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

IN RE: Arnold BREITMAN, deceased. Linda Breitman, et al., appellants; Edwin Efros, et al., respondents.

Decided: July 31, 2000

SONDRA MILLER, J.P., WILLIAM D. FRIEDMANN, ANITA R. FLORIO and NANCY E. SMITH, JJ. Salzman and Salzman, LLP, Brooklyn, N.Y. (Richard Salzman of counsel), for appellants. Farrell Fritz, P.C., Uniondale, N.Y. (John J. Barnosky and Sally M. Donahue of counsel), for respondents.

In a proceeding pursuant to SCPA 2103 to discover property allegedly belonging to the decedent's estate, the petitioners appeal from (1) a decree of the Surrogate's Court, Nassau County (Radigan, S.), dated May 4, 1999, which denied the petition, and (2) an order of the same court, dated July 27, 1999, which amended the decree by adding thereto, inter alia, a provision that the decedent made a valid gift of his one-half interest in certain real property located in Manhattan to his sister.

ORDERED that the decree and the order are affirmed, with one bill of costs payable by the estate.

Arnold Breitman died on September 29, 1995.   His last will named Linda and Patti Breitman, his only children, as the sole beneficiaries.   On May 15, 1995, the decedent had executed a deed transferring his one-half ownership interest in certain real property located in Manhattan to his sister, the respondent Judith Efros, as a gift.   Prior to the execution of the deed, the decedent and Judith Efros had owned the property as tenants in common.   The deed was prepared by the respondent Edwin Efros, the decedent's brother-in-law, an attorney whom the decedent often consulted.

On or about February 1, 1996, the petitioners commenced the instant proceeding to discover property allegedly belonging to the decedent's estate, namely, the Manhattan property.

We agree with the conclusion of the Surrogate's Court that the testimony of the respondents Judith and Edwin Efros, as well as the documentary evidence, established by clear and convincing evidence that the decedent intended to make a gift of the property interest in question (see, Matter of Hall v. Clyne, 206 A.D.2d 428, 614 N.Y.S.2d 64;  Matter of Kaminsky, 17 A.D.2d 690, 691, 230 N.Y.S.2d 954;  see also, Gruen v. Gruen, 68 N.Y.2d 48, 505 N.Y.S.2d 849, 496 N.E.2d 869;  Matter of Szabo, 10 N.Y.2d 94, 98, 217 N.Y.S.2d 593, 176 N.E.2d 395).

The petitioners' remaining contentions are without merit.


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