Opinion
November 14, 1988
Appeal from the Surrogate's Court, Suffolk County (Signorelli, S.).
Ordered that the appeal from the order dated December 18, 1985 is dismissed; and it is further,
Ordered that the appeals from the purported orders of May 15, 1986 are dismissed; and it is further,
Ordered that the decree is affirmed insofar as appealed from; and it is further,
Ordered that the respondent is awarded one bill of costs, payable by Arthur Kurtz personally.
The appeal from the order dated December 18, 1985 must be dismissed because the right of direct appeal therefrom terminated with the entry of the decree in the proceeding (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from that order are brought up for review and have been considered on the appeal from the decree (CPLR 5501 [a] [1]).
The appeal from the purported orders made May 15, 1986 must be dismissed because no appeal lies from oral rulings made in the course of a trial (see, Katz v. Katz, 68 A.D.2d 536).
Mary Kurtz died intestate on May 5, 1984, leaving three sons, Robert, Anthony and Arthur. Following the death of Mary's husband in 1974 she was left an intestate estate of approximately $90,000. The three sons had renounced their intestate shares of their father's estate and Mary utilized these funds to purchase a condominium in 1974 for $32,000. Each of the sons held a $7,000 bond in the joint names of themselves and Mary and it was agreed that Mary was to receive the monthly income of approximately $150 from these bonds. Immediately following his father's death, Robert visited extensively with Mary and helped her with financial planning until 1979, when this no longer was feasible due to his change in employment. Arthur then accepted the responsibility of looking after Mary's financial needs. In 1977, Mary left her clerical job at a small electronics firm to baby-sit for Arthur's two preschool children. For this she initially received $50 per week and later $60 per week from Arthur. It is noteworthy that Mary left her job at the electronics factory where she had worked for 17 or 18 years approximately 18 months before her 62nd birthday, when she would have been entitled to a substantially larger pension than she actually received from the company.
At the hearing, Arthur testified that in 1979 Mary was concerned about money so he offered to purchase the condominium from her for $20,000, which was approximately one half its value. In addition, Arthur alleged that he had orally agreed that Mary could live in the condominium rent free for the rest of her life and that he would pay the carrying charges. The legal transfer of title to the condominium was effected by an attorney who was Arthur's childhood friend and who was paid by Arthur. It is undisputed that Mary did not have independent counsel and there was no writing evidencing any intent that Mary would retain a life estate in the transferred property.
Contrary to Arthur's contention on appeal, his pretrial motion for summary judgment seeking to dismiss the proceeding was properly denied. The issues of undue influence and/or fraud on his part were properly submitted to the jury (see, Matter of Bach, 133 A.D.2d 455; Matter of Burke, 82 A.D.2d 260).
Further, our review of the record indicates that the jury verdict was supported by legally sufficient evidence and that it was not against the weight of the credible evidence. In view of the confidential relationship between Arthur and Mary, Arthur had the burden of establishing that his agreement with Mary was not the product of fraud or undue influence (see, Matter of Gordon v Bialystoker Center Bikur Cholim, 45 N.Y.2d 692, 698-699; see also, Matter of Anrig, 73 A.D.2d 947). We find that under the circumstances, the jury could reasonably find that Arthur had failed to prove that the transfer of the condominium was freely, voluntarily and knowingly agreed to by his mother, without any undue influence on his part. Mangano, J.P., Lawrence, Spatt and Harwood, JJ., concur.