| Matter of Graeve |
| 2014 NY Slip Op 00404 [113 AD3d 983] |
| January 23, 2014 |
| Appellate Division, Third Department |
| In the Matter of the Estate of Harry L. Graeve, Deceased.Debra Lechleitner, as Limited Administrator of the Estate of Harry L. Graeve, Deceased,Appellant; Harry S. Graeve et al., Respondents. |
—[*1] Michael L. Breen, Middleburgh, for respondents.
Lahtinen, J. Appeal from an order of the Surrogate's Court of Schenectady County(Versaci, S.), entered September 5, 2012, which denied petitioner's motion for partialsummary judgment declaring that a confidential relationship existed between respondentsand decedent.
Harry L. Graeve (hereinafter decedent) died in November 2009 and petitioner, hisdaughter, was granted limited letters in March 2011 to pursue a discovery proceedingpursuant to SCPA 2103. She sought information regarding: decedent's transfer shortlybefore his death of his home (valued at about $180,000) to his son, respondent Harry S.Graeve (hereinafter respondent); the location of $200,000 in cash that was allegedlymissing;[FN*] and the transfer of decedent's 2008 truck to respondent. Respondent Karen Szubinski,respondent's spouse, was added as a respondent and, following disclosure, petitionermoved for summary judgment [*2]declaring that aconfidential relationship existed between respondents and decedent. Surrogate's Courtdenied petitioner's motion and petitioner now appeals.
We affirm. The existence of a confidential relationship shifts the burden to thestronger party in such a relationship to prove by clear and convincing evidence that atransaction from which he or she benefitted was not occasioned by undue influence (see Matter of Nealon, 104AD3d 1088, 1089 [2013], affd 22 NY3d 1045 [2014]; Oakes vMuka, 69 AD3d 1139, 1140-1141 [2010], appeal dismissed 15 NY3d867 [2010]). "In determining whether a confidential relationship exists, 'the existence ofa family relationship does not, per se, create a presumption of undue influence; theremust be evidence of other facts and circumstances showing inequality or controllinginfluence' " (Matter of Nealon, 104 AD3d at 1089, quoting Feiden vFeiden, 151 AD2d 889, 891 [1989]).
The proof was inadequate to establish a confidential relationship as a matter of law.Decedent died at age 84, a short time after being diagnosed with cancer. About twoweeks before his death, he was admitted to a hospital and then was transferred to anursing home. Prior to such time, he lived basically in an independent fashion.Respondents resided on the same street and, thus, visited more frequently than petitioner,who lived further away. Respondents assisted decedent with some chores and householdmatters, but he certainly was not completely dependent on respondents nor was thereproof that his mental condition had deteriorated. Although respondent was listed ondecedent's bank account and safe deposit box, there is no evidence that he accessed theaccounts or funds prior to decedent's passing or successfully exerted any pressure ondecedent regarding his finances. Decedent's attorney testified at a deposition that, whenrespondent was not present in the room, he met with decedent at the nursing home anddecedent ably discussed his estate and executed the transfer of real property. The attorneyobserved that, even at that time within days of his death, decedent was "bold in his voice"and "knew what he wanted." This record does not reflect the type of inequality andcontrolling influence such that, as a matter of law, respondents were exerting aconfidential relationship (as that term is used in the context of a proceeding of thisnature) rather than simply acting out of familial affection or duty.
Rose, J.P., McCarthy and Garry, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *: Respondent assertedthat decedent gave the cash to petitioner, but she denied receiving the money.