| Gonzalez v Cirri |
| 2008 NY Slip Op 08453 [56 AD3d 425] |
| November 5, 2008 |
| Appellate Division, Second Department |
| Maria Gonzalez, Appellant, v John Cirri et al.,Respondents. |
—[*1]
In an action, inter alia, for specific performance of a contract for the sale of real property, theplaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, QueensCounty (Satterfield, J.), entered August 23, 2007, as granted that branch of the defendants'motion which was to vacate an order and judgment (one paper) of the same court entered April27, 2006, which, after an inquest, among other things, directed specific performance of thecontract.
Ordered that the order entered August 23, 2007 is reversed insofar as appealed from, on thelaw, with costs, and that branch of the defendants' motion which was to vacate the order andjudgment entered April 27, 2006 is denied.
The Supreme Court erred in granting that branch of the defendants' motion which was tovacate the order and judgment entered April 27, 2006 upon the default of the decedent RosalieCirri and the defendant Frank Cirri, Sr., inter alia, directing specific performance of a contract forthe sale of real property. The defendants failed to meet their burden of demonstrating, bycompetent admissible medical evidence, that the decedent Rosalie Cirri was incapable ofprotecting her rights at the time the action was commenced and at the time that the order andjudgment was entered (see CPLR 1203; Mohrmann v Lynch-Mohrmann, 24 AD3d 735, 736 [2005];Matter of Forte v Forte, 304 AD2d 577 [2003]; Urban Pathways v Lublin, 227AD2d 186 [1996]). Nor was there any evidence that the plaintiff had notice that the decedent wasunder any mental disability (cf. Matterof Fischer v Fischer, 21 AD3d 554, 555 [2005]; State of New York v Kama, 267AD2d 225, 226 [1999]; Sarfaty v Sarfaty, 83 AD2d 748, 749 [1981]) or that the plaintiffactively concealed any possible mental disability with which the decedent may have beenafflicted (see Matter of Forte v Forte, 304 AD2d 577 [2003]; Urban Pathways vLublin, [*2]227 AD2d 186 [1996]). Spolzino, J.P., Santucci,Miller, Dickerson and Eng, JJ., concur.