Juliano v. Juliano

7 Citing cases

  1. Venezia v. Greenbaum

    2024 N.Y. Slip Op. 2079 (N.Y. App. Div. 2024)

    "An inter vivos gift requires that the donor intend to make an irrevocable present transfer of ownership; if the intention is to make a testamentary disposition effective only after death, the gift is invalid unless made by will" (Juliano v Juliano, 145 A.D.3d 983, 984 [internal quotation marks omitted]). "[T]he court, in determining the intent of a grantor of an inter vivos trust, must look to the words used in the trust instrument and, once it is determined, must effectuate that intent" (Sankel v Spector, 33 A.D.3d 167, 171; see Mercury Bay Boating Club v San Diego Yacht Club, 76 N.Y.2d 256, 267). Moreover, "[a]n irrevocable trust may not be cancelled except upon proof of the settlor's misunderstanding of the nature of the instrument" (Kreindler v Irving Trust Co., 26 A.D.2d 746, 747, affd 23 N.Y.2d 785; see Matter of Guest [Bessemer Trust Co.], 286 A.D. 870, 870, affd 309 NY 875).

  2. Monaco v. Harmel

    218 A.D.3d 672 (N.Y. App. Div. 2023)

    "The elements necessary for a valid inter vivos gift are (1) intent of the donor to make an irrevocable present transfer of ownership; (2) physical or constructive delivery, sufficient to divest the donor of dominion and control over the property; and (3) acceptance of the gift by the donee" (Lurie v Lurie, 200 A.D.3d 669, 670; see Gruen v Gruen, 68 N.Y.2d 48, 53). "'An inter vivos gift requires that the donor intend to make an irrevocable present transfer of ownership'" (Juliano v Juliano, 145 A.D.3d 983, 984, quoting Gruen v Gruen, 68 N.Y.2d at 53). Here, it is undisputed that the stock certificate was not intended to make an irrevocable present transfer of ownership.

  3. Katz v. Fuchs (In re Katz)

    2017 N.Y. Slip Op. 6945 (N.Y. App. Div. 2017)

    The elements of a valid inter vivos gift are an "intent on the part of the donor to make a present transfer; delivery of the gift, either actual or constructive to the donee; and acceptance by the donee" (Gruen v Gruen, 68 NY2d 48, 53; see McCarthy v Kaminski, 131 AD3d 950). " An inter vivos gift requires that the donor intend to make an irrevocable present transfer of ownership'" (Juliano v Juliano, 145 AD3d 983, 984, quoting Gruen v Gruen, 68 NY2d at 53; see Hom v Hom, 101 AD3d 816, 817-818). "A deed is presumed to have been delivered and accepted at its date,' although the presumption must yield to opposing evidence" (Matter of Humann, 136 AD3d 1036, quoting M & T Real Estate Trust v Doyle, 20 NY3d 563, 568).

  4. In re Katz

    154 A.D.3d 687 (N.Y. App. Div. 2017)   Cited 6 times

    The elements of a valid inter vivos gift are an "intent on the part of the donor to make a present transfer; delivery of the gift, either actual or constructive to the donee; and acceptance by the donee" ( Gruen v. Gruen, 68 N.Y.2d 48, 53, 505 N.Y.S.2d 849, 496 N.E.2d 869 ; see McCarthy v. Kaminski, 131 A.D.3d 950, 15 N.Y.S.3d 892 ). " ‘An inter vivos gift requires that the donor intend to make an irrevocable present transfer of ownership’ " ( Juliano v. Juliano, 145 A.D.3d 983, 984, 44 N.Y.S.3d 482, quoting Gruen v. Gruen, 68 N.Y.2d at 53, 505 N.Y.S.2d 849, 496 N.E.2d 869 ; see Hom v. Hom, 101 A.D.3d 816, 817–818, 955 N.Y.S.2d 630 ). "A deed is presumed to have been ‘delivered and accepted at its date,’ although the presumption must yield to opposing evidence" ( Matter of Humann, 136 A.D.3d 1036, 26 N.Y.S.3d 304, quoting M&T Real Estate Trust v. Doyle, 20 N.Y.3d 563, 568, 964 N.Y.S.2d 480, 987 N.E.2d 257 ). " ‘[T]he proponent of a gift has the burden of proving each of these elements by clear and convincing evidence’ " ( Ross v. Ross Metals Corp., 87 A.D.3d 573, 575, 928 N.Y.S.2d 327, quoting Gruen v. Gruen, 68 N.Y.2d at 53, 505 N.Y.S.2d 849, 496 N.E.2d 869 ).

  5. Makmudova v. Cohen

    2024 N.Y. Slip Op. 32357 (N.Y. Sup. Ct. 2024)

    Juliano, 145 A.D.3d 983, 984, 44 N.Y.S,3d 482 (2nd Dept. 2016), quoting Gruenv. Gruen, 68 N.Y.2d at 53, 505 N.Y.S.2d 849, 496 N.E,2d 869. Defendant Cohen had to demonstrate his absolute intent to pass possession of the Property to the Trust.

  6. Kaplan v. DeBlase

    2017 N.Y. Slip Op. 31307 (N.Y. Sup. Ct. 2017)

    Although the plaintiff and defendant are siblings, "the existence of a familial relationship [brothers] is insufficient in itself to create a confidential relationship" (McGregor v McGregor, 55 Misc 3d 586, 592 [Sup Ct, Kings County 2017]). Although defendant may have acted as Abraham's fiduciary as his attorney-in-fact pursuant to a power of attorney, she had no such relationship with plaintiff, thus no basis for seeking an order directing defendant to account to plaintiff has been alleged (Juliano v Juliano, 42 Misc 3d 1226(A), 2014 NY Slip Op 50205(U) [Sup Ct, Kings County 2014], affd 145 AD3d 983 [2d Dept 2016]). For this same reason, the complaint fails to state a cause of action for a constructive trust, which also requires the existence of a confidential or fiduciary relationship between the parties (Neos v Neos, 262 AD2d 467, 468 [2d Dept 1999]).

  7. Kaplan v. DeBlase

    2017 N.Y. Slip Op. 31321 (N.Y. Sup. Ct. 2017)

    Although the plaintiff and defendant are siblings, "the existence of a familial relationship [brothers] is insufficient in itself to create a confidential relationship" (McGregor v McGregor, 55 Misc 3d 586, 592 [Sup Ct, Kings County 2017]). Although defendant may have acted as Abraham's fiduciary as his attorney-in-fact pursuant to a power of attorney, she had no such relationship with plaintiff, thus no basis for seeking an order directing defendant to account to plaintiff has been alleged (Juliano v Juliano, 42 Misc 3d 1226(A), 2014 NY Slip Op 50205(U) [Sup Ct, Kings County 2014], affd 145 AD3d 983 [2d Dept 2016]). For this same reason, the complaint fails to state a cause of action for a constructive trust, which also requires the existence of a confidential or fiduciary relationship between the parties (Neos v Neos, 262 AD2d 467, 468 [2d Dept 1999]).