IN RE: THE ESTATE OF MANSFIELD B. JORDAN, DECEASED
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, and judgment is granted in favor of respondent as follows:
It is ORDERED, ADJUDGED and DECREED that respondent is entitled to the proceeds of the Fidelity investment account at issue.
Memorandum: As relevant on appeal, petitioners commenced this proceeding in Surrogate's Court seeking a declaration that the proceeds of a Fidelity investment account must be issued to petitioners. Decedent's will was admitted to probate on April 23, 2013 and letters testamentary were issued to petitioners. Petitioner Norma J. Mobley was the sole beneficiary on the Fidelity investment account until December 17, 2012, when decedent designated respondent, a woman he had been dating prior to his death, as the sole beneficiary. Respondent moved for summary judgment dismissing the petition and requested that the proceeds of the Fidelity investment account be distributed to her. The Surrogate denied the motion, and we reverse. We note at the outset that the proper remedy is to grant a declaration in favor of respondent, and not to dismiss the petition (see generally Boyd v Allstate Life Ins. Co. of N.Y., 267 A.D.2d 1038, 1039).
It is well established that “[t]he essential elements of a gift are (1) donative intent, (2) delivery, and (3) acceptance” (Spallina v. Giannoccaro, 98 A.D.2d 103, 106, appeal dismissed 62 N.Y.2d 646). “The element of donative intent presupposes that the donor possesses the mental capacity to make a gift” (id.). In support of her motion, respondent submitted the sworn statements of two disinterested witnesses who indicated that they were decedent's close friends, had spent time with him during December 2012, including Christmas of that year, were aware of respondent's criminal history, and ultimately concluded that decedent was of sound mind and was fully cognizant of his intent to transfer the subject Fidelity investment account to respondent. In addition, respondent provided a sworn statement in which she attached a Fidelity envelope, dated December 19, 2012, addressed to decedent with “Happy Birthday Veronica” handwritten in the area above decedent's printed address. In view of the foregoing, we conclude that respondent established her entitlement to judgment as a matter of law (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).
In opposition, petitioners submitted the affidavit of counsel and the affidavit of a medical expert with his attached expert report. Counsel contended that, because respondent has a criminal history and decedent left financial related passwords out in the open, there is a question of fact whether respondent changed the designation on the subject Fidelity account herself. That contention, however, is based on “mere conclusions, expressions of hope or unsubstantiated allegations,” which are insufficient to defeat a motion for summary judgment (id.). In addition, although we agree with petitioners that “an expert may rely on out-of-court material if ‘it is of a kind accepted in the profession as reliable in forming a professional opinion,’ “ it is well established that “there must be evidence establishing the reliability of the out-of-court material” (Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 726). Here, petitioners' expert concluded that decedent did not have the capacity to change the beneficiary designation on the Fidelity investment account, and would not have done so but for his dementia. The expert then listed the “sources of information” upon which he relied in forming his opinion, but the expert failed to attach any of those “sources,” and thus his affidavit and report have no probative value (see Costanzo v. County of Chautauqua, 108 AD3d 1133, 1133–1134; Daniels v. Meyers, 50 AD3d 1613, 1614). Inasmuch as petitioners' expert did not examine decedent prior to his death, the expert did not reference any medical records that established decedent's incapacity during the relevant time period, and the expert relied to “a great extent on hearsay statements from unspecified witnesses,” we conclude that the expert's affidavit and report are insufficient to raise an issue of fact (Gardner v. Ethier, 173 A.D.2d 1002, 1003; see San Andres v. 1254 Sherman Ave. Corp., 94 AD3d 590, 592). We therefore reverse the order and grant judgment in favor of respondent, declaring that respondent is entitled to the proceeds of the Fidelity investment account.
Frances E. Cafarell
Clerk of the Court