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Murray J.S. Kirshtein, As Guardian and As Administrator v. Americu Credit Union Formerly Up State Federal Credit Union

March 25, 2011

MURRAY J.S. KIRSHTEIN, AS GUARDIAN AND AS ADMINISTRATOR
OF THE ESTATE OF GEORGE J. TAPPER, DECEASED, PLAINTIFF-RESPONDENT,
v.
AMERICU CREDIT UNION FORMERLY UP STATE FEDERAL CREDIT UNION,
DEFENDANT-APPELLANT, ET AL.,
DEFENDANT. MURRAY J.S. KIRSHTEIN, AS ADMINISTRATOR OF THE OF THE ESTATE OF GEORGE J. TAPPER,
DECEASED,
PLAINTIFF-RESPONDENT,
GENERAL ELECTRIC COMPANY, LOEWS CORPORATION,
WACHOVIA CORPORATION, DEFENDANTS-APPELLANTS, ET AL.,
DEFENDANTS.



Appeal from a partial order and judgment (one paper) of the Supreme Court, Oneida County (Samuel D. Hester, J.), entered January 20, 2010. The partial order and judgment, insofar as appealed from, awarded plaintiff shares of stock as well as accrued dividends and interest on those dividends.

The opinion of the court was delivered by: Centra, J.

Kirshtein v Americu Credit Union

Appellate Division, Fourth Department 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.

Decided on March 25, 2011

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.

OPINION AND

AND A THIRD-PARTY ACTION. (ACTION NO. 1. AND A THIRD-PARTY ACTION. (ACTION NO. 2.) (APPEAL NO. 1.)

It is hereby ORDERED that the partial order and judgment so appealed from is unanimously affirmed without costs.

Opinion by Centra, J.P.:

In appeal No. 1, defendants AmeriCU Credit Union (formerly Up State Federal Credit Union) (AmeriCu), General Electric Company (GE), Loews Corporation (Loews), and Wachovia Corporation (Wachovia) appeal from a "Partial Order and Judgment" awarding plaintiff various shares of stock of GE, Loews, and Wachovia, plus accrued dividends and interest, upon a jury verdict in favor of plaintiff on a cause of action for wrongful registration pursuant to UCC 8-404. In appeal No. 2, defendant Toys-"R"-Us, Inc. (Toys) appeals from a judgment ordering Toys to pay plaintiff the sum of $263,017.80 with interest until the date of payment. This appeal raises issues regarding a jury instruction and the remedy to which a plaintiff is entitled upon prevailing on a cause of action for wrongful registration.

II The procedural background of this case is set forth in our prior decision in an appeal from an order denying the motion of the corporate defendants mentioned above, as well as AmeriCu (collectively, defendants), for summary judgment dismissing the complaint in the consolidated actions against them, which at that time had only one cause of action remaining, for wrongful registration (Kirshtein v AmeriCU Credit Union, 65 AD3d 147). Following the issuance of our decision, a jury trial was held on that sole cause of action under UCC 8-404. The evidence presented at trial established that plaintiff's decedent died on December 2, 2001 when he was 95 years old. Four years prior to his death, i.e., between December 1997 and September 1998, decedent transferred shares of stock of GE, Loews, Wachovia, and Toys worth over $300,000 to his caregiver, who had been caring for him since June 1997. Although no evidence was submitted regarding decedent's mental incapacity at the precise time that the transfers were made, plaintiff submitted evidence establishing that decedent was mentally incompetent both before and after the times in which those transfers were made. Plaintiff submitted evidence that decedent was hospitalized for four days in July 1996 after a police officer found decedent sitting in his car on the shoulder of a road, disoriented. Decedent showed signs of dementia during that hospital stay, which was documented by hospital personnel. An attorney testified that he met with decedent in 1996 for the execution of his will, but the attorney determined that decedent did not have the mental capacity to execute a will. Plaintiff also submitted evidence that, although decedent was taken to the emergency room in May 1997 for a broken arm, decedent did not know how he had sustained that injury.

Plaintiff also called an expert psychiatric witness, who testified that decedent's July 1996 hospitalization and May 1997 emergency room treatment showed that decedent was delusional and confused, and that he was not mentally competent. The expert testified that the dementia was not a transitory condition, inasmuch as decedent exhibited the dementia throughout the four-day hospitalization, and it persisted in May 1997. When decedent was moved into a nursing home in 1999, the admitting physician noted on decedent's chart that decedent had "known dementia, probably secondary to Alzheimer's Disease." The expert opined that decedent was not able to understand the nature of the stock transfers.

Defendants in turn called an expert witness in geriatric medicine to testify at trial. She agreed that the hospital records indicated that decedent had dementia in July 1996, but she could not "make a statement about his competence." She suggested that decedent's dementia could have been caused by agitation or stress ...


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