In re Moore
| Decision Date | 27 April 2022 |
| Docket Number | 2018-11305 |
| Citation | 2022 NY Slip Op 02800 |
| Parties | In the Matter of Elizabeth N. Moore, etc., deceased. Michele Moore, appellant; Frank Moore III, respondent. File No. 340/07 |
| Court | New York Supreme Court |
Michele Moore, Huntington, NY, appellant pro se.
Craco & Ellsworth, LLP, Huntington, NY (Andrew Ellsworth of counsel), for respondent.
ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN WILLIAM G. FORD, JJ.
DECISION & ORDER
In a proceeding to invalidate an inter vivos trust, the petitioner appeals from an order of the Surrogate's Court, Suffolk County (John M. Czygier, S.), dated June 29, 2018. The order granted the respondent's motion for summary judgment dismissing the petition.
ORDERED that the order is affirmed, with costs.
The decedent, Elizabeth N. Moore, died in 2007. She was survived by two children, Michele Moore (hereinafter the petitioner) and Frank Moore III (hereinafter the respondent). Prior to her death, the decedent, as grantor and trustee, established an inter vivos trust designating the respondent as the successor trustee (hereinafter the trust). In 2008, limited letters of administration were issued to the petitioner for the purpose of prosecuting an action to determine the validity of the trust.
In 2013, the petitioner commenced this proceeding to invalidate the trust. The petition alleges that the decedent lacked the requisite mental capacity to enter into the trust agreement and that the trust was established as a result of the exercise of undue influence or fraud upon the decedent. At the close of discovery, the respondent moved for summary judgment dismissing the petition. In an order dated June 29, 2018, the Surrogate's Court granted the respondent's motion, and the petitioner appeals.
"As a general rule, a party's competence is presumed, and in order to set aside a transfer of property on the ground of lack of capacity, it must be established that the party did not understand the nature of the transaction at the time of the conveyance as a result of his or her mental disability" (Mastrantoni v Mancini, 171 A.D.3d 908, 909 [internal quotation marks omitted]). Here, the respondent established, prima facie, his entitlement to judgment as a matter of law based upon the presumption of the decedent's competence and by submitting, among other things, a transcript of the deposition testimony of the attorney who prepared the trust and witnessed its execution and the affidavit of the alternate successor trustee (see Kagan v Ameriprise Fin. Servs., Inc., 191 A.D.3d 654, 656; Bazigos v Krukar, 140 A.D.3d 811, 814). In opposition, the petitioner failed to raise a triable issue of fact (see Mastrantoni v Mancini, 171 A.D.3d at 909; Crawn v Sayah, 31 A.D.3d 367, 368).
Similarly, the respondent established, prima facie, that the decedent's establishment of the trust was not the product of undue influence or fraud (see Mastrantoni v Mancini, 171 A.D.3d at 909; Harris v Pitts, 109 A.D.3d 790, 791; Matter of Spangenberg, 248 A.D.2d 543, 543). In opposition, the petitioner failed to raise a triable issue of fact (see Matter of Michels, 192 A.D.3d 1110, 1112; Matter of Cianci, 165 A.D.3d 655, 657-658).
We do not address the petitioner's remaining contentions, as they involve matter dehors the record or are improperly raised for the first time on appeal.
Accordingly, the Surrogate's Court properly granted the respondent's motion for summary judgment dismissing the petition.
In the Matter of Elizabeth N. Moore, etc., deceased.
Michele Moore, appellant;
Frank Moore III, respondent.
DECISION & ORDER ON MOTION
(File No. 340/07)
Cross motion by the respondent on an appeal from an order of the Surrogate's Court, Suffolk County, dated June 29, 2018 to strike stated portions of the appellant's brief on the ground that th...
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