SCHLAGE v. BARRETT (1999)

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

Florence SCHLAGE, appellant, v. David BARRETT, et al., respondents.

Decided: March 22, 1999

CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER, WILLIAM C. THOMPSON and DANIEL W. JOY, JJ.

Murphy, Bartol & O'Brien, LLP, Mineola, N.Y. (Jeffrey P. Sharkey of counsel), for appellant. Gary C. DiLeonardo, Forest Hills, N.Y., for respondents.

In an action, inter alia, to set aside a deed to certain real property as fraudulently obtained, the plaintiff appeals from so much of a judgment of the Supreme Court, Queens County (Leviss, J.H.O.), entered December 18, 1997, as, after a nonjury trial, dismissed the complaint.

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

Contrary to the plaintiff's contention, the defendants established her intent to make an inter vivos gift by clear and convincing evidence (see, Gruen v. Gruen, 68 N.Y.2d 48, 53, 505 N.Y.S.2d 849, 496 N.E.2d 869). Additionally, the plaintiff did not meet her burden of proving her incompetence at the time the gift was given (see, Smith v. Comas, 173 A.D.2d 535, 570 N.Y.S.2d 135; see also, Feiden v. Feiden, 151 A.D.2d 889, 890, 542 N.Y.S.2d 860).

The plaintiff's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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