IN RE: Allen Stancil CULBRETH (2008)

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

IN RE: Allen Stancil CULBRETH, a/k/a Allen Culbert, deceased. Malissie J. Culbreth, et al., respondents; Alice B. Geddie, appellant.

Decided: February 13, 2008

ROBERT A. LIFSON, J.P., DAVID S. RITTER, DANIEL D. ANGIOLILLO, and EDWARD D. CARNI, JJ.

Lee M. Nigen & Associates, P.C., Brooklyn, N.Y., for appellant. Donald Novick, Huntington, N.Y., for respondents.

In a proceeding, inter alia, to set aside two deeds for three properties, the appeal is from a decree of the Surrogate's Court, Kings County (Lopez-Torres, S.), dated October 20, 2006, which, after a hearing, granted the petition and declared the subject deeds null and void.

ORDERED that the decree is affirmed, with costs.

The power of attorney executed by the decedent did not authorize the attorney-in-fact to make gifts. Accordingly, the gratuitous conveyances of the decedent's properties by the attorney-in-fact to her mother were in violation of the fiduciary duty she owed to the decedent, and were therefore invalid (see Matter of Agrest, 279 A.D.2d 471, 719 N.Y.S.2d 261). Moreover, we agree with the Surrogate that the evidence wholly failed to establish that the decedent intended to gift the properties in question to the mother of the attorney-in-fact (see Salonen v. Salonen, 8 A.D.3d 255, 777 N.Y.S.2d 326).

The appellant's remaining contentions are without merit.

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