| Matter of Delgatto |
| 2011 NY Slip Op 02667 [82 AD3d 1230] |
| March 29, 2011 |
| Appellate Division, Second Department |
| In the Matter of Pauline Delgatto, Deceased. Christopher Fasulo,Appellant; Nora Bradley, Respondent. |
—[*1] Nicolosi & Nicolosi, LLP, Manhasset, N.Y. (Vincent F. Nicolosi of counsel), forrespondent.
In a turnover proceeding pursuant to SCPA 2103 to recover certain real property on behalf ofa decedent's estate, the administrator c.t.a. of the decedent's estate appeals, as limited by hisnotice of appeal and brief, from so much of an order of the Surrogate's Court, Kings County(Johnson, S.), dated March 24, 2010, as denied his motion for summary judgment on the petition.
Ordered that the order is affirmed insofar as appealed from, with costs.
The petitioner, who is the administrator c.t.a. of the decedent's estate, commenced thisproceeding pursuant to SCPA 2103 for the turnover, to the estate, of certain real propertyformerly owned by the decedent. The petitioner alleges that, more than one month before thedecedent's death, the decedent transferred the property to a revocable trust for the benefit of therespondent, the decedent's caregiver, who took advantage of a confidential relationship with thedecedent to exert undue influence at a time when the decedent was not mentally competent. Thepetitioner moved for summary judgment on the petition, and the Surrogate's Court, inter alia,denied the motion, finding the existence of triable issues of fact.
Several exhibits submitted by the petitioner were not in admissible form and, thus, could notbe considered on his summary judgment motion, namely, unsigned and unattested depositiontranscripts (see Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901, 902 [2008]),his attorney's affirmation (see Zuckerman v City of New York, 49 NY2d 557, 563[1980]), uncertified medical and hospital records (see Lozusko v Miller, 72 AD3d 908,908 [2010]; Bleszcz v Hiscock, 69 AD3d 890, 891 [2010]), and unsworn, unaffirmedreports of physicians (see Grasso v Angerami, 79 NY2d 813, 814 [1991]). Theadmissible evidence submitted by the petitioner, including affidavits of medical experts, failed toestablish the petitioner's prima facie entitlement to judgment as a matter of law on the issue ofwhether the respondent exerted undue influence which overbore the free will of the decedent dueto her alleged mental incapacity (see Matter of Caruso, 70 AD3d 937, 938 [2010];Hearst v Hearst, 50 AD3d 959, 961-962 [2008]). Accordingly, the petitioner's failure tomake a prima facie showing required denial of his motion, regardless of the sufficiency of therespondent's opposition papers (see Alvarez v Prospect [*2]Hosp., 68 NY2d 320, 324 [1986]). Angiolillo, J.P., Florio,Belen and Miller, JJ., concur.