Conroy v. Swartout

Conroy v. Swartout

Opinion

 [*945]  [**355]   Appeal from an order and judgment of the Supreme Court (Hughes, J.), entered April 10, 1987 in Albany County, which, inter alia, granted plaintiff summary judgment on the third cause of action in the amended complaint.

Plaintiff is the widow of the late William E. Conroy, to whom she was married for more than 35 years before his death on July 3, 1986. She was also named as the executrix and sole beneficiary under Conroy's last will and testament. Conroy and plaintiff, however, were estranged before his death and he was living with another woman, the defendant in this action. A divorce action had been commenced by plaintiff and she had obtained an order therein restraining Conroy from transferring any interest in his retirement and shareholder plans with his employer, the Ford Motor Company. In June 1986, Conroy, who was terminally ill with cancer, signed over and delivered certificates to his Ford Motor Company stock to defendant with instructions not to open the envelope containing them until his death. Upon Conroy's death several weeks later, defendant arranged for a funeral [***2]  and burial without notifying plaintiff or Conroy's children. Defendant also had the Ford Motor Company stock transferred to her name.

 [*946]  Plaintiff subsequently brought suit against defendant on two causes of action in tort. Her first cause of action alleged that defendant wrongfully converted personal property of Conroy consisting of automobiles, clothing, bank accounts, and salary and retirement checks. Her second cause of action claimed damages for the emotional distress caused plaintiff, as Conroy's next-of-kin, for defendant's wrongful withholding of his body in having him buried without notifying plaintiff.

After joinder of issue and pretrial disclosure, plaintiff moved (1) for leave to serve an amended complaint adding a third cause of action to set aside the transfer to defendant of Conroy's corporate stock as a fraudulent conveyance, and (2) for summary judgment upon the second cause of action in the complaint. Defendant then moved to dismiss plaintiff's second cause of action and submitted an affidavit in opposition to plaintiff's motion for summary judgment on that cause of action. Before the single return dates on these several motions, defendant's attorney [***3]  consented in writing to the amendment of the complaint to add the third cause of action and submitted an answer to that cause of action consisting of a general denial and an affirmative defense, inter alia, that the conveyance of Conroy's Ford Motor Company stock to defendant was a valid gift causa mortis.

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