Campbell v Campbell

2008 NY Slip Op 02949 [50 AD3d 614]

April 1, 2008

Appellate Division, Second Department

As corrected through Wednesday, June 18, 2008

Edward F. Campbell et al., Respondents, v Edward F.Campbell, Jr., et al., Appellants.

—[*1]Rivkin Radler, LLP, Uniondale, N.Y. (Evan H. Krinick and Cheryl F. Korman ofcounsel), for appellants.

James D. Reddy, Lindenhurst, N.Y., for respondents.

In an action, inter alia, to set aside a deed conveying real property on the ground of undueinfluence and for a judgment declaring the deed invalid, the defendants appeal, as limited by theirbrief, from so much of a judgment of the Supreme Court, Suffolk County (Baisley, Jr., J.), datedApril 20, 2006, as, after a nonjury trial, annulled the conveyance, declared the deed invalid, anddirected that it be cancelled.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

In reviewing findings made following a nonjury trial, this Court may render the judgment itfinds warranted by the facts, taking account in a close case the fact that the trial judge had theadvantage of seeing the witnesses (see Northern Westchester Professional Park Assoc. vTown of Bedford, 60 NY2d 492, 499 [1983]; Melius v Breslin, 46 AD3d 524, 525 [2007]; Man Choi Chiu v Chiu, 38 AD3d619, 620 [2007]). In light of the trial court's opportunity to hear and evaluate the credibilityof the conflicting testimony as to the determinative issues, we find no reason to disturb itsdetermination that a confidential relationship existed between the parties and that the defendantsfailed to prove by clear evidence that the transaction was fair, open, voluntary, and wellunderstood, and therefore free from undue influence (see Matter of Gordon v Bialystoker Ctr.& Bikur Cholim, 45 NY2d 692, 698-699 [1978]). Fisher, J.P., Angiolillo, Balkin andLeventhal, JJ., concur. [See 12 Misc 3d 1151(A), 2006 NY Slip Op 50850(U).]