Opinion
145 CA 21-00571
07-08-2022
In the Matter of Robert W. HURLBUT, Petitioner-Respondent, v. LEO M. BEAN FUNERAL HOME, INC., Doing Business as Leo M. Bean and Sons Funeral Home, Respondent, and Christine Owen, Respondent-Appellant.
HARRIS BEACH, PLLC, PITTSFORD (KYLE D. GOOCH OF COUNSEL), FOR RESPONDENT-APPELLANT. LAW OFFICES OF PULLANO & FARROW PLLC, ROCHESTER (MALLORY K. SMITH OF COUNSEL), FOR PETITIONER-RESPONDENT.
HARRIS BEACH, PLLC, PITTSFORD (KYLE D. GOOCH OF COUNSEL), FOR RESPONDENT-APPELLANT.
LAW OFFICES OF PULLANO & FARROW PLLC, ROCHESTER (MALLORY K. SMITH OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs and the petition against respondent Christine Owen is dismissed.
Memorandum: Petitioner commenced this proceeding pursuant to Public Health Law § 4201 seeking a determination with respect to the disposition of the remains of his deceased mother (decedent), who was also the mother of Christine Owen (respondent). After respondent filed an answer and objections in point of law, Supreme Court (Piampiano, J.) determined that there was an issue of fact requiring a fact-finding hearing, i.e., with respect to whether the decedent had the requisite mental capacity in September 2017 to execute a document designating respondent as her agent to control the disposition of her remains. Respondent thereafter filed a motion seeking, inter alia, leave to reargue and renew with respect to that determination and dismissal of the petition. Respondent now appeals from an order (Doyle, J.) that, inter alia, granted her motion insofar as it sought leave to reargue and renew and, upon reargument and renewal, adhered to the prior determination of the court.
We agree with respondent that the court, upon reargument and renewal, should have dismissed the petition against her. "Every dispute relating to the disposition of the remains of a decedent shall be resolved ... pursuant to a special proceeding" ( Public Health Law § 4201 [8] ). Upon the return date of the petition in a special proceeding, "[t]he court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised," and "may make any orders permitted on a motion for summary judgment" ( CPLR 409 [b] ; see Matter of Izzo v. Lynn , 271 A.D.2d 801, 802, 706 N.Y.S.2d 918 [3d Dept. 2000] ). "[E]very hearing of a special proceeding is equivalent to the hearing of a motion for summary judgment" ( Matter of Buckley v. Zoning Bd. of Appeals of City of Geneva , 189 A.D.3d 2080, 2081, 139 N.Y.S.3d 732 [4th Dept. 2020] [internal quotation marks omitted]). Furthermore, as relevant here, "[t]he burden of proving mental incompetence is on the party asserting it" ( Smith v. Comas , 173 A.D.2d 535, 535, 570 N.Y.S.2d 135 [2d Dept. 1991], lv denied 80 N.Y.2d 754, 587 N.Y.S.2d 906, 600 N.E.2d 633 [1992] ; see Matter of Rose S. , 293 A.D.2d 619, 620, 741 N.Y.S.2d 84 [2d Dept. 2002] ). Even assuming, arguendo, that the heightened contractual capacity standard is applicable in this case (cf. Matter of Alibrandi , 104 A.D.3d 1175, 1175-1176, 960 N.Y.S.2d 760 [4th Dept. 2013] ; see generally Rose S. , 293 A.D.2d at 620, 741 N.Y.S.2d 84 ; Smith , 173 A.D.2d at 535, 570 N.Y.S.2d 135 ), we conclude that petitioner failed to establish that the decedent was incapable "of comprehending and understanding the nature of the transaction at issue" ( Smith , 173 A.D.2d at 535, 570 N.Y.S.2d 135 ; see Wagner v. Wagner , 156 A.D.2d 963, 964, 549 N.Y.S.2d 256 [4th Dept. 1989] ; see generally Ortelere v. Teachers’ Retirement Bd. of City of N.Y. , 25 N.Y.2d 196, 202-203, 303 N.Y.S.2d 362, 250 N.E.2d 460 [1969] ). Although petitioner submitted evidence establishing that the decedent had been diagnosed with dementia in 2014, "there is no presumption that a person suffering from dementia is wholly incompetent" ( Matter of Mildred M.J. , 43 A.D.3d 1391, 1392, 844 N.Y.S.2d 539 [4th Dept. 2007] ; see also Alibrandi , 104 A.D.3d at 1175-1176, 960 N.Y.S.2d 760 ). "Rather, it must be demonstrated that, because of the affliction , the individual was incompetent at the time of the challenged transaction" ( Mildred M.J. , 43 A.D.3d at 1392, 844 N.Y.S.2d 539 [emphasis added and internal quotation marks omitted]; Matter of Waldron , 240 A.D.2d 507, 508, 659 N.Y.S.2d 290 [2d Dept. 1997] ). Here, petitioner failed to set forth any evidence that the decedent was without capacity to execute the designating document in September 2017 (see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ; Feldmeier v. Feldmeier Equip., Inc. , 164 A.D.3d 1093, 1097, 84 N.Y.S.3d 609 [4th Dept. 2018] ).
We further agree with respondent that the court erred in refusing to summarily dismiss petitioner's claim of undue influence. "With respect to undue influence, the burden of proof generally lies with the party asserting undue influence" ( Matter of DelGatto , 98 A.D.3d 975, 977, 950 N.Y.S.2d 738 [2d Dept. 2012] ). Here, petitioner failed to establish that a confidential relationship existed (see Mildred M.J. , 43 A.D.3d at 1393, 844 N.Y.S.2d 539 ; see also Matter of Kotsones , 185 A.D.3d 1473, 1475, 128 N.Y.S.3d 714 [4th Dept. 2020], affd 37 N.Y.3d 1154, 160 N.Y.S.3d 192, 181 N.E.3d 547 [2022] ). Further, petitioner failed to establish that respondent's alleged influence "amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the [decedent] to do that which was against [her] free will and desire, but which [she] was unable to refuse or too weak to resist" ( Matter of Bush , 85 A.D.2d 887, 888-889, 446 N.Y.S.2d 759 [4th Dept. 1981] [internal quotation marks omitted]). We therefore reverse the order insofar as appealed from and dismiss the petition against respondent.