITIES Page(s) Cases Alvarez v Prospect Hosp., 68 NY2d 320 (1986) ........................................................................................................... 14, 16 Arbor Asset Management, LLC v Singh, 189 AD3d 527 (1st Dept 2020) ................................................................................................. 36 Bank Hapoalim (Switzerland) Ltd. v Banca Intesa S.p.A., 2008 NY Slip Op 52596(U) (Sup Ct, NY County 2008) .......................................................... 40 Beach v TCM Management, LP, No. 603611/08, 2015 WL 2127116 (Sup Ct, NY County May 05, 2015) ................................ 40 Bioenergy Life Science, Inc. v Ribocor, Inc., No. 650602/2014, 2018 WL 3439161 (Sup Ct, NY County July 16, 2018) ............................ 16 Bonczyk v Williams, 119 AD3d 1124 (3d Dept 2014) ............................................................................................... 23 Briarpatch Ltd., L.P. v Briarpatch Film Corp., 2013 N.Y. Slip Op. 31263 (Sup Ct, NY County June 1, 2013) ................................................ 41 C.f. Bank of N.Y. Mellon Trust Co., N.A. v Merrill Lynch Capital Services, Inc., 99 AD3d 626 (1st Dept 2012) ................................................................................................... 36 Canandaigua Nat. Bank and Tr.Co. v Palmer, 39 Misc 3d 1211(A) (NY City Ct 2013) ............................................................................. 33, 35 Columbia Technology Corp. v. Yoo, 2022 NY Slip Op 30226(U) (Sup Ct, NY County 2022) .................................................... 35, 39 DiBacco v State, 46 AD2d 461 (3d Dept 1975) ................................................................................................... 31 Dundes v Fuersich, 2006 NY Slip Op. 51962(U) (Sup Ct, NY County 2006) ......................................................... 16 Estate of Tillinger, 2010 NY Slip Op 50303(U) (Sur Ct, Bronx County 2010) ...................................................... 31 F.Garofalo Elec. Co. v. New York Univ., 300 AD2d 186 (2002) ............................................................................................................... 14 ii 3 of 54 FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 Fitzpatrick House III, LLC v. Neighborhood Youth & Family Services, 55 AD3d 664 (2d Dept 2008) ................................................................................................... 33 Foran v Computershare, Inc., 187 AD3d 538 (1st Dept 2020) ................................................................................................. 33 Geary v Hunton & Williams, 257 AD2d 482 (1st Dept 1999) ................................................................................................. 30 Glick & Dolleck, Inc. v Tri–Pac Export Corp., 22 NY2d 439 (1968) ................................................................................................................. 14 Gordon v. Bialystoker Center & Bikur Cholim, Inc., 45 N.Y.2d 692 (1978) ............................................................................................................... 23 Greenberg v. Wiesel, 186 A.D.3d 1336 (2d Dep’t 2020) ............................................................................................ 25 Henik v Darconte, 189 AD3d 797 (2d Dept 2020) ................................................................................................. 23 Hernandez v Tepan, 92 AD3d 721 (2d Dept 2012) ................................................................................................... 15 Hochheiser v Alin, 2018 NY Slip Op 50401(U) (Sup Ct Suffolk County 2018) .................................................... 34 In Re Chinsky, 268 N.Y.S. 719 (Sur. Ct. Kings Cty. 1934) .............................................................................. 21 In re Donovan, 47 A.D. 2d 923, 367 N.Y.S.2d 56 (1975) ................................................................................. 21 In re Elmore, 42 AD2d 240, 346 N.Y.S.2d 182 (1973) .................................................................................. 19 In re Greenberg, 34 AD3d 806 (2d Dept 2006) ................................................................................................... 23 In re Malloy, 278 NY 429, 17 N.E. 2d 108 (1938) ......................................................................................... 27 In re Nealon, 57 AD3d 1325 (3d Dept 2008) ................................................................................................. 21 iii 4 of 54 FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 In re Stein, 2018 N.Y. Slip Op. 30055(U) (Sur Ct, NY County 2018) ....................................................... 23 In re Will of Ehrensberger, 2015 NY Slip Op 50669(U) (Sur Ct, Broome County 2015) ................................................... 24 Joe v. Orbit Indus., Ltd., 269 AD2d 121 (1st Dept 2000)................................................................................................. 23 JPMorgan Chase & Co. v Travelers Indem. Co., 73 AD3d 9 (1st Dept 2010) ................................................................................................. 37, 39 Kovel v Glenwood Management Corp., No. 159560/2017, 2021 WL 1267288 (Sup Ct, NY County. Mar. 30, 2021) .......................... 17 Macnish-Lenox, 2007 NY Slip Op 52055(U) ................................................................................................ 38, 39 Marinello v Marinello, 2020 NY Slip Op 32923(U) (Sup Ct, Kings County Sept.3, 2020) .......................................... 41 Matter of Bullock, 172 AD3d 853 (2d Dept 2019) ................................................................................................. 19 Matter of Demaio, 2014 N.Y. Slip Op. 50691(U) (Sur Ct, Queens County 2014) ................................................. 14 Matter of Gnirrep, 2 A.D. 2d 404, 156 N.Y.S. (3d Dep’t 1956) ............................................................................. 21 Matter of Lainez, 79 AD2d 78 (2d Dept 1981) ..................................................................................................... 27 Matter of Panek, 237 AD2d 82 (4th Dept 1997) ............................................................................................ 18, 19 Matter of Rosasco, 31 Misc.3d 1214(A) (Surr. Ct. N.Y. Cty. 2011) ....................................................................... 22 Matter of Rosen, 296 AD2d 504 (2d Dept 2002) ................................................................................................. 19 Matter of Smith, 2010 N.Y. Slip Op. 51286(U) (Sur Ct, Bronx County 2010) ................................................... 14 iv 5 of 54 FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 McBride v KPMG Intern., 135 AD3d 576 (1st Dept 2016)................................................................................................. 40 Mendez v. Harvey-Lewis, 2023 NY Slip Op 31841(U) (Sup Ct, NY County May 31, 2023) ............................... 20, 31, 34 Moyer v Briggs, 47 AD2d 64 (1st Dept 1975) ..................................................................................................... 15 Nasar v Trustees of Columbia Univ. in City of New York, 122 AD3d 449 (1st Dept 2014) ................................................................................................. 32 Nathel v Siegal, 592 F Supp 2d 452 (SD NY 2008) (applying New York law) ................................................. 39 New York City Tr. Auth. v Morris J. Eisen, P.C., 276 AD2d 78 (1st Dept 2000) ................................................................................................... 28 Norcast S.ar.l. v Castle Harlan, Inc., 147 AD3d 666 (1st Dept 2017) ................................................................................................. 31 Ostad v Nehmadi, 2011 N.Y. Slip Op. 50565(U) (Sup Ct, NY County 2011) ....................................................... 32 Oster v. Kirschner, 77 AD3d 51 (1st Dept 2010) ..................................................................................................... 35 Petrone v Davidoff Hutcher & Citron, LLP, 150 AD3d 776 (2d Dept 2017) ................................................................................................. 33 Phillips v Joseph Kantor & Co., 31 NY2d 307 (1972) ................................................................................................................. 15 Pisciotto v. Dries, 306 AD2d 262 (2d Dept 2003) ................................................................................................. 32 Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486 (2008) ................................................................................................................. 29 RCSUS Inc. v SGM Socher, Inc., 2022 NY Slip Op 30926(U) (Sup Ct, NY County 2022) .......................................................... 41 Rizer v Breen, 2007 N.Y. Slip Op. 30639(U) (Sup Ct, NY County 2007) ....................................................... 39 v 6 of 54 FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 Robinson v. Strong Memorial Hosp., 98 AD2d 976 (4th Dept 1983) ................................................................................................. 15 Rollwagen v. Rollwagen, 63 N.Y. 504 (1876) ................................................................................................................... 22 Scollo ex rel. Scollo v Nunez, 2007 N.Y. Slip Op. 51469(U) (Sup Ct, Queens County 2007) ................................................ 40 Sepulveda v Aviles, 308 AD2d 1 (1st Dept 2003) ..................................................................................................... 15 Shapiro v Ansell Perry, Inc., 291 AD2d 301 (1st Dept 2002) ................................................................................................. 17 Shelley v Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 2009 N.Y. Slip Op. 51559(U) (Sup Ct, NY County 2009) ....................................................... 29 Silvercreek Mgmt., Inc v. Citigroup, Inc., 346 F. Supp 3d 473 (S.D.N.Y. 2018)....................................................................................... 38 Simpson & Simpson, PLLC v. Lippes Mathias Wexler Friedman LLP, 130 AD3d 1543, 14 N.YS. 3d 258 ............................................................................................ 38 Sokolin LLC v Cozzi, 2012 NY Slip Op 31410(U) (Sup Ct, Suffolk County 2012) ............................................. 35, 39 State v Grecco, 43 AD3d 397 (2d Dept 2007) ................................................................................................... 39 Syncora Guarantee Inc. v Alinda Capital Partners LLC, 2013 NY Slip Op. 31489(U) (Sup Ct, NY County 2013) ................................................... 35, 38 U.S. Bancorp Equip. Fin., Inc. v Rubashkin, 2011 NY Slip Op 50100(U) (Sup Ct, Kings County 2011) ...................................................... 40 United States Life Ins. Co. in City of New York v Shields, 171 AD3d 1262 (3d Dept 2019) ............................................................................................... 31 Valentin v C.G. Bretting, Mfg., Co., 278 AD2d 230 (2d Dept 2000) ........................................................................................... 16, 17 Vill. of Mamaroneck v Craig, 2016 NY Slip Op 51158(U) (Sup Ct, Westchester County 2016) ............................................ 32 vi 7 of 54 FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 Vincent T. v Virginia G., 2012 NY Slip Op 52515(U) (Sur Ct, Broome County 2012) ................................................... 15 Weber v. Burman, 880 N.Y.S.2d 228 (Sup. Ct. Nassau Cty. 2008)........................................................................ 21 WF Kosher Food Distributors, Ltd. v Laish Israeli Food Co., Ltd., 2012 NY Slip Op 33476(U) (Sup Ct, NY County 2012) .......................................................... 39 Rules CPLR 1001(a) ............................................................................................................................... 43 CPLR 3016(b) ............................................................................................................................... 28 Other Authorities 1 NY Jur 2d Accounts and Accounting § 31 ................................................................................ 34 N.Y. JUR. DECLJUDS § 211 ....................................................................................................... 44 N.Y. Pattern Jury Instructions 7:55............................................................................................... 21 NYPRAC-COMM § 8:145 ........................................................................................................... 43 vii 8 of 54 FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 PRELIMINARY STATEMENT Plaintiffs Michael E. Cirenza (“Cirenza”) as Executor of the Estate of Anne Regina Cirenza (“Gina”), and Gerard X. McCarthy (“Gerard,” together with Cirenza, “Plaintiffs”) respectfully submit this memorandum of law, along with the Affirmation of John Farinacci (“Farinacci Aff.”) and the exhibits annexed thereto, as well as the Affirmation of Cirenza (“Cirenza Aff.”) and the exhibit annexed thereto, in opposition to the motions filed by: (i) defendants Jeffrey D. Munjack (“Munjack”) and JDM Financial Group (“JDM,” together with Munjack, “JDM Defendants”); and (ii) defendant Kathleen Flynn (“Flynn”), both of which seek summary judgment as to Plaintiffs’ Second Amended Complaint (“SAC”). This action arises as a result of Flynn having unduly influenced Maureen McCarthy (“Decedent”), and/or having forged Decedent’s signature, to designate Flynn as the primary beneficiary of a TD Ameritrade (“TD”) retirement account owned by Decedent, valued in excess of $600,000 when Decedent died (the “Account”). This purported change of beneficiaries contravened Decedent’s long-standing financial plan that her four siblings (including both Plaintiffs) would each receive 25% of the Account. Instead, upon Decedent’s death, Flynn received 79% of the Account, defendants Gregory Andronica (“Greg”), Elizabeth Andronica DeFalco (“Beth”), and Joyce McCarthy (“Joyce”) each received 7%, and Plaintiffs received nothing. Flynn was the long-time friend and roommate of Decedent, who died on February 4, 2017. Decedent was survived by her siblings, Gina, Gerard, and Patricia Andronica (“Patricia”), and was predeceased by her brother, Michael Cirenza (“Michael”). Greg and Beth are Decedent’s nephew and niece, respectively, and Joyce is Decedent’s sister-in-law (having been married to Michael until his death). 1 9 of 54 FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 Importantly, when this purported change to the Account was made, Decedent was dying from brain cancer, heavily medicated, and unable to consent to such a dramatic departure from her existing financial plan. After Decedent died, Flynn held herself out to Plaintiffs as the fiduciary of Decedent’s estate (despite that there was no Will nominating her as executor) and as a true beneficiary of the Account. In fact, she was neither. Thereafter, Flynn collected and distributed 79% of Decedent’s Account to herself, and facilitated the distribution of the remainder to Greg, Beth and Joyce. Flynn was aided in her wrongdoing by JDM Defendants, who served as financial advisor to both Flynn and Decedent for years, and had a pecuniary interest in retaining Flynn’s business after Decedent’s death. Among other bad acts, JDM Defendants assisted Flynn with completing and submitting two invalid beneficiary change forms to TD, dated January 10, 2017 (the “January 10th Form”) and January 30, 2017 (the “January 30th Form,” together, the “Forms”) respectively. These Forms were forged by Flynn or executed by Decedent as a result of undue influence and fraud perpetrated by Flynn. JDM Defendants assisted Flynn in completing and submitting these Forms with knowledge of her bad acts. They also assisted Flynn (and the other false beneficiaries) with collecting and distributing the misappropriated funds after Decedent’s death. Based on these and other allegations in Plaintiffs’ SAC, Plaintiffs bring claims against Flynn for, inter alia, fraud, conversion, undue influence, and breach of fiduciary duty, and claims for aiding and abetting both fraud and breach of fiduciary as to JDM Defendants. Plaintiffs also seek a declaratory judgment that the pre-existing 2006 form (the “2006 Form”) naming Plaintiffs, Patricia and Michael as beneficiaries controls the disposition of the Account. Flynn and JDM Defendants devote the bulk of their motions to the contention that Plaintiffs have failed to plead their claims. This is misplaced, because this Court already considered JDM 2 10 of 54 FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 Defendants’ prior motion to dismiss and determined that Plaintiffs properly pled claims of aiding and abetting both fraud and breach of fiduciary duty, as well as the underlying torts. Further, whether Plaintiffs have established their claims at this stage of the action is irrelevant to summary judgment. Instead, the relevant question is whether JDM Defendants and Flynn have met their prima facie burdens. To satisfy this burden, the moving defendants must do more than merely point out purported gaps in Plaintiffs’ proof. Instead, they must affirmatively establish the absence of any triable issues of fact as to Plaintiffs’ claims against them. In the alternative, to the extent such claims sound in theories of aiding and abetting a tort, JDM Defendants may also affirmatively establish the absence of triable issues as to the underlying tort claims against Flynn, in which case the claims for aiding and abetting would also fail. In examining the defendants’ submissions, it is indisputable they have failed to eliminate issues of fact as to Plaintiffs’ underlying claims against Flynn, as they fail to address several key issues. For instance, neither Flynn nor JDM Defendants eliminate issues of fact as to whether Flynn forged both Forms, or whether Flynn made statements holding herself out as a fiduciary of the estate and as a beneficiary of the Account following Decedent’s death. To be clear, JDM Defendants do not even touch upon these issues, and Flynn makes only passing mention of the same. Likewise, JDM Defendants make no mention at all of Decedent’s weakened cognitive and physical health at the time the Forms were executed. Accordingly, it strains credulity for either Flynn or JDM Defendants to submit that they have eliminated all triable issues as to the claims against Flynn. It is equally absurd for JDM Defendants to suggest the claims against them for aiding and abetting Flynn should be summarily dismissed. As mentioned above, JDM Defendants’ motion is conspicuously absent any mention of Decedent’s weakened physical and cognitive state when she 3 11 of 54 FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 purportedly designated new beneficiaries for the Account, when she was actively dying from metastatic cancer and under the influence of numerous medications. It likewise fails to address the extent to which Munjack was aware of Decedent’s impaired condition when the Forms were purportedly executed and submitted to JDM Defendants for processing. For JDM Defendants to seek summary judgment without even addressing two issues so central to the allegations against them is disingenuous. Even assuming arguendo the defendants met their prima facie burdens (they did not), summary judgment must nonetheless be denied, as the record is replete with triable issues. First, the findings of Plaintiffs’ handwriting expert indicate that both Forms were forged. This is especially important because both Flynn and JDM Defendants not only failed to submit their own expert report, they also neglected to depose Plaintiffs’ expert or to address his report in their motions. As applicable authority will show, where the non-movant’s expert remains so completely unrebutted, his report is presumed true for purposes of summary judgment and creates a triable issue of fact. This alone warrants denial of both motions in their entirety. Second, both Flynn and JDM Defendants contend that, on January 31, 2017, Decedent sent an email to Munjack to confirm her signature on the January 30th Form was satisfactory. This, they suggest, is evidence of her capacity and intentions. However, the record reflects that not a single person saw Decedent email anyone during her hospital stay, and Decedent was not physically capable of texting, as she lacked even the strength to hold her own cell phone up to her ear. Moreover, the record will show (through the expert’s report and testimony) that the signature on the January 30th Form was actually more controlled than Decedent’s usual signature during that same time period, which also belies the contention that Decedent signed with her non-dominant hand, as alleged by Flynn and JDM Defendants. 4 12 of 54 FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 In view of the above, both motions ring hollow. Both fail to address so many factual issues that strike at this action’s core, and are instead brimming with conclusory generalizations and straw man arguments, all of which are identified and debunked below. The Court should deny both motions in their entirety. COUNTER-STATEMENT OF FACTS The Court is respectfully referred to Plaintiffs’ Counter-Statements of Material Facts, submitted in response to the Statements of Material Fact by both Flynn and JDM Defendants. In addition to the facts stated therein, Plaintiffs provide the following set of facts. According to Flynn, Decedent and Flynn were friends, and began sharing a living space in 1990. (NYSCEF Doc No. 143 [Deposition Transcript of Kathleen Flynn (“KF”)] at 50:18-21; NYSCEF Doc No. 150 [Deposition Transcript of JDM Defendants (“JDM”)] 68:10-12). They maintained separate bedrooms and each contributed an equal amount to living costs associated with their apartment. (KF 68:10-12; 147:2-13). Contrary to both counsel’s assertion that Flynn was Decedent’s “partner” (JDM Mem. at 1; Flynn Mem. at 1), Flynn herself never testified they were partners of any kind. To the contrary, she repeatedly described Decedent as her “friend,” both in testimony and in Decedent’s medical records. (KF 79:24-80:16; see NYSCEF Doc No. 106 [Deposition Transcript of Kathleen Flynn Surrogate’s Court (“KF Sur.”)] 22:15-17;1 Exh. A at OBJMSK000360). Moreover, Decedent herself described Flynn as her “friend” in medical records. (Id. at OBJMSK000353). In 2005, Decedent and Flynn became clients of JDM Defendants. (KF 15:18-20). Importantly, Munjack owed a fiduciary duty to both Flynn and Decedent. (JDM 20:11-14). This duty arose from JDM’s Client Agreement for Discretionary Services, which specifies that JDM 1 Unless otherwise stated, all references to “Exh.” are to exhibits annexed to the Farinacci Aff. 5 13 of 54 FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 enters into a “confidential relationship” with its clients. (JDM 10-28:17; Exh. B; Exh. C). It also arose from a limited power of attorney, contained in JDM’s package of IRA Custodial Agreements, pursuant to which Decedent appointed JDM as her agent and attorney-in-fact. (JDM 40:14-41:21; Exh. D). As part of JDM’s professional services, Munjack apprised Decedent of the financial vulnerabilities Flynn might face upon her death, and vice versa. (JDM 43:4-44:2). To illustrate these vulnerabilities and possible solutions, he provided Flynn and Decedent with annual projections of their respective financial futures. (JDM 43:3-45:14; KF 48:20-50:4; Exh. E). It is with this knowledge that Decedent, year after year, opted not to make Flynn the beneficiary of the Account. (KF 8:20-50:4). Instead, Decedent arranged to leave the Account in equal parts to her four siblings, including Plaintiffs. (JDM 55:16-56-23; Exh. F). Likewise, Flynn designated her own family members (and not Decedent) as beneficiaries of her respective retirement account. (KF 48:20-50:4). Although there was a period of time in which Decedent allegedly owned a life insurance policy of which Flynn was the beneficiary, Decedent let the policy lapse before her death, and no copy of the policy has ever been produced. (KF 18:22-19:13). In 2012, Decedent became sick with kidney cancer and had a kidney removed. (KF 61:13- 62:25; 31:4-9). In September 2016, Decedent’s cancer spread and her health took a turn for the worse. (JDM 61:13-62:25). On January 10, 2017, just days before Decedent’s final hospitalization as detailed below, the suspect January 10th Form was purportedly executed, naming Flynn as 100% beneficiary of the Account. (KF 61:13-62:25). Importantly, Flynn admits that Decedent did not fill out the form herself. The form was allegedly filled out at their apartment by Flynn, who happened to have a blank change of 6 14 of 54 FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 beneficiary form on hand for just such an occasion. (KF 76:18-80:16; 79:24-80:16). On the Form, which is entirely in Flynn’s handwriting, Flynn identified herself as Decedent’s “friend.” (KF 79:24-80:8). Although Decedent had allegedly previously expressed a desire to leave some portion of the Account to Joyce, the January 10th Form did not accomplish that task. (Exh. G). Per Flynn, the topic of leaving money to Joyce, as discussed previously at Michael’s funeral, “[j]ust didn’t come up.” (KF 238:2-9). Instead, the January 10th Form purported to designate Flynn as 100% beneficiary of the Account. (Id.). By this change, Flynn stood to receive nearly $700,000 from the Account on Decedent’s death. (KF 40:13-18). On January 13, 2017, Decedent was admitted to the hospital. (KF 102:6-13). Two days later, Decedent lost the use of her right hand, which was her dominant hand. (KF 110:8-10; 110:22- 25). Throughout her hospital stay and leading up to her death, Decedent experienced right-sided weakness and never regained use of her right arm. (Exh. A at OBJMSK002999). On January 16, Decedent had an umbrella procedure and told the doctor she could not sign the consent form because her right arm was not working, so Flynn signed in her stead. (KF 223:3- 226:7). Flynn admits that instead of signing her own name to the document as Decedent’s agent, she inexplicably forged Gina’s signature on the form. KF 230:7-232:17; Flynn 21. Thereafter, Decedent’s health quickly declined. (KF 133:7-19; 135:16-18; Exh. H at OBJ000377). She was reported to have an intermittent altered mental status (KF 139:4-12), and when asked questions by her physicians to test her cognitive state, Decedent could not answer other than to state her name (KF 123:20-124:8; Exh. I at OBJANDRONICA000325). Further, although Decedent had her cell phone, she was unable to (and did not try to) make any calls or 7 15 of 54 FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 send any emails. (KF 130:21-131:4). On January 19, Decedent underwent a craniotomy. (KF 36:7- 14). With Decedent unable to write, Flynn began to fill out forms on Decedent’s behalf. For instance, Flynn completed a patient questionnaire dated January 24, 2017, wherein she misrepresented herself as Decedent’s “sister.” (KF 225:11-227:10; Exh. A at OBJMSK000280-2). Although Flynn recognizes the signature on the form as hers, she incredibly claims lack of recall why she wrote down “sister” in the “relationship” field, which appears right next to her admitted signature and is clearly in Flynn’s handwriting. (Id.). During Decedent’s hospitalization, Plaintiffs observed Flynn exhibiting an indifference toward Decedent’s comfort and well-being. (Deposition Transcript of Gerard McCarthy [“GM”] 168:24-170:23). For instance, although Decedent was dehydrated, Flynn did not want the hospital to give her IV fluids. (Id.). Instead, Flynn wanted Decedent to be transferred immediately to hospice. (Id.) While Flynn spent much time in Decedent’s hospital room, she paid Decedent little attention, focusing instead on her own text message conversations with others. (Deposition Transcript of Michael Cirenza [“MC”] 82:18-23). On January 26, 2017, Decedent was on corticosteroids as well as medication for pain, nausea, and seizures. (KF 128:19-129:3). She was also wearing a fentanyl patch. (KF 135:19- 136:7). That day, Decedent had a seizure, became non-responsive, and was rushed into emergency care. (KF 124:14-126:18). She was described by the doctor as “unconscious or non-verbal.” (Exh. A at OBJMSK003003). That evening, January 26, Flynn (and not Decedent, who had already been determined to lack capacity) emailed the January 10th Form to JDM. (Exh. J). Flynn’s own testimony creates an issue of fact as to whether the Form was actually signed on January 10 or backdated, and as to why 8 16 of 54 FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 Flynn waited more than 2 weeks to submit the January 10th Form to JDM. She first testified at her deposition that Decedent was home in their Apartment all day on January 10, 2017, where the January 10th Form was signed, and could not remember why she waited until January 26th to submit it. (KF 62:15; 118:3-6). Yet in her affidavit filed in support of her motion, Flynn now changes her tune and avers the January 10th Form was “not submitted right after completion because Kathy and Maureen went to a radiologist appointment that day.” NYSCEF Doc No. 159 at ¶ 27. On January 27, 2017, Decedent remained largely non-responsive to her doctors’ questions. (KF 128:5-8). When asked where she was, she answered incorrectly. (KF 126:7-11). She was described as “somnolent and mildly confused,” and “unable to enumerate pain.” (Exh. A at OBJMSK000421). The attending doctor stated Decedent’s “confusion is likely multifactorial— disease, polypharmacy, including opioids, Baclofen.” Id. On the same date, Decedent’s Attending Physician issued a Do Not Resuscitate (“DNR”) Order indicating Decedent was “without capacity,” and the information concerning the consequences of the DNR Order was provided to Decedent’s “agent” instead. (Id. at OBJMSK000357-358). In addition, though Flynn denied ever using Decedent’s health care proxy or making medical decisions for Decedent, Flynn (who also falsely identified herself as Decedent’s sister in the medical records) actually affirmatively declined to hydrate Decedent and she was moved towards “comfort care.” (Id. at OBJMSK000280- 81; OBJMSK000420; KF 33:25-34:3). Munjack knew Decedent was ill and dying. (JDM 31:19-24; 72:17; 73:15). He also knew that, notwithstanding her prior receipt of JDM’s financial projections, Decedent had never before indicated an intention to designate Flynn as a beneficiary on the Account. (JDM 69:23-70:13). In fact, Munjack found it “interesting” that Decedent was making this change after so many years. (JDM 69:16-22). Nonetheless, Munjack accepted the January 10th Form from Flynn without 9 17 of 54 FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 speaking to Decedent. (JDM 67:11-17; 72:2-3). On January 28, 2017, Decedent had a concerning “mental status,” and it was determined she was “too lethargic” and thus it was dangerous for her to take oral medications. (Exh. A at OBJMSK002995). On January 29, 2017, at 9:09a.m., Flynn emailed Munjack and told him Decedent was looking at hospice care, as the cancer had become “aggressive” and there was no other treatment available (JDM 72:17;73:15; Exh. K). In that same email, Flynn claimed Decedent wanted to add Greg, Beth and Joyce as beneficiaries of her Account and sought Munjack’s advice on how best to do so. (JDM 73:2-20; Exh. K). By this point, Munjack understood Decedent to be “seriously ill.” (JDM 83:9-16).2 Knowing this, and unsure whether Decedent could sign legal documents given her ill health, he replied to Flynn that “if [Decedent] can sign the distribution paperwork,” JDM could distribute the money to her “ASAP” and she could then gift it to her family members. (JDM 76:17-77:18;78:6- 11; Exh. L). He also told Flynn (and not Decedent) he would call her the next day because he had “some additional thoughts.” (Exh. M). At this time, Munjack still had not discussed any of this with Decedent. (JDM 78:15-21). On January 30, 2017, at 11:23a.m., Flynn received a call from Munjack. (KF 183:8-23; Exh. N). Interestingly, neither Flynn nor Munjack recalls what was said on that call. (JDM 75:6- 18; KF 183:17-23). Minutes later, at 11:29a.m., JDM’s Head of Operations, Jessica Rosenberg, emailed Flynn (again, not Decedent) a blank beneficiary designation form and asked Flynn to return the form to her once completed. (JDM 82:13-23; Exh. O). 2 In fact, Decedent was seriously ill on January 29. Decedent did not understand her own diagnosis and was unable to make medical decisions for herself, which was confirmed by Decedent’s family members. Exh. I at OBJANDRONICA000342. 10 18 of 54 FILED: NASSAU COUNTY CLERK 04/03/2024 05:32 PM INDEX NO. 609648/2021 NYSCEF DOC. NO. 191 RECEIVED NYSCEF: 04/03/2024 At 1:07p.m., after Flynn already informed Munjack that Decedent wanted to add Joyce, Greg and Beth as beneficiaries, Rosenberg emailed the completed January 10th Form, naming Flynn as 100% beneficiary of the Account, to TD. She did so notwithstanding that the January 10th Form was now in conflict with Decedent’s intent, as alleged by Flynn and conveyed to Munjack (Exh. P). Later that day, TD informed JDM it was rejecting the January 10th Form for fraud concerns, since Decedent’s purported signature did not match prior paperwork. (Exh. Q). Up to this point, Munjack’s only communications regarding the changes to the