Motion for Child Support in Estate Of Thomas D. Brunner by its Executors acting in said capacity, Brian M. DeLaurentis and Michael Ognibene v. Peter Tran| Trellis.Law

On September 21, 2020 a Motion-Secondary was filed involving a dispute between Estate Of Thomas D. Brunner By Its Executors Acting In Said Capacity, Brian M. Delaurentis And Michael Ognibene, and Peter Tran, for Real Property - Other (Ejectment) in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 12/10/2021 12:22 PM INDEX NO. 157652/2020
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
________________________________________________X

ESTATE OF THOMAS D. BRUNNER, by its Executors Index No.: 157652/2020
acting in said capacity, Brian M. DeLaurentis and Michael
Ognibene,

Plaintiff,

-against-

PETER TRAN,

Defendant.
_________________________________________________X

MEMORANDUM OF LAW IN OPPOSITION TO DISMISSAL AND
IN SUPPORT OF CROSS MOTION FOR CRIMINAL INVESTIGATION

Introduction

To summarize at the outset, this dispute centers on the circumstances of Thomas D.

Brunner’s death at age 66. Plaintiff’s Amended Complaint alleges that Defendant Tran

intentionally withheld aid to Thomas Brunner when he was unable to breathe. Denying Brunner

aid hastened his death and accelerated Defendant Tran’s inheritance. Tran knew that he would

inherit only if he was cohabiting with Brunner at the time of his passing; and Brunner had just

demanded he move out of their shared apartment that Brunner owned. Therefore, Defendant

Tran inflicted personal injuries and wrongfully achieved financial gain for himself while

hastening Brunner’s death. Malice in so acting is reasonably inferred because Defendant Tran

previously admitted in writing that he had intentionally refused to aid Brunner during a prior fall.

Plaintiff’s Amended Complaint sets forth the following causes of action: first, seeking a

declaratory judgment concerning the debtor/creditor relationship between the litigants; second,

ejecting him from the apartment owned by Brunner during his lifetime; third, a prima facie tort

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to recover special damages in connection with the personal injuries suffered arising from his

refusal to aid; and fourth, deeming the Tran inheritance a nullity.

The true dispute between the parties can be succinctly stated: is there civil liability for

Defendant Tran failing to aid Thomas Brunner? The prima facie tort cause of action here is the

proverbial dog; disinheritance and adjusting debtor/creditor accounts between the litigants are

the proverbial tail that naturally and necessarily follows this dog.

The Amended Complaint is amplified by affidavits from Brunner’s friends and family

that further support the pleading’s allegations. Affidavits are provided by both co-executors and

Brunner’s nephew.

In addition to establishing valid bases for the causes of action, Plaintiff cross moves for a

criminal investigation referral as well as leave to again amend the complaint in the event a

pleading deficiency is identified by the Court.

Plaintiff demonstrates why Defendant’s motion should be denied without resorting to the

derogatory, client-pleasing ad hominin characterizations freely employed by counsel (again) in

the underlying motion.

Facts

Thomas Brunner and Peter Tran began dating in 2009. In 2010, they began cohabiting as

boyfriends in Thomas’ cooperative apartment at 211 W. 10th St., Apt. 1D, New York, New York.

They never married.

Brunner was certainly wealthier than Tran. He was a retired UBS trader whereas Tran is

a fashion photographer hired by the gig for his income. Brunner was the sole owner of the 211

W. 10th St. coop and a condominium in Asbury Park, NJ, neither of which had any mortgage

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debt. DeLaurentis Aff., ¶ 6, Ex. B. The two never commingled assets, and each had their own

credit cards. Brunner had executed a will in 2010 bequeathing $250,000 to Tran during this

initial time period. Ognibene Aff., Ex. 3.

In December 2017, Brunner executed a new will superseding the 2010 Will. Id. at Ex. 2.

The 2017 Will was both more generous and more restrictive. The 2017 Will added an important

condition to any inheritance by Tran: he was required to be cohabiting with Brunner at the time

of his passing. Id., Ex. 2, FIFTH. If they were, Tran was to receive the $1.2 million, 211 W. 10th

St. Apartment and its contents (art, furnishings, currency kept at home, etc.); $150,000 cash; and

a foreign business interest Brunner had in Nicaragua. All told, an approximately $1.4 million

inheritance.

The quality of their relationship certainly declined after the 2017 Will was executed. In

September 2018, Defendant Tran began documenting that decline through a written journal

(“Journal”). Tran gave a copy of the Journal to the Estate on May 28, 2019. Ognibene Aff., Ex.

5; DeLaurentis Aff, ¶6a. This Journal reflects Tran’s version of events from his perspective. On

this pre-answer motion, Plaintiff’s use of Defendant’s admissions and the inferences that flow

from it are entitled to great weight.

Presumably, Tran kept the Journal to show how poorly Brunner was acting and treating

him. Throughout, Tran records Brunner’s alcohol use. But what also is plainly evident is Tran’s

own resentful malice.

Tran’s resentment grows with each subsequent notation. On September 23, 2018, Tran

notes that Brunner is, “no help to me.” The next day, Tran notes a prolonged argument between

them over a minor problem. On November 12, Tran records that they argued and that Brunner

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went to bed early because of Tran’s “abuse.” Ten days later, Tran notes Brunner “suffocating”

him1 and accusing him of infidelity.

In early December 2018, both the rate of notating and the relationship’s decline

accelerate. Plaintiff submits that the daily entries from December 12 – 16 document the

accelerated decline. Brunner is labeled a liar by Tran on December 12.

Then, Brunner’s good friend Michael Ognibene told him at dinner that he was engaged.

Brunner came home and told Tran this fact on December 13, as the Journal documents. The fact

that any notation was made of Ognibene’s engagement is telling of Tran’s resentment toward

Brunner.

At the dinner with Ognibene, Brunner was very happy for him but despondent about

himself and his own relationship. He told Ognibene that he would not marry Tran because he

felt cheated and deprived of having a similar opportunity to be with a true partner of trust and

support. Brunner’s sense of deprivation was based in fact. Thomas had repeatedly told

Ognibene over various conversations / meetings that Peter had said, texted to him, or texted to

others which Thomas thereafter saw on Peter’s phone:

a. “Why don’t you commit suicide”
b. “I need to hire a Hit Man.”
c. “Let’s get some rat poison.”
d. “You are a worthless piece of shit.”
e. “It’s all business now, I need to stay because I want the apt.”2
Ognibene Aff., ¶ 24.

1
Discovery will show whether this notation was intended as a metaphoric term or a physical one.
Indeed, this notation could begin an evidentiary chain showing that a physical altercation
occurred between Brunner and Tran before the photographs were taken on May 5, 2019.
2
Tran also admitted making these statements to Brunner when Ognibene confronted him about it
on May 5, 2019. Ognibene Aff., ¶ 24.

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During the nine-year Brunner-Tran cohabitation, same sex marriage was repeated

headline news given New York’s ‘legalization’ in 2011 and the U.S. Supreme Court’s 2015

ruling eliminating same sex marriage prohibitions. The fact that they were not married was a

bone of contention between them. Brunner did not want to marry Tran because he feared losing

50% of his assets if they divorced. Divorce was a real concern given the rockiness of their

relationship.

Tran, unmarried and obviously resentful, intensified his record of just how poorly

Brunner was treating him. This refusal to marry is the foundation for Tran’s own malice that

motivated him to refuse Brunner aid when he needed it. Four days after the Ognibene

engagement, Tran admits in writing just how high his malice toward Brunner had gone:

December 16, 2018 […] I heard a loud noise in the kitchen, I noticed that
Thomas had fallen on the ground. I did not get up to help him at all.

Ognibene Aff., Ex. 5.

Tran thus admits in writing his intentional refusal to assist Brunner who was in need. As

such, Tran’s continuing malice toward Brunner is properly alleged given this admission. This

entry constitutes foreshadowing for May 5: Brunner is in the same position and Tran again takes

the exact same course of action in maliciously refusing to assist Brunner for a materially

significant period.

Financial strife also was on the rise. On December 15, Tran admits his own surprise and

further resentment that Brunner was now fighting about money and expecting him to contribute

toward payment of the apartment utilities (as well as intentionally avoiding him):

Dec 15, 2018- For the first time ever, Thomas asked me when I was going to pay
him for the Con Ed bill which have been sitting on the dining room table since
Thursday PM. Friday, I was busy all day and night. First thing, Sat he asked me
for the money. He still owed me for the flights to TX for Xmas .... of course, I

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asked for my money back! How insulting I decided to travel by train to AP to
avoid seeing him and being with him

Tran thereafter admits in writing that he knew of the Will’s existence and its cohabitation

condition, as well as Thomas asking him to move out:

March 11, 2019 […] he is hostile and mean […] he asked me to look for an apt
to move out and threatened to change the Will. ..... which I said, please do.

Ognibene Aff., Ex. 5 (emphasis added).

Tran’s Journal shows the continuing malicious undercurrent and financial strife between

the two over the course of many months. A break point was certainly coming.

During the last week of Thomas’ conscious life from April 29 – May 5, 2019, events

reached crisis levels. On April 29, Thomas had dinner with a mutual friend, Miles Jackson.

Miles was so concerned about Thomas’ condition that he emailed both Ognibene and Thomas’

nephew, Emanuel Brunner, the next morning. Both Ognibene and Emanuel were informed that:

However, it is completely clear to me that every day Pete, verbally, is emotionally
and psychologically abusive to Thomas. His behavior seems to me cruel and bullying,
and I believe it has the purpose of undermining Thomas’s independence and capacity
to think and act for himself. It appears to me that Peter intends to reduce Thomas to a
state of dependent helplessness.

On that basis of a couple of texts of Peter’s that Thomas told me he had seems,
Thomas believes that Peter’s long-term goal is to have power of attorney over
Thomas and to commit him to a care institution. I am sorry to say that I believe
Thomas. I think that Peter is determined to get his hands on Thomas’s estate and
wants him out of the way.

I was extremely clear and direct with Thomas last night. I told him that in order to
restore his health, his sanity and his capacity for enjoyment, he must end the
relationship with Peter. But Thomas is so demoralized he cannot find the will or the
strength to do anything. He feels utterly hopeless at present. Every suggestion I
made to him was “impossible” for one reason or another. I am of course deeply
concerned about him.

Ognibene Aff., Ex. 6 (emphasis added).

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This email triggered Ognibene to immediately see Thomas. They had dinner two days

later May 2, 2019, just three days before his becoming incapacitated. At this dinner, Brunner (a

66 year old man), cried twice during the meal. Brunner told Ognibene3:

a. I woke up in the morning, Peter was hassling me, I took an ambien at 9 am
and went back to bed.
b. As I was walking out to come to dinner tonight, I said, “I will see you later.”
Peter’s reply was, “not if you die first.”
c. I saw on Peter’s iPhone, “it’s all business now, I need to stay because I want
the apt.”
d. Michael, help me to find the strength, strategy and courage to get him out of
the apartment.
e. Peter should take his mother’s $200,000 [recent inheritance] and rent his own
apartment4.

Thomas told Ognibene at that dinner he was going to tell Peter that he had to move out

and get his own apartment. Ognibene responded that he would be there for him and as

supportive as possible. Brunner intended to tell Peter he had to move out 3 days later when Peter

returned from his planned solo trip to the Asbury Park condominium on Sunday, May 5, 20195.

The next day, May 3, Thomas Brunner had a lengthy call with his nephew, Emanuel

Brunner. As set forth in the E. Brunner Affidavit at ¶ 7:

a. Thomas told me that he wanted to separate with Peter.
b. Thomas was also very clear that he suffered a lot in the relation with Peter,
there was no love, no tenderness and no attention anymore from Peter’s side.
c. When Thomas left the apt. Peter always mentioned that Thomas should not
come back and that he (Peter) hopes he will die soon, this was a daily
ritual.

3
Later Ognibene would find notes on Thomas’s computer earlier that evening: “ he [Peter] said
I should just commit suicide. This is what I mean: mentally and verbally abusive. Respect me –
no insults – no profanity. Share space and do not just take it over. Ognibene Aff., ¶ 42, n.2.
4
Upon information and belief, his mother’s inheritance together with any inheritance from this
Estate are substantially all of Tran’s assets.
5
Peter had taken Thomas’ car to go to Asbury Park the next day (May 3) at about noon.
Ognibene Aff., Ex. 7.

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d. Thomas saw a message from Peter that Peter only stays in the 10th St apt. for
business, Peter wrote that he needs the apt. for his professional needs.
e. Thomas mentioned that he can not use the 10th St. apartment anymore because
it's all full of Peters stuff (boxes everywhere)
f. Thomas got notice that Peter was also dating other men in the apt. on Ashbury
Park
g. Thomas mentioned that he lost many of his friends because Peter did not
wanted to see them
h. Thomas said (and wrote) "verbal and emotional abuse on a daily business,
confirmed by therapist years ago"
i. Thomas was also afraid to be alone after he separates from Peter
j. Peter's behavior after death of his mother got even worse against Thomas
when she died.

Id. (emphasis added).

Two days later on May 5, the events surrounding Thomas’ collapse are well documented.

At 4:54 pm, Thomas purchased a 375ml bottle of vodka.6 Ognibene Aff., Ex. 8. As shown at

id., Ex. 9 (screenshots of Ognibene’s texts with Thomas), at 5:15 pm Brunner texted Ognibene

and he replied (flush right below):

Peter will come home around 7ish
I’ll send you a code.
911
What is expected?
That’s means you need to come immediately
War of the roses

Does he expect anything today?
Focus on space. Too much stuff. He needs to find
space to accommodate all of his staging. And, you
need to have 211 W 10 feel like a simple cozy
home again. Nearby is nice. You will see each other
pretty much the same. You can still enjoy the beach.

Unless you are thinking even more serious than that.

Ok
I should not the moving…

You are not the one to move. He has to find space to

6
375 ml of vodka equals about 8.5 shots.

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live and work. You need apt back for just as a home.
No more stuff!
Marie Kondo the space
Going to laundry room in basement.
No signal.

Brunner responded at 7:31 pm and I responded:

Ok
I’ll keep you posted.

Be careful! Mature and keep your senses

I will
But he won’t move out without a major fight

Brunner then sent Ognibene screen shots of his text conversation with Peter while he was

still in/coming from Asbury Park:

[Thomas]
What nice things have you said to me
Commit suicide?
If you have nothing to say then we need to end this

[Peter]
Sure
No biggie

[Thomas]
I am not afraid.
[Photograph of TV’s Judge Judy]
I am not afraid
I am not guilty of failure
I am guilty of letting you abuse me mentally, emotionally and verbally for years

At 7:50 pm7, Brunner sent his last text to Ognibene, which read:
That was our [Peter and Thomas’] most recent exchange of text.

7
Ognibene subsequently learned that at 7:53 Thomas sent a text to a third party about an
unrelated subject, which Plaintiff offers here to demonstrate Brunner was aware and conscious at
this point in time. Ogninbene Aff., ¶ 53.

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On Sunday, May 5, 2019 at 7:59 pm, Peter Tran entered the Holland Tunnel. Ognibene

Aff., Ex. 7. What transpires between the EZ Pass scan at 7:59 and the ambulance’s arrival at

8:41 p.m. is the time frame at issue between the litigants.

Tran’s version of events (as relayed to Ognibene later that evening at the hospital) is that

he came into the apartment at about 8 pm, saw Thomas and asked, “have you been drinking?”

Thomas responded ‘don’t start Peter.’

Ognibene doubts this is all that transpired8. Tran later admitted that Brunner had told him

to move out. Ognibene Aff., ¶ 68.

Returning to the original version of Tran’s recap, he left his bags and went to park the car

after the initial back and forth. Tran said that he came home at 8:30 pm and found Thomas

unconscious. Peter added that he ‘felt bad that he took his time to get home and when he came

home, he found Thomas slumped over the bench.’

When Tran got home and found Brunner ‘slumped over,’ his reaction was to take pictures

of Brunner’s condition before he rendered aid or called 911. Id., ¶¶ 60-70. Plaintiff submits that

Tran’s behavior was no different than his earlier behavior where he also refused to assist

Brunner. Id., Ex. 5, Dec. 16 entry.

The documentary evidence establishes that Tran did, in fact, take the photographs before

calling for aid9, which he also admitted to Ognibene. Delaying aid to take photographs is in and

8
“[F]rom what I know about Peter, and certainly what I know about Thomas and Peter together,
there is no way that this conversation would have been a simple 7 word exchange. In fact, given
the texts of the immediately preceding minutes, I would have expected Thomas to hold his
ground and vociferously demand that Peter vacate immediately. There would have certainly
been back-n-forth.” Ognibene Aff., ¶ 56.
9
Peter Tran stages photo shoots for a living. As Ognibene avers, “Making certain that the stage
is properly set is, quite literally, what he does for a living.” Ognibene Aff., ¶ 62, n. 4.

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of itself malicious indifference to Brunner’s life and health. The metadata of the photographs

(which were texted to Ognibene at 9:10 pm) show that they were taken at 8:36 pm. Id., Ex. 10

(see metadata version; middle of right column). The City’s record shows that the 911 call was

made at 8:37:51, a difference of just under two minutes. DeLaurentis Aff., ¶ 10, Ex. C. The

same device, an iPhone, was used to both take the photographs and make the call.

Plaintiff asks this court to set a stopwatch and look at these horrifying photographs for 1

minute and 51 seconds. Thomas is bent over backwards10, unresponsive, and obviously in

immediate need of critical assistance. He has literally turned blue/purple in one photograph.

No human, particularly one in a purportedly loving relationship with the afflicted could

stand by for 5 seconds without acting! No, instead a thought process ensued with Tran. He

came upon the scene, stopped, and decided what he should do next. Brunner had just told him to

move out, and thus, extinguish any inheritance. The question is precisely when he came upon

the scene. Plaintiff knows from metadata that at 8:36 he took photos and then waited almost 2

full minutes to call 911. Compare Ognibene Aff., Ex. 10 with DeLaurentis Aff., Ex. C. Quite a

number of thoughts and decisions were made in that period of time, all of which he should be

held liable for at this juncture.

The factual inference Plaintiff is entitled to in the allegations on this motion to dismiss

includes an assertion that Tran knew Brunner wanted him to move out, came upon Brunner

minutes before 8:36, and did nothing as he did before11. Then, Tran planned a course of action

to hasten Thomas’ death by waiting two more minutes to call 911 while leaving Brunner bent

10
All were aware Thomas suffered from a paralyzed left diaphragm and back pain. This must
have been excruciating for him and obvious to Peter. Ognibene Aff., ¶ 64, n. 5.
11
Ognibene Aff., Ex. 5, Dec. 16 entry.

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over backwards, knowing that Brunner had just told him to move out and thereby disinherit him.

This plan to just wait advanced/protected his own inheritance. Id.

Plaintiff submits that if the actual timeframe is experienced on review of this motion that

the intent to wrongfully deprive Brunner aid (just as was done in December) is clear to all.

Given the Journal’s admissions, malicious indifference is plainly evident and has been

adequately pled herein.

Thomas Brunner never regained consciousness from May 5 to May 15. During a May 13

telephone call with the hospital concerning Thomas’ condition and unlikelihood of any recovery,

Peter again reviewed that evening and this time, admitted that Thomas had asked him to

leave. Ognibene Aff., ¶ 68, Ex. 11 (text documenting admission).

Brunner died May 15 without regaining consciousness, after Tran utilized Brunner’s

health care proxy and discontinued life support. Ognibene Aff., Ex. 13. Doctors had concluded

that Thomas’ brain was deprived of oxygen for 20-45 min without oxygen and that more than

50% of his brain cells had died. How much of that time was due to Defendant Tran’s culpable

acts is a question for discovery and trial before the fact finder. Thomas died on May 15, 2019

without regaining consciousness after his life support was withdrawn. A copy of his autopsy

report is attached at Ognibene Aff., Exhibit 12.

While the Medical Examiner ruled his death as accidental due to a mixture of alcohol and

diazepam, Plaintiff submits to this Court that Peter Tran had a legally culpable role in Brunner’s

suffering and/or passing by consistently encouraging his death together with his malicious

indifference shown by his failing to assist Thomas at least twice (by his own admission) while he

was in distress. Peter Tran hastened Thomas Brunner’s death to hasten and protect his

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inheritance knowing that if he had to move out he would lose his inheritance. Tran waited to

summon others to help Thomas so as to help himself.

Even before Brunner had died, Tran had fully planned and sent out invitations to

Brunner’s memorial. Ognibene Aff., ¶ 75.

Thereafter, Tran met with Brian DeLaurentis on May 28 and provided him certain

documents, which included his Journal, the cooperative stock certificate and other documents.

DeLaurentis Aff., ¶¶ 5-6.

The initial Estate position did allow Tran time to process Brunner’s passing without

interference. He was permitted to continue to occupy 211 W. 10th St., allowed use and

enjoyment of the condominium in Asbury Park for the 2019 summer as well as use of the

Estate’s car.

The 2020 Covid crisis greatly slowed administration of the Estate. The Asbury Park

condominium was listed for sale in November 2019 and was sold in April 2020.

Litigation was commenced by Summons with Notice on September 21, 2020. Thereafter

a Complaint was served and a Motion to Dismiss filed by Defendant. Plaintiff responded by

amending the complaint. This Court, on October 8, 2021, accepted the parties stipulation to

withdraw the original motion to dismiss without prejudice.

The instant motion was then served on November 1, 2021. Plaintiff opposes all relief

sought herein by Defendant: to dismiss the Amended Complaint; transfer to Surrogate’s Court;

and sanctions.

Separately, Defendant Tran initiated proceedings in Surrogate’s Court after litigation had

been commenced here. Surrogate Mella on August 4, 2021 ruled that all Surrogate’s

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proceedings would be held in abeyance pending this Court’s ruling on the motion to dismiss

(and/or transfer).

ARGUMENT

I. THE AMENDED COMPLAINT STATES FOUR VALID CAUSES OF ACTION.

In determining a CPLR 3211(a)(7) motion, the court affords the pleading a liberal

construction, accepts its allegations as true, accords the plaintiff the benefit of every favorable

inference, and determines only whether the facts alleged fit within any cognizable legal theory.

E.g., Posner v. Lewis, 18 N.Y.3d 566 (2012)(prima facie tort cause of action properly stated on

alleged facts). Here, Plaintiff also permissibly amplifies the Complaint with supplementing

affidavits to demonstrate its validity. E.g. SS&J Morris, Inc. v. Mahoney Cohen & Co., 264

A.D.2d 343, 343, 694 N.Y.S.2d 60, 61 (1st Dept. 1999).

Plaintiff elected to amend the complaint as of right (CPLR 3025(a)) to better comport the

allegations with the evidence. DeLaurentis Aff., ¶ 12; see CPLR 3025(c). The Amended

Complaint is now the only pleading in this action, however. D’Amico v. Correctional Medical

Care, Inc., 120 A.D.3d 956, 991 N.Y.S.2d 687 (4th Dep't 2014).

The Amended Complaint sets forth the following causes of action: first, seeking a

declaratory judgment concerning the debtor/creditor relationship between the litigants; second,

ejecting him from the apartment owned by Brunner during his lifetime; third, a prima facie tort

to recover special damages in connection with the personal injuries suffered arising from his

refusal to aid; and fourth, deeming the Tran inheritance a nullity.

At this juncture, the third (prima facie tort) cause of action is central to resolution of this

motion. As such, it is discussed first herein.

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A. DEFENDANT’S CONDUCT WARRANTS A CAUSE OF ACTION FOR
PRIMA FACIE TORT.

Plaintiff ‘s third cause of action properly alleges a prima facie tort. The elements of the

tort are: (1) the intentional infliction of harm, (2) which results in special damages, (3) without

any excuse or justification, (4) by an act or series of acts which would otherwise be

lawful. Posner v. Lewis, 18 N.Y.3d 566, 570 n.1 (2012). As earlier courts have recognized, the

intentional use of wrongful means and the intentional exposure of another to the known,

unreasonable risk of harm, which results in such harm, provides classic basis for this remedy.

Morrison v. Nat'l Broad. Co., 24 A.D.2d 284, 288–95, n.1, 266 N.Y.S.2d 406, 410–17 (1st Dept.

1965), rev'd on other grounds, 19 N.Y.2d 453 (1967). Morrison’s flexible rationale was

expressly adopted by the Court of Appeals in Bd. of Ed. of Farmingdale Union Free Sch. Dist. v.

Farmingdale Classroom Teachers Ass'n, Inc., Local 1889 AFT AFL-CIO, 38 N.Y.2d 397, 405

n.1, (1975).

Prima facie tort causes of action have been successfully stated where (like here)

interpersonal animus motivates a defendant’s conduct. Thus, in Posner a cause of action was

stated when a father-in-law interfered with his then-divorcing son-in-law’s job tenure to coerce

the son-in-law to surrender parental rights to a newborn granddaughter. In Farmingdale Union,

the dispute was characterized as “bitter”. Plaintiff submits that the Court should evaluate this

cause of action’s viability in the same interpersonal relationship group of cases identified above.

As set forth in the Facts, supra, Tran intentionally harmed Brunner by refusing him aid

that he obviously needed given the photographs. Ognibene Aff., Ex. 10. This was a repeated

behavior of Tran’s given his December 16, 2018 Journal entry noting his refusal to assist

Brunner. Ognibene Aff., Ex. 5. Plaintiff alleges that Tran intentionally failed to assist Brunner

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both before and for two minutes after taking the photographs. DeLaurentis Aff., Ex. A

(Amended Compl.), ¶¶ 30-33. The photographs’ metadata conclusively demonstrates the two

minute delay after the photographs, and discovery will at least yield circumstantial proof of pre-

photograph delay. Ognibene Aff., Ex. 10.

This refusal to aid resulted in medical bills (in whole or part) of $277,000. DeLaurentis

Aff., ¶15; Tran Aff., ¶5. Medical bills are special damages because they are a quantifiable

amount. The medical bills were proximately related to Tran’s refusal because even small delays

in providing oxygen can cause massive additional bodily harm, pain and suffering12.

There was no excuse or justification which the law recognizes as valid for his refusal to

aid.13 Indeed, his refusal was borne of the maliciousness required for the tort given his Journal’s

notation of a prior refusal to aid and repeated statements wishing death upon Brunner.

Tran’s actions would have been otherwise lawful because there is no duty to aid in New

York law. Miglino v. Bally Total Fitness of Greater New York, Inc., 92 A.D.3d 148, 159, 937

N.Y.S.2d 63, 71 (2nd Dept. 2011), aff'd 20 N.Y.3d 342 (2013) (one does not owe a duty to come

to the aid of a person in peril, whether the peril is medical or otherwise). Thus, each element of

the cause of action is satisfied here.

12
There is an additional category of special damages quantifiable and provable at trial: Social
Security (and other retirement annuity) payments during the balance of Brunner’s expected life
span quantified by actuary testimony equal to a monthly Social Security benefit multiplied by
life expectancy.
13
Advancing a person’s death so as to inherit from him is not lawful. Riggs v. Palmer, 115 N.Y.
506 (1889); cf. Barker v. Kallash, 63 N.Y.2d 19 (1984)(legal proceedings shall not reward
unlawful conduct).

16 of 25
FILED: NEW YORK COUNTY CLERK 12/10/2021 12:22 PM INDEX NO. 157652/2020
NYSCEF DOC. NO. 151 RECEIVED NYSCEF: 12/10/2021

Like Posner, supra, this case’s tort actor had similar goals: in Posner, the plan was to

accelerate judgment terminating parental rights; and here, the plan is to accelerate payment of a

wrongful inheritance terminated by a condition precedent.

The alleged facts here establish the requisite elements. Tran confessed his malice in his

Journal; admitted he knew he would lose his inheritance if Thomas lived; and simply repeated

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Shlomo S. Hagler Track Judge’s New Case

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December 10, 2021

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September 21, 2020

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Motion-Secondary: Estate Of Thomas D. Brunner by its Executors acting in said capacity, Brian M. DeLaurentis and Michael Ognibene v. Peter Tran

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