In the Matter of the Estate of Audrey M. Medway ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3305-22
IN THE MATTER OF THE
ESTATE OF AUDREY M.
MEDWAY, DECEASED.
_______________________
Submitted September 10, 2024 – Decided November 20, 2024
Before Judges Firko and Bishop-Thompson.
On appeal from the Superior Court of New Jersey,
Chancery Division, Somerset County, Docket No. 22-
375.
Adam Medway, appellant pro se.
Torzewski & McInerney, LLC, attorneys for
respondent Maryalice Raushi (Jennifer L. McInerney,
of counsel and on the brief).
PER CURIAM
In this intra-family dispute, defendant Adam Medway, Jr. (Adam) appeals
from the June 15, 2023 Chancery Division order, granting summary judgment
dismissing his complaint to remove his sister, Maryalice Raushi, as executrix of
his mother, Audrey M. Medway's estate.1 We affirm.
I.
Viewed in the light most favorable to the non-moving party, the pertinent
facts are as follows. Templo Fuente De Vida Corp. v. National Union Fire
Insurance Co. of Pittsburgh, 224 N.J. 189, 199 (2016). In the decades prior to
her death, Audrey executed three wills, two general durable power of attorneys
(POA), and made two trust appointments. On October 10, 2006, Audrey
executed a will (2006 will) and named her husband, Adam D. Medway, Sr., as
executor and trustee, with Maryalice as alternate executrix and trustee , a POA
designating Adam Sr. and Maryalice as her attorneys-in-fact, and appointing
Maryalice as trustee of the Audrey Medway Revocable Living Trust.
Upon Adam Sr.'s passing, on December 4, 2014, Audrey executed a
second will, named Maryalice as the executrix and trustee of her estate of her
will (2014 will) and trustee of the Patience Medway Supplemental Needs Trust.
Thereafter, Audrey named Maryalice as her attorney-in-fact in a POA on April
24, 2015. In a third will dated October 7, 2021 (2021 will), Maryalice was again
1
We refer to the parties and children by their first names because of their
common surname. No disrespect is intended.
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named the executrix and trustee of Audrey's estate. In the 2021 will, Audrey
distributed her personal property and residual estate to her children in equal
shares.
At the age of eighty-six, Audrey Medway died testate on February 21,
2022. She was survived by her six adult children: Maryalice, Evan, William,
Adam, Jr., Nelia, and Samuel. Audrey was predeceased by her daughter,
Patience, who did not leave a surviving spouse or issue.
After Audrey's passing, contentious litigation ensued. Adam filed a
caveat against the probate of the 2021 will. Two weeks later, Maryalice filed
an order to show cause (OTSC) and verified complaint to set aside the caveat
and probate the 2021 will. That same day, Adam, then self-represented, filed an
OTSC and verified complaint to remove Maryalice as executrix and obtain
discovery of all his siblings' banking and credit card financial documents.
Shortly thereafter, Adam and Samuel submitted separate certifications
consenting to the admission of the 2021 will.2 They both objected to the
appointment of Maryalice as executrix, arguing that she was "unfit" to be
appointed executrix because: (1) the Morristown property was transferred from
2
Samuel did not file a separate caveat but filed an opposition to Maryalice's
OTSC.
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Audrey and Adam Realty Corporation to Maryalice for $50,000.00, which was
"severely" under the fair market value "believed to have been approximately
$900,000.00;" (2) Maryalice's counsel was a fact witness because he attested to
the Morristown property deed; (3) Maryalice was the listing agent for the
Bernardsville property marketed at $575,000.00; (4) since 2017 Maryalice
earned $72,000.00 for managing four rental properties in Bernardsville that
generated rental income of $73,000.00 per year; and (5) Maryalice managed all
of Audrey's personal accounts and business accounts related to the investment
properties from 2018 through 2022.
Following a hearing, on May 25, 2022, the trial court entered an order
admitting the 2021 will to probate, appointing Maryalice as executrix,
permitting distributions from the estate to only pay bills and ordinary
administrative expenses, and setting written discovery on Adam's complaint
concerning Maryalice's actions as attorney-in-fact for Audrey.
The parties exchanged discovery in accordance with the court's order. In
Maryalice's responses to defendant's interrogatories, she certified that she did
not act as attorney-in-fact for Audrey. Maryalice served documents responsive
to the notice to produce and served additional documents two weeks later.
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Although represented by counsel, Adam filed a self-represented motion to
extend discovery. Shortly thereafter, Adam, no longer represented by counsel,
filed a motion to compel answers to interrogatories, produce a listing of the
family's properties, and serve supplemental written discovery. Samuel also
moved to remove Maryalice as listing agent for the real property. Maryalice
cross-moved for a protective order.
In a September 29, 2022 order, the court denied Adam's motion to compel
discovery but permitted Adam to serve Maryalice a deficiency letter outlining
in detail the interrogatories and document production propounded by Adam's
former counsel that required a response and medical authorization forms to
obtain Audrey's medical records. The court also granted Maryalice's request for
a protective order with regard to responses to Adam's supplemental
interrogatories and ordered Adam to refrain from using inflammatory language
in future correspondence. Lastly, the court denied Samuel's motion to remove
Maryalice as a listing agent and prohibited Maryalice from paying herself a
salary for the real estate business until addressed by the court upon motion by
Maryalice.
Adam filed yet another motion to file and serve an amended complaint to
add his siblings and the family's contractor as defendants, compel Maryalice to
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comply with his deficiency letter and provide an accounting of her actions as
executrix, award attorney fees and legal expenses, and distribute the
$100,000.00 life insurance policy benefits to the beneficiaries. In a November
18, 2022 order, the court denied Adam's requests for leave to amend and to
remove Maryalice as executrix. However, the court directed Adam to "provide
an appropriate deficiency letter" addressing only the previous interrogatories
and document production propounded by Adam's former counsel and obtain
"proper" medical authorizations.
Adam filed two more discovery motions on December 14, 2022 and
December 21, 2022, seeking a response to his November 17 deficiency letter,
sanctions for repeated failure to respond to his discovery requests, removal of
Maryalice as executrix, an injunction preventing the estate's banks from letting
Maryalice withdraw sums greater than $1,000.00 without the approval of two
beneficiaries, and an order that Maryalice pay her attorney's fees out of her part
of the inheritance. In response, Maryalice cross-moved to strike and limit
Adam's additional discovery demands.
Shortly before the hearing date, Adam retained counsel. In a January 23,
2023 order, the court struck Adam's second deficiency letter, entered a
protective order, prohibited Adam from propounding any further discovery, and
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found Adam in violation of litigant's rights for using harassing language in
pleadings and letters directed to Maryalice in contravention of the court's
September 29, 2022 order. Since Adam had retained new counsel, the court
provided Adam with another opportunity to serve the medical authorization
forms upon Maryalice and ordered her to provide an updated informal
accounting of her administration of Audrey's estate. Maryalice served defendant
with an informal accounting of the administration of Audrey's estate.
In a February 27, 2023 order, we denied Adam's motion for leave to file
an interlocutory appeal. Adam, on behalf of his attorney, served subpoenas on
Maryalice's attorney, among others. Counsel withdrew from representation
shortly thereafter.
Prior to the close of discovery, depositions were not conducted and
discovery was not extended. The court granted Adam's counsel's request to
withdraw as counsel.
Maryalice moved for summary judgment, seeking the dismissal of Adam's
complaint. In her supporting certification, Maryalice attested, among other
things, that the $250,000.00 withdrawal was a transfer Audrey made following
the maturation of a certificate of deposit with Lakeland Bank to Audrey's
investment account with Merrill Lynch. Maryalice also submitted letters from
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two physicians in support of her motion. In a July 19, 2022 letter, Audrey's
primary care physician, Thomas Cioce, D.O., stated Audrey "was of sound mind
and fully competent at the time of her visit [on November 23, 2021] with no
questions as to her mental status." Craig M. Rosen, M.D., Audrey's cardiologist,
stated in a July 20, 2022 letter that Audrey was his patient from 2005 until 2022
and during that time, "she was cognitively intact with normal behavior" and
"completely capable of making her own decisions."3
In a letter brief, Samuel opposed Maryalice's motion, arguing Maryalice
did not respond to his answer to her complaint and, therefore, the issues
remained outstanding. Accordingly, Maryalice's motion should be denied
because there were "significant and genuine issues of material fact."
Adam also opposed Maryalice's motion and cross-moved for summary
judgment. He also sought responses to 169 interrogatory questions and to
3
The record also contains a letter dated December 16, 2022, from Dr. Rosen to
Adam. Rosen stated that he examined Audrey for "fifteen minutes" "twice a
year" for "many years." According to Rosen,"[Audrey] was very pleasant and
even after her stroke seemed to have her mental faculties." Rosen never
performed a full mental status examination and further provided he did not talk
with her long enough to form an opinion regarding her ability to make financial
decisions. We are unable to discern from the record if this letter was annexed
as an exhibit to any motion filed with the trial court.
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conduct depositions, the termination of Maryalice's salary for managing the
rental properties since they were sold, and an award of counsel fees and costs.4
After hearing arguments, in an oral opinion rendered on June 15, 2023,
the court granted summary judgment in favor of Maryalice, individually and as
executrix, as to her complaint and against Adam and Samuel's complaint,
dismissing Adam's complaint with prejudice. The court denied Adam's cross-
motion. Before addressing the merits of the parties' arguments, the court noted
defendants had not filed a counterstatement of undisputed material facts
pursuant to Rule 4:46-2(b).5 Therefore, Maryalice's statement of material facts
was deemed admitted.
Notwithstanding the procedural deficiency, the court then addressed the
merits of the summary judgment motion. The court reasoned that Samuel's
4
Adam also sent a surreply to his cross-motion and an additional motion with
a filing fee to the court's chambers. The court found the surreply, sent two days
before the return date, was not permitted by the court rules. Also, the additional
motion was not accompanied by a notice of motion nor properly filed with the
clerk's office. Thus, the submissions were not considered by the court.
5
Rule 4:46-2(b) requires a party opposing a motion for summary judgment to
"file a responding statement either admitting or disputing each of the facts in the
movant's statement." Rule 4:46-2(b) provides that "all material facts in the
movant's statement which are sufficiently supported will be deemed admitted
for purposes of the motion only, unless specifically disputed by citation
conforming to the requirements of paragraph (a) demonstrating the existence of
a genuine issue as to the fact."
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certification from the prior year contained "bald unsupported allegations" and
was insufficient in opposing a summary judgment motion.
The court noted Adam's certification argued for the extension of discovery
and found that "ship had sailed" because there were multiple extensions of the
discovery end date, Adam failed to abide by prior discovery orders, and no
extension was sought before discovery concluded. The court found Adam did
not produce competent evidence to refute Maryalice's certification that she never
acted as attorney in fact under the durable POA. The court found that Audrey
"trusted" Maryalice based on Maryalice's appointment as a fiduciary in three
wills, two POAs, and two trusts. Citing to the governing law, the court further
reasoned "there ha[d] been no evidence whatsoever, or even the suggestion of
malfeasance, during the course of the . . . estate's existence." A memorializing
order was entered by the court.
II.
Adam now argues on appeal that the trial court erred in granting summary
judgment because Maryalice failed to answer all interrogatories, he was
discriminated against as a handicapped individual, depositions were not
completed, and a trial should have been conducted. We are not persuaded by
Adam's arguments, and therefore, we affirm.
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We review a grant of summary judgment de novo, applying the same
standard as the trial court. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). That
standard requires us to "determine whether 'the pleadings, depositions, answers
to interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact challenged and that
the moving party is entitled to a judgment or order as a matter of law.'" Branch
v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-2(c)).
"Summary judgment should be granted . . . 'against a party who fails to make a
showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial.'"
Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)). We do not defer to the trial court's legal
analysis or statutory interpretation. RSI Bank v. Providence Mut. Fire Ins. Co.,
234 N.J. 459, 472 (2018); Perez v. Zagami, LLC, 218 N.J. 202, 209 (2014).
Having reviewed the record and the applicable law, we conclude Adam
failed to comply with the procedural requirements of Rule 4:46-2. First,
Maryalice's statement of undisputed material facts was properly deemed
admitted by the court pursuant to Rule 4:46-2(b). Second, Adam's pleading was
technically not a cross-motion. Rule 1:6-3(b) provides that "[a] cross-motion
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may be filed and served by the responding party together with that party's
opposition to the motion and noticed for the same return date only if it relates to
the subject matter of the original motion." (emphasis added). Thus, Adam's
"cross-motion" to extend discovery was wholly unrelated to Maryalice's
summary judgment motion and contravened the court rules.
We next address the merits of Adam's argument — whether summary
judgment was improperly granted because discovery was incomplete, and no
trial was held. Adam's contention lacks merit.
We reviewed the motion record and considered "the competent evidential
materials" in the light most favorable to Adam despite the lack of compliance
with Rule 4:46-2(b). Templo, 224 N.J. at 199.
"The law is well settled that '[b]are conclusions in the pleadings without
factual support in tendered affidavits, will not defeat a meritorious application
for summary judgment.'" Brae Asset Fund, L.P. v. Newman, 327 N.J Super.
129, 134 (App. Div. 1999) (alteration in original) (quoting United States Pipe &
Foundry Co. v. American Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App.
Div. 1961)). Samuel's stale certification offered no controverted facts that
created genuine issues of material facts to be presented to a reasonable
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factfinder. Likewise, Adam presented nothing more than bald assertions with
no factual support in the record.
A self-serving assertion, unsupported by documentary proof, "is
insufficient to create a genuine issue of material fact." Heyert v. Taddese, 431
N.J. Super. 388, 414 (App. Div. 2013). Thus, Adam's insufficient certification
was not enough to defeat summary judgment; and as the non-moving party,
Adam "must produce sufficient evidence to reasonably support a verdict in [his]
favor." Invs. Bank v. Torres, 457 N.J. Super. 53, 64 (App. Div. 2018), aff'd and
modified by 243 N.J. 25 (2020); see also Sullivan v. Port Auth. of N.Y. & N.J.,
449 N.J. Super. 276, 279-80 (App. Div. 2017) (explaining that "bare
conclusions" lacking "support in affidavits" are "insufficient to defeat [a]
summary judgment motion"). Therefore, based on our de novo review, we hold
there was no genuine factual dispute warranting a denial of Maryalice's motion
for summary judgment.
To the extent we have not addressed any of Adam's remaining arguments,
it is because they lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3 (e)(1)(E).
Affirmed.
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