Opinion
2020–04793 Index No. 18411/12
08-16-2023
Richard CRAWFORD, etc., appellant, v. Kenneth SMITH, respondent.
Law Office of Thomas R. Villecco, P.C., Jericho, NY, for appellant. Law Firm of Gary N. Weintraub, P.C., Greenlawn, NY, for respondent.
Law Office of Thomas R. Villecco, P.C., Jericho, NY, for appellant.
Law Firm of Gary N. Weintraub, P.C., Greenlawn, NY, for respondent.
BETSY BARROS, J.P., JOSEPH J. MALTESE, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.
DECISION & ORDER In an action, inter alia, for a judgment declaring that a certain deed is invalid, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Martha L. Luft, J.), dated February 19, 2020. The judgment, upon a decision of the same court dated January 6, 2020, made after a nonjury trial, is in favor of the defendant and against the plaintiff, in effect, dismissing the third through fifth causes of action in the complaint and declaring that the subject deed is valid and that the defendant is the fee owner of the subject real property.
ORDERED that the judgment is affirmed, with costs.
The plaintiff commenced this action against his brother, the defendant, alleging, inter alia, that a deed purportedly conveying certain real property from the parties’ mother (hereinafter the decedent) to the defendant was procured by fraud and undue influence. The decedent died prior to the commencement of this action. The deed purportedly conveyed a fee interest in the subject real property to the defendant, subject to retention by the decedent of a life estate in the property. After certain motion practice, the first cause of action, sounding in conversion, was dismissed (see Crawford v. Smith, 130 A.D.3d 968, 14 N.Y.S.3d 474 ).
The action proceeded to a nonjury trial on the remaining causes of action. The plaintiff sought to prove that the decedent was mentally incompetent at the time she executed the subject deed and/or that the defendant had exercised undue influence over her to procure the subject deed. In a decision after trial dated January 6, 2020, the Supreme Court determined that the plaintiff had failed to establish that the decedent was mentally incompetent at the time she executed the subject deed or that the defendant had exercised undue influence over her to procure the subject deed. Thereafter, the court issued a judgment dated February 19, 2020, in favor of the defendant and against the plaintiff, in effect, dismissing the third through fifth causes of action in the complaint and declaring that the subject deed is valid and that the defendant is the fee owner of the subject real property. The plaintiff appeals.
A party's competence to transfer property " ‘is presumed and the party asserting incapacity bears the burden of proving incompetence’ " ( Crawn v. Sayah, 31 A.D.3d 367, 368, 819 N.Y.S.2d 61, quoting Feiden v. Feiden, 151 A.D.2d 889, 890, 542 N.Y.S.2d 860 ; see Buckley v. Ritchie Knop, Inc., 40 A.D.3d 794, 795, 838 N.Y.S.2d 84 ). A person suffering from a disease such as Alzheimer's disease is not presumed incompetent and may execute a valid deed (see Buckley v. Ritchie Knop, Inc., 40 A.D.3d at 795, 838 N.Y.S.2d 84 ; Feiden v. Feiden, 151 A.D.2d at 890, 542 N.Y.S.2d 860 ). Under such circumstances, in order to set aside a transfer of property on the ground of lack of capacity, "it must be shown that, because of the affliction, the person was incompetent at the time of the transaction" ( Feiden v. Feiden, 151 A.D.2d at 890, 542 N.Y.S.2d 860 ; see Buckley v. Ritchie Knop, Inc., 40 A.D.3d at 795, 838 N.Y.S.2d 84 ). The relevant "inquiry is whether the person's mind was so affected as to render [them] wholly and absolutely incompetent to comprehend and understand the nature of the transaction" ( Feiden v. Feiden, 151 A.D.2d at 890, 542 N.Y.S.2d 860 [internal quotation marks omitted]; see Buckley v. Ritchie Knop, Inc., 40 A.D.3d at 795, 838 N.Y.S.2d 84 ).
Here, there is no basis to disturb the Supreme Court's determination that the plaintiff failed to establish that the decedent was mentally incompetent at the time she executed the subject deed (see Matter of Nealon, 57 A.D.3d 1325, 1327, 870 N.Y.S.2d 578 ; Smith v. Comas, 173 A.D.2d 535, 535, 570 N.Y.S.2d 135 ; cf. Matter of Nurse, 160 A.D.3d 745, 747, 75 N.Y.S.3d 545 ; Kirshtein v. AmeriCU Credit Union, 83 A.D.3d 153, 158, 919 N.Y.S.2d 653 ; Matter of Rose S., 293 A.D.2d 619, 620–621, 741 N.Y.S.2d 84 ).
To invalidate an instrument on the ground of undue influence, there must be evidence that the influence exerted amounted to a moral coercion that restrained independent action and destroyed free agency or that, by importunity that could not be resisted, constrained a person to do that which was against his or her free will and desire, but which he or she was unable to refuse or too weak to resist (see Matter of Walther, 6 N.Y.2d 49, 53, 188 N.Y.S.2d 168, 159 N.E.2d 665 ; Matter of Nurse, 160 A.D.3d at 748, 75 N.Y.S.3d 545 ). In general, the burden of proving undue influence rests with the party asserting its existence (see Matter of Nurse, 160 A.D.3d at 748, 75 N.Y.S.3d 545 ). However, where "the existence of a confidential relationship is established, the burden shifts to the beneficiary of the transaction to show that the transaction is fair and free from undue influence" ( Matter of Nurse, 160 A.D.3d at 745, 75 N.Y.S.3d 545 ). To demonstrate the existence of a confidential relationship, there must be evidence of circumstances that show inequality or a controlling influence (see Matter of Nurse, 160 A.D.3d at 748, 75 N.Y.S.3d 545 ). A familial relationship alone is not enough to establish the existence of a confidential relationship (see Matter of Marcus Trusts, 297 A.D.2d 683, 684, 747 N.Y.S.2d 187 ; Feiden v. Feiden, 151 A.D.2d at 891, 542 N.Y.S.2d 860 ).
Here, there is no basis to disturb the Supreme Court's determination that the plaintiff failed to demonstrate the existence of a confidential relationship between the decedent and the defendant and otherwise failed to establish that the defendant exercised undue influence over the decedent to procure the subject deed (see Matter of Marcus Trusts, 297 A.D.2d at 684, 747 N.Y.S.2d 187 ; Feiden v. Feiden, 151 A.D.2d at 891, 542 N.Y.S.2d 860 ; see also Matter of Chiurazzi, 296 A.D.2d 406, 407, 744 N.Y.S.2d 507 ; cf. Matter of Nurse, 160 A.D.3d at 748, 75 N.Y.S.3d 545 ; Matter of Neenan, 35 A.D.3d 475, 476, 827 N.Y.S.2d 164 ; Matter of Connelly, 193 A.D.2d 602, 603, 597 N.Y.S.2d 427 ).
BARROS, J.P., MALTESE, FORD and DOWLING, JJ., concur.