Matter of Liongson-Branch 2024 NY Slip Op 30586(U) February 22, 2024 Surrogate's Court, New York County Docket Number: File No. 2013-3328/D Judge: Hilary Gingold Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
New York County Surrogate's Court DATA ENTRY DEPT. SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK FEB 1·2 2024 -----------------------------------------x In the Matter of the Petition of Lee R. Bember as a person interested in the Estate of DECISION AFTER TRIAL LYDIA LIONGSON-BRANCH, File No.: 2013-3328/D Deceased,
for the Discovery and Turnover of Property. -----------------------------------------x
GING OLD, S.
In this reverse discovery and turnover proceeding (SCPA 2105)
in the estate of Lydia Liongson-Branch (Decedent), petitioner Lee
R. Bember (Bember) alleged that he is a person interested in this
estate as the "previously listed and intended beneficiary of
certain of decedent's accounts held at Ally Bank," that Decedent's
daughter, respondent Yolly M. Keane (Keane), the administrator of
Decedent's estate, amended, altered, or changed the listed
beneficiary on the accounts from Sember to that of the estate and
that the accounts should be turned over to him. Keane denied the
allegations.
Decedent died on October 27, 2012, as the result of an
accident. Letters of administration were issued to Keane by the
Connecticut Probate Court. Thereafter, this court issued letters
of administration with limitations to Keane for the sole purpose
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of prosecuting an action for Decedent's personal injury and
wrongful death in New York State Supreme Court, New York County
(Index No. 158981/13).
In this SCPA 2105 proceeding, a non-jury trial was held on
February 8, 2024, before the undersigned. Bember was self-
represented. Keane appeared by counsel. Bember testified in
narrative form for himself and then was cross-examined by Keane's
attorney. After Bember rested, Keane testified and was cross-
examined by Bember. Matthew Sakkas (Sakkas), the attorney retained
by Keane in the Supreme Court action, also testified on Keane's
behalf. Bember declined to cross-examine Sakkas.
At no time during the proceeding, including during the trial,
did Bember produce any documentary evidence to support his
allegations, and his trial testimony was devoid of even an iota of
such evidence.
Three exhibits, introduced by Keane's attorney, were admitted
into evidence. The first, "Resp's 1", is Bember's letter, dated
April 7, 2022, to the court, the original of which was previously
filed with the court. In that letter, Bember stated that Decedent
was his aunt. However, on cross-examination, Bember admitted that
his statement was false. Rather, he testified that he and Decedent
had a romantic involvement.
"Resp's 2" in evidence is the Affidavit Responding to Subpoena
to Testify and Produce Documents, sworn to on July 18, 2 02 3, by
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Jacqueline Lemma (Lemma), Director - Deposit Operations of Ally
Bank, with documents attached. According to her sworn affidavit,
Lemma described her duties as supervision and oversight of the
Escheatment and Document Processing teams for Ally Bank, including
legal orders and subpoena reviews.
Bember did not dispute having been served with a copy of the
documents, along with all relevant exhibits, prior to trial. Lemma
avers in her affidavit that Ally conducted a search for documents
responsive to the three separate subpoenas duces tecum served on
Ally Bank by Bember's prior counsel and/or by Keane's attorney.
Each of the subpoenas duces tecum called for Ally to produce
documents from January 1, 2010, more than two-and-a-half-years
prior to Decedent's death, to present, in connection with Bember's
allegations.
Two of the subpoenas duces tecum, copies of which are attached
to Lemma's affidavit, called for the production of documents about
any accounts of any type at Ally Bank or any related institution
of Decedent in any ownership form, whether jointly or otherwise,
any amendments, changes or alterations, the beneficiary
designations, amendments or changes to beneficiary designations,
any allegations, investigations and determinations, and all
documents connected to accounts in Decedent's name or any
permutation thereof. The third subpoena duces tecum, a copy of
which is also attached to Lemma's affidavit, required production
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of documents with respect to accounts in Bember's name, including
any accounts in trust for him or on which he was the named
beneficiary.
Ally Bank's responses to the three subpoenas duces tecum show
that it "had no record of any account in the name of Lydia Liongson-
Branch" or of any accounts in Bember's name or of which he was a
beneficiary. Also attached to Lemma's affidavit are eight pages
produced by Ally Bank of typewritten notes of personnel, including
supervisors, showing that Bember was informed, in response to
telephone calls from him to Ally Bank, on more than thirty
occasions, that Ally Bank had no record of any accounts, including
trust accounts, belonging to Decedent, and. also, on multiple
occasions, that there was no records of accounts on which Bember
was a beneficiary.
Additionally, although not pled, Bember raised at a
conference before the undersigned and again during his trial
testimony, that he was the beneficiary of a Vantis Life Insurance
Contract (Vantis Contract) owned by Decedent. As was the case
with the Ally Bank accounts, Bember produced no documentary
evidence in support of his claim, and his testimony was devoid of
any other evidence that would support his allegations in this
regard. In contrast, Resp's 3 in evidence is the Business Records
Affidavit, sworn to on February 5, 2024, by Zandra Rawlins-Adens
(Rawlins-Adens), a paralegal in the law department for The Penn
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Mutual Life Insurance Company (Penn). Attached to Rawlins-Adens'
affidavit are nineteen pages of records kept by Penn in the normal
course of business. These documents make clear that there was no
such policy issued by Penn in which Bember was ever identified as
a beneficiary. In the affidavit, Rawlins-Adens swears that these
nineteen pages "are exact duplicates of the original records for
the subject Vant is Life Insurance Contract." Nowhere in the
documents is there any mention of Bember, as a beneficiary or
otherwise. At trial, Sakkas testified that these documents were
produced in response to a subpoena duces tecum.
SCPA 2105(1) provides:
A person having a claim to property as defined in [SCPA] 103 or the proceeds thereof alleged to be in possession of or under the control of a fiduciary may present to the court which has jurisdiction over the estate a petition showing the facts and praying that the fiduciary be required to show cause why he should not be required to deliver the property or the proceeds thereof.
Bember, as petitioner, bears the burden of establishing title
to any property by "clear and convincing evidence" ( see e.g. r
Matter of Rivera, 9 Misc 3d 1102 (A) [Sur Ct, Nassau Cty 2005],
citing Matter of Poggemeyer, 87 AD2d 822 [2 nd Dept 1982] and Matter
of Effross, 43 AD2d 539 [1 st Dept 1973]). In this instance, Bember
has completely and unequivocally failed to meet his burden. In
fact, all the documentary evidence and credible testimony adduced
show that Bember's allegations are completely without merit.
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After a non-jury trial, Bember having rested. Affording him
every inference which may be properly drawn from the facts
presented and viewing the facts in the light most favorable to
him, the court determines that, upon the documentary evidence and
testimony presented, there is no rational basis upon which any
fact finder could find in favor of Bember. In sum, Bember has
wholly failed to meet his burden of proving by clear and convincing
evidence, or even by any evidence, that there is any property
belonging to him in possession or control of Keane, the
administrator of the estate, or that she in any way amended,
altered, or changed the listed beneficiary from Bember on any
property at Ally Bank or anywhere else.
Accordingly, it is
ORDERED that the relief sought by Bember is denied and the
petition is dismissed in its entirety.
The clerk of the court is directed to mail a copy of this
decision, which constitutes the order of the court, to Bember and
to Keane's counsel by certified mail at the addresses at the foot
herein.
Dated: February 22, 2024
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Mr. Lee Bember 225 Marigold Avenue Bridgeport, CT 06610 (Self-represented petitioner)
Robert L. Greener, Esq. 112 Madison Avenue, 6 th Floor New York, NY 10016 (Attorney for respondent)
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