Vogt v. Witmeyer

Full title: LINDA C. VOGT, Appellant, v. JOHN D. WITMEYER et al., Respondents

Court: Court of Appeals of the State of New York

Date published: Mar 21, 1996

87 N.Y.2d 998 (N.Y. 1996)

642 N.Y.S.2d 619

665 N.E.2d 189

Opinion

Argued February 6, 1996

Decided March 21, 1996

Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Charles J. Siragusa, J.

Richard G. Vogt, Rochester, for appellant.

Nixon, Hargrave, Devans Doyle, Rochester (William S. Brandt of counsel), respondent pro se, and for John D. Witmeyer and others, respondents.

Gough, Skipworth, Summers, Eves Trevett, P.C., Rochester (David A. Gaesser of counsel), for John Albright, respondent.

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

Plaintiff had been designated as a one-fifth remainder beneficiary in an August 1986 amendment to a revocable trust created by the settlor six years earlier. Unbeknownst to plaintiff, the settlor executed a fourth amendment in December 1988, removing plaintiff as beneficiary, which remained in effect at the settlor's death three years later. Plaintiff brought this action against the settlor's trustee, her attorneys and one of the remainder beneficiaries for allegedly depriving her of her remainder interest in the trust, asserting separate causes of action based on theories of tortious interference with prospective inheritance, prima facie tort, conspiracy, ratification and mistake. Supreme Court dismissed all causes of action and the Appellate Division affirmed ( 212 A.D.2d 1013).

Plaintiff seeks reinstatement of her cause of action grounded upon tortious interference with prospective inheritance. New York, however, has not recognized a right of action for tortious interference with prospective inheritance (see, Hutchins v Hutchins, 7 Hill 104), and, in any event, such a cause of action would require that the interference be accomplished by some type of independently tortious conduct (see, Restatement [Second] of Torts § 774B). Except for purely conclusory assertions, plaintiff failed to plead any tortious acts by defendants causing the settlor to modify the trust.

Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.

Order affirmed, with costs, in a memorandum.