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                            APPROVAL OF THE APPELLATE DIVISION
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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-3410-18T3


                Argued October 13, 2020 – Decided October 22, 2020

                Before Judges Fasciale and Mayer.

                On appeal from the Superior Court, Chancery Division,
                Cape May County, Docket No. P-000037-17.

                Glen H. Ridenour, II argued the cause for appellant
                Peter Pietrangelo, Jr. (Peter L. Klenk & Associates,
                attorneys; Glen H. Ridenour, II and Jill B. Fitzgerald,
                on the briefs).

                Kevin J. Thornton argued the cause for respondent
                Michael Pietrangelo (Cooper Levenson, PA, attorneys;
                Kevin J. Thornton and Jennifer B. Bar, on the brief).

                Robert S. Esposito, respondent, argued the cause pro se.

                Respondent John Huffman has not filed a brief.

        Two brothers—Peter Pietrangelo, Jr. (Peter) and Michael Pietrangelo

(Michael)—contest whether their father, Peter B. Pietrangelo, Sr. (decedent),

intended to gift his condominium (the property) to Michael.1 Peter appeals from

two orders: (1) a March 22, 2018 order denying his motion for summary

judgment and granting summary judgment to Michael; and (2) a March 29, 2019

order denying Peter's reconsideration motion, and Peter's motions to disqualify

Michael's trial counsel (different than his appellate counsel) and appoint an

administrator ad litem. There are genuine issues of material fact as to whether

the decedent intended to gift the property to Michael. We therefore reverse the

order granting summary judgment to Michael, and remand for further


        On appeal, Peter raises the following arguments:

              [POINT I]

              The [judge] erred by not recognizing that
              [c]onfirmation of the decedent's reorganization [p]lan
              and discharge of his debts by the [b]ankruptcy [c]ourt
              vested ownership of the . . . property in the decedent.

              [POINT II]

              The [judge] erred in entering [s]ummary [j]udgment in
              favor of [Michael], and against [Peter], where no

    We mean no disrespect by referring to the brothers by first name.
creditable evidence existed that the decedent made a
valid inter vivos gift of the . . . property.


The attempted transfer of the . . . property from the
decedent to [Michael] was constructive fraud because
it was without consideration eleven days after the entry
of a judgment against the decedent, which rendered him
insolvent, and only two and a half months before he
filed for bankruptcy.


The [judge] erred in entering [s]ummary [j]udgment in
favor of [Michael] where no discovery had been
permitted on the validity of the [d]ecedent’s alleged
inter                    vivos                   gift.


The [judge] erred when [he] entered summary judgment
in favor of [Michael] where issues of material fact
remain in dispute as to the validity of the decedent’s
alleged inter vivos gift.


The [judge] erred in granting summary judgment by
weighing the parties' competing [a]ffidavits and
making premature findings of fact and credibility


The [judge] erred in holding that [Peter] lacked
standing to challenge the 2009 [t]ransfer of the . . .



The [judge] erred by finding that the statute of
limitations barred [Peter] from challenging the 2009
Deed as a fraudulent transfer of the . . . property.


The [judge] erred when it ruled on the [c]ross-[m]otions
for [s]ummary [j]udgment without ruling on [Peter's]
August 7, 2017 [m]otion to [d]isqualify [Michael's trial
counsel], and to [a]ppoint an [a]dministrator [a]d


The [judge] erred when it failed to disqualify [Michael's
trial counsel] from representing . . . Michael . . . due to
a conflict of interest created by their prior
representation of the decedent on the identical issue of
ownership of the . . . property.


The [judge] erred when [he] failed to recognize the
[e]xecutor’s personal conflict of interest and appoint a
temporary fiduciary to protect the interests of the
decedent's [e]state.


Executor is barred by judicial estoppel from denying
the decedent owned the . . . property due to the
decedent's statements of ownership made to and relied
upon by the [b]ankruptcy [c]ourt in discharging his


      We review de novo orders granting summary judgment and apply the same

standard that governed the trial court's ruling. Lee v. Brown, 232 N.J. 114, 126

(2018). Summary judgment will be granted if, viewing the evidence in the light

most favorable to the non-moving party, "there is no genuine issue of material

fact and 'the moving party is entitled to a judgment or order as a matter of law.'"

Conley v. Guerrero, 228 N.J. 339, 346 (2017) (quoting Templo Fuente De Vida

Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)); R.


      Decedent and his wife, who predeceased him, owned the property since

1992. On October 16, 2009, an unrelated civil judgment was entered against

decedent for roughly $3.7 million dollars. Eleven days later, decedent allegedly

executed a gift deed transferring the property to Michael. The instrument,

however, referred to the wrong address for the property. On November 9, 2009,

a city assessor notified decedent that the county clerk's office would not pro cess

the deed until the decedent corrected the address. The deed was never corrected.

      On January 13, 2010, decedent filed a Chapter 11 petition for bankruptcy.

Although it appeared that he had gifted the property to Michael, in the

bankruptcy case the decedent listed the judgment and reported that he owned the

property in fee simple. In his statement of financial affairs, decedent had the

opportunity to disclose whether he made any gifts more than $200 within one

year preceding the filing of the bankruptcy petition. In the "Gift" section of the

statement, decedent responded "none," which raised a further question over

whether he had gifted the property to Michael.

      In March 2010, the bankruptcy court approved a settlement, which

resolved the civil judgment and recorded the mortgage on the subject property

as satisfied. In December 2010, decedent filed an amended Chapter 11 plan and

disclosure statement, which reiterated his ownership interest in the property. In

January 2011, the bankruptcy court discharged the petition.            Thereafter,

decedent continued making various payments for the property until he passed

away in December 2015. In his Will, decedent left his entire estate to his

children in "equal shares."

      In addition to taking responsibility for the expenses related to the property

after January 2011 (mortgage payments, taxes, utilities, and maintenance),

decedent represented to several people that he owned the property. Indeed, his

daughter—who is not a party to the litigation—certified that he referred to the

property as "his house," that he never indicated that it belonged to Michael, and

that he stated that the property was to be enjoyed by "all of his children, as a

family." And importantly, the daughter recalled the decedent explicitly telling

her that Michael "did not own the property."

      After the decedent's death in December 2015, the executor attempted to

correct the deficiency of the October 2009 gift deed of the property to Michael.

Along those lines, the executor prepared a "Deed of Correction" dated February

1, 2016. The instrument referred to a purported "mutual mistake in the legal

description" of the property. Peter certified that he learned about this in June

2016, and by filing this complaint, he disputed any suggestion that decedent

gifted the property to Michael.

      In granting summary judgment to Michael, the judge found decedent

intended to gift the property to Michael. He accepted Michael's certification

that the decedent assumed the upkeep expenses on the property to "express

gratitude" for Michael's use of the property and to prove Peter knew Michael

used the property before the decedent's death. The judge also accepted Michael's

certification that the decedent intended each son to have "one of the two family

properties." Peter disputed these allegations, which highlighted whether the

decedent intended to gift the property.

      Of course, ownership of real property is transferred by deed. N.J.S.A.

46:3-13; see also H.K. v. State, Dep't of Human Servs., Div. of Med. Assistance

& Health Servs., 184 N.J. 367, 382 (2005) (setting forth the specifics of such a

transfer). But "[w]hether delivery and acceptance [of a deed] have taken place

. . . is a matter of intention." Ibid. (first and third alteration in original) (quoting

Dautel Builders v. Borough of Franklin, 11 N.J. Tax 353, 357 (1990)). "If there

is physical delivery without the requisite intent that the deed be presently

effective as a conveyance of the grantor's title, there is, in legal contemplation,

no delivery." Ibid. (citation omitted). Although the deed does not need to be

recorded to pass title, Tobar Constr. Co. v. R.C.P. Assocs., 293 N.J. Super. 409,

413 (App. Div. 1996), delivery of the deed can be shown by "[a]nything that

clearly manifests the grantor's intention that the deed become immediately

operative and that the grantee become the owner of the estate purportedly

conveyed[.]" Dautel Builders, 11 N.J. Tax at 357.

      Pertinent to the factual issue here, for a gift to be valid and irrevocable

there must be "donative intent; that is, 'the donor must possess the intent to

give.'" Bhagat v. Bhagat, 217 N.J. 22, 40 (2014) (explaining there must be actual

or constructive delivery, donative intent by the grantor, and valid acceptance by

the grantee) (quoting Pascale v. Pascale, 113 N.J. 20, 29 (1988)). There are

numerous instances in the record that call into question the decedent's delive ry,

donative intent, and his intention to "absolutely and irrevocably relinquish

'ownership and dominion over the subject matter of the gift, at least to the extent

practicable or possible, considering the nature of the articles to be given.'"

Bhagat, 217 N.J. at 40.

      For example, the decedent claimed ownership of the property in

bankruptcy, which occurred several months after the purported deed transfer.

Peter asserts that if the decedent intended to gift the property to Michael, he

would have not listed the property in his bankruptcy acknowledgements. Peter

contends that the decedent would not have indicated "none" in the section titled

"Gifts." Notably, after the alleged transfer to Michael in 2009, the decedent

represented himself as the owner of the property on forms addressed to the

condominium association, the City, and forms signed by the decedent to

commence construction on the property.

      Moreover, there are several certifications (other than Peter's) that further

question whether the decedent possessed the requisite intent. The daughter

certified the property was shared family property, the decedent repeatedly

encouraged her to visit, and the decedent told her "Michael did not own the

property." John Huffman, who served as decedent's accountant until his death,

certified that the decedent "always represented to me that he was the owner of

the [property]. I had no reason to believe [the decedent] did not own this

property until after his death." The accountant also recalled decedent "claimed

deductions on his tax returns for the property taxes he paid on the [subject


      Finally, the decedent's Will underscores that the parties genuinely dispute

whether the decedent possessed the donative intent to gift the property to

Michael.      Decedent's Will makes no specific bequests of personal or real

property. Rather, the Will demonstrates an intent to split the decedent's estate

equally among decedent's children, evidenced by the bequest: "I give, devise

and bequeath my entire estate to my son, Peter Pietrangelo; my daughter, Dina

Pietrangelo; and my son, Michael Pietrangelo – in equal shares."


      Peter's remaining arguments are without sufficient merit to warrant

discussion in a written opinion, R. 2:11-3(e)(1)(E), or are moot in light of our

reversal of summary judgment and remand for a trial. We add the following

brief remarks.

      Peter is not challenging the decedent's Will on this appeal. To the extent

that he argues the decedent's conveyance of the property was fraudulent under

the Uniform Fraudulent Transfer Act (UFTA), N.J.S.A. 25:2-20 to -34, we agree

with the judge that Peter lacks standing because he is not a "creditor." "The

UFTA was designed as a vehicle by which creditors may recover from debtors

and others who hinder their collection efforts." Banco Popular N. Am. v. Gandi,

184 N.J. 161, 177 (2005). A creditor is a person "with a claim." N.J.S.A. 25:2-

21. A claim means "a right to payment, whether or not the right is reduced to

judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,

disputed, undisputed, legal, equitable, secured, or unsecured." Ibid. Peter has

no "claim" to the property. He has a financial interest in the property as a

purported beneficiary, but such an interest is different than a "claim" under the


      Peter's contention that Michael's trial counsel had a conflict of interest

appears to be moot since different lawyers represent Michael on this appeal. The

judge denied Peter's motion for disqualification of Michael's trial counsel—not

on the merits— because Peter sought that particular relief as part of his motion

for reconsideration, which was out of time, and because the judge had granted

summary judgment to Michael. On remand, if Michael's trial counsel resumes

his legal representation, we direct the judge to address Peter's disqualification

motion on the merits.

      We leave the details of the remand proceedings to the judge. The parties,

however, are not precluded from raising any and all contentions as to the

decedent's purported donative intent, including the doctrine of judicial estoppel

if appropriate.

      Reversed and remanded for trial. We do not retain jurisdiction.

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