Madelon Lief, as executrix of the estate of Leonard Lief, appellant,
Emita Hill, et al., respondents. Index No. 16807/09
Kurzman Grant, White Plains, NY (Marc G. Kurzman of counsel),
Bleakley Platt & Schmidt, LLP, White Plains, NY (Robert
D. Meade of counsel), for respondent Emita Hill.
Kaufman Dolowich & Voluck, LLP, New York, NY (Gino A.
Zonghetti of counsel), for respondent Todd Witkin.
RANDALL T. ENG, P.J., JOHN M. LEVENTHAL, LEONARD B. AUSTIN,
JEFFREY A. COHEN, JJ.
DECISION & ORDER
from a judgment of the Supreme Court, Westchester County
(Mary H. Smith, J.), entered January 20, 2015. The judgment,
insofar as appealed from, upon an order of that court entered
January 13, 2014, granting the defendants' separate
motions pursuant to CPLR 4401 for judgment as a matter of law
dismissing the complaint insofar as asserted against each of
them, made at the close of the plaintiff's case, is in
favor of the defendants and against the plaintiff dismissing
that the judgment is affirmed insofar as appealed from, with
one bill of costs.
Lief (hereinafter the decedent), who suffered from
Parkinson's Disease, employed the defendant Todd Witkin
as his personal trainer and the defendant Frederick Abbabio
as his home health aide during the last few years of his
life. Additionally, the decedent was involved in an intimate
relationship with the defendant Emita Hill. The plaintiff,
the decedent's daughter and executrix of his estate,
commenced this action against the defendants alleging, inter
alia, that they exercised undue influence over the decedent
to obtain approximately $96, 000 from him.
close of the plaintiff's case, each of the defendants
separately moved pursuant to CPLR 4401 for judgment as a
matter of law dismissing the complaint insofar as asserted
against each of them. In an order entered January 13, 2014,
the Supreme Court granted their motions. Thereafter, judgment
was entered upon the order, in favor of the defendants and
against the plaintiff dismissing the complaint. The plaintiff
appeals from the judgment.
contention that the appeal should be dismissed because the
plaintiff's brief failed to comply with CPLR 5528(a)(3)
is without merit.
to the plaintiff's contention, she waived the protection
of CPLR 4519 by eliciting testimony from Abbabio regarding
specific transactions at issue involving the decedent
(see Matter of Wood, 52 N.Y.2d 139, 145; Matter
of Nealon, 104 A.D.3d 1088, 1090, affd 22
N.Y.3d 1045; Matter of Pennino, 289 A.D.2d 248,
be awarded judgment as a matter of law pursuant to CPLR 4401,
a defendant must show that, upon viewing the evidence in the
light most favorable to the plaintiff, there is no rational
basis by which the jury could find for the plaintiff against
the moving defendant" (Seitz v. TJX Coms.,
Inc., 119 A.D.3d 669, 670; see Szczerbiak v.
Pilat, 90 N.Y.2d 553, 556; Porcelli v. Northern
Westchester Hosp. Ctr., 110 A.D.3d 703, 705). "In
determining whether the defendant has met this burden, a
court must accept the plaintiff's evidence as true and
accord the plaintiff the benefit of every reasonable
inference which can reasonably be drawn from the evidence
presented at trial" (Figueroa v. City of New
York, 101 A.D.3d 674, 675; see Cioffi v. Klein,
131 A.D.3d 914, 915).
the burden of proving undue influence rests with the party
asserting its existence (see Hearst v. Hearst, 50
A.D.3d 959, 962; Matter of Connelly, 193 A.D.2d 602,
602). Where, however, the existence of a confidential
relationship is established, the burden shifts to the
beneficiary of the transaction to show that the transaction
is fair and free from undue influence (see Matter of
Albert, 137 A.D.3d 1266, 1268; Matter of
Boatwright, 114 A.D.3d 856, 858; Matter of
Connelly, 193 A.D.2d at 603; see also Matter of
Gordon v. Bialystoker Ctr. & Bikur Cholim, 45 N.Y.2d
692, 699). "In order to demonstrate the existence of a
confidential relationship, there must be evidence of
circumstances that demonstrate inequality or a controlling
influence" (Matter of Albert, 137 A.D.3d at
1268; see Matter of Bonczyk v. Williams, 119 A.D.3d
1124, 1126; Matter of Graeve, 113 A.D.3d 983, 984;
Matter of Nealon, 104 A.D.3d at 1089). Viewing the
evidence in a light most favorable to the plaintiff, the
plaintiff did not establish, prima facie, that a confidential
relationship existed between the decedent and the defendants,
so as to shift the burden to them to show that the
transactions at issue were fair and free from undue influence
(see Matter of Bonczyk v. Williams, 119 A.D.3d at
1127; Matter of Nealon, 104 A.D.3d at 1089;
Feiden v. Feiden, 151 A.D.2d 889, 891). As a result,
the burden of demonstrating undue influence remained upon the
plaintiff. The plaintiff, however, presented no evidence that
the defendants actually exercised undue influence (see
Matter of Albert, 137 A.D.3d at 1268; Matter of
Prevratil, 121 A.D.3d 137, 143-144).
plaintiff's remaining contentions are without merit.
the Supreme Court properly granted the defendants'
separate motions pursuant to CPLR 4401 for judgment as a