Weber v Burman

[*1] Weber v Burman 2008 NY Slip Op 52598(U) [22 Misc 3d 1104(A)] Decided on December 18, 2008 Supreme Court, Nassau County Lally, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 18, 2008
Supreme Court, Nassau County

Raymond Weber, Plaintiff(s),

against

Diane Burman, Defendant(s).



20875/06



plaintiff attorney - spirn & spirn, huntington station, 631-395-0150

defendant attorney - paul boronow, garden city, 516-227-5353

Ute W. Lally, J.

Upon the foregoing papers, it is ordered that this motion by

defendant for an order pursuant to CPLR 3212 granting her summary judgment dismissing the complaint against her is determined as follows. Cross-motion by plaintiff for an order pursuant to CPLR 3025(b) granting him leave to amend his complaint to add a fifth cause of action is granted.

The plaintiff in this action seeks to obtain title to property which was his childhood home at 21 Donald Street in East Williston. That property was owned by his father George Weber and his mother up until his mother's death in 1964. In 1971, the plaintiff's father married the defendant's mother, Virginia Weber. In 1985, George and Virginia Weber executed mutual reciprocal wills leaving their assets to one another and then equally to the plaintiff and the defendant. In 1987, George Weber conveyed the real property to himself and Virginia as tenants by the entirety. George Weber died on June 22, 1991 and his entire [*2]estate including the real property passed to Virginia. While Virginia left the property to the plaintiff and the defendant equally in her most recently executed will, that will was not located after her death, resulting in a presumption that she revoked it. In any event, in 2002, Virginia gave the defendant a Power of Attorney which the defendant used to transfer the real property to herself on May 5, 2004, with a life estate in Virginia. This action ensued following Virginia's death on March 2, 2005.

In this action, the plaintiff alleges that in the summer of 1992, Virginia showed him her Last Will and Testament and assured him that the provisions of her and George's mutual wills remained unchanged and that he and the defendant would share equally in the real property. He alleges that sometime after 1995, Virginia was diagnosed with Alzheimer's disease and that despite her compromised mental state, the defendant procured a Power of Attorney in her favor which she took advantage of by transferring the real property to herself alone, leaving a life estate in Virginia. As and for his first cause of action, the plaintiff alleges that defendant's use of the Power of Attorney to convey Virginia's property to herself constituted unlawful self-dealing as well as a breach of her fiduciary duty to both him and Virginia. As and for his second cause of action, the plaintiff alleges that the defendant was acting as his trustee and that she breached the fiduciary obligation owed to him "by reason of the trust and confidence placed in [her] by [his] father and step-mother" when she transferred the property to herself. He alleges that an equitable constructive trust was formed. He further alleges that he has been damaged on account of the defendant's undue influence and abuse of her relationship with Virginia and asks that a trust on the property be declared and that title be conveyed to him. As and for his third cause of action, the plaintiff alleges that defendant transferred the property to herself as his agent and trustee and that in doing so, she breached their agency relationship and that a resulting trust should accordingly be declared and title conveyed to him. As and for his fourth cause of action, the plaintiff alleges that he was a third-party beneficiary under George and Virginia's mutual reciprocal wills; that he relied on defendant's fiduciary role to execute Virginia's wishes to his detriment; and, that the defendant engaged in self-dealing thereby breaching her third-party obligations to him. [*3]

The defendant seeks summary judgment dismissing the complaint. In response, the plaintiff seeks leave to amend his complaint to advance a fifth cause of action seeking to set aside both the defendant's conveyance of the property to herself as well as Virginia's presumed revocation of her will based upon Virginia's compromised mental capacity and/or the defendant's undue influence. The plaintiff alleges that but for Virginia's diminished mental capacity and/or the defendant's undue influence, Virginia would not have deviated from her testamentary plan whereby the property was left to him and the defendant equally.

"On a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Sheppard-Mobley v King, 10 AD3d 70, 74, aff'd. as mod., 4 NY3d 627, citing Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Sheppard-Mobley v King, supra, at p. 74; Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Ctr., supra). Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact (Alvarez v Prospect Hosp., supra, at p. 324). The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference (See, Demishick v Community Housing Management Corp., 34 AD3d 518, 521, citing Secof v Greens Condominium, 158 AD2d 591).

As for the plaintiff's motion, leave to amend a pleading should be freely given (CPLR 3025[b]). While the court has broad discretion, it must consider "how long the amending party was aware of the facts upon which the motion [is] predicated, whether a reasonable excuse for the delay [has been] offered, and whether prejudice resulted therefrom" (Haller v Lopane, 305 AD2d 370, 372). Furthermore, "[w]hen, as here, leave is sought on the eve of trial, judicial discretion should be exercised sparingly" (Glickman v Beth Israel Medical Center Kings Highway Div., 309 AD2d 846, citing Torres v Educational Alliance, Inc., 300 AD2d 469, 470). "[W]here, as here, there has been an unreasonable delay in seeking leave to amend, the plaintiff must establish a [*4]reasonable excuse for the delay and submit an affidavit to establish the merits of the proposed amendment" (Glickman v Beth Israel Medical Center Kings Highway Div., supra, at p. 846, citing Torres v Educational Alliance, supra; Volpe v Good Samaritan Hosp., 213 AD2d 398, 399).

In support of her motion, the defendant attests[FN1] that the plaintiff intimidated her mother into executing a will leaving the property to both of them through threats and scare tactics but that in time, her mother grew upset with the plaintiff's conduct and hired the law firm of Raskin & Makofsky to assist her in finalizing her financial and estate plans. The defendant states that her mother wanted to both protect her assets and to disinherit the plaintiff entirely by transferring her assets to her and leaving her whatever assets remained at her death. The defendant attests that her mother revoked her prior will and granted her a Power of Attorney which, she notes, specifically allowed her to transfer her mother's assets to her. While the defendant admits that her mother believed she was in the early stages of Alzheimer's Disease when these transactions took place, she maintains that it was for that very reason that her mother sought to lay her affairs in order so as to carry out her wishes. The defendant attests that her mother was "of clear mind and . . . very specific . . . as to her wishes . . . ." The defendant utilized the Power of Attorney that Virginia executed in 2002 when she deeded the property to herself two years later on May 5, 2004. Defendant has testified that it was not until 2003 that her mother first became confused and even more so in 2004. Virginia's will was never found.

Judith Raskin, Esq., who represented the defendant's mother when the Power of Attorney was executed, when her will was allegedly revoked and when the deed to the property was executed by the defendant, testified at her examination-before-trial and affirms in support of the defendant's motion that at all pertinent times, Virginia was coherent and lucid. In fact, she affirms that Virginia made it clear to her that she wished to [*5]change her estate plans that were contained in her will and to leave all of her assets to the defendant. Raskin states that Virginia told her that she wanted to protect her assets against potential Medicaid claims and that she wanted to give her daughter the power to manage her affairs, financial and otherwise, from that date forward in case her capacity diminished to the point where she would be unable to do so herself. Raskin attests that Virginia also wanted to be sure that her daughter would be the sole owner of her house upon her death and affirms that Virginia was very clear regarding her wishes. In fact, Raskin affirms that Virginia told her that she did not want to leave her home to the plaintiff and wanted to take immediate action to ensure that the plaintiff would not receive a share of said premises. Raskin states that Virginia told her that the plaintiff never contributed to the home or assisted her or cared for her in any way and that the defendant was the only person who did so and for that reason, she was the only person that Virginia wanted to receive her home as well as her other assets. In light of this, Raskin affirms that she advised the plaintiff to revoke her will, draft a new one and execute a Power of Attorney in her daughter's favor. Ruskin states that she advised Virginia of the consequences if she failed to revoke her will, i.e., that the plaintiff would inherit half, and that Virginia indicated to her that she would immediately revoke it. Ruskin also states that she explained to Virginia that her daughter would inherit everything if she died intestate and that if her property was simply transferred to the defendant before her death, it would simply circumvent her estate.

Virginia executed the Power of Attorney in Raskin's presence and Raskin ultimately saw to it that title to the property was transferred to the defendant pursuant to Virginia's wishes. In sum, she affirms that based on the conversations that she had with Virginia, she had no concerns about Virginia's understanding what it was that she wanted, understanding the advice that she was given to effectuate her wishes and understanding the ramifications of her actions. Ruskin was satisfied that Virginia had sufficient capacity to understand the issues discussed and documents executed. She admitted that while she drafted a new will for Virginia fulfilling these new objectives, to her knowledge, it was never executed.

Mental Hygiene Law § 81.01 presumes that every adult is [*6]fully capacitated. In fact, a guardian with powers limited and tailored to compensate for an incapacity may be appointed only upon a clear and convincing showing "that a person lacks functional capacity to act and to understand the consequences of acting or not acting in a particular domain" (In re Will of Khazaneh, 15 Misc 2d 515, 519). A durable Power of Attorney which is found here survives the maker's incapacity. (In re Estate of Ferrara, 7 NY3d 244, 251, n.2). Nevertheless, for the Power of Attorney to be valid, Virginia must have had "significant mental capacity" when she executed it. (In re Hoerter, 15 Misc 3d 1101A). A transfer of assets by the holder of the Power of Attorney to him or herself is no longer presumed improper. General Obligations Law § 5-1502. The burden of proving the invalidity of such a transfer generally falls on the party challenging it. Nevertheless, the defendant, as the holder of the Power of Attorney, was obligated to " act in the utmost good faith and undivided loyalty toward [Virginia] and must act in accordance with the highest principles of morality, fidelity, loyalty and fair dealing'" (In re Estate of Ferrara, supra, at p. 254, quoting Semmler v Naples, 160 AD2d 751, app dism. 77 NY2d 936). While General Obligations Law § 5-1503 allows a Power of Attorney to be augmented to allow the agent, i.e., the party holding the Power of Attorney, to make unlimited gifts to himself, the Court of Appeals specifically held in In re Estate of Ferrara, (supra, at p. 253), that General Obligations Law § 5-1502M which requires an attorney in fact to act in the principal's best interests still applies. The Court of Appeals noted that General Obligations Law §5-1502M(1) requires language conferring general authority with respect to making gifts to be construed to mean that the principal authorizes the agent to do so only for the purposes which the agent reasonably deems to be "in the best interests of the principal, specifically includ[ing] minimization of income, estate, inheritance, generation-skipping transfer or gift taxes'" The court summarized "[i]n short, the Legislature sought to empower individuals to appoint an attorney-in-fact to make annual gifts consistent with financial, estate or tax planning techniques and objectives not to create gift-giving authority generally, and certainly not to supplant a will." In fact, in Matter of Leeds (2007 WL 2815554 [Surrogate's Court Nassau Co. 2007]), the Surrogate's Court noted that while it may be in the best interests of a principal for the "attorney-in-fact to implement the principal's estate plan, the attorney-in-fact could not favor himself or members of his family over other [*7]family members who were intended by the principal to be equal beneficiaries of the estate." As the Court of Appeals put it in Matter of Estate of Ferrara, (supra, at p. 254-255), "[t]he term best interest' does not include . . . unqualified generosity to the holder of a power of attorney, especially where the gift virtually impoverishes a donor whose estate plan, shown by a recent will, contradicts any desire to benefit the recipient of the gift."

A lost will is presumed revoked. In re Demetrion, (48 AD3d 463, citing Collyer v Collyer, 110 NY 481, 486). To overcome this presumption, the plaintiff, as the proponent of a lost will, must establish that it was in existence at the time of the testator's death or that it was fraudulently destroyed (In re Evans, 264 AD2d 482, citing Matter of Fox, 9 NY2d 400, 407-408; Matter of Philbrook, 185 AD2d 550).

In his first cause of action, the plaintiff alleges that defendant breached her fiduciary duty to the plaintiff and Virginia by transferring the property to herself.

The evidence presented by the defendant establishes that Virginia was competent and coherent when she gave her the Power of Attorney. Nevertheless the propriety of the defendant's use of it presents an issue of fact. That is, whether defendant's gift to herself was "in the decedent's best interest, interpreted by section 5-1502M as gifts to carry out the principal's financial, estate or tax plans" presents an issue of fact (Matter of Estate of Ferrara, supra, at p. 254).

Nevertheless, assuming, arguendo, that the defendant's transfer of the real property to herself is set aside, the defendant has established Virginia's revocation of her will (see, In re Staiger's Will, 243 NY 468); see also, In re Rush's Estate, 38 Misc 2d 45) which results in the defendant inheriting all of Virginia's property. EPTL § 4-1.1. In view of a lack of damages, the defendant has established her entitlement to summary judgment on the first cause of action.

"The ultimate purpose of a constructive trust is to prevent unjust enrichment and thus, [one] may be imposed "when property has been acquired in such circumstances that the holder of legal title may not in good conscience retain the beneficial interest" [*8]'" (Cruz v McAneney, 31 AD3d 54, 58-59, quoting Sharp v Komalski, 41 NY2d 119, 121, quoting Beatty v Guggenheim Exploration Co., 225 NY 380, 386; and citing Matter of Wieczorek, 186 AD2d 204). "The usual elements of a constructive trust are (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon and (4) unjust enrichment'" (Cruz v McAneney, supra, at p. 59, quoting Sharp v Komalski, supra; and citing Levy v Moran, 270 AD2d 314). Contrary to defendant's assertions, in view of the plaintiff's "repeating reiterating and realleging" the prior allegations in the complaint, the plaintiff has adequately alleged that a constructive and/or resulting trust should be imposed on the property on account of the defendant's alleged breach of her fiduciary duties to and agency relationships with both him and Virginia. Nevertheless, these claims also fail for want of damages because again, as a result of Virginia's revocation of her will, the defendant inherited the property. The defendant has accordingly established her entitlement to summary judgment dismissing the second and third causes of action, too.

As and for the fourth cause of action whereby the plaintiff seeks to recover as a third-party beneficiary of Virginia's will, not only was her will revoked, in any event, contracts to establish a trust to make a testamentary provision, to make a joint will, or not to revoke a will must all be in writing, which is lacking here (EPTL § 13-2.1(a); In re Morse, 1 AD3d 516). An alleged agreement between Virginia and George Weber to give the plaintiff the property fails for the same reason (General Obligations Law § 5-701).

The defendant has established her entitlement to summary judgment dismissing all four causes of action. The burden accordingly shifts to the plaintiff to establish the existence of a material issue of fact.

The defendant incorrectly maintains that no claim based upon Virginia's mental state and/or her undue influence was advanced in the complaint. In paragraphs 11, 12, 13, 24 and 37 of the complaint, the plaintiff specifically alleges that Virginia suffered from Alzheimer's Disease which had debilitating affects and that defendant nevertheless took advantage of her mother's mental state in procuring the Power of Attorney and conveying the property to herself. In fact, in this court's decision dated July [*9]31, 2007 which denied the defendant's first motion for summary judgment, this court noted that the plaintiff had alleged that Virginia had been diagnosed with Alzheimer's disease, which raised questions of fact concerning her mental capacity and consequently the validity of the Power of Attorney as well as the revocation of her will. Summary judgment was denied because discovery remained outstanding with respect to those issues. Plaintiff's request to amend his complaint to add a fifth cause of action seeks only to advance an independent cause of action sounding in mental incapacity and/or undue influence based on the previous allegations. While based on Attorney Raskin's testimony, the defendant has established her entitlement to summary judgment dismissing claims based on mental capacity (see, Gala v Magarinos, 245 AD2d 336), as well as undue influence (Hearst v Hearst, 50 AD3d 959), assuming that those claims are shown to have merit and material issues of fact are established, leave to amend will be granted and summary judgment will be denied.

"Mental competence and undue influence are distinct issues." [28 Williston on Contracts § 71:60, Duress and Undue Influence (4th ed.)]. "Mental incapacity implies the lack of intelligent mental power; while undue influence implies within itself the existence of a mind of sufficient mental capacity to make a will, if not hindered by the dominant or overriding influence of another in such a way as to make the instrument speak the will of the person exercising undue influence, and not that of the testator" [28 Williston on Contracts § 71:60, Duress and Undue Influence (4th ed.)]. Nevertheless, mental and/or physical infirmities may be considered a material circumstance in determining whether a person was in a condition to be susceptible to undue influence [28 Williston on Contracts, § 71:60, Duress and Undue Influence (4th ed.); In re Gnirrep's Will, 2 AD2d 404, citing Matter of Sterb, 247 App.Div. 556].

Ordinarily, the plaintiff has the burden of proof on the issue of undue influence (Hearst v Hearst, supra, citing Matter of Connelly, 193 AD2d 602, lv den. 82 NY2d 656; Matter of Bustanoby, 262 AD2d 407, 408). However, " if a confidential relationship exists, the burden is shifted to the beneficiary of the transaction to prove the transaction is fair and free from undue influence'" (Hearst v Hearst, supra, at p. 962 quoting Matter of Connelly, supra; see also, Sepulveda v Aviles, 308 AD2d 1, 7; Matter of Gordon v Bialystoker Center & Bikur Cholim, [*10]Inc., 45 NY2d 692, 699). While "[g]enerally, no presumption of undue influence can be drawn solely from the relationship between the decedent and her child because a sense of family duty is inexplicably intertwined in this relationship" (Matter of Zirinsky, 10 Misc 3d 1052(A), p. 8, aff'd. 43 AD3d 946, lv den. 9 NY3d 815, citing Matter of Walther, 6 NY2d 49), "[a] confidential relationship may be inferred if one party has disparate power over the other such as the power of an attorney, guardian, clergymen, doctor or nursing home director" (Matter of Zirinsky, supra, at p. 8, citing Ten Evck v Whitbeck, 156 NY 341). "Where a fiduciary relationship exists between parties, transactions between them are scrutinized with extreme vigilance, and clear evidence is required that the transaction was understood, and that there was no fraud, mistake or undue influence. Where those relations exist there must be clear proof of the integrity and fairness of the transaction or any instrument thus obtained will be set aside or held as invalid between the parties" (Sepulveda v Aviles, supra, at p. 8, quoting Ten Eyck v Whitbeck, supra; see also, Matter of Henderson, 80 NY2d 388).

In fact, "[a]ppellate courts in this State have, time and time again, applied this burden-shifting mechanism to evaluate transactions which, at least on the surface, appear to involve the exploitation of elderly or mentally incapacitated persons by those intent on violating the trust reposed in them" (Sepulveda v Aviles, supra, at p. 8, citing Matter of Estate of Muzak, 288 AD2d 682, 684; Peters v Nicotera, 248 AD2d 969, 969-970; JML Investors Corp. v Hilton, 231 AD2d 493, 493-494; Matter of Connelly, supra, at p. 602-603; Greiff v Greiff, 92 NY2d 341, 345-347, lv to app den. 93 NY2d 817).

Furthermore, "[w]here there is medical evidence of mental illness or defect, the burden shifts to the opposing party to prove by clear and convincing evidence that the person executing the document in question possessed the requisite mental capacity" (Kaminester v Foldes, 51 AD3d 528, 529, lv den. 11 NY2d 781, citing Matter of Rose S., 293 AD2d 619, 620; see also, Jordan v Clinton, 18 AD3d 817, Hubbard v Gatz, 130 AD2d 622, app den. 70 NY2d 606).

The three elements of undue influence are motive, opportunity and the actual exercise of undue influence "such that the party acts contrary to her wishes because she cannot refuse [*11]or is too weak to resist" [Matter of Efros, 19 Misc 3d 1113(A), p. 6, citing Matter of Fellows, 16 AD3d 995 and Children's Aid Soc. of New York v Loveridge, 70 NY 387 ; see also, Matter of Fiumara's Estate 47 NY2d 845, 846]. "In order to prevail, the party alleging undue influence must show the existence and exertion of influence, the effective operation of such influence to subvert the mind of, in this case, the principal at the time of the execution of the power of attorney, and that the execution of the instrument would not have occurred but for the undue influence" (Matter of Hoerter, supra). "Undue influence is seldom practiced openly, but it is, rather, the product of persistent and subtle suggestion imposed on a weaker mind and calculated, by the exploitation of a relationship of trust and confidence, to overwhelm the victim's will to the point where it becomes the willing tool to be manipulated for the benefit of another" (Matter of Hoerter, supra, quoting Matter of Burke, 82 AD2d 260, 269). "Undue influence is rarely proven by direct evidence; rather, it is usually proven by circumstantial evidence" [In re of Katz, 15 Misc 3d 1146(A), citing Matter of Walther, supra; Children's Aid Soc. of New York v Loveridge, supra, at p. 395; Matter of Burke, supra; Matter of Zirinsky, supra)].

In evaluating a claim of undue influence, "[a]mong the factors

that are considered are: (1) the testator's or principal's physical and mental condition (Matter of Woodward, 167 NY 28, 31 (1901); Children's Aid Socy. v Loveridge, supra; Matter of Callahan, 155 AD2d 454 (2nd Dept. 1989); (2) whether the attorney who drafted the will [or the power of attorney] was the testator's attorney (Matter of Lamerdin, 250 App.Div. 133, 135 (2nd Dept. 1937); Matter of Elmore, 42 AD2d 240, 241 (3rd Dept. 1973); (3) whether the propounded instrument [and the results] deviate from the testator's [or principal's] prior testamentary pattern (Children's Aid Soc. of New York v Loveridge, supra, at p. 402; Matter of Kruszelnicki, 23 AD2d 622 (4th Dept. 1965); (4) whether the person who allegedly wielded undue influence was in a position of trust (Matter of Burke, supra, at p. 270); and, whether the testator was isolated from the natural objects of his affection (Matter of Burke, supra, at p. 273; see, Matter of Kaufman, 20 AD2d 464, 474 (1st Dept. 1964), aff'd. 15 NY2d 825 (1965)" (In re of Katz, supra; see also, Matter of Zirinsky, supra, at p. 8). [*12]

"Undue influence can be shown by all the facts and circumstances surrounding the testator [or principal], the nature of the will [or Power of Attorney], [her] family relations, the condition of [her] health and mind, [her] dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such person'" (Matter of Panek, 237 AD2d 82, 84, quoting Rollwagen v Rollwagen, 63 NY 504, 519, and citing Matter of Anna, 248 NY 421, 424; Matter of Collins, 124 AD2d 48, 53). "The mere fact that a new will alters the testamentary scheme contained in a prior will does not by itself raise a presumption of invalidity" [Matter of Efros, supra, at p. 4, citing Matter of Herzenberg, NYLJ, Aug. 1, 1994, at 34, col 5 (Surrogate's Court, Nassau County, Radigan, S.)]. "[H]owever, a departure from a previously expressed intention along with other suspicious facts may raise an inference of moral coercion that amounts to undue influence" [Matter of Efros, supra, at p. 4, citing Matter of Herzenberg, supra; Estate of Weingarten, NYLJ, Dec. 23, 2005, at 28, col 2 (Sur Ct, New York County, Preminger, S.); Matter of Anna, supra].

At his examination-before-trial, the plaintiff testified that he had a "very nice" relationship with Virginia; that they "got along very well" and "really had no arguments or disagreements." He said it was a "very cordial understanding relationship." He denied ever threatening Virginia about the property or for any reason for that matter and his wife has concurred. In fact, the plaintiff points out that he knew the property was entirely Virginia's and that he had no claim to it, thus rendering any such threats not only ridiculous, but futile and unwise. He notes that in 1992, following George's death, Virginia met with a neighbor attorney, James J. Daw, who testified at his examination-before-trial that after George's death, pursuant to Virginia's clear directives, he drafted a will for her that not only carried out hers and George's intent that the plaintiff and defendant share equally in the property, but Virginia went to the trouble to bequeath to the plaintiff his father and mother's wedding jewelry. The plaintiff recalls discussing Virginia's revised will with her only twice after his father's death, both times at Virginia's prompting. He testified that on both occasions, Virginia assured him that his father's wishes would be carried out and she even bequeathed personal property to him. He points out that while the 1992 will was never [*13]found, that the defendant lived with Virginia and that she also had access to her safety deposit box which she admitted emptying three months before her death.

The plaintiff has also submitted disturbing medical evidence regarding Virginia's mental state which the defendant has failed to meaningfully address. The defendant points out that Virginia's medical records the ones that were ultimately produced[FN2] reveals that in 1996 she was "forgetful." Her medical record of November 12, 1997 indicates that she "is having memory problems . . . to have CT brain (scan) before prescribing Aricept," which is an Alzheimer's medication. In February, 1999, Virginia was reported missing to the police: she spent three hours driving around her community lost, unable to find her way home. Virginia's medical record for February 27, 1999 states "increasing memory loss. Had one episode of lapse of memory was driving and lost direction. . . needs socialization and more contact." Virginia's September 22, 1999 medical record indicates that she was diagnosed with Alzheimer's. Virginia's July 20, 2001 record reads "not much improvement but no decline;" "no memory;" "will consider change to Exelon." Virginia's September 5, 2002 medical record reads "patient seems to be losing sense of her mental state" and "Aricept will be stopped and Exelon begun." The plaintiff testified that on his December 2003 visit, the plaintiff was unable to order herself lunch without assistance and that she thought he lived around the corner even though he had lived in Connecticut for decades.

In light of the circumstances extant, the burden may well be on the defendant to prove there was no undue influence and/or lack of mental capacity.

Whether or not the burden shifts to the defendant, Virginia's medical records, alone, give rise to an issue of fact concerning her mental capacity when she gave the defendant the Power of Attorney as well as when she allegedly revoked her will.

The evidence also establishes that the defendant clearly had [*14]the opportunity to unduly influence Virginia: she alone took care of her mother, tended to all of her personal affairs, made her appointments and drove her everywhere, including to doctors and lawyers. Motive, as well, is quite evident: The defendant now owns the entire property. As for evidence that undue influence was exercised, not only does defendant now own the property which was a dramatic change from Virginia's historic intentions, Virginia's most recently executed will leaving the property to the plaintiff and defendant has not been found and Virginia never executed the new will Ruskin drafted leaving the property to the defendant alone. That the Power of Attorney was executed under the supervision of an attorney who has attested to Virginia's capacity is not determinative of whether defendant unduly influenced Virginia. Indeed, it appears that Raskin was not aware of Virginia's mental health history (In re Efros, supra, citing Matter of Kaufman, supra, at p. 485). Issues of fact clearly exist as to both Virginia's mental capacity as well as undue influence (Thomas v Laustrup, 21 AD3d 688; In re Efros, supra). Whether defendant breached her fiduciary duty to Virginia by supplanting her will also presents an issue of fact [Estate of Ferrara, supra; Matter of Estate of Babb, 20 Misc 3d 1119(A)].

The plaintiff's motion for leave to amend his complaint to add a fifth cause of action is granted. Moreover, because there are issues as to the defendant's procurement and use of the Power of Attorney as well as Virginia's revocation of her will, and accordingly whether defendant breached her role as Trustee and/or agent of Virginia which could result in the imposition of a resulting or constructive trust in plaintiff's favor, summary judgment on the first, second and third causes of action are denied. The fourth cause of action is dismissed.

Dated: December 18, 2008 _______________________________

J.S.C. Footnotes

Footnote 1:Testimony regarding conversations with the deceased is inadmissible in support of a summary judgment motion pursuant to the Dead Man's Statute. CPLR 4519; In re Cavallo, 6 AD3d 434 (2nd Dept. 2004). Evidence excludable by CPLR 4519 may be considered to defeat a summary judgment motion. In re Cavallo, supra.

Footnote 2:Virginia's medical records from Dr. Ordorica were produced twice. While the second set of documents which was only produced this year contains the same date entries as the first set of documents, the second set varies markedly from the first set, without explanation: Only in the second set of documents produced is Virginia's mental state repeatedly discussed.