NICHOLAS E. TISHLER
ATTORNEY AND COUNSELLOR AT LAW 1917 MAYFAIR ROAD
NISKAYUNA, NEW YORK 12309-5428
E-MAIL: appealsusa@gmail.com TELEPHONE: (518) 372-1357
WEBSITE: www.appeals-law.com FACSIMILE: (518) 344-1223
September 9, 2013
State of New York
Court of Appeals
Clerk’s Office
20 Eagle Street
Albany, New York 12207-1095
Attention: Andrew W. Klein, Chief Clerk and Legal Counsel to the Court
Re: Matter of Estate of Muriel M. Nealon
APL-2013-00111
Dear Mr. Klein:
Petitioner respectfully makes the following submission to address the subject
matter jurisdiction of the Court with respect to whether an appeal lies of right pursuant
to CPLR §5601(c). This submission is also made in support of appellant's position on
the merits.
Jurisdiction
In this proceeding pursuant to SCPA 2103(1) brought by the petitioner-
executor, Christopher Nealon, to recover from respondents (his brother, Peter, and the
brother’s former wife, Tracey) property belonging to their mother’s estate,
Christopher Nealon appeals from a memorandum and order of the Supreme Court,
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Appellate Division, Third Department (Peters, P.J., Spain, Garry and Egan, Jr., JJ.)
dated and entered March 28, 2013 (104 AD3d 1088). The memorandum and order (1)
reversed, on the law, with costs, a judgment of the Surrogate’s Court, Schenectady
(Versaci, S.), entered January 7, 2011, upon a verdict rendered in favor of petitioner
and (2) remitted to the Surrogate’s Court for a new trial. Petitioner has stipulated that,
upon affirmance, judgment absolute will be entered against him.
The appeal meets the requirements of CPLR §5601(c), which provides:
An appeal may be taken to the court of appeals as of right
in an action originating in the supreme court, a county
court, a surrogate's court, the family court, the court of
claims or an administrative agency, from an order of the
appellate division granting or affirming the granting of a
new trial or hearing where the appellant stipulates that,
upon affirmance, judgment absolute shall be entered against
him.
This proceeding was commenced in the Surrogate's Court, one of the
enumerated courts.1 The Appellate Division order of reversal appealed from granted
1Although the statute limits appeals under this subsection to actions, that
term must be read to include proceedings, as well (Karger, Powers of the New York
Court of Appeals [3d ed rev] § 8:1 at 252, n 1). Further, the broad language in
Matter of Schoenewerg, 277 NY 424 (1938) purporting to prohibit appeals by
stipulation for judgment absolute in Surrogate's Court proceedings under the
former Civil Practice Act has not been and should not be read to render nugatory
the present statutory authorization for such appeals; rather, it should be confined to
its facts and its judicial era in recognition of the fact that this Court has not cited it
since the enactment of the CPLR to dismiss an appeal in a Surrogate's Court
proceeding taken pursuant to CPLR §5601(c).
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a "new trial" without limitation (see, generally, Karger, The Powers of the New York
Court of Appeals [rev 3d ed], at § 8.3). Petitioner was aggrieved by the order, which
vacated a money judgment in his favor. In his notice of appeal, petitioner stipulated
without reservation "that, upon affirmance, judgment absolute shall be entered against
him." The stipulation is not illusory or in any way limited (see, generally, Karger,
supra, §§ 8.2, 8.5).
Before authorizing this appeal, petitioner was counseled by experienced
appellate counsel, after which he indicated he fully understood that, should the Court
of Appeals affirm the order of the Appellate Division, he will not receive the new trial
that court ordered; rather, he will receive nothing and the case will be over. Petitioner
is willing to pull the trigger in this "CPLR version of Russian Roulette" (Siegel, New
York Practice [5th ed], § 527, p 931) after considering the amount in controversy and
the expenses already incurred in pursuing this matter, which persuaded him that
prosecuting the new trial the Appellate Division ordered, and possible further
proceedings in consequence of such new trial, would not be economically feasible.
Petitioner also is aware that, if the Court of Appeals determines that the
Appellate Division order of reversal rests to any degree on a determination of fact
or exercise of that court's discretion, the Court of Appeals will be required to affirm
(see, generally, Karger, supra, §§ 8.9-8.10, 8.12, Weinstein, Korn & Miller, New York
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Civil Practice: CPLR, P 5601.18). Here, the Appellate Division's characterization of
its determination of a preserved issue as "on the law" is absolutely correct. In its order
appealed from, in pertinent part, the Appellate Division held:
Here, following his case-in-chief, petitioner requested
Surrogate's Court to find, as a matter of law, that a
confidential relationship had been established. The court
reserved decision and, following the close of proof, granted
the motion, ruling that a confidential relationship existed as
a matter of law, thereby shifting the burden of proof to
respondents to establish, by clear and convincing evidence,
that the questioned transactions were each made free of any
undue influence. Although petitioner introduced evidence
that might support a factual determination that a
confidential relationship existed, such as decedent's
complete dependence on respondents due to her combined
mental and physical deterioration, respondents were
entitled to have the jury consider all the evidence regarding
decedent's relationship with respondents and to determine
as a factual matter whether decedent maintained the ability
to exercise free will (see Matter of Antoinette, 238 AD2d at
764; Matter of Feiden, 151 AD2d at 891). Accordingly, a
new trial is necessary (see Imbierowicz v A.O. Fox Mem.
Hosp., 43 AD3d 503, 504 [2007]).
The gist of the Appellate Division's holding is that the Surrogate erroneously
found a confidential relationship as a matter of law, and its order of reversal and grant
of a new trial is predicated on its legal determination. Similarly, the Appellate
Division's rejection of respondent McGann's argument that she was entitled to a
directed verdict because petitioner failed to establish a prima facie case of undue
influence was a legal determination of sufficiency, not a factual one of the weight of
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the evidence.2
In sum, this appeal represents a knowing, intelligent and appropriate invocation
of CPLR 5601(c), and the Court should proceed to consideration of the merits, reverse
the order of the Appellate Division, and reinstate the judgment in petitioner's favor,
as discussed more fully below.
2In Point I(A) of his Appellate Division brief, petitioner-respondent argues
that whether the surrogate correctly found a confidential relationship is not
preserved for review. A careful review of the brief reveals that the non-
preservation contention was directed at the jury charge, and the brief did recite that
the Surrogate’s ruling was made after an oral application upon notice and after
both sides had been heard. Thus, the record reveals that the threshold confidential
relationship determination was preserved for review (PRA351-66, 464-69, R862-
67, 875-96)(The numbers in parentheses preceded by the letters “PRA” refer to the
page numbers of the Appellant’s Appendix [EstateofNealon-app-Christopher
Nealon-ADappdx.pdf]). In addition, nothing in the memorandum and order
suggests other than that the Appellate Division found the preservation argument
meritless and decided the confidential relationship issue as a matter of law. Nor is
this a case where judicial estoppel should be invoked to prevent petitioner from
arguing before this Court that the Surrogate’s confidential contention was
preserved. As in Matter of Stewart v Chatauqua County Bd. of Elections, 14 NY3d
139, 150 (2010), here, petitioner clearly did not convince the court below of the
correctness of his initial position and he did not receive relief based upon it.
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Petitioner’s position on the merits
As set forth above, the Appellate Division concluded that the Surrogate’s Court
erred in “ruling that a confidential relationship existed as a matter of law” between the
decedent and respondents “thereby shifting the burden of proof to respondents to
establish, by clear and convincing evidence, that the challenged transactions were each
made free of any undue influence.” The Appellate Division allowed that there was
evidence that “might support a factual determination that a confidential relationship
existed,” but concluded that “respondents were entitled to have the jury consider all
the evidence regarding decedent’s relationship with respondents and to determine as
a factual matter whether decedent maintained the ability to exercise free will [citations
omitted].”
Petitioner contends that the Appellate Division erred for two reasons. First,
the Appellate Division erred as a matter of law by misapplying the well settled
doctrine stated in Matter of Gordon v Bialystoker Ctr & Bikur Cholim, 45 NY2d 692,
698-99 (1978), that whenever
the relations between the contracting parties appear to be of
such a character as to render it certain that they do not deal
on terms of equality but that either on the one side from
superior knowledge of the matter derived from a fiduciary
relation, or from an overmastering influence, or on the
other from weakness, dependence, or trust justifiably
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reposed, unfair advantage in a transaction is rendered
probable, there the burden is shifted, the transaction is
presumed void, and it is incumbent upon the stronger party
to show affirmatively that no deception was practiced, no
undue influence was used, and that all was fair, open,
voluntary and well understood. This doctrine is well settled
(Cowee v Cornell 75 NY 91, 99-100).
(quotation marks omitted)
See also Allen v La Vaud, 213 NY 322 (1915).
In this case, the decedent had relied on the petitioner, Christopher, who was
most familiar with decedent’s assets, for assistance handling her financial affairs
(PRA315-21) until respondents moved decedent into their home (PRA 315-21, 346,
440).
From the time decedent was moved into respondents' home until her death two
years later, she became wholly dependent on respondents. Soon after she was moved
into respondent’s home, in September of 2002 (PRA129) she lost her driving
privileges and respondents took her car away (PRA323, 455). They made her meals,
did her laundry and grocery shopping, managed her medications and took her to the
doctor. Decedent was unable to do anything for herself and relied completely on
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respondents for her hygiene and even her most intimate care, which was provided by
Tracey, a registered nurse with specialized training in providing care for elderly
persons (PRA328-29; 129-30, 223-24, 328-29, 416-17, 428).
There was also evidence from family members that decedent had always been
very frugal and particular about treating each of her three sons equally. Family
members, including decedent’s third son, William, also testified that decedent became
increasingly isolated from the rest of her family after she was moved into respondents'
home (PRA124-25, 131, 143, 204-08, 228, 230-32).
About two years before moving decedent into their home, respondents spoke
with a contractor about a major renovation of their home but were unable to move
forward because they lacked financing (PRA172-73, 195-96). After moving her into
their home and learning all about her finances (PRA330, 335), respondents embarked
the renovation using over $91,000.00 of decedent's savings (PRA273-76).
Respondents also obtained the PIN number associated with decedent's ATM
card and had possession of decedent's checkbook. After the construction was done,
they withdrew money from decedent's bank account for household bills, personal
expenses, groceries, vacations, jewelry and other items that had hitherto been beyond
their modest means to afford (PRA146, 159-64, 209-10, 316-20, 344-45, 348-49).
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As decedent's physical health deteriorated, so, too, did her cognitive capacity.
Her physician testified that decedent suffered from Alzheimer's dementia. The
physician opined that the onset of the disease preceded the date she was moved into
respondents' home and while she was there progressed to moderate to severe
dementia, to the point where she was unable to take care of herself at all and was
probably incontinent of stool and urine (PRA144-45, 241-58, 449-50, 454, 458-59,
462). It is undisputed that decedent was moved to respondents’ home because of Peter
Nealon’s concerns regarding her cognitive abilities (PRA346, 440), that she was
moved with a diagnosis of Alzheimer’s dementia and that she deteriorated physically
and mentally until her death, after respondents had looted the estate that decedent had
willed equally to her three sons (PRA260-63, 318).
If the foregoing evidence regarding decedent’s relationship with respondents
does not meet the legal threshold for finding a confidential relationship as a matter of
law in this case, then it is difficult to imagine any case in the future where it would be
possible to do so. This is particularly so because “[u]ndue influence is seldom
practiced openly, but it is, rather, the product of persistent and subtle suggestion
imposed upon a weaker mind and calculated, by the exploitation of a relationship of
trust and confidence, to overwhelm the victim's will to the point where it becomes the
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willing tool to be manipulated for the benefit of another” (Matter of Burke, 82 AD2d
260, 269 [2nd Dept 1981]).
Petitioner contends that the proper application of settled principles to the facts
stated above and elaborated at greater length in the brief of the petitioner-respondent
filed in the Appellate Division, all of which is incorporated by reference herein (see
Rule 500.11[f]), warrant the reversal of the memorandum and order appealed from and
the reinstatement of the judgment in favor of the petitioner.
The second error made in the memorandum and order is its misconception of
a crucial part of the burden-shifting doctrine. When a confidential relationship is
found to exist, the burden on the respondent is “to establish that it did not acquire
decedent’s property by fraud, undue influence or coercion . . .” (Matter of Gordon v
Bialystoker Ctr & Bikur Cholim, 45 NY2d 692, 698, supra). The question before the
jury would not be, as the Appellate Division suggested, whether “decedent maintained
the ability to exercise free will.” The court’s citation to Matter of Feiden in support
of its formulation suggests that it confounded the notion of incompetency, the lack of
ability to exercise free will, with undue influence. Undue influence can, however,
arise from an imbalance between a dominant and a dependent party resulting from a
mental impairment of the dependent party that might not rise to the level of mental
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incompetency, coupled with illness and advancing age whereby the weaker party
becomes wholly dependent on the stronger party (Matter of Walther, 6 NY2d 49, 53
[1959]).
In Matter of Feiden, claims of both the incompetency of a donor and undue
influence were raised. In this case, the Appellate Division ruled in an earlier
memorandum and order that, although petitioner “did provide some proof supporting
[the] claim that decedent had diminished competency during the relevant time period
. . . the evidence was insufficient to withstand summary judgment given the lack of
proof in the record concerning decedent’s capacity at the time of the specific money
transactions at issue herein.” Matter of Nealon, 57 AD3d 1325, 1327 (2008).3 Thus,
3In the first appeal to the Appellate Division in this proceeding, the then-
surrogate granted respondents’ motion for summary judgment dismissing the
petition challenging expenditures made by respondents that drained decedent’s
bank accounts. Two causes of action were raised: diminished mental capacity and
undue influence. The Appellate Division affirmed the dismissal of the first cause of
action but reversed as to the second, asserting that: “Significantly, petitioner
testified that, in March 2004, when he met with respondent about the missing
money, respondent “indicated he would make restitution.” According to petitioner,
respondent made no mention of receiving gifts from decedent and, instead, told
him that he “basically took [his] inheritance early” and “deserved this money
because he was treated as a second-class citizen” in the family. During his
deposition testimony, respondent acknowledged meeting with petitioner and
indicating to him that, since he could not “account for” $70,000 of their mother's
money, he was willing to renounce his right to inherit one third of decedent's
estate.” Matter of Nealon, 57 AD3d 1325, 1328 (3rd Dept 2008).
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when this case was tried, there was no separate claim of incompetency; the proof of
decedent’s deteriorating cognitive abilities, her “increasing confusion . . . and her
susceptibility to verbal suggestion,” 57 AD3d at 1327-28, comprised petitioner’s case
for finding a confidential relationship along with evidence of decedent’s failing
physical health and growing dependence on respondents. In Matter of Feiden, the
court found that the state of the donor’s health alone was insufficient to shift the
burden of proof. 151 AD2d 891. Here there was more.
In Matter of Feiden, the court held that the conservator “did not show the
exercise of any controlling influence” by the donees as a result of the donor’s
condition. In this case, decedent’s tax preparer testified that Tracey had possession of
decedent’s checkbook and wrote the checks that decedent then signed (PRA144-46,
159-64). Petitioner also testified that the last check decedent ever filled-out was the
last check she signed before being moved to respondents’ home (PRA311). In this
case, there was evidence that decedent became increasingly withdrawn and isolated
from her other children and their families (PRA143, 210, 213-15, 241-58). A further
indication that Tracey went beyond the mere exercise of a controlling influence was
her telephone call to one of decedent’s daughters-in-law during which she stated that
decedent would not be able to make the same financial contributions to her grand-
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daughter’s private school tuition as she had done in the past because there was not
enough money (PRA131-33, 135, 138). Moreover, the decedent gave Christopher
Nealon and his brother, Peter, power-of-attorney on August 3, 2000 (R370-71,
PRA329-30), before decedent was moved into respondents’ home in September of
2002.4 Yet, on February 10, 2003, decedent gave both respondents, Peter and Tracey,
power-of-attorney after “a discussion” (R742). Furthermore, it is Respondent Peter
Nealon who, regardless of his later explanations, candidly admitted stating that
Tracey, his co-respondent, “robbed [decedent] blind.” (PRA397).
Finally, in Matter of Feiden, the Appellate Division affirmed special term’s
dismissal of an undue influence claim, observing that “due deference must be given”
to a decision made by the trial judge as the trial judge is in a “better position to assess
the evidence . . ..” 151 AD2d at 891. The existence of a confidential relationship may
be made as a matter of law, but it is a legal determination based on the facts of the
case. Petitioner contends that here the Appellate Division, swayed by its erroneous
view of the law, failed to appreciate the substantial evidence and failed to reach the
only legal conclusion that the facts allowed – that there was a confidential relationship
4The numbers in parentheses preceded by the letter “R” refer to the page
numbers of the record on appeal (EstateofNealon-app-TraceyNealon-ADRec-
vol2.pdf).
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as held by the Surrogate.
Accordingly, the memorandum and order of the Appellate Division should be
reversed with costs and necessary disbursements and the judgment of the Surrogate’s
Court in petitioner’s favor reinstated.
Respectfully,
Nicholas E. Tishler
Attorney for Appellant,
Christopher J. Nealon, Executor
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