In re Estate of Graeve

• Decision Date: 23 January 2014
• Citation: 979 N.Y.S.2d 197,2014 N.Y. Slip Op. 00404,113 A.D.3d 983
• Parties: 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.
• Court: New York Supreme Court — Appellate Division

113 A.D.3d 983

979 N.Y.S.2d 197

2014 N.Y. Slip Op. 00404

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.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 23, 2014.

Parisi, Coan & Saccocio, PLLC, Schenectady (Gerald F. Parisi of counsel), for appellant.

Michael L. Breen, Middleburgh, for respondents.

Before: ROSE, J.P., LAHTINEN, McCARTHY and GARRY, JJ.

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 partial summary judgment declaring that a confidential relationship existed between respondents and decedent.

Harry L. Graeve (hereinafter decedent) died in November 2009 and petitioner, his daughter, was granted limited letters in March 2011 to pursue a discovery proceeding pursuant to SCPA 2103. She sought information regarding: decedent's transfer shortly before 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 allegedly missing; ¹ and the transfer of decedent's 2008 truck to respondent. Respondent Karen Szubinski, respondent's spouse, was added as a respondent and, following disclosure, petitioner moved for summary judgment declaring that a confidential relationship existed between respondents and decedent. Surrogate's Court denied petitioner's motion and petitioner now appeals.

We affirm. The existence of a confidential relationship shifts the burden to the stronger party in such a relationship to prove by clear and convincing evidence that a transaction from which he or she benefitted was not occasioned by undue influence ( see Matter of Nealon, 104 A.D.3d 1088, 1089, 962 N.Y.S.2d 481 [2013], affd.22 N.Y.3d 1045, 981 N.Y.S.2d 353, 4 N.E.3d 363, 2014 N.Y. Slip Op. 00139 [2014]; Oakes v. Muka, 69 A.D.3d 1139, 1140–1141, 893 N.Y.S.2d 677 [2010], appeal dismissed15 N.Y.3d 867, 910 N.Y.S.2d 33, 936 N.E.2d 915 [2010] ). “In determining whether a confidential relationship exists, ‘the existence of a family relationship does not, per se, create a presumption of undue influence; there must be evidence of other facts and circumstances showing inequality or controlling influence’ ” (Matter of Nealon, 104 A.D.3d at 1089, 962 N.Y.S.2d 481, quoting Feiden v. Feiden, 151 A.D.2d 889, 891, 542 N.Y.S.2d 860 [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 two weeks before his death, he was admitted to a hospital and then was transferred to a nursing 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...