| Matter of Prievo v Urbaniak |
| 2009 NY Slip Op 05823 [64 AD3d 1240] |
| July 10, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Elaine J. Prievo, as Executrix of Frank J. Matusz,Also Known as Francis J. Matusz, Deceased, Respondent, v Lucian Urbaniak,Appellant. |
—[*1] Getnick Livingston Atkinson Gigliotti & Priore, LLP, Utica (Janet M. Richmond ofcounsel), for petitioner-respondent.
Appeal from a decree of the Surrogate's Court, Oneida County (Charles C. Merrell, A.S.),entered July 3, 2008 in a proceeding pursuant to SCPA 2103. The decree, following a jury trial,directed that certain assets be turned over to petitioner.
It is hereby ordered that the decree so appealed from is unanimously reversed in the interestof justice without costs and a new trial is granted.
Memorandum: Respondent appeals from a decree of Surrogate's Court, directing that certainassets be turned over to petitioner. The decree was entered upon a jury verdict finding that thetransfer of the assets to respondent by Frank J. Matusz (decedent) had been effected throughundue influence. We reject the contention of respondent that the Surrogate erred in denying hismotion to dismiss the petition at the close of proof (see generally Szczerbiak v Pilat, 90NY2d 553, 556 [1997]). Petitioner presented evidence from which the jury could reasonablyhave found that respondent and decedent had a confidential relationship (see Matter ofHenderson, 80 NY2d 388, 392 [1992]; Matter of Moran [appeal No. 2], 261 AD2d936 [1999]), and that respondent exercised undue influence over decedent (see Peters vNicotera, 248 AD2d 969 [1998]; Matter of Antoinette, 238 AD2d 762, 763-764[1997]; Spatz v Bajramoski, 214 AD2d 436, 436-437 [1995]).
We agree with respondent, however, that the Surrogate erred in charging the jury that he hada confidential relationship with decedent as a matter of law (see Matter of Brand, 185App Div 134, 139-142 [1918], affd 227 NY 630 [1919]; see also Matter ofKaufmann, 14 AD2d 411, 412-413 [1961]; see generally Gaston v New York City Hous.Auth., 258 AD2d 220, 224 [1999]). When the issue of undue influence based upon aconfidential relationship is raised, the initial burden is on the objectant, here, the petitioner, tomake "the requisite threshold showing that a confidential relationship existed" (Matter of Butta, 3 AD3d 347[2004]). In the event that the objectant makes that showing, "the burden is shifted to thebeneficiary of the transaction to prove the transaction fair and free from undue influence"(Matter of Connelly, 193 AD2d 602, 603 [1993], lv denied 82 NY2d 656[1993]). Here, there was conflicting evidence on the issue whether respondent and decedent hada confidential [*2]relationship, and the Surrogate thus erred incharging the jury that such a relationship existed as a matter of law. Although respondent did notobject to the charge, we reverse the decree in the interest of justice and grant a new trial becausethe error in the charge was "so fundamental that it preclude[d] consideration of the central issueupon which the [proceeding was] founded" (Breitung v Canzano, 238 AD2d 901, 902[1997]; see also Clark v InterlakenOwners, 2 AD3d 338, 340 [2003]). In light of our determination to grant a new trial, wenote that respondent's remaining contentions with respect to evidentiary rulings made by theSurrogate are without merit. Present—Scudder, P.J., Hurlbutt, Martoche, Smith andCentra, JJ.