| Palladino v McCormick |
| 2014 NY Slip Op 07992 [122 AD3d 813] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| Frank Palladino, Appellant, v DebraMcCormick, Respondent. |
Brodsky & Peck, Harrison, N.Y. (Robert A. Brodsky of counsel), forappellant.
Aldo V. Vitagliano, P.C., Rye, N.Y. (Phillip A. Grimaldi, Jr., of counsel), forrespondent.
In an action, inter alia, to set aside a deed conveying real property, the plaintiffappeals from an order of the Supreme Court, Westchester County (Smith, J.), datedJanuary 2, 2013, which granted the defendant's motion pursuant to CPLR 4401, made atthe close of the plaintiff's case at a nonjury trial, for judgment as a matter of lawdismissing the complaint.
Ordered that the order is reversed, on the law, with costs, the defendant's motionpursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint isdenied, and the matter is remitted to the Supreme Court, Westchester County, for a newtrial before a different Justice.
" 'A trial court's grant of a CPLR 4401 motion for judgment as a matter oflaw is appropriate where the trial court finds that, upon the evidence presented, there isno rational process by which the fact trier could base a finding in favor of the nonmovingparty' " (Clarke vPhillips, 112 AD3d 872, 874 [2013], quoting Szczerbiak v Pilat, 90NY2d 553, 556 [1997]; seeSargiss v Magarelli, 115 AD3d 842 [2014]). " 'In considering themotion, the trial court must afford the party opposing the motion every inference whichmay be properly drawn from the facts presented, and the facts must be considered in alight most favorable to the nonmovant' " (Clarke v Phillips, 112 AD3d at874, quoting Miller v Bah,74 AD3d 761, 763 [2010]; see Szczerbiak v Pilat, 90 NY2d at 556; seeSargiss v Magarelli, 115 AD3d at 842).
The burden of proving undue influence generally rests with the party asserting itsexistence (see Matter of Walther, 6 NY2d 49, 53-54 [1959]; Matter of DelGatto, 98 AD3d975, 977 [2012]; Matter ofCaruso, 70 AD3d 937, 938 [2010]). "However, where there is a confidentialrelationship between the beneficiary and the grantor, '[a]n inference of undue influence'arises which requires the beneficiary to come forward with an explanation of thecircumstances of the transaction" (Matter of DelGatto, 98 AD3d at 978, quotingMatter of Neenan, 35 AD3d475, 476 [2006]; see Matter of Bach, 133 AD2d 455, 456 [1987]; Matterof Collins, 124 AD2d 48, 54 [1987]; see also Matter of Henderson, 80 NY2d388, 391 [1992]). "In the absence of an explanation, the beneficiary has the burden ofproving by clear and convincing evidence that the transaction was fair and free fromundue influence" (Matter of DelGatto, 98 AD3d [*2]at 978; see Matter of Gordon v Bialystoker Ctr. &Bikur Cholim, 45 NY2d 692, 698 [1978]; Hearst v Hearst, 50 AD3d 959, 962 [2008]; Sepulvedav Aviles, 308 AD2d 1, 11 [2003]; Matter of Connelly, 193 AD2d 602, 603[1993]).
Here, in granting the defendant's motion pursuant to CPLR 4401, the Supreme Courtimproperly resolved issues of the credibility of the witnesses against the plaintiff (seeCrowley v Brown, 91 AD2d 601, 601 [1982]). Viewing the evidence in a light mostfavorable to the plaintiff, and resolving all issues of credibility in the plaintiff's favor, wefind that the plaintiff established, prima facie, that a confidential relationship existedbetween the decedent and the defendant, requiring the defendant to come forth with anexplanation of the circumstances of the transaction. Accordingly, the Supreme Courtshould have denied the defendant's motion pursuant to CPLR 4401, made at the close ofthe plaintiff's case, for judgment as a matter of law. Therefore, we reverse the orderappealed from, deny the defendant's motion pursuant to CPLR 4401, and remit the matterto the Supreme Court, Westchester County, for a new trial before a different Justice (see e.g. Pipelias v City of NewYork, 99 AD3d 685, 685-686 [2012]). Dillon, J.P., Dickerson, Cohen andDuffy, JJ., concur.