IN RE: the Application of Elaine J. PRIEVO

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

IN RE: the Application of Elaine J. PRIEVO, as Executrix of the Estate of Frank J. Matusz, also known as Francis J. Matusz, Deceased, Petitioner-Respondent, v. Reverend Lucian URBANIAK, Respondent-Appellant.

Decided: July 10, 2009

PRESENT:  SCUDDER, P.J., HURLBUTT, MARTOCHE, SMITH, AND CENTRA, JJ. Hancock & Estabrook, LLP, Syracuse (Janet D. Callahan of Counsel), for Respondent-Appellant. Getnick Livingston Atkinson Gigliotti & Priore, LLP, Utica (Janet M. Richmond of Counsel), for Petitioner-Respondent.

Respondent appeals from a decree of Surrogate's Court, directing that certain assets be turned over to petitioner.   The decree was entered upon a jury verdict finding that the transfer of the assets to respondent by Frank J. Matusz (decedent) had been effected through undue influence.   We reject the contention of respondent that the Surrogate erred in denying his motion to dismiss the petition at the close of proof (see generally Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346).   Petitioner presented evidence from which the jury could reasonably have found that respondent and decedent had a confidential relationship (see Matter of Henderson, 80 N.Y.2d 388, 392, 590 N.Y.S.2d 836, 605 N.E.2d 323;  Matter of Moran, (Appeal No. 2), 261 A.D.2d 936, 689 N.Y.S.2d 798), and that respondent exercised undue influence over decedent (see Peters v. Nicotera, 248 A.D.2d 969, 669 N.Y.S.2d 1000;  Matter of Antoinette, 238 A.D.2d 762, 763-764, 657 N.Y.S.2d 97;  Spatz v. Bajramoski, 214 A.D.2d 436, 436-437, 624 N.Y.S.2d 606).

 We agree with respondent, however, that the Surrogate erred in charging the jury that he had a confidential relationship with decedent as a matter of law (see Matter of Brand, 185 App.Div. 134, 139-142, 173 N.Y.S. 169, affd. 227 N.Y. 630, 125 N.E. 913;  see also Matter of Kaufmann, 14 A.D.2d 411, 412-413, 221 N.Y.S.2d 601;  see generally Gaston v. New York City Hous. Auth., 258 A.D.2d 220, 224, 695 N.Y.S.2d 83).   When the issue of undue influence based upon a confidential relationship is raised, the initial burden is on the objectant, here, the petitioner, to make “the requisite threshold showing that a confidential relationship existed” (Matter of Butta, 3 A.D.3d 347, 770 N.Y.S.2d 343).   In the event that the objectant makes that showing, “the burden is shifted to the beneficiary of the transaction to prove the transaction fair and free from undue influence” (Matter of Connelly, 193 A.D.2d 602, 603, 597 N.Y.S.2d 427, lv. denied 82 N.Y.2d 656, 602 N.Y.S.2d 805, 622 N.E.2d 306).   Here, there was conflicting evidence on the issue whether respondent and decedent had a confidential relationship, and the Surrogate thus erred in charging the jury that such a relationship existed as a matter of law.   Although respondent did not object to the charge, we reverse the decree in the interest of justice and grant a new trial because the error in the charge was “so fundamental that it preclude[d] consideration of the central issue upon which the [proceeding was] founded” (Breitung v. Canzano, 238 A.D.2d 901, 902, 660 N.Y.S.2d 765;  see also Clark v. Interlaken Owners, Inc., 2 A.D.3d 338, 340, 770 N.Y.S.2d 58).   In light of our determination to grant a new trial, we note that respondent's remaining contentions with respect to evidentiary rulings made by the Surrogate are without merit.

It is hereby ORDERED that the decree so appealed from is unanimously reversed in the interest of justice without costs and a new trial is granted.