| Preshaz v Przyziazniuk |
| 2008 NY Slip Op 04487 [51 AD3d 752] |
| May 13, 2008 |
| Appellate Division, Second Department |
| Lillian Preshaz, Also Known as Roma Preshaz,Respondent, v Eugene Przyziazniuk, Appellant. |
—[*1] Connors and Sullivan, P.C., Brooklyn, N.Y. (Marc J. Monte of counsel), forrespondent.
In an action, inter alia, to cancel a deed and set aside a conveyance of real property, thedefendant appeals, as limited by his brief and a letter dated January 9, 2008, from so much of anorder of the Supreme Court, Queens County (Agate, J.), entered September 7, 2007, as deniedthose branches of his motion which were for summary judgment dismissing the first and secondcauses of action and on the first, second, fourth, and sixth counterclaims.
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the defendant's contention, the Supreme Court properly denied those branches ofhis motion which were for summary judgment dismissing the first and second causes of action toset aside the conveyance based upon the grantor's incompetence and undue influence. "As ageneral rule, a party's competence is presumed, and in order to set aside a transfer of property onthe ground of lack of capacity, it must be established that the party did not understand the natureof the transaction at the time of the conveyance as a result of his or her mental disability" (Buckley v Ritchie Knop, Inc., 40 AD3d794, 795 [2007]; see also Crawn vSayah, 31 AD3d 367, 368 [2006]; Whitehead v Town House Equities, Ltd., 8 AD3d 367, 369 [2004]).
In the instant case, the defendant established, prima facie, his entitlement to judgment as amatter of law based upon the presumption of the grantor's competence and by submitting the[*2]affirmation of the attorney who prepared the deed andwitnessed its execution with a certificate of acknowledgment, establishing that the deed wasproperly executed (see CPLR 4538). In opposition, however, the plaintiff raised a triableissue of fact as to the grantor's incapacity by submitting a certified medical record, together withher deposition testimony and an affidavit containing her firsthand observations of the grantor'sconfusion and lack of judgment due to Alzheimer's disease during the relevant time period(see Buckley v Ritchie Knop, Inc., 40 AD3d at 795; cf. Crawn v Sayah, 31 AD3d 367, 368 [2006]). Moreover, giventhe family relationship between the defendant and the grantor, upon the record presented, theplaintiff's submissions raised triable issues of fact as to whether the defendant, as beneficiary ofthe transaction, procured the transaction through undue influence (see Matter of Gordon vBialystoker Ctr. & Bikur Cholim, 45 NY2d 692, 698 [1978]; Atkinson v McHugh,250 AD2d 560 [1998]; Matter of Bumbaca, 182 AD2d 756, 757 [1992]).
In light of the Supreme Court's proper denial of those branches of the defendant's motionwhich were for summary judgment dismissing the first and second causes of action, thosebranches of the defendant's motion which were for summary judgment on his first, second,fourth, and sixth counterclaims, which required a finding of his lawful ownership of the property,were also properly denied.
The defendant's remaining contentions are without merit. Spolzino, J.P., Balkin, Dickersonand Belen, JJ., concur.