December 29, 2009
VERONICA POKU, MOTHER OF RICHARD PEPRAH, PLAINTIFF-APPELLANT,
TRANSAMERICA ANNUITY SERVICE CORPORATION, THE ESTATE OF RICHARD PEPRAH AND ABIGAIL PEPRAH, DEFENDANTS, AND IRIS C. PEPRAH, (HOME HEALTH AIDE), EXECUTRIX, AND ERNESTINA PEPRAH TIEKU, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Middlesex County, Docket No. L-7869-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 14, 2009
Before Judges Lisa and Baxter.
Plaintiff Veronica Poku appeals from a March 6, 2009 order that granted defendant Iris Peprah's motion for summary judgment.*fn1 We reject plaintiff's claim that she is entitled to reversal of the unopposed order in question, and affirm.
The record on appeal is sparse; however, as we understand the record, plaintiff brought this action to challenge the last will and testament left by her son Richard Peprah, as well as Richard's transfer of ownership of his home to his wife, defendant Iris Peprah. Plaintiff frames her single issue on appeal in the following terms: "Plaintiff having power of attorney has the right to decide how to mandge [sic] Richard Peprah's assets and therefore should not be den[ied] the right of claim to all assets belonging to Richard Peprah."
Richard was severely injured in an automobile accident on April 22, 1989. A neurological assessment prepared by Stewart G. Mendelson, M.D. on January 21, 1992, describes the injuries Richard sustained in the accident as including a subdural hematoma, mid-brain hemorrhage, damage to his liver and spleen and pronounced right-side weakness. Dr. Mendelson concluded that Richard "suffered a severe closed head injury" as a result of the accident that left him "presently with 'cognitive deficits.'" Dr. Mendelson also made a series of neurological findings, but because those findings are not relevant to the issue before us, we do not discuss them.
Approximately five years after the motor vehicle accident, Richard granted plaintiff a power of attorney, which authorized her to act in his stead in any transactions involving real estate, estate matters, banking, and the handling of any personal property. Three years later, on November 24, 1997, Richard executed a last will and testament leaving his entire estate to his two children.
On May 31, 2000, Richard married Iris in a ceremony performed by a municipal court judge in Woodbridge. According to plaintiff, she was not aware of her son's marriage to Iris until after his death. When Richard died, his 1997 Will was admitted to probate.
Without any evidentiary support, plaintiff maintains that Iris, who was her son's home health aide, conspired with plaintiff's daughter Ernestina to transfer title of Richard's home to Iris. Plaintiff also maintains that the Will leaving all of Richard's property to his children was forged. Last, she contends "the wife is not a legitimate wife" because Richard married her while he lacked mental capacity to form the intent to marry.
When asked at appellate oral argument what documentary or other proofs supported her claims of forgery, lack of mental capacity and undue influence, plaintiff pointed solely to Mendelson's January 21, 1992 report. Even if that 1992 report had a legitimate bearing on Richard's mental capacity when he executed the Will in 1997 or married Iris in 2000, which we doubt, plaintiff did not present Mendelson's report to the judge at the time Iris filed the motion for summary judgment that is the subject of this appeal.
Indeed, plaintiff submitted no opposition at all to Iris's motion for summary judgment and Judge Currier stamped the motion "unopposed." At appellate oral argument, counsel for Iris advised us that he served the motion for summary judgment on the attorney who represented plaintiff, Edward Osei, who did not file any opposition. Plaintiff did not contradict counsel's assertions.*fn2 Plaintiff filed no opposition to the motion, and therefore we reject her effort now to reopen a summary judgment motion to which she had every opportunity to respond at the time the motion was before Judge Currier. We have been presented with no basis, meritorious or otherwise, to excuse plaintiff's failure to respond to that motion when she had the opportunity to do so. We thus affirm the entry of the order under review.