| Matter of Kelligrew |
| 2009 NY Slip Op 05340 [63 AD3d 1064] |
| June 23, 2009 |
| Appellate Division, Second Department |
| In the Matter of Sydna Kelligrew, Also Known as Sydna MarcusKelligrew, Deceased. John R. Kelligrew, Respondent; Alicia Kelligrew et al.,Appellants. |
—[*1] McGovern & Amodio, White Plains, N.Y. (Michael P. Amodio of counsel), forrespondent.
In a turnover proceeding pursuant to SCPA 2103 to recover the proceeds of a check whichallegedly belongs to the decedent's estate, Alicia Kelligrew, Michael Love, and Coffee LabsRoasters, Inc., appeal from a decree of the Surrogate's Court, Westchester County (Scarpino, S.),dated April 21, 2007, which, after a nonjury trial, is in favor of the petitioner and against them inthe principal sum of $195,231.21, plus interest in the sum of $103,168.49, calculated at thestatutory rate of 9% per annum from June 7, 2002.
Ordered that the decree is modified, on the law, by deleting from the first decretal paragraphthereof the words "plus interest at the statutory rate of 9% per annum from June 7, 2002 until thedate of payment (interest is $103,168.49 as of [the] date of this decree)" and substituting thereforthe words "plus interest at the statutory rate of 9% per annum from July 6, 2004, until the date ofpayment thereof"; as so modified, the decree is affirmed, without costs or disbursements, and thematter is remitted to the Surrogate's Court, Westchester County, for the recalculation of interestin accordance herewith and for the entry thereafter of an appropriate amended decree.
The petitioner, John R. Kelligrew—executor of the estate and the surviving spouse ofthe decedent Sydna M. Kelligrew, also known as Sydna Marcus Kelligrew—commencedthis turnover proceeding against their daughter, Alicia Kelligrew (hereinafter Alicia), hercompanion, Michael Love, and the specialty cafÉ which Alicia and Love opened in 2002under the business name of Coffee Lab Roasters, Inc. (hereinafter collectively the appellants).The petitioner sought to recover the proceeds of a check drawn in the sum of $195,231.21, whichhe issued to Alicia on the decedent's behalf on June 7, 2002, to aid Alicia in financing thecafÉ. The check was issued six months prior to the decedent's unexpected death onDecember 4, 2002, and nearly two years before the petitioner commenced this proceeding onJuly 6, 2004. The appellants asserted in their answer, inter alia, that the decedent gave the fundsto Alicia as a completed inter vivos gift.
In a turnover proceeding, the burden of establishing that the property was that of thedecedent rests with the petitioner, and once that burden is met, it shifts to the respondent toestablish that [*2]it was a gift (see Matter of Agrest, 279AD2d 471, 472 [2001]; Semmler v Naples, 166 AD2d 751, 753 [1990]). Here, thepetitioner met his initial burden of establishing that the funds represented by the check hadbelonged to the decedent. The Surrogate properly found that the appellants failed, in response, tosatisfy their burden of demonstrating, by clear and convincing evidence, the donor's intent tomake a present transfer of a gift, actual or constructive delivery of a gift to the donee, and thedonee's acceptance of a gift (see Gruen v Gruen, 68 NY2d 48, 53 [1986]; Matter ofSzabo, 10 NY2d 94, 98 [1961]). However, the petitioner was not entitled to recoverprejudgment interest from the date the check was issued, absent evidence that, among otherthings, the decedent demanded repayment of the disputed funds prior to her demise. Thepetitioner was entitled to statutory interest from the date that he commenced this proceedingsince that was "the earliest ascertainable date the cause of action existed" (CPLR 5001 [b];cf. De Long Corp. v Morrison-Knudsen Co., 14 NY2d 346, 348 [1964]; Matter ofKing, 305 AD2d 683 [2003]).
The appellants' remaining contentions are without merit. Mastro, J.P., Dillon, Dickerson andLeventhal, JJ., concur.