Opinion
1007 CA 20-00992
12-23-2021
MARY E. DURKIN, AS ADMINISTRATOR OF THE ESTATE OF HENRY L. REED, DECEASED, PLAINTIFF-APPELLANT, v. JOHN PETRIE, DEFENDANT-RESPONDENT.
FRANK A. ALOI, ROCHESTER, FOR PLAINTIFF-APPELLANT. THE LAMA LAW FIRM, LLP, ITHACA (CIANO J. LAMA OF COUNSEL), FOR DEFENDANT-RESPONDENT.
FRANK A. ALOI, ROCHESTER, FOR PLAINTIFF-APPELLANT.
THE LAMA LAW FIRM, LLP, ITHACA (CIANO J. LAMA OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
Appeal from an order of the Supreme Court, Steuben County (Patrick F. McAllister, A.J.), entered June 25, 2020. The order granted the motion of defendant for summary judgment dismissing the amended complaint.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff, as administrator of the estate of Henry L. Reed (decedent), commenced this action seeking, inter alia, a determination that a deed executed by decedent prior to his death, which conveyed decedent's interest in certain real property to defendant, was void ab initio based upon decedent's incompetence. Defendant moved for summary judgment dismissing the amended complaint. Supreme Court granted the motion, and we now affirm.
Plaintiff does not dispute that defendant met his initial burden on the motion and, contrary to plaintiff's contention, we conclude that she failed to raise a triable issue of fact in opposition (see generally Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). It is well settled that" '[a] party's competence is presumed and the party asserting incapacity bears the burden of proving incompetence'" (Crawn v Sayah, 31 A.D.3d 367, 368 [2d Dept 2006]; see Matter of Mildred M.J., 43 A.D.3d 1391, 1392 [4th Dept 2007]). "A person is incompetent to authorize a transaction only if the person's mind was so affected as to render him [or her] wholly and absolutely incompetent to comprehend and understand the nature of the transaction" (Mildred M.J., 43 A.D.3d at 1392 [internal quotation marks omitted]). Here, in opposition to the motion, plaintiff failed to raise a triable issue of fact with respect to decedent's mental capacity on the day that he signed the deed (see Crawn, 31 A.D.3d at 368). Although plaintiff submitted various medical records showing that decedent had moments of confusion, such confusion does not create a presumption of incompetence or otherwise rebut the presumption of competence (see Mildred M.J., 43 A.D.3d at 1392; Feiden v Feiden, 151 A.D.2d 889, 890 [3d Dept 1989]). Indeed, the record is devoid of evidence that, "because of the affliction, [decedent] was incompetent at the time of the challenged transaction" (Mildred M.J., 43 A.D.3d at 1392 [internal quotation marks omitted]).
We have reviewed plaintiff's remaining contentions and conclude that they are without merit.