Opinion
2015–448
01-16-2018
In the MATTER OF the Application of Laura E. RICE, as Administrator of the Estate of Vincent A. Viafore, to preclude Angelika Graswald a/k/a Angelika Lipska from receiving proceeds under any insurance policies or other assets concerning the Estate of Vincent A. Viafore, Deceased.
ALLAN B. RAPPLEYEA, ESQ., CORBALLY, GARTLAND & RAPPLEYEA, LLP, 35 Market Street, Poughkeepsie, New York 12601, Attorneys for the Administrator RICHARD A. PORTALE, ESQ., PORTALE RANDAZZO, LLP, 245 Main Street, Suite 340, White Plains, New York 10601, Attorneys for ANGELIKA GRASWALD a/k/a ANGELIKA LIPSKA
ALLAN B. RAPPLEYEA, ESQ., CORBALLY, GARTLAND & RAPPLEYEA, LLP, 35 Market Street, Poughkeepsie, New York 12601, Attorneys for the Administrator
RICHARD A. PORTALE, ESQ., PORTALE RANDAZZO, LLP, 245 Main Street, Suite 340, White Plains, New York 10601, Attorneys for ANGELIKA GRASWALD a/k/a ANGELIKA LIPSKA
James D. Pagones, S.
Laura E. Rice, administrator of the estate and sister of the decedent, moves by order to show cause for an order determining that Angelika Graswald a/k/a Angelika Lipska (hereinafter "Graswald") has forfeited any interest in any asset in which the decedent had an interest or which might devolve to her as a result of his death.
The following papers were considered:
Order to Show Cause–Affirmation–Exhibits 1–2 1–4
Affirmation in Opposition–Memorandum of Law–5–10
Exhibit A–C–Affidavit of Service
Reply Affirmation–Affidavit of Mailing 11–12
By way of background, on or about April 19, 2015, the decedent and Graswald were kayaking in separate kayaks in the Hudson River in Orange County, New York. The weather that day was cold and windy, with water temperature in the 40s. The decedent was not wearing a life vest or a wet suit. The decedent and Graswald entered the Hudson River from Plum Point Park in Orange County and went to what is commonly known as "Bannermans Island", an island in the Hudson River slightly southeast of the Plum Point. The couple spent about two hours hiking the island before disembarking back to Plum Point. The decedent and Graswald left the island at about 7:00 p.m., the waters were rough, it was windy and it was getting dark. The decedent's kayak's paddle was missing a locking clip and had no drain plug, as it was removed by Graswald. While crossing the Hudson, the decedent's kayak began to take on water and it began to sink. The decedent exited his kayak and entered the river. Ultimately, the decedent drowned in the river.
Graswald was arrested and charged with Second Degree Murder and Second Degree Manslaughter. On June 24, 2017, the case against Graswald was resolved by her plea to Criminally Negligent Homicide, a class E felony under Penal Law § 125.10.
As part of his employment with Parsons Brinckerhoff, Inc., the decedent had coverage for accidental death under three policies of insurance, all issued by Zurich American Insurance Company. Graswald is the beneficiary of 45% of the death benefit funds at issue and stands to inherit Four Hundred Ninety–One Thousand Five Hundred Thirty–One Dollars and Four Cents ($491,531.04). By order dated August 12, 2016, these funds were paid into Court, pursuant to SCPA § 2223, with a check made payable to the Dutchess County Commissioner of Finance to hold and dispose of subject to further Court order.
The principle that a wrongdoer may not profit from his or her wrongdoing is deeply rooted in this State's common law. In 1889, the Court of Appeals decided the seminal case of Riggs v. Palmer , 115 NY 506 [1889]. In Riggs , a grandson, who had intentionally killed his grandfather to secure his inheritance, was prevented from inheriting under the grandfather's will. The Court of Appeals held that, "[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime" (see Riggs v. Palmer , 115 NY 506 at 511 [1889] ). In short, the Riggs ruling prevents wrongdoers from acquiring a property interest, or otherwise profiting from their own wrongdoing (see In re Edwards , 121 AD3d 336 [2nd Dept 2014 citing Matter of Covert , 97 NY2d 68 [2001] ). Numerous cases have reaffirmed the principle that a forfeiture will apply to one implicated in an intentional felonious crime (see In re Timpano , 40 Misc 3d 1237[A][Sur Ct, Oneida County 2013] ). The forfeiture doctrine has been expanded to apply to a party who sought to benefit from the decedent's death but has recklessly caused said death (id. citing in re Sparks' Estate , 172 Misc 642 [Sur Ct New York County 1939 [First Degree Manslaughter]; In re Wells' Will , 76 Misc 2d 458 [Sur Ct, Nassau County 1973] [Second Degree Manslaughter] ). Forfeiture does not automatically arise if a party was convicted of or found to have committed Involuntary Manslaughter, such as Criminally Negligent Homicide (see In re Timpano supra ).
The Court in Timpano citing to In re Wells' Will , stated that:
"...the Court determined that if one were acquitted of any crime or pleaded guilty or were convicted of a crime which did not constitute forfeiture, after a hearing the Court nevertheless could, because of the difference of the burden of proof in a civil proceeding, find the elements of forfeiture exist."
Additionally, the Court in Timpano noted:
"In the instant case, David pled guilty to Criminally Negligent Homicide, a Class E felony although he was indicted on a count of Second Degree Homicide, a Class C Felony. The distinguishing factor between the two felonies is that the criminally negligent offender is not aware of the risk created and is not consciously disregarding a duty whereas the offender guilty of second degree Manslaughter is aware of the proscribed risk and consciously disregards it."
The procedural similarities between the case before this Court and the Court in Timpano are striking. Moreover, while the Court recognizes that the cases are factually distinguishable, the underlying ground for forfeiture of Graswald claim's to life insurance proceeds and David's inheritance in the Timpano action are establishing that one "recklessly" caused the death of another.
Recklessly as defined by the Penal Law § 15.05(3) is defined as:
"A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto."
Based upon the foregoing, the Court is required to conduct a hearing wherein it will be petitioner's burden to establish that Graswald "recklessly" caused the death of Vincent Viafore by a preponderance of the credible evidence (see In re Timpano supra ; In re Loud's Estate , 70 Misc 2d 1026 [Sur Ct, Kings County 1972] ).
Accordingly, the parties are directed to appear for a hearing on February 27, 2018 at 9:30 a.m. Additional time will be allotted on Thursday, March 1, 2018 at 11:00 a.m. for further testimony, if necessary. Adjournments are only granted with leave o the Court.
This constitutes the decision of this Court.