IN RE: Pauline Delgatto

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

IN RE: Pauline Delgatto, deceased.  Christopher Fasulo, appellant;  Nora Bradley, respondent.  (File No. 4139/08) Kingsley, Kingsley & Calkins, Hicksville, N.Y. (Harold M. Kingsley of counsel),


Decided: March 29, 2011

DANIEL D. ANGIOLILLO, J.P. ANITA R. FLORIO ARIEL E. BELEN ROBERT J. MILLER, JJ. for appellant. Nicolosi & Nicolosi, LLP, Manhasset, N.Y. (Vincent F. Nicolosi of counsel), for respondent.

Argued—March 1, 2011


In a turnover proceeding pursuant to SCPA 2103 to recover certain real property on behalf of a decedent's estate, the administrator c.t.a. of the decedent's estate appeals, as limited by his notice of appeal and brief, from so much of an order of the Surrogate's Court, Kings County (Johnson, S.), dated March 24, 2010, as denied his motion for summary judgment on the petition.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The petitioner, who is the administrator c.t.a. of the decedent's estate, commenced this proceeding pursuant to SCPA 2103 for the turnover, to the estate, of certain real property formerly owned by the decedent.   The petitioner alleges that, more than one month before the decedent's death, the decedent transferred the property to a revocable trust for the benefit of the respondent, the decedent's caregiver, who took advantage of a confidential relationship with the decedent to exert undue influence at a time when the decedent was not mentally competent.   The petitioner moved for summary judgment on the petition, and the Surrogate's Court, inter alia, denied the motion, finding the existence of triable issues of fact.

Several exhibits submitted by the petitioner were not in admissible form and, thus, could not be considered on his summary judgment motion, namely, unsigned and unattested deposition transcripts (see Martinez v 123–16 Liberty Ave. Realty Corp., 47 AD3d 901, 902), his attorney's affirmation (see Zuckerman v. City of New York, 49 N.Y.2d 557, 563), uncertified medical and hospital records (see Lozusko v. Miller, 72 AD3d 908, 908;  Bleszcz v. Hiscock, 69 AD3d 890, 891), and unsworn, unaffirmed reports of physicians (see Grasso v. Angerami, 79 N.Y.2d 813, 814).   The admissible evidence submitted by the petitioner, including affidavits of medical experts, failed to establish the petitioner's prima facie entitlement to judgment as a matter of law on the issue of whether the respondent exerted undue influence which overbore the free will of the decedent due to her alleged mental incapacity (see Matter of Caruso, 70 AD3d 937, 938;  Hearst v. Hearst, 50 AD3d 959, 961–962).   Accordingly, the petitioner's failure to make a prima facie showing required denial of his motion, regardless of the sufficiency of the respondent's opposition papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).



Matthew G. Kiernan

Clerk of the Court

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