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McCarthy v. Kaminski

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


January 12, 2010

MICHAEL N. MCCARTHY, ETC., RESPONDENT,
v.
FRANK KAMINSKI, APPELLANT, ET AL., DEFENDANTS.

In an action, inter alia, for the reformation of three deeds, the defendant Frank Kaminski appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Costello, J.), dated August 6, 2008, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

STEVEN W. FISHER, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON and JOHN M. LEVENTHAL, JJ.

(Index No. 21746/06)

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant Frank Kaminski established his prima facie entitlement to judgment as a matter of law through evidence that the plaintiff's decedent understood that she was conveying to him title to her three houses, reserving a life estate to herself (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562). In opposition, however, the plaintiff raised a triable issue of fact as to whether the 85-year-old, legally blind decedent had signed the deeds only after having been fraudulently told that the documents she was executing were wills. Accordingly, Kaminski's motion for summary judgment dismissing the complaint insofar as asserted against him was properly denied.

The parties' remaining contentions are without merit.

FISHER, J.P., ANGIOLILLO, DICKERSON and LEVENTHAL, JJ., concur.

20100112

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