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Lief v. Hill

Supreme Court of New York, Second Department

June 28, 2017

Madelon Lief, as executrix of the estate of Leonard Lief, appellant,
v.
Emita Hill, et al., respondents. Index No. 16807/09

          Kurzman Grant, White Plains, NY (Marc G. Kurzman of counsel), for appellant.

          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

         Appeal 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 the complaint.

         ORDERED that the judgment is affirmed insofar as appealed from, with one bill of costs.

         Leonard 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.

         At the 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.

         Witkin's contention that the appeal should be dismissed because the plaintiff's brief failed to comply with CPLR 5528(a)(3) is without merit.

         Contrary 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, 248).

         "To 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).

         Generally, 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).

         The plaintiff's remaining contentions are without merit.

         Accordingly, the Supreme Court properly granted the defendants' separate motions pursuant to CPLR 4401 for judgment as a ...


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