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Tidbits Spring 2007

In re Emily Forde: Nassau County Surrogate’s Court


In this discovery proceeding commenced under SCPA § 2103, Petitioner directed Respondent to turnover real property Respondent received from her mother, the decedent, by challenging the validity of the transfer.  The decedent died intestate on September 11, 2004.  Prior to her death, decedent gifted real property to her daughter by way of deed on April 1, 2003.

Petitioner alleges that by fraud, coercion, undue influence and overreaching the Respondent converted the property to herself.  Petitioner further argues that the decedent’s signature on the deed is a forgery and that Respondent was in a confidential relationship with the decedent.  Petitioner supported his arguments by showing that the decedent was dying at the time of the deed signing from melanoma cancer and was under hospice care.  Additionally, she was hospitalized three (3) days after deed w/ 2 broken shoulders and a broken hip.  Petitioner stated that the decedent lived with Respondent and that through threats from Respondent’s husband, Respondent kept the decedent isolated from Petitioner.

The Respondent responded to these claims by filing a motion for summary judgment.

The Court noted that summary judgment is a drastic remedy which will only be granted where there are no triable issues of fact (Suffolk County v. James M., 83 N.Y.2d 178 (1994); Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957)).  It should only be granted where, upon the papers and proof submitted, the movant’s case is sufficiently established to warrant the court as a matter of law to direct judgment in favor of the movant. (Zuckerman v. City of New York, N.Y.2d 557, 562 (1980); 6B Carmody-Wait 2d §36:6 at 17).  When granted, the motion is the procedural equivalent of a trial (Myers v. Kamalian, 231 A.D.2d 616 (1996)) and should therefore be denied not only where a triable issue is clearly defined, but even where such an issue is in doubt or is fairly debatable (Gray v. Unigard Mutual Insurance Company, 47 A.D.2d 691, 692 (1975)).  In a summary judgment motion, evidence will be considered in a light most favorable to the party which the motion moved against (Lehrer McGovern Bovis, Inc. v. New York Yankees, 207 A.D.2d 256, 258 (1994)).

In a turnover proceeding where Respondent pleads a valid inter vivos gift as a defense, the burden is upon Respondent to establish the gift by clear & convincing evidence (Gruen v. Gruen, 68 N.Y.2d 48, 53 (1968); Matter of Bassin, 28 A.D.3d 549 (2006).  Respondent must prove the elements of a gift, i.e. delivery, acceptance and donative intent.

In this case, the Court ruled that the Respondent did not meet this burden. The evidence that Respondent put forward simply showed that the decedent favored her daughter, Respondent, over her son, Petitioner.  Since Petitioner had raised triable issues of fact, the Court denied Respondent’s Motion for Summary Judgment.

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