IN RE: THE ESTATE OF PATRICIA S. (2017)

Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: THE ESTATE OF PATRICIA S. HAINES, DECEASED PETER L. HAINES AND MINNIE H. BRENNAN, AS COEXECUTORS OF THE ESTATE OF PATRICIA S. HAINES, DECEASED, PETITIONERS–RESPONDENTS; HOLLY WEST, RESPONDENT–APPELLANT.

CA 16–02319

Decided: December 22, 2017

PRESENT: WHALEN, P.J., SMITH, CARNI, TROUTMAN, AND WINSLOW, JJ.

CARMEL, MILAZZO & DICHIARA LLP, NEW YORK CITY (CHRISTOPHER P. MILAZZO OF COUNSEL), FOR RESPONDENT–APPELLANT. BURNS & SCHULTZ LLP, PITTSFORD (ANDREW M. BURNS OF COUNSEL), FOR PETITIONERS–RESPONDENTS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the decree so appealed from is unanimously affirmed without costs.

Memorandum: Petitioners, the coexecutors of decedent's estate, commenced this proceeding seeking, inter alia, an order directing respondent to return funds to the estate. Respondent asserted a counterclaim seeking an order directing petitioners to return to her shares in certain corporations that were allegedly the subject of an inter vivos gift from decedent to respondent. We reject respondent's contention that Surrogate's Court erred in determining, following a trial, that she failed to meet her burden of establishing a valid inter vivos gift. Although there is no dispute that decedent endorsed in blank three stock certificates in the presence of the parties, respondent presented no evidence that there was actual or constructive delivery of those certificates to her (see generally Gruen v. Gruen, 68 N.Y.2d 48, 56–57 [1986]; Bader v. Digney [appeal No. 2], 55 AD3d 1290, 1291 [4th Dept 2008] ). Respondent's remaining contentions are not preserved for our review inasmuch as she failed to present to the Surrogate the specific arguments that she now raises on appeal (see generally Nary v. Jonientz [appeal No. 2], 110 AD3d 1448, 1448 [4th Dept 2013] ).

Mark W. Bennett

Clerk of the Court

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