Matter of Bell-Kligler

Matter of Bell-Kligler 2008 NY Slip Op 10059 [57 AD3d 397] December 23, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

In the Matter of Roberta Bell-Kligler et al., Respondents, for the Appointment of a Guardian of the Person and Property of Arline Bell, an Alleged Incapacitated Person. Evan Bell, Cross Petitioner-Appellant.

—[*1] Capuder Fazio Giacoia LLP, New York (Douglas Capuder of counsel), for appellant.

Mazur Carp & Rubin, P.C., New York (Robert M. Freedman of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (William P. McCooe, J.), entered August 23, 2007, which, insofar as appealed from as limited by the briefs, in a proceeding pursuant to article 81 of the Mental Hygiene Law, set aside the sale of certain real property by an alleged incapacitated person (AIP) to cross petitioner, unanimously affirmed, with costs. Appeal from decision, same court and Justice, entered August 23, 2007, unanimously dismissed, without costs, as taken from a nonappealable paper.

Cross petitioner failed to demonstrate by clear and convincing evidence that the sale of property by the AIP (his mother) to him at a price significantly less than market value was voluntarily and understandingly made, and fair and free of undue influence (see Matter of Gordon v Bialystoker Ctr. & Bikur Cholim, 45 NY2d 692, 695-696 [1978]). The record shows that the sale of the property was made just one week after the AIP had executed a will providing that cross petitioner was to purchase petitioners' interests in the property after the AIP's death and within 90 days after appraisal of the property. The sale, however, was effected with no notice to petitioners (cross petitioner's sisters), and despite the fact that the AIP had a long-time family attorney, she was represented at the closing by an attorney who was a stranger to her and whom cross petitioner had engaged through the attorney [*2]who represented him at the hearing on the subject petition (see Matter of Connelly, 193 AD2d 602 [1993], lv denied 82 NY2d 656 [1993]). Concur—Friedman, J.P., Sweeny, McGuire, Renwick and Freedman, JJ.