Opinion
March 1, 1993
Appeal from the Supreme Court, Queens County (Kassoff, J.).
Ordered that the judgment entered April 29, 1991, the order and judgment dated June 18, 1991, and the order dated November 4, 1991, are affirmed; and it is further,
Ordered that the appeal from the order and judgment (one paper) dated June 24, 1992, is dismissed; and it is further,
Ordered that the petitioner is awarded one bill of costs payable by Irving Levine and Betty Allen; and it is further,
Ordered that the respondent Allen J. Kirschner is awarded one separate bill of costs payable by Irving Levine.
The various orders and judgments presented for our review on these appeals were all made during the course of a conservatorship proceeding and the subsequent proceeding brought by the conservator to invalidate a trust agreement entered into by the conservatee, after the commencement of the conservatorship proceeding but prior to the judgment appointing a conservator.
The question of the propriety of the appointment of a conservator is not before us since this Court has previously dismissed the appeal from the judgment dated December 18, 1990, appointing a conservator, for failure to timely prosecute the appeal. Furthermore, any other issue which could have been raised on that appeal is not properly before this Court on these appeals (see, Bray v. Cox, 38 N.Y.2d 350, 353, 354; Matter of Smith v. McManus Sons, 101 A.D.2d 890; see also, Montalvo v. Nel Taxi Corp., 114 A.D.2d 494).
The instant appeals center upon the determination of the trial court (Nahman, J.), to invalidate the trust instrument executed by the conservatee and making her sister, Betty Allen, trustee and their attorney-brother "consultant", on the ground of, inter alia, undue influence.
The primary contentions of the appellants are that the court applied the wrong burden of proof at the trial of the conservator's claims against them. We hold that this was not the case. On the contrary, the court correctly held that, given the special relationship between the appellants and the conservatee, who is the appellants' sister, the nature of the transaction, and the positions occupied by the appellants vis-a-vis the trust instrument, by operation of law the burden shifted to the appellants to establish that they had not exerted undue influence upon the conservatee in order to obtain her execution of the trust agreement, namely, that "no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood" (Matter of Gordon v. Bialystoker Ctr. Bikur Cholim, 45 N.Y.2d 692, 699; Cowee v. Cornell, 75 N.Y. 91, 99-101; see also, Matter of Paul, 105 A.D.2d 928, 929-930). Insufficient evidence was adduced by the appellants at the nonjury trial to rebut this presumption. Therefore, the trial court properly voided the trust by virtue of the constructive fraud of the appellants.
The appellants also seek review in this Court, pursuant to 22 NYCRR 670.15, of an order and judgment awarding, after a hearing, fees and commissions to the former guardian ad litem and attorneys' fees to the conservator's attorneys, payable from the estate of the conservatee. However, none of the parties ever ordered that the minutes of that hearing be transcribed. Accordingly, this order and judgment cannot be reviewed, since the record is insufficient, and the appeal is dismissed for failure to comply with CPLR 5525 (a) (see, Fidelity Bond Mtge. Co. v. Taylor, 129 A.D.2d 765; see also, Matter of Baiko v. Baiko, 141 A.D.2d 635).
We have examined the parties' remaining contentions and find that none require a contrary result. Mangano, P.J., Sullivan, Balletta and O'Brien, JJ., concur.