| Matter of O'Malley |
| 2011 NY Slip Op 06491 [87 AD3d 1012] |
| September 13, 2011 |
| Appellate Division, Second Department |
| In the Matter of Grace O'Malley, Deceased. Kathleen O'Malley,Also Known as Kacey O'Malley, Appellant-Respondent; John O'Malley,Respondent-Appellant. |
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Michael F. Mongelli II, P.C., Flushing, N.Y., for respondent-appellant.
In a probate proceeding in which the administrator c.t.a. petitioned pursuant to SCPA 2103for the turnover of, inter alia, certain real property, the administrator c.t.a. appeals, as limited byher brief, from so much of a decree of the Surrogate's Court, Queens County (Nahman, S.), datedAugust 18, 2009, as, upon a jury verdict in favor of John O'Malley and against her, and upon anorder of the same court dated July 14, 2009, denying those branches of her motion which werepursuant to CPLR 4404 (a) to set aside the jury verdict as contrary to the weight of the evidenceand for a new trial on the issue of the transfer of certain real property and, in effect, for leave toreargue the motion of John O'Malley pursuant to CPLR 4401 for judgment as a matter of lawdismissing that branch of the petition which asserted a claim for fraud, in effect, denied thatbranch of the petition which was to vacate a certain deed dated June 7, 2002, and dismissed thatbranch of the petition which asserted a claim for fraud, and John O'Malley cross-appeals, aslimited by his brief, from so much of the same decree as, upon the granting of the motion of theadministrator c.t.a. pursuant to CPLR 4401 for judgment as a matter of law on that branch of thepetition which was to direct him to return certain cash withdrawals to the estate of GraceO'Malley, after a nonjury trial on the severed issue of whether to impose a constructive trust onthe subject property, and upon a decision of the same court dated July 1, 2009, in effect, grantedthose branches of the petition which were to direct him to return certain cash withdrawals to theestate of Grace O'Malley and to impose a constructive trust on the subject property, and imposeda constructive trust on the subject property.
Ordered that the decree is affirmed insofar as appealed and cross-appealed from, withoutcosts or disbursements.
" 'A trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriatewhere the trial court finds that, upon the evidence presented, there is no rational process by whichthe fact trier could base a finding in favor of the nonmoving party . . . Inconsidering the motion for judgment as a matter of law, the trial court must afford the partyopposing the motion every inference which may properly be drawn from the facts presented, andthe facts must be considered in a light most favorable to the nonmovant' " (Robinson v 211-11 N., LLC, 46 AD3d657, 658 [2007], quoting Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; see Parlante v Cavallero, 73 AD3d1001, 1002 [2010]). Applying this standard here, the Surrogate's Court properly granted themotion [*2]of John O'Malley (hereinafter the respondent)pursuant to CPLR 4401 for judgment as a matter of law dismissing that branch of the petitionwhich asserted a claim for fraud. Contrary to the contention of the administrator c.t.a., KathleenO'Malley, also known as Kacey O'Malley (hereinafter the petitioner), the evidence presented atthe jury trial, viewed in the light most favorable to her, failed to establish that the respondentmisrepresented a material fact to his parents prior to the execution of a deed transferring thesubject property to induce them to transfer that property to him (see Fellion v Darling, 14 AD3d904 [2005]).
Moreover, viewing the evidence in the light most favorable to the respondent, and accordinghim the benefit of every favorable inference (see Elias v Ferri, 46 AD3d 743 [2007]), there was no rationalprocess by which the trier of fact could have found in his favor on the petitioner's claim for thereturn of certain cash withdrawals made by the respondent from his parents' joint bank accounts.The respondent did not satisfy his heavy burden of establishing, with contemporaneous records,the legitimacy of the cash payments he allegedly made on behalf of his parents with the money hewithdrew from their joint bank accounts (see Matter of Gershenoff, 17 AD3d 243 [2005]). Accordingly, theSurrogate's Court properly granted the petitioner's motion pursuant to CPLR 4401 for judgmentas a matter of law on that branch of the petition which was to direct the respondent to returncertain cash withdrawals to the decedent's estate.
Finally, under the particular circumstances of this case, the determination of the Surrogate'sCourt, made after a nonjury trial, was not inconsistent with the jury verdict.
The parties' remaining contentions are without merit. Angiolillo, J.P., Dickerson, Hall andRoman, JJ., concur.