| Matter of Marriott |
| 2011 NY Slip Op 05885 [86 AD3d 943] |
| July 8, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of the Estate of Aldona K. Marriott, Deceased. GailMarriott, Appellant; Robert W. Marriott, Respondent. |
—[*1] Peter M. Hobaica, LLC, Utica (George E. Curtis of counsel), forrespondent-respondent.
Appeal from an order of the Surrogate's Court, Oneida County (Louis P. Gigliotti, S.),entered June 8, 2010. The order denied petitioner's motion for summary judgment.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the motion is granted in accordance with the following memorandum:Petitioner commenced this proceeding pursuant to SCPA 2103 seeking discovery and delivery ofcertain assets that allegedly belonged to the estate of Aldona K. Marriott (decedent). We agreewith petitioner that Surrogate's Court erred in denying her motion for summary judgmentseeking, inter alia, an order directing that the net proceeds from the sale of decedent's residence(hereafter, property) be released to her estate.
While decedent was in the hospital, she executed a durable general power of attorney usingthe statutory short form (hereafter, POA form), which purported to grant certain powers todecedent's sons, Thomas Marriott and Robert W. Marriott (respondent), and respondent's wife.Decedent formally revoked the power of attorney approximately two months later, shortly afterThomas Marriott conveyed the property to himself and respondent for consideration of $1. Afterthe commencement of this proceeding, Thomas Marriott conveyed his purported one-half shareof the property back to the estate for no consideration. Thereafter, the estate and respondent soldthe property to a third party for $135,000. This proceeding concerns respondent's purported shareof the net proceeds from the sale, which is presently in escrow pending resolution of theproceeding.
We conclude that petitioner met her burden of establishing that the property belonged todecedent at the time of her death (seeMatter of Murray, 84 AD3d 106 [2011]; see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]), and that respondent failed to raise a triable issue of fact inopposition (see Matter of Coviello,78 AD3d 696, 697-698 [2010]; see generally Zuckerman, 49 NY2d at 562). Thepurported conveyance of the property by Thomas Marriott to himself and respondent wasunauthorized inasmuch as it was made pursuant to a POA form that did not validly grant ThomasMarriott such authority (see General Obligations Law former § 5-1501 [1]). Thestatute in effect at the time the POA form was executed and the directions on the POA form[*2]explicitly require the principal, i.e., decedent, to place her"initials" in designated spaces on the form to indicate her "choice[s]" with respect to the specificpowers granted to her agents (id.). "[I]f the [designated] space[s are] not initialed, noauthority is granted" (Matter of Hoerter, 15 Misc 3d 1101[A], 2007 NY Slip Op50448[U], *6 [2007]). Specifically, the POA form directs the principal to "[i]nitial in the blankspace to the left of [his or her] choice any one or more of the following lettered subdivisions as towhich [he or she] WANT[S] to give [his or her] agent[s] authority. If the blank space to the leftof any particular lettered subdivisions is NOT initialed, NO AUTHORITY WILL BEGRANTED for matters that are included in that subdivision. Alternatively, the lettercorresponding to each power [he or she] wish[es] to grant may be written or typed on the blankline in subdivision '(Q),' and [he or she] may then put [his or her] initials in the blank space to theleft of subdivision '(Q)' in order to grant each of the powers so indicated" (see GeneralObligations Law former § 5-1501 [1]).
Here, the POA form executed by decedent contains an "X" next to subdivision "(Q)," whichgrants all of the listed powers to the agents, including the power to conduct real estatetransactions. The decedent's initials, however, do not appear to the left of any of the specificpowers or the catchall subdivision "(Q)," nor do they appear anywhere else on the POA form.Although an "X" or another such mark may be sufficient where a principal routinely signs his orher name with such a mark, i.e., where the principal lacks the capacity for a standard signature(see generally General Construction Law § 46; Hoerter, 2007 NY Slip Op50448[U], *6 [2007]), that is not the case here. Indeed, decedent signed her full name on thePOA form, thus rebutting any suggestion that she was unable to affix her initials to the form orthat it was her practice to execute documents with an "X" (see generally § 46).Inasmuch as "the blank space to the left of . . . subdivision ['(Q)'] is NOT initialed,NO AUTHORITY [WAS] GRANTED" to decedent's sons to convey or to otherwise dispose ofher property (General Obligations Law former § 5-1501 [1]; see Matter of Ungar vFeller, 24 Misc 3d 1222[A], 2009 NY Slip Op 51554[U], *4 [2009]). Thus, based on therecord before us, we conclude that the purported conveyance of the property pursuant to thepower of attorney is void (see Matter of White, 11 Misc 3d 1054[A], 2006 NY Slip Op50210[U], *4-5 [2006]), and the proceeds from the sale thereof constitute property of decedent'sestate.
We therefore reverse the order, grant the motion and direct that respondent's purported shareof the net proceeds from the sale of the subject property be released to the estate.Present—Smith, J.P., Peradotto, Carni, Sconiers and Martoche, JJ.