Opinion
524514
06-14-2018
In the MATTER OF the ESTATE OF Maurice J. BORDELL, Deceased. Michael Bordell, as Executor of the Estate of MAURICE J. Bordell, Deceased, Respondent; v. Jennifer M. Basic, as Guardian ad Litem of Denise H. Bordell, Appellant, et al., Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), for appellant. Law Office of James Cushman, Norwich (James G. Cushman of counsel), for Michael Bordell, respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), for appellant.
Law Office of James Cushman, Norwich (James G. Cushman of counsel), for Michael Bordell, respondent.
Before: Garry, P.J., Egan Jr., Lynch, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
Mulvey, J.
Appeal from an order of the Surrogate's Court of Madison County (McDermott, S.), entered April 25, 2016, which, in a proceeding pursuant to SCPA article 14, among other things, granted petitioner's motion for summary judgment.
The underlying facts of this matter are fully set forth in a prior decision of this Court ( 150 A.D.3d 1446, 55 N.Y.S.3d 762 [2017] ). Briefly stated, Maurice J. Bordell (hereinafter decedent) died testate on January 11, 2014, leaving his wife, Denise H. Bordell (hereinafter the wife), as his sole distributee. Decedent and the wife had lived separately for the majority of their 40–year marriage and, in May 2012, the wife executed a waiver of the right of spousal election, waiving any and all rights in decedent's estate. Nonetheless, after decedent's will was admitted to probate, respondent Jennifer M. Basic, the guardian ad litem for the wife, filed a notice of election on the wife's behalf seeking her elective share of decedent's estate. Petitioner, the executor of decedent's estate, commenced this proceeding to determine the validity and effect of the wife's notice of election. Basic thereafter moved for summary judgment dismissing the petition, seeking to deem the waiver invalid and declare the wife's right of election to be valid. Surrogate's Court denied the motion, and this Court affirmed ( id. at 1447–1448, 55 N.Y.S.3d 762 ). Following discovery, petitioner moved for summary judgment seeking to declare the validity of the waiver of the right of election. Basic opposed the motion, claiming that issues of fact remained as to whether the wife was competent and/or suffered from impaired vision at the time that she executed the waiver. Surrogate's Court granted the motion and declared the wife's waiver valid and enforceable. Basic appeals.
For the first time on appeal, Basic contends that petitioner's motion was procedurally defective because it did not include a copy of the petition (see CPLR 3212[b] ). Even had this contention been preserved for our review (see Matter of VanLoan, 156 A.D.3d 1426, 1426, 65 N.Y.S.3d 885 [2017] ; D'Auria v. Kent, 80 A.D.3d 956, 957, 915 N.Y.S.2d 680 [2011] ), we would find that the omission was not fatal given that the petition was submitted in connection with the earlier summary judgment motion and was before Surrogate's Court (see Stiber v. Cotrone, 153 A.D.2d 1006, 1007, 545 N.Y.S.2d 625 [1989], lv denied 75 N.Y.2d 703, 552 N.Y.S.2d 109, 551 N.E.2d 602 [1990] ; see also Trump Vil. Section 3, Inc. v. New York State Hous. Fin. Agency, 307 A.D.2d 891, 894 n. 3, 764 N.Y.S.2d 17 [2003], lv denied 1 N.Y.3d 504, 775 N.Y.S.2d 780, 807 N.E.2d 893 [2003] ). Moreover, inasmuch as we may take judicial notice of the record in the prior appeal, which includes the petition (see Matter of Peters, 124 A.D.3d 1266, 1267, 1 N.Y.S.3d 604 [2015] ; Oakes v. Muka, 56 A.D.3d 1057, 1059, 868 N.Y.S.2d 796 [2008] ; Edgewater Constr. Co., Inc. v. 81 & 3 of Watertown, Inc., 24 A.D.3d 1229, 1231, 806 N.Y.S.2d 817 [2005] ), the record before us is "sufficiently complete to address the merits" ( Sanacore v. Sanacore, 74 A.D.3d 1468, 1469, 904 N.Y.S.2d 234 [2010] ; see Matter of Warren, 143 A.D.3d 1110, 1111 n., 39 N.Y.S.3d 282 [2016] ; D'Auria v. Kent, 80 A.D.3d at 957, 915 N.Y.S.2d 680 ; General Motors Acceptance Corp. v Albany Water Bd., 187 A.D.2d 894, 895 n., 590 N.Y.S.2d 312 [1992] ).
On the merits, we find that Surrogate's Court properly granted summary judgment in petitioner's favor and declared the validity of the waiver of the right of election. "A person's competency to engage in a transaction is presumed and the party challenging such bears the burden of proving incompetence" ( Matter of Nealon, 57 A.D.3d 1325, 1327, 870 N.Y.S.2d 578 [2008] [citation omitted]; see Pruden v. Bruce, 129 A.D.3d 506, 507, 11 N.Y.S.3d 144 [2015] ; Adsit v. Wal–Mart Stores, Inc., 79 A.D.3d 1168, 1169, 912 N.Y.S.2d 314 [2010] ). To prevail, Basic was required to demonstrate that the wife's mind was " ‘so affected as to render [her] wholly and absolutely incompetent to comprehend and understand the nature of the [waiver]’ " ( Feiden v. Feiden, 151 A.D.2d 889, 890, 542 N.Y.S.2d 860 [1989], quoting Aldrich v. Bailey, 132 N.Y. 85, 89, 30 N.E. 264 [1892] ; accord Lynch v. Carlozzi, 129 A.D.3d 1240, 1241, 11 N.Y.S.3d 309 [2015] ; Matter of McLaughlin, 97 A.D.3d 1051, 1053, 949 N.Y.S.2d 264 [2012] ). Further, "[t]he incapacity must be shown to exist at the time the pertinent document was executed" ( Lynch v. Carlozzi, 129 A.D.3d at 1241, 11 N.Y.S.3d 309 ; see Adsit v. Wal–Mart Stores, Inc., 79 A.D.3d at 1169, 912 N.Y.S.2d 314 ; Sears v. First Pioneer Farm Credit, ACA, 46 A.D.3d 1282, 1284–1285, 850 N.Y.S.2d 219 [2007] ).
In support of the motion, petitioner submitted, among other things, the deposition testimony of Peter Baum, the wife's longtime personal attorney. Baum explained that, although he did not meet with the wife when she signed and acknowledged the waiver of the right of election on May 31, 2012, he had significant contact with her roughly six months later when he prepared a power of attorney at the wife's direction and met with her at his office for its execution. He specified that, during this meeting, the wife appeared to understand the effect and purpose of the power of attorney and that, in his opinion, she suffered from no physical or mental impairment at that time. Baum met with the wife again in March 2014 when she came to his office to discuss and execute a waiver of citation in connection with decedent's will, during which time he found the wife to be lucid, rational and competent. This proof, coupled with the presumption of competency, was sufficient to shift the burden to Basic to produce evidence creating a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).
In opposition, Basic countered only with an attorney affidavit that focused primarily upon the fact that the wife had been diagnosed with early dementia approximately nine months after executing the waiver of the right of election. Such proof, however, has no bearing upon the wife's mental capacity at the time of the execution of the waiver in May 2012 (see Matter of Murray, 49 A.D.3d 1003, 1005, 853 N.Y.S.2d 680 [2008] ; Matter of Clapper, 279 A.D.2d 730, 731, 718 N.Y.S.2d 468 [2001] ). Indeed, even had a showing been made that the wife suffered from dementia at the time she executed the waiver, this alone would not have created a triable issue of fact as to her mental capacity (see Matter of Alibrandi, 104 A.D.3d 1175, 1176, 960 N.Y.S.2d 760 [2013] ; Matter of Nealon, 57 A.D.3d at 1327, 870 N.Y.S.2d 578 ; Matter of Murray, 49 A.D.3d at 1005, 853 N.Y.S.2d 680 ; Matter of Friedman, 26 A.D.3d 723, 725, 809 N.Y.S.2d 667 [2006], lv denied 7 N.Y.3d 711, 824 N.Y.S.2d 603, 857 N.E.2d 1134 [2006] ). For these same reasons, the mere fact that the wife underwent cataract surgery more than a year after her execution of the waiver was patently insufficient to create a factual issue as to her ability to comprehend and understand the nature of the waiver. Absent any evidence that the wife was not competent at the time she executed the waiver of the right of election, Surrogate's Court properly granted summary judgment in petitioner's favor (see Matter of Nealon, 57 A.D.3d at 1327, 870 N.Y.S.2d 578 ; Matter of Murray, 49 A.D.3d at 1005, 853 N.Y.S.2d 680 ; Sears v First Pioneer Farm Credit, ACA, 46 A.D.3d at 1285, 850 N.Y.S.2d 219 ; Matter of Castiglione, 40 A.D.3d 1227, 1228, 837 N.Y.S.2d 360 [2007], lv denied 9 N.Y.3d 806, 842 N.Y.S.2d 782, 874 N.E.2d 749 [2007] ).
ORDERED that the order is affirmed, with costs.
Garry, P.J., Egan Jr., Lynch and Rumsey, JJ., concur.