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First Department Sustains Undue Influence and Unjust Enrichment Claims in Financial Exploitation Case

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  • Posted on: Mar 27 2023

By: Jeffrey M. Haber

As we have noted previously, the financial exploitation of seniors is a significant problem (e.g.herehereherehere, and here). 

As the incidence of financial exploitation and abuse increases, so do the costs to its victims. An oft-cited study by the MetLife Mature Market Institute, the National Committee for the Prevention of Elder Abuse, and the Center for Gerontology at Virginia Polytechnic Institute and State University, titled “Broken Trust: Elders, Family & Finances,” estimates that about one million seniors lose approximately $2.6 billion annually from financial exploitation and abuse. (Here.) In 2011, MetLife updated its estimate to at least $2.9 billion. Other, more recent studies estimate the losses to exceed $36 billion a year, 12 times the MetLife estimate.

The Many Forms of Financial Abuse and Exploitation of the Elderly

The financial exploitation and abuse of seniors and vulnerable persons come in many forms. The most common involves, among others: (a) investment fraud (e.g., churning, unauthorized trading, unsuitable investing, over-concentrating an investor’s portfolio in a single type of investment or industry segment, and misrepresenting the risk or potential returns of an investment product for the purpose of generating high commissions), (b) insurance fraud (e.g., selling unneeded or too costly insurance, the unauthorized trading of life insurance policies, and annuity fraud), (c) acts of dishonestly by trusted persons (e.g., fraud, misappropriating assets, falsification of records, forgery, and unauthorized check-writing), (d) email scams (e.g., “phishing” to induce the recipient into providing passwords and other personal and financial information), and (e) lottery fraud (e.g., inducing the person to transfer or pay money to collect unclaimed prizes from lottery or sweepstakes organizers).

In today’s post, we discuss Salitsky v. D’Attanasio, 2023 N.Y. Slip Op. 01597 (1st Dept. Mar. 23, 2023) (here), a case involving allegations of undue influence by an alleged trusted person.

Salitsky v. D’Attanasio

Plaintiff commenced the action in November 2021, alleging that his aunt, Maria Lotto (“Decedent”), named Defendant, Karen Miller D’Attanasio, as the sole beneficiary of a transfer on death account (the “Account”) being held by co-defendant Muriel Siebert & Co., Inc. (“Siebert”), as the result of fraud, undue influence and other improper means. 

According to Plaintiff, he and Decedent enjoyed a close relationship and regularly kept in touch. On November 19, 2010, Decedent designated Plaintiff as the sole beneficiary of the Account. 

Defendant had been Decedent’s neighbor in their Manhattan apartment building for an unspecified period of time. Defendant and Decedent shared a “neighborly” relationship. According to Plaintiff, in or about 2017, Defendant improperly used this relationship and began to pressure Decedent about the latter’s finances and estate planning. As a result, Plaintiff claimed, on or about August 21, 2017, Decedent named Defendant as the executor of her estate, although Plaintiff had been named the executor of the estate since at least 2011. At around the same time as Decedent made the change, Decedent began to decrease her communications with Plaintiff. 

In late 2019, Decedent fell and entered a rehabilitation facility, from which she was discharged in early December 2019. At that time, Defendant, who had been living in Japan since 2018, visited Decedent in New York. On or about December 23, 2019, Defendant was made the sole beneficiary of the Account, in place of Plaintiff. According to Plaintiff, Defendant forged Decedent’s signature on the beneficiary designation form or exerted undue influence on Decedent to sign the form. 

Also in December 2019, Decedent wrote Defendant a $15,000 check. In early January 2020, Decedent allegedly told various third parties that she felt tricked into giving Defendant the $15,000 check, which she tried unsuccessfully to place a stop on, and that she felt taken advantage of by Defendant, who was allegedly pressuring her to change her estate plans. 

On February 25, 2020, Decedent executed a new will which removed Defendant as executor. 

Decedent passed away on January 1, 2021. Thereafter, Defendant executed a Renunciation and Disclaimer pursuant to EPTL § 2-1.11, in which she stated that she was the sole beneficiary of the Account.

In his verified complaint, Plaintiff asserted seven causes of action: the First, for a declaratory judgment that the form designating Defendant as the Account’s beneficiary was invalid and void, and that an earlier form designating Plaintiff as the beneficiary be held as controlling the Account’s disposition; the Second, for injunctive relief preventing Seibert from distributing Account funds to Defendant; and the Third through Seventh, as to Defendant only, sounding in conversion, unjust enrichment, fraud upon Decedent, undue influence, and fraud upon Plaintiff, respectively. 

Defendant moved to dismiss, pursuant to CPLR §§ 3211(a)(3) and (7), for lack of standing and for failure to state a claim upon which relief may be granted. Plaintiff opposed the motion.

The motion court granted the motion. Plaintiff appealed. The Appellate Division, First Department modified the order to deny the motion as to the first (declaratory judgment), third (conversion), fourth (unjust enrichment), and sixth (undue influence) causes of action, and otherwise affirmed the order.

Undue Influence

“The elements of undue influence are motive, opportunity, and the actual exercise of that undue influence.”1 As direct proof of undue influence is rare, its elements may be established by circumstantial evidence.2 Circumstances that may be considered in determining the existence of undue influence include whether the result of the decedent’s changed directive concerning the disposition of property following his or her death is “unnatural or the result of an unexplained departure from a previously expressed intention”.3 Other factors include who prepared the document, and the decedent’s mental and physical condition at the time of the change.4

The Court found that there were “circumstances requiring scrutiny” as to whether Defendant exerted undue influence on Decedent. These included that “plaintiff was decedent’s closest living relative, that they had a continuing close relationship, and that he had been the designated beneficiary for 10 years, while defendant was a neighbor and relatively recent friend”.5 

Moreover, said the Court, “plaintiff sufficiently allege[d] defendant’s financial motive (the $6 million-plus value of the account), opportunity (that his aunt and defendant were neighbors, and his aunt’s advanced age, fragile physical health, and inability to print the change of beneficiary form independently), and actual exercise of undue influence (the execution and mailing of the change of beneficiary form and the suspicious circumstances surrounding the writing of a $15,000 check to defendant weeks later).”6 

Furthermore, noted the Court, “the allegations that plaintiff’s aunt attempted to stop payment on the $15,000 check and that she complained to others that defendant had tricked her into writing the check, and changed her will to remove defendant as her executor, but did not change or revoke the beneficiary form, together support[ed] an inference that the aunt either was not aware of the form or was not aware of its effect.”7

Accordingly, given the stage of the proceeding (pre-discovery) and the fact “that key information [was] within defendant’s sole knowledge (see Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491-492 [2008]),” the Court held “that plaintiff sufficiently pleaded the elements of an undue influence claim”.8

Unjust Enrichment

The basis of a claim for unjust enrichment is that the defendant obtained a benefit which in “equity and good conscience” should be paid to the plaintiff.9 “In a broad sense, this may be true in many cases, but unjust enrichment is not a catchall cause of action to be used when others fail. It is available only in unusual situations when, though the defendant has not breached a contract nor committed a recognized tort, circumstances create an equitable obligation running from the defendant to the plaintiff. Typical cases are those in which the defendant, though guilty of no wrongdoing, has received money to which he or she is not entitled.”10 An unjust enrichment claim is not available where it simply duplicates, or replaces, a conventional contract or tort claim.11

The Court held that Plaintiff sufficiently alleged a cause of action for unjust enrichment. The Court found that the following facts sufficed to support the claim: his aunt was elderly; Defendant exerted undue influence on his aunt; as a consequence of the undue influence, Decedent turned over the entirety of a $6 million-plus account to Defendant, her neighbor; and Decedent entirely excluded Plaintiff, her closest living relative with whom she enjoyed a close relationship.12

Fraud Claims

As for the first fraud claim, which centered around the allegation of defendant’s “deceit upon” plaintiff’s aunt, the Court held that the alleged “deceit” was “not explained or pleaded with the requisite specificity (CPLR 3016[b])”.13 The second fraud claim, said the Court, “which seems to arise from alleged misrepresentations in a renunciation and disclaimer executed by defendant, was properly dismissed, as it [did] not adequately allege reliance by plaintiff or others on misrepresentations in that document, or resulting damages”.14


  1. Matter of Nofal, 35 A.D.3d 1132, 1134 (3d Dept. 2006) (internal quotation marks omitted).
  2. Matter of Paigo, 53 A.D.3d 836, 839-840 (3d Dept. 2008).
  3. Matter of Walther, 6 N.Y.2d 49, 55 (1959); see also Matter of Elmore, 42 A.D.2d 240, 241 (3d Dept. 1973).
  4. Matter of Walther, 6 N.Y.2d at 55; Matter of Kotick v. Shvachko, 130 A.D.3d 472, 473 (1st Dept. 2015).
  5. Slip Op. at *1 (citing, Matter of Elmore, 42 A.D.2d 240, 241 (3d Dept. 1973)).
  6. Id. (citing, ALP v. Moskowitz, 204 A.D.3d 454, 458 (1st Dept. 2022), and Matter of Kotick, 130 A.D.3d at 473).
  7. Id. at *1-*2.
  8. Id. at *2.
  9. Mandarin Trading Ltd. V. Wildenstein, 16 N.Y.3d 173, 182 (2011) (quoting, Paramount Film Distrib. Corp. v. State of New York, 30 N.Y.2d 415, 421 (1972)). See also Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790 (2012).
  10. Corsello , 18 N.Y.3d at 790 (citing, Markwica v. Davis, 64 N.Y.2d 38 (1984), and Kirby McInerney & Squire, LLP v. Hall Charne Burce & Olson, S.C., 15 A.D.3d 233 (2005)).
  11. Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388-389 (1987); Samiento v. World Yacht Inc., 10 N.Y.3d 70, 81 (2008); Town of Wallkill v. Rosenstein, 40 A.D.3d 972, 974 (2d Dept. 2007).
  12. Slip Op. at *2.
  13. Id.
  14. Id. (citing, Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559 (2009)).

Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP. 

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

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