CASUCCI v. CASUCCI (2004)

In an action, inter alia, to set aside two deeds transferring title to certain parcels of real property, the defendants appeal from an order of the Supreme Court, Dutchess County (Pagones, J.), dated March 26, 2003, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiffs seek to set aside, on the ground of undue influence, two deeds transferring title to certain parcels of real property from their dying father to their brothers, the defendants Carmine R. Casucci and Daniel Casucci.   The transfers occurred eight days prior to the father's death, while he was being cared for in Daniel's home, and significantly altered the testamentary plan contained in a will he executed only two months earlier.   After considering the submissions, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint, finding that an issue of fact existed as to whether undue influence was exerted to procure the transfers at issue (see Hennessey v. Ecker, 170 A.D.2d 650, 567 N.Y.S.2d 74).