| Matter of Caruso |
| 2010 NY Slip Op 01482 [70 AD3d 937] |
| February 16, 2010 |
| Appellate Division, Second Department |
| In the Matter of the Estate of Antonietta Caruso, Deceased.Josephine DeCaro, Appellant; Fernando Caruso, Respondent. |
—[*1] Michael F. Mongelli II, P.C., Flushing, N.Y., for respondent.
In a proceeding for the administration of an estate in which the administrator petitionedpursuant to SCPA 2103 for the turnover of, inter alia, certain real property, the petitioner appealsfrom a decree of the Surrogate's Court, Queens County (Nahman, S.), dated August 18, 2008,which, upon an order of the same court dated May 12, 2008, confirming the report of a refereedated January 10, 2008, made after a hearing, denied the petition.
Ordered that the decree is affirmed, with costs.
In a deed dated March 17, 2003, the decedent, then an 82-year-old woman with five adultchildren, conveyed title to her house to her son, Fernando Caruso (hereinafter Fernando), whohad been living with her at the house for approximately 30 years. However, the decedent, whospoke with counsel outside of Fernando's presence before signing the deed, retained a life estatefor herself. In addition, pursuant to a trust agreement she entered into with Fernando, thedecedent effectively reserved, during her lifetime, the power to name a different recipient of thehouse upon her death.
On December 9, 2003, the decedent died. Subsequently, Josephine DeCaro (hereinafterJosephine), another of the decedent's children and the administrator of the decedent's estate,petitioned pursuant to SCPA 2103 for the turnover of, inter alia, the house. Josephine allegedthat the decedent conveyed the house to Fernando as a result of undue influence.
A hearing was held before a referee, who had been appointed to hear and report. After theconclusion of the hearing, the referee issued a report which recommended, inter alia, that thepetition be denied on the ground that Josephine failed to establish that the conveyance of thehouse was the product of undue influence. The Surrogate then confirmed the report and, in adecree, denied the petition. We affirm.
The referee's determination that the conveyance of the house was not the product of undue[*2]influence is supported by the record. In order for aconveyance to be invalidated on the basis of undue influence, there must be evidence that thegrantee's influence "amounted to a moral coercion, which restrained independent action anddestroyed free agency, or which, by importunity which could not be resisted, constrained [thegrantor] to do that which was against his [or her] free will and desire, but which he [or she] wasunable to refuse or too weak to resist" (Matter of Walther, 6 NY2d 49, 53 [1959]; seeHearst v Hearst, 50 AD3d 959, 961-962 [2008]). Here, the evidence at the hearingestablished that the transfer of the house was freely, voluntarily, and knowingly agreed to by thedecedent, without any undue influence on Fernando's part (see Matter of Walther, 6NY2d at 54).
In light of our determination, it is unnecessary to address Josephine's remaining contention.Dillon, J.P., Covello, Miller and Chambers, JJ., concur.