In the Matter of the Estate of Muriel M. Nealon, Deceased. Christopher J. Nealon, as Executor of the Estate of Muriel M. Nealon, Deceased, Appellant; Peter J. Nealon, Respondent; Tracey McGann, Now Known as Tracey Nealon, Respondent.

Brief

N.Y.January 7, 2014

CASE NUMBER 513733 To be argued by: Nicholas E. Tishler Time Requested: 10 minutes SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : THIRD DEPARTMENT Proceeding by CHRISTOPHER J. NEALON, as Executor of the Last Will and Testament of Muriel M. Nealon, Deceased, Petitioner-Respondent, to Discover Property Withheld and Belonging to Decedent. TRACEY NEALON, Respondent-Appellant. PETER NEALON, Respondent. BRIEF OF THE PETITIONER-RESPONDENT Parisi, Coan & Saccocio, PLLC Attorneys for Petitioner-Respondent 376 Broadway, 2nd Floor Schenectady, New York 12305 (518) 377-9096 Nicholas E. Tishler, of counsel Date of Filing: October 17, 2012 Table of Contents page Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv Counter Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Counter Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Medical evidence showed that Muriel was suffering from a progressive degeneration of her cognitive functioning to the point where she lacked mental capacity. . . . . . . . . . . . . . . . . . . . . . . . 7 The depletion of Muriel’s bank accounts by Respondents . . . . . . . . . . . . . . 9 1. Depletion of Muriel Nealon’s Citizen’s Bank/ Charter One Bank account to pay for Respondents’ Home Renovation (Jury Verdict Sheet Question A [##1-10]). . . . . . . . . . . . . . . 10 2. Depletion of Muriel Nealon’s Key Bank accounts using her ATM card and PIN number (Jury Verdict Sheet Question B [##40-128)] . . . . . . . . . . . . . 11 3. Depletion of Muriel Nealon’s Key Bank checking account to pay for Respondents’ home improvements and other expenses (Jury Verdict Sheet Question B [##1-26]) . . . . . . . . . . . . . . . 11 4. Depletion of Muriel Nealon’s Key Bank checking account to pay for gifts for Respondents (Jury Verdict Sheet Question B[##27-39]) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 i Table of Contents, continued page LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Point I The evidence supported the Surrogate’s instruction to the jury based on the existence of a confidential relationship between Respondents and Decedent . . . 13 A. Whether the Surrogate correctly found a confidential relationship is not preserved for review . . . . . . . . . . . 13 B. A confidential relationship was properly found based on all the facts and circumstances of this case (Answering Point I[A] of Brief on Behalf of Respondent-Appellant) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 C. The existence of the powers of attorney are some proof of the trust Muriel placed in Respondents (Answering Point I[B] of Brief on Behalf of Respondent-Appellant) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 D. Evidence of Muriel’s complete dependence on Respondents for every conceivable need, even her most intimate of needs, coupled with her frail physical and deteriorating mental state warrant finding a confidential relationship (Answering Point I[C] of Brief on Behalf of Respondent-Appellant) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 ii Table of Contents, continued page Point II The evidentiary rulings concerning the Dead Man’s Statute (CPLR §4519) were correct and any errors, if preserved, were harmless and do not warrant a new trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 A. There were no errors in the rulings made by the Surrogate as to the live testimony of the Respondents . . . . . . . . . . . 23 B. The excerpts from Respondents’ deposition testimony did not “open the door” to testimony otherwise prohibited under CPLR §4519 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Point III The Surrogate properly denied Respondent-Appellant Tracey Nealon’s motion for a directed verdict. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 iii Table of Authorities page Cases Allen La Vaud, 213 NY 322 (1915) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17 Almasy v Ward, 53 AD3d 946 (3rd Dept 2008) . . . . . . . . . . . . . . . . . . . . . . . 16, 19 Matter of Antoinette, 238 AD2d 762 (3rd Dept 1997) . . . . . . . . . 15, 17, 31-32, 33 Matter of Brand, 185 App Div 134 (3rd Dept 1918) . . . . . . . . . . . . . . . . . 16, 17, 19 Matter of Buchanan, 245 AD2d 642 (3rd Dept 1997) . . . . . . . . . . . . . . . . . . . . . . 24 Cole v Sweet, 187 NY 488 (1907) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 28-29 Matter of Collins, 124 AD2d 48 (4th Dept 1987) . . . . . . . . . . . . . . . . . . . . . . . . 14 Matter of Donovan, 47 AD2d 923 (2nd Dept 1975) . . . . . . . . . . . . . . . . . . . . . . . 22 Gordon v Bialystoker Ctr et al, 45 NY2d 692 (1978) . . . . . . . . . . . . . . . . . . . . . 18 Holcomb v Holcomb, 95 NY2d 316 (1884) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 In re Jacobs, 93 AD3d 917 (3rd Dept 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Matter of Moran, 261 AD2d 936 (4th Dept 1999) . . . . . . . . . . . . . . . . . . . . . . . . 14 Matter of Nealon, 57 AD3d 1325 (3rd Dept 2008) . . . . . . . . . . . . . . . . . . 19-21, 30 Wood v Rabe, 96 NY 414 (1884) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Matter of Swain, 125 AD2d 574 (2nd Dept 1986) . . . . . . . . . . . . . . . . . . . . . . . . . 17 Matter of Walther, 6 NY2d 49 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Estate of Wood, 52 NY 139 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Statutes CPLR §4519 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii, 23-29 iv Counter Preliminary Statement Respondent-Appellant Tracey Nealon appeals from a Judgment entered on a jury verdict in favor of the Petitioner, Christopher J. Nealon, the Executor of the Estate of Muriel M. Nealon, and against each Respondent in the sum of $125,751.95 with interest, costs and disbursements (PRA1-3).1 Appellant’s co-Respondent in the court below, Peter Nealon, is Christopher Nealon’s brother and Tracey Nealon’s former husband. Tracey Nealon and Peter Nealon will be referred to collectively as “Respondents.” Petitioner was represented by Gerard Parisi, Esq. Appellant was represented by Steven Kouray, Esq. Peter Nealon was pro se. Appellant refers to Tracey and Peter Nealon collectively as “respondents- appellants,” (AB1)2 and seeks a reversal and for judgment in “in favor of respondent- appellant Tracey Nealon and respondent Peter Nealon” (AB21). Appellant cannot seek or obtain relief on behalf of Peter Nealon as he did not take an appeal in this case, has not appeared as an appellant and has interests that are adverse to Tracey Nealon (PRA371). 1The numbers in parentheses preceded by the letters “PRA” refer to the page numbers of the Petitioner-Respondent’s Appendix. 2The numbers preceded by the letters “AB” refer to the page numbers of the Brief on Behalf of Respondent -Appellant Tracey Nealon. 1 Counter Statement of Facts Muriel Nealon died in May of 2004 leaving three sons surviving: Christopher, the Petitioner; Peter, the co-Respondent of the Appellant Tracey Nealon, and William. Muriel’s husband died on May 1, 2001 (PRA214).3 Christopher testified that prior to 2002, he helped to take care of his mother and father until she moved in with Respondents.4 (PRA233-40, 496). After her husband died, Muriel lived alone until she was unable to find her pocketbook after going grocery shopping in August of 2002, which caused Peter such alarm about her cognitive state that he moved her into his home (PRA346, 440). From the time Muriel was moved into Respondents’ home in September 2002, until her death two years later, Muriel received “the top level of care” from Peter and Tracey; care that included taking Muriel shopping, having her hair done, “everyday things” such as doing her laundry, making her meals, taking care of her prescription drugs and “[j]ust all of her basic needs.” (PRA328-29). As a result of being moved into their home, Respondents also learned all about Muriel’s finances (PRA330, 335). Starting in December of 2002, Respondents embarked on a major renovation 3The numbers in parentheses preceded by the letters “PRA” refer to the page numbers of the Petitioner-Respondent’s Appendix. 4Tracey Nealon was not married to Peter when Muriel moved into the house Tracey shared with Peter. At that time, she went by the name Tracey McGann. Tracey and Peter were married in April of 2004 (PRA333, 419). 2 of their home. Peter admitted that large withdrawals from Muriel’s bank accounts coincided with the construction on his home. He did not dispute any of the evidence that the diminution of Muriel’s accounts paid for the construction (PRA331-33). Muriel also had an ATM card associated with her Key Bank checking account. Peter stated that Tracey had the PIN numbers and used it most of the time. Tracey admitted that she used Muriel’s ATM card for her benefit and Peter’s as well as for Muriel’s but neither Tracey nor Peter were able to identify which of the ATM withdrawals were for Muriel’s benefit and which ones were for Tracey or Peter’s benefit. Tracey testified that after May, 2003, when the construction was done, withdrawals from Muriel’s Charter One account went for “household bills, personal expenses, groceries.”(PRA344-45, 348-49). Until Peter and Tracey moved Muriel into their house, Christopher had been the one who was most familiar with her assets. In 2000 Christopher and an attorney put together an estate plan for Muriel. At that time, Christopher observed that Muriel already needed assistance handling her financial affairs. When he was involved in Muriel’s finances he never distributed monies to himself from her accounts (PRA315- 21). Christopher moved to North Carolina in 2005 (PRA240). Before Muriel’s death, Christopher became concerned about money missing from his mother’s estate and later learned that his mother’s assets were gone. Peter 3 refused to voluntarily provide Christopher with information about Muriel’s finances (PRA260-69, 272-73). Muriel executed her Will (Exhibit 8) before she was diagnosed with Alzheimer’s disease (PRA318). Christopher read paragraph 6-B of his mother’s Will that distributed her residuary estate equally to William, Christopher and Peter (PRA260-63). William’s wife, Debra described Muriel as engaging, very witty and intelligent, with a sharp sense of humor and frugal (PRA200-08). After her father-in-law’s death, Debra noted difficulties speaking with Muriel over the telephone. Muriel would repeat questions several times during the same conversation. With each visit, Debra noticed a decline in Muriel’s ability to hold a conversation (PRA210, 213-15). Soon after Respondents moved Muriel into their home, Tracey said she did not feel safe leaving her son, Tyler, alone with Muriel. At about the same time Muriel was unable to recognize her husband in a photograph that she had for many years. Debra also noted swings in Muriel’s mood (PRA217-221). Debra testified that after Muriel was moved into Respondents’ home they did everything and managed everything for her. Muriel could not do anything on her own and relied completely on Respondents for assistance (PRA129-30, 223-24, 328-29, 416-17, 428). According to Debra, not long after Muriel was moved into Respondents’ home, 4 she noticed that Respondents started living beyond their modest means, purchasing jewelry, greatly enlarging and re-decorating their house, planning a two-week trip to St. Thomas to get married, going to concerts and vacations (PRA316-20). Debra testified that Muriel was always concerned about treating each of her sons equally (PRA228), even after they reached adulthood, which was inconsistent with giving any one of them $130,000.00, which represented the approximate amount of money Respondents took from Muriel’s bank accounts (PRA230-32). Kathleen Nealon, Christopher’s former wife, testified consistently with Debra. She described Muriel’s devotion to her family, her frugality and her insistence on treating each of her three sons equally. She confirmed that Muriel gave each of her three sons equal amounts of money from her father’s estate (PRA124-25, 131). Kathleen testified that after Muriel was moved into Respondents’ residence, she received a telephone call from Tracey saying that there was not enough money in Muriel’s account to pay more than half of the private school tuition of Kathleen’s daughter, which Muriel had always done (PRA131-33, 135, 138). William confirmed the testimony of the other family members about Muriel’s frugality and her cognitive decline. William testified that there was no discussion about Muriel going to live with Respondents prior to the move. There was also no discussion about finances (PRA139-43). 5 Patricia Meo is a registered nurse and is Tracey’s cousin. Ms. Meo noticed that Muriel’s health was deteriorating and that she was suffering from dementia. At some point Muriel was not well enough to be left alone and Tracey asked Ms. Meo if she would mind Muriel. Ms. Meo remembered that Muriel generally stayed in her room and at some point was confined to a wheelchair. (PRA241-58). Beth Kissinger did Muriel’s tax returns starting in 2000. Ms. Kissinger described Muriel’s increasing frailty, dependence on Tracey and Peter and diminishing cognitive capacity. When Muriel came to the office with Tracey in 2003, Tracey had possession of Muriel’s checkbook and wrote a check that Muriel then signed (PRA144-46, 159-64). Moreover, Respondents provided the information that point Ms. Kissinger had always received from Muriel in person (PRA149-50). Edward J. Laven, Jr., worked on the “two-story addition” to Respondents’ home. It is highly significant that Respondents started talking about the construction at least two years before they moved Muriel into their home but were unable to start because they were unable to obtain financing. All that changed after they moved Muriel into their home. Respondents rushed to get the project started in December, rather than waiting until spring as Mr. Laven preferred (PRA172-73). There were separate excavation, plumbing, roofing, electrical and heating contractors for the project with Mr. Laven doing the most of the carpentry, ceramic 6 tile, framing, insulation and sheet rock. Mr. Laven testified that there was a theater room with stadium seating downstairs. Off the family room was Muriel’s bedroom with a bathroom and shower. Upstairs there was a large bedroom and bathroom and another room off that as well. Muriel did not go upstairs. In addition to the new construction, Mr. Laven repaired leaks in Tyler’s bedroom and converted Tyler’s former room and a hallway to create another room for Respondents’ daughter, Morgan (PRA166-99). Medical evidence showed that Muriel was suffering from a progressive degeneration of her cognitive functioning to the point where she lacked mental capacity. Portions of Muriel’s medical records and excerpts of Dr. Robert J. Donohue’s deposition testimony were read into the record by Appellant and by the Petitioner- Respondent (PRA432-33).5 Dr. Donohue, testified that he was certain to a “medical degree of certainty” that Muriel suffered from Alzheimer’s disease and that she died from “Alzheimer’s dementia” (PRA454, 462). The date of Alzheimer’s onset was December 2, 2001, well before Muriel was moved into Respondents’ home. Testing done on August 29, 2002, confirmed early 5The complete medical records for Muriel Nealon were admitted into evidence as Exhibits 3 and 4. 7 cognitive impairment (PRA323-324, 387, 429-31, 449-50). Dr. Donohue also noted confusion, disorientation and a “little instability with regard to [Muriel’s] behavior” that was unusual and unrelated to Muriel’s move (PRA456-47). On September 27, 2002, Dr. Donohue noted that Muriel was only alert and oriented to person and place, but not time, and recalled zero out of three objects in five minutes. Dr. Donohue prescribed medication (PRA436-37). Dr. Donohue received telephone calls on November 13, 19, and 20, 2002, from Appellant reporting that Muriel was agitated and out of control, behavior inconsistent with the behavior of normal, healthy adults. Because of Appellant’s complaints, Dr. Donohue started Muriel on another drug used to address agitation and behavioral problems (PRA322-23, 442, 443, 445, 459-61). After a driving evaluation on December 9, 2002, recommended that she stop driving, Respondents took her car away (PRA323, 455). On her visit to Dr. Donohue in July of 2003, Muriel was alert to person only. Dr. Donohue noted that Muriel’s condition had deteriorated to the point where she was suffering moderate to severe dementia and therefore “lacked mental capacity,” contrary to Appellant’s claim otherwise (AB8). According to Dr. Donohue, Muriel lacked mental capacity when she “was only alert to person and not to place and time,” that is, when she was suffering from “moderate to severe dementia.” (PRA454). Dr. 8 Donohue testified that Muriel declined to this point not later than her visit in July of 2003, but it could have been at any time after her visit in November of 2002, the month before Respondents started the massive renovation on their home paid out of Muriel’s funds (PRA458-59). According to Dr. Donohue, at this stage Muriel would need someone to tell her when to take medicines, when to bathe and when to eat and was probably incontinent of stool and urine, and unable to take care of herself at all (PRA444, 449-50, 457-58, 460-61). In February of 2004, Muriel was in the hospital for 12 days with sepsis (PRA445-47) and released to Glendale Nursing Home where she stayed until March 12, 2004. She was discharged to Respondents’ home on Hospice care because Muriel had severe dementia. She died on May 18, 2004 (PRA447-48). The depletion of Muriel’s bank accounts by Respondents Christopher brought the instant proceeding as Executor of Muriel’s estate to compel the Respondents to account for and return all of the money taken from Muriel’s bank accounts by Respondents. All of the expenditures that form the basis of the Estate’s claims were made after the Respondents moved Muriel into their house and after Muriel was diagnosed with Alzheimer’s disease. Christopher testified that the last check his mother wrote was when she was living on her own. It was filled out 9 and signed by her. After that, she never filled out another check. Although her signature appears on the checks, each and every check was filled out either by Peter or Tracey (PRA276-84, 303, 311, 318). Christopher was never told that large sums of Muriel’s money were going to be used to do work at the Respondents’ home, or that his mother’s money would be used to pay for Peter’s and Tracey’s vacations, or to buy gifts for them (PRA300-02, 318). Through Christopher’s testimony, all of the transactions that are the subject of this case were admitted into evidence. As all of the transactions were documented by bank records, Respondents did not dispute any of them. They will therefore only be described briefly below. 1. Depletion of Muriel Nealon’s Citizen’s Bank/Charter One Bank account to pay for Respondents’ Home Renovation (Jury Verdict Sheet Question A [##1-10]). Petitioner’s Exhibit 1 consists of Citizen’s Bank and/or Charter One Bank records for Muriel Nealon’s account. The beginning balance as of July 23, 2002, about one month before Muriel was moved into Respondents’ home, was $91,575.00. Christopher pointed out that there were no withdrawals prior to July 2002. As of November 23, 2002, the balance was $80,228.00. Exactly one year later, on November 23, 2003, the balance in Muriel’s account dropped to $10,118.00. The balance then 10 fell to $109.00 (PRA273-76). 2. Depletion of Muriel Nealon’s Key Bank accounts using her ATM card and PIN number (Jury Verdict Sheet Question B [##40-128)]. Petitioner’s Exhibit 2 consists of records for Muriel’s Key Bank account. Christopher read into the record a total of 79 ATM transactions totaling $16,931.25, with 15 penalties for “excessive inquiries to the accounts via the ATM totaling $119.75, for a grand total of $17,051.00. The jury found for the Estate on all of the ATM withdrawals except for the service charges.6 3. Depletion of Muriel Nealon’s Key Bank checking account to pay for Respondents’ home improvements and other expenses Question B[1-26] on Jury Verdict Sheet (PRA10). Christopher read into the record the information from checks written against Muriel’s Key Bank account. Most of these checks paid for the improvements made to Respondents’ home and totaled $21,347.20. In addition, Christopher recited a number of internet transfers totaling $6,4000.00. Christopher testified that the Respondents must have executed the internet transfers because Muriel did not know how to use a computer and was unable to learn (PRA291-93, 312). 6Jury Verdict Sheet Question (B)(##51, 56, 57, 68, 74, 75, 81, 85, 86, 91, 99, 108, 112, 125, and 128). 11 4. Depletion of Muriel Nealon’s Key Bank checking account to pay for gifts for Respondents (Chart 4)(Jury Verdict Sheet Question B[##27- 39]) Christopher identified checks made out as gifts to Appellant. The total of the checks payable to Tracey was $10,300.00, and the total of checks made out to cash was $4,073.50 (PRA294-95). The jury did not find in favor of the Estate on every claim, however. The jury rejected the claims under Question B, ##27, 28, 29 and there was one dissent as to #30. Christopher testified that he was never provided with an explanation of how the money detailed above was used. The total that Petitioner sought to recover was $127,777.00, but as mentioned above, the jury did not find for Petitioner on every claim (PRA294-96, 304). 12 LEGAL ARGUMENT Point I The evidence supported the Surrogate’s instruction to the jury based on the existence of a confidential relationship between Respondents and Decedent. A. Whether the Surrogate correctly found a confidential relationship existing between Respondent-Appellant and Muriel is not preserved for review. At the conclusion of all the evidence, the Surrogate granted Petitioner’s application made after the Petitioner rested his case (PRA349)7 for a ruling that the evidence established the existence of a confidential relationship between Muriel and the Respondents, thereby shifting the burden of proof from Petitioner to the “Co- Respondents to establish by clear and convincing evidence that the challenged transactions were free of undue influence.” (PRA466-67). Neither Respondent made an objection to the foregoing ruling (PRA465-69). When the Surrogate charged the jury, however, the instruction was that the jury had to find that the various transactions in dispute were “free from undue influence.” (PRA470-71, 479-82, 486-87). Yet the Respondents made no objection to the jury charge as given (PRA488-89) and Appellant does not make that argument on appeal. The issue is therefore not preserved for review. 7A motion for a directed verdict was also made by Appellant (PRA349-66), the denial of which is the subject of Point III of Appellant’s Brief and is addressed at Point III, below. 13 Contrary to Appellant’s contention otherwise, the burden on the issue of undue influence never shifted from the Petitioner. Even if the jury charge could have been better worded, there was no harm because the jury was properly instructed through the Jury Verdict Sheet. When a confidential relationship exists, the burden of proving undue influence still rests upon on the party objecting to the transaction and never shifts; but the mere fact of the challenged transaction, standing alone, permits an inference of undue influence, which then places on the proponent of the transaction the burden of offering a reasonable explanation for the transaction. Allen v La Vaud, 213 NY 322, 326-28 (1915); Matter of Moran, 261 AD2d 936, 936-37 (4th Dept 1999); Matter of Collins, 124 AD2d 48, 54 (4th Dept 1987). The Verdict Sheet reflected the foregoing principles, focusing the jury’s attention by asking whether specific withdrawals from Muriel’s Charter One Bank account (PRA5, Question A) and specific withdrawals from Muriel’s Key bank account were (PRA10, Question B) “the result of undue influence exercised upon the decedent Muriel M. Nealon by the Respondent Peter Nealon or by the Respondent Tracey Nealon?” The jury was given the choice of answering yes or no as to each of 138 transactions. As to each of the 138 transactions, the jury was then asked whether “ [a.] such undue influence [was] exercised upon Muriel Nealon by the Respondent, Peter Nealon?” or whether [b.] such undue influence [was] exercised upon Muriel 14 Nealon by the Respondent, Tracey Nealon?” The language of the Jury Verdict Sheet clearly emphasized that undue influence had to be proven as to each of the Respondents as to each of the transactions challenged by Petitioner (PRA4-63). Moreover, neither Respondent objected to the wording of the Jury Verdict Sheet. If the Court deems the issue preserved and properly raised on this appeal, the Petitioner contends that none of the substantive arguments made by Respondent- Appellant at (A), (B) and (C) of Point I have any merit. Each argument will be addressed below ad seriatim. B. A confidential relationship was properly found based on all the facts and circumstances of this case. (Answering Point I[A] of Brief on Behalf of Respondent-Appellant) Preliminarily, Respondent-Appellant is confused at AB11-12 when she states: “To establish a confidential relationship, the Estate was required to establish that the transactions were the result of a ‘subtle, but pervasive form of coercion and influence by which [the proponent] overwhelmed and manipulated decedent's volition to advance her own interests.’ Matter of Antoinette, 238 AD2d 762,763 (3rd Dept 1997).” (Emphasis added). The quotation from Matter of Antoinette, in bold-face type, is the formula for establishing undue influence. In fact, except for arguing incorrectly that the Surrogate relied on only two facts in finding the existence of a 15 confidential relationship, the entire argument made by Appellant relates to the issue of undue influence. That issue is taken up at Point III, below, and at Point III of Appellant’s Brief. The only positive argument made by Appellant against the substantial evidence supporting the existence of a confidential relationship is that Muriel “had a close familial relationship with her son Peter and his wife Tracey,” and that they “and their children would be expected beneficiaries of Muriel’s bequests.” (AB13).8 This argument is repeated in each of Appellant’s subpoints (B)(AB14) and (C)(AB15).Yet the foregoing argument does not address the issue of whether a confidential relationship existed. It goes to the issue of undue influence. It is true, as Appellant points out, that caution must be exercised in finding a confidential relationship from which an inference of undue influence arises based solely on a family relationship (AB12, citing Matter of Brand, 185 App Div 134 [3rd Dept 1918]). But it is equally true that, “[f]amilial relationships, as well as cohabitating, often give rise to at least a factual issue regarding a confidential relationship [citations omitted]” Almasy v Ward, 53 AD3d 946, 947 (3rd Dept 2008). 8Appellant ignores the fact that Christopher and William, Muriel’s sons, as well as Muriel’s other grandchildren were also the natural objects of her affection and bounty. 16 In this case, both a family relationship and cohabitating existed.9 It has long been settled law that the “relation of parent and child may also at times become the basis for the application of this rule of evidence and burden of proof.” Allen v La Vaud, 213 NY 322, 326 (1915)(mature child, dependent parent). See also Wood v Rabe, 96 NY 414, 426-27 (1884)(transaction between mother and adult son subject to careful scrutiny to “protect the latter against any undue advantage being taken by the former.”). In this case, the Surrogate went far to avoid the mistake made by the surrogate in Matter of Brand by recognizing the principle stated in Matter of Swain, 125 AD2d 574 (2nd Dept 1986), that “[c]lose family ties [might actually] negate the finding of a confidential relationship,” and that it was “merely a factor to be weighed against other facts when deciding this issue.” (PRA465). Moreover, contrary to Appellant’s statement, the Surrogate did not rely only on Muriel’s “alleged ‘weakened state’” and the fact that “Peter had Muriel’s Power of Attorney” to find a confidential relationship (AB11). Citing Matter of Antoinette, 238 AD2d 762, 764 (3rd Dept 1997)(PRA465), the Surrogate considered other factors present here such as Muriel’s lack of interest in or 9Matter of Brand (AB12) stands for nothing more than the principle that the mere existence of a familial relationship cannot, absent more, create a confidential relationship. In re Jacobs, 93 AD3d 917, 918 (3rd Dept 2012). 17 ability to manage her own affairs, and her dependence on Respondents (PRA465-67). Moreover, other facts in the record support the Surrogate’s determination. As set forth at greater length in the Counter Statement of Facts, Christopher testified that Muriel was incapable of handling her own finances. Even Respondents testified that Muriel depended completely on them, not only to handle her finances, but for every aspect of her life. In Gordon v Bialystoker Ctr et al, 45 NY2d 692, 697- 98 (1978), the Court affirmed an order of an intermediate appellate court that found the existence of a confidential relationship based on the same factors present here. As in Gordon v Bialystoker, Respondents assumed “complete control, care and responsibility” of Muriel. As in Gordon v Bialystoker, Muriel was absolutely dependent on Respondents for her very existence. By accepting the responsibility of caring for Muriel, who was aged and infirm in mind and body, Respondents created a fiduciary relationship requiring that any transactions between them be scrutinized with “extreme vigilance,” requiring that Respondents provide “clear proof of the integrity and fairness of the transaction[s] . . ..” 45 NY2d at 698. That Respondents failed in meeting their burden is not the fault of the Surrogate’s rulings (see Point II, below). The jury properly held them accountable for heedless abuse of Muriel’s trust by using her as their personal ATM machine. As the very case cited by Respondents states, “Confidential relation in law . . . is a relation 18 of parties in which one is bound to act for the benefit of the other, and can take no advantage to himself from his act relating to the interests of the other.” In re Brand, 185 App Div 134, 142 (3rd Dept 1918). No reasonable person could view the evidence in this case and not find that both Respondents obtained advantage to themselves by looting Muriel’s accounts. C. The existence of the powers of attorney are some proof of the trust Muriel placed in Respondents. (Answering Point I[B] of Brief on Behalf of Respondent-Appellant) Appellant starts her argument by incorrectly overstating her case, claiming that there is a “bar against imposing a confidential relationship on a family relationship.” (AB14). There is no such bar. See Almasy v Ward, 53 AD3d 946, 947 (3rd Dept 2008)(“[f]amilial relationships, as well as cohabitating, often give rise to at least a factual issue regarding a confidential relationship [citations omitted]”). Appellant then incorrectly misstates the holding in Matter of Nealon, at 57 AD3d 1327-28, footnote 2 as quoted at AB14. At footnote 2 this Court rejected the notion that the mere existence of a power of attorney for the benefit of Muriel Nealon imposed the higher level of conduct coordinate with that imposed on attorneys-in- 19 fact.10 The issue here is different. The Surrogate clearly cited the existence of the power of attorney running from Muriel to Respondents as only one of several factors the consideration of which was not foreclosed by this Court in considering whether a confidential relationship existed between Respondents and Muriel. The factors used to determine whether undue influence has been exercised by one or more parties over another is not exclusive. Peter acknowledged that, in August 2000, Muriel gave him and Christopher power of attorney. Respondent contends it is self-evident that naming Peter as her attorney-in-fact is some proof of the trust Muriel placed in him. Peter testified that, in February 2003, because “we felt it in my mom’s best interest,” Respondents were named Muriel’s attorneys-in-fact. That also suggested that she reposed some degree of trust in Tracey and that she continued to place some level of trust in Peter. As Appellant has neither presented a factual argument against the finding made by the Surrogate nor cited any authority that supports the legal contention presented 10At footnote 2 this Court was referring to the argument made at Point II of the Brief of Petitioner-Appellant in Case #502820 (Matter of Nealon, 57 AD3d 1325 [3rd Dept 2008]), where Petitioner argued that Respondents should be held to a level of conduct commensurate with that imposed on attorneys-in-fact for checks written after February 10, 2003, the date Muriel Nealon executed a power-of-attorney making Peter Nealon and Tracey Nealon her attorneys-in-fact even though the checks were not written using the power of attorney. This Court rejected that argument because there was “no proof disputing respondents’ testimony that said power of attorney was never used until February 2004, well after the transactions of which petitioner complains.” 20 at Point I(B), the contention should be rejected based on the foregoing argument. D. Evidence of Muriel’s complete dependence on Respondents for every conceivable need, even her most intimate of needs, coupled with her frail physical and deteriorating mental state warrant finding a confidential relationship. (Answering Point I[C] of Brief on Behalf of Respondent-Appellant) The argument presented at Point I(A) above is sufficient to answer the suggestion made by Respondent-Appellant at Point I(C) that the Surrogate overly relied on Muriel’s “weakened [cognitive] state” to find the existence of a confidential relationship (AB15). Appellant next argues that “this Court held that there was no evidence that Muriel lacked capacity at the time of any of the specific transactions at issue,” quoting Matter of Nealon, at 57 AD3d 1328 and suggests that the Surrogate’s finding of a confidential relationship between Decedent and Respondents violated the law of the case. Nothing in the Memorandum and Order precludes the admission of evidence concerning Decedent’s declining mental and physical health to support the claim that a confidential relationship arose between Muriel and Respondents. Finding that “petitioner did provide some proof supporting his claim that decedent had diminished competency during the relevant time period” this Court still affirmed the summary-judgment-dismissal of Petitioner’s cause of action premised 21 upon Muriel’s “alleged incapacity” because that proof was insufficient to prove Muriel’s incapacity “at the time of the specific money transactions at issue.” (Emphasis in original) 57 AD3d at 581.The passage quoted in Appellant’s brief pertains to a different cause of action than the one under consideration here and is therefore not relevant. The issue here is whether the evidence of Muriel’s cognitive deterioration could be considered on the issue of whether a confidential relationship existed between Respondents and Muriel. The prior appeal did not consider that issue. Muriel’s cognitive deterioration may be considered on whether a confidential relation existed here and it is relevant to the claim of undue influence. Whether Muriel was legally competent to dispose of her property is a different issue. The earlier appeal does not preclude consideration of Muriel’s cognitive deterioration as to either the existence of a confidential relationship or the claim of undue influence. Matter of Donovan, 47 AD2d 923 (2nd Dept 1975). 22 Point II The evidentiary rulings concerning the Dead Man’s Statute (CPLR §4519) were correct and any errors, if preserved, were harmless and do not warrant a new trial. In her Statement of Facts and at Point II of her Brief, Appellant contends that she is entitled to judgment because the Surrogate created reversible error as a result of his rulings under CPLR §4519. Appellant’s objections concern Respondents’ live testimony as well as the excerpts from their deposition testimony that were read into the record by Petitioner’s attorney, Mr. Parisi. Petitioner will first address Appellant’s contention that the Surrogate made incorrect rulings under CPLR §4519 concerning the live testimony. Petitioner will then address Appellant’s contentions that Petitioner “opened the door” to testimony otherwise prohibited under CPLR §4519 by reading excerpts from the deposition testimony of the Respondents. A. There were no errors in the rulings made by the Surrogate as to the live testimony of the Respondents. In her Statement of Facts, Appellant states that the Surrogate “precluded Peter from testifying that Muriel told or directed him to do anything, and precluded him from testifying about any transactions” [citing A93, 94, 111, 117, corresponding to PRA373, 376, 402, 414](AB9), “any observations of Muriel, or anything about Muriel’s involvement in construction decisions for her new living quarters” [citing 23 A100-104, corresponding to PRA390-94] and that no testimony was “allowed about any banking transactions, including gifts (A95-98) [corresponding to PRA379, 384- 86].”(AB10). As for Tracey Nealon, Appellant contends that the Surrogate “cited the Dead Man’s Statute and precluded Tracey from testifying about any transactions with Muriel [citing A125, 126, corresponding to PRA425, 426](AB10). Appellant’s argument that the Surrogate erroneously precluded Tracey from testifying about any transactions with Muriel (AB10, PRA423-26) cannot be considered because the ruling about which Appellant complains was made on her attorney’s objection to a question posed by Petitioner’s attorney. Appellant cannot argue that she is entitled to any relief because of a ruling which she requested at trial. Similarly, Appellant is not entitled to relief based on questions that were withdrawn by her attorney (A114, PRA406-07) or asked by her attorney (A116, PRA411) or based on excerpts that her co-Respondent read from his own deposition testimony (A115, PRA408-09).11 The first CPLR§4519 ruling came when the Surrogate instructed Peter prior to giving his narrative direct testimony that he could not testify as to any communications with Muriel concerning any financial transactions. The Surrogate’s 11Where it is counsel for respondents rather than counsel for the estate who elicits statements claimed to have opened the door to respondent’s otherwise prohibited testimony, the protection of the Dead Man’s Statute is not waived. Matter of Buchanan, 245 AD2d 642, 647 (3rd Dept 1997). 24 ruling was within the scope of CPLR §4519 and manifestly correct (A93, 94, PRA373-80). The Surrogate next sustained Petitioner’s objection to testimony from Peter about Muriel’s gift-giving practices, to which Mr. Kouray excepted (PRA384- 86). Later while Peter was being cross examined by Mr. Kouray, Appellant’s attorney, Mr. Parisi objected to testimony concerning Peter’s observations of Muriel with his children. The Surrogate, citing Holcomb v Holcomb, 95 NY 316, 324-25 (1884), determined that the prohibition against an interested party testifying as to transactions with a decedent was much broader than he originally thought and sustained the objection (AB9)(A111-12, PRA398-403; A117-18, PRA414-15).12 Given the language of the statute as interpreted in Holcomb, the Surrogate’s more expansive ruling was correct under the circumstances of this case. Appellant also claims error in the Surrogate’s ruling at PRA390-94 prohibiting Peter from testifying about Muriel’s personal involvement in the renovation of his home. Petitioner contends that this ruling was also proper and even if it was not, it did not concern the transactions at issue in this case, which were financial in nature. In addition to the absence of substantive merit in Appellant’s contentions, she 12At Point II of Appellant’s legal argument concerning CPLR §4519, she cites A111-118 (AB17), overlapping some of the pages cited in her Statement of Facts. At A113 (PRA405) there was no objection, no ruling, and no discussion about CPLR §4519. 25 does not and cannot show how she was injured by any rulings made by the Surrogate because in one form or another, both Respondents were able to get their position across to the jury. This is demonstrated by the fact that the jury rejected the Petitioner’s claim for what Respondents claimed was a $1,100.00 gift from Muriel meant as a wedding gift (Jury Verdict Sheet, question #39, PRA25, 333). B. The excerpts from Respondents’ deposition testimony did not “open the door” to testimony otherwise prohibited under CPLR §4519. Appellant argues that because the Estate read portions of Respondents’ deposition testimony into the record concerning “the receipt of funds related to the specific transactions at issue,” the door was opened to Respondents to give testimony concerning those transactions (AB17-18). There are several problems with this argument. First, the issue has not been preserved for review because the deposition testimony of Peter and Tracey Nealon was read into the record without objection or exception by either Peter or Tracey Nealon. In Cole v Sweet, 187 NY 488, 490 (1907), it was the exception to the ruling that admitted a witness’ deposition testimony that raised the question concerning section 829 of the Code of Civil Procedure (the predecessor to CPLR §4519). Second, even if the issue were preserved for review, its presentation is 26 defective. Appellant does not cite any pages from the record at AB17-18. It is only in Appellant’s Statement of Facts (AB8-9) where there is any reference to specific portions of the record where Peter’s deposition testimony was read into the record (A72-85, corresponding to PRA338-44). Therefore, the issue has not been properly raised. The excerpts about which Respondent-Appellant complains occupy 19 pages of a 1,202 page transcript. Many of the excerpts of Peter’s testimony that Mr. Parisi read into the record had nothing to do with the transactions at issue in this case. They dealt with who took Muriel to the doctor, how she injured her shoulder, Muriel’s forgetfulness, why he moved Muriel into his house and the fact that she was dependent on him and Tracey (PRA325-29). Mr. Parisi also read excerpts of Peter’s deposition testimony that were matters of documentary evidence (PRA330-32, 334- 40, 342, 344-45). Still other excerpts did present Respondents’ explanations for some of the transactions at issue, such as a wedding gift or Christmas gifts from Muriel or helping out with monthly expenses after Tracey had to leave work because of her pregnancy (PRA333, 336-37, 341, 343, 344). Arguably, the portion of Peter’s deposition testimony where he claimed that Muriel called him and “thought she lost her pocketbook,” touches on a conversation 27 with Muriel concerning a personal transaction (PRA335) might have been kept out of the evidence after the Surrogate modified his approach later in the trial (PRA373, 402, 414), as other excerpts detailed above, but neither Respondent asked the Surrogate to strike from the record any such material at or after that modification. Only two objections were raised during the reading having nothing to do with CPLR§4519 (PRA328-29, 333-34).13 Appellant fails to show how the record pages referenced in her brief introduced “deposition testimony of Peter on certain transactions with Muriel, including her payments for constructing the new bedrooms and monthly expenses, and her giving of gifts to her grandchildren and a wedding gift for Peter and Tracey” (AB8-9) and therefore has not shown a violation of CPLR §4519 or a waiver under that statute so that they may “explain the transaction or state all that was said and done.” Cole v Sweet, 187 NY at 493. As mentioned above, examination of many of the excerpts elicited nothing more than evidence reflected in documentary evidence consisting of bank records which does not “open the door” or waive the protection of CPLR §4519. 13The Brief on Behalf of Respondent-Appellant Tracey Nealon does not cite any part of the excerpts of her testimony in relation to this alleged error so no discussion is warranted. Suffice it to say that none of those excerpts opened the door to testimony that would otherwise violate the constraints of CPLR §4519. As with Peter’s deposition, the excerpts of Tracey’s testimony allowed her to explain that Muriel “frequently gave us money for household bills, personal expenses, groceries. She was really good like that.” (PRA347-49). It is difficult to comprehend how this testimony, even if Appellant had cited it as error, could have prejudiced her. 28 Estate of Wood, 52 NY2d 139, 145-46 (1981). The information elicited was redundant of documentary evidence in the record, to wit, the bank statements, checks, withdrawal slips and other bank records. Estate of Wood, 52 NY2d at 145-46. None of the excerpts constituted testimony as to a personal transaction of the Respondents with Muriel as that concept is understood in Estate of Wood where the interested party described the delivery of cash to the decedent. None of the other cases cited by Appellant support her position (AB18). The testimony read into the record in the instant case is different from the testimony read into the record in Cole v Sweet, 187 NY 488 (1907). In Cole v Sweet, after the personal representative compelled the defendant “to state a part of what was said and done by herself and the decedent, he insisted that she could not explain the transaction or state all that was said and done.” 187 NY at 492-93. For all of the reasons set forth above, Appellant’s arguments concerning CPLR §4519 should be rejected. 29 Point III The Surrogate properly denied Respondent-Appellant Tracey Nealon’s motion for a directed verdict. At the conclusion of all the evidence, and stating the correct standard, the Surrogate denied Appellant’s motion for a directed verdict, finding that direct evidence was seldom available in claims involving undue influence, that there was conflicting testimony on the issue of undue influence, and that reasonable people could differ as to the inferences that might be drawn from the evidence (PRA464- 68).14 The Surrogate’s determination was correct and Appellant’s contention is without merit. Appellant suggests that the Surrogate denied the motion for directed verdict based on the procedural posture at the end of the case; that is, “after determining . . . . that the burden shifted to [Respondents] to prove every transaction free of undue influence (A143, 144).” The record citation given does not support the foregoing proposition (PRA871-72),15 and Appellant is incorrect. When the motion for directed verdict was originally made at the close of Petitioner’s case, in answer to the concerns 14 The Surrogate noted that no such motion was made by Respondent Peter Nealon (PRA463-64). 15Appellant does not address the argument made by the Estate in opposition to the motion for directed verdict based on the first appeal in this case, that the evidence precluding summary judgment on the issue of undue influence also precluded Appellant’s motion for a directed verdict because the evidence presented on the Estate’s direct case was the same as that cited in this Court’s decision (Matter of Nealon 57 AD3d at 1327-28)(PRA363-64) 30 raised by Appellant’s trial attorney, Mr. Kouray, the Surrogate reserved decision and specifically stated that a decision on the motion for directed verdict “would only be based upon the evidence elicited during the course of the Petitioner’s case-in-chief.” (PRA363-68). In this case there was evidence and fair inferences that could be drawn therefrom that Respondents exercised influence amounting to a moral coercion, which by irresistible importunity constrained Muriel to abandon her long-standing practice of helping all of her sons and caused her to abandon her estate plan at a time when she was unable to refuse or too weak to resist. The coercion need not have been overt, but could be “produced by importunity, or by a silent resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted.” Matter of Walther, 6 NY2d 49, 53, 54(1959). Undue influence can be proven by circumstantial evidence as direct evidence is rarely available. Evidence of motive and opportunity are also relevant and no single circumstance is dispositive. Matter of Antoinette, 238 AD2d 762, 763 (3rd Dept 1997). Matter of Antoinette recited a non-exhaustive list of factors including, as relevant to the instant appeal, the nature of Muriel’s relations with Petitioner, Respondents and the rest of her family, Muriel’s “lack of involvement in fiscal matters, prior to the events at issue; the abrupt and otherwise unexplained changes in [Muriel’s] behavior, 31 beliefs and attitudes, culminating in a radical alteration of her testamentary disposition, shortly after [Respondents] began taking an active role in decedent's day-to-day affairs [citation omitted]; [and Respondents’] sudden intense interest in [Muriel's] financial circumstances . . ..” 238 AD2d at 763. Christopher had always been the person most involved in and knowledgeable about Muriel’s finances. It was not until after Respondents moved Muriel into their home that Peter became aware of the location and size of Muriel’s assets. After Muriel was moved into their home, Respondents took possession of her bank accounts, had free access to her ATM card and obtained her PIN number. Two years before they moved Muriel into their home Respondents were discussing their massive home renovation with Mr. Laven, but were unable to afford going forward. It was only after Respondents moved Muriel into their home that they had access to her savings and started draining her accounts to pay for their home renovations. They also used Muriel’s savings to pay for their household expenses, and an enhanced lifestyle. Respondents’ unrestrained depletion of Muriel’s savings after she was diagnosed with progressive, irreversible cognitive degeneration left insufficient money in her estate and therefore effectively nullified the testamentary disposition Muriel had made before she was diagnosed. Other motives existed for draining Muriel’s bank accounts. When Muriel was 32 moved into her home, Appellant was pregnant with her second child, Morgan and had to quit work because it was considered a high-risk pregnancy (PRA493-95). Respondents had both the motive and the opportunity to raid Muriel’s accounts in order to pay for their massive home renovation, to support their household while Appellant was not working, to pay for their destination wedding and to subsidize an enhanced lifestyle that they were otherwise unable to afford all of which further supports the conclusion that they imposed themselves on Muriel. Matter of Antoinette, 238 AD2d at 763-64. Appellant suggests that there was only “generalized testimony” concerning Muriel’s physical weakness and confusion and that the evidence was that Muriel suffered from “mild dementia.” (AB20). The testimony concerning Muriel’s physical and cognitive decline was specific and compelling. Muriel’s condition deteriorated first to moderate and then to severe dementia, ending in death from that cause. Appellant claims that Dr. Donohue never made a determination that Muriel lacked the capacity to control her finances (AB8), but that was because he dealt with the health of his patients, not with their finances (PRA452-53). Furthermore, Dr. Donohue testified that when Muriel declined to moderate to severe dementia, when she was only alert to person and not to place and time, she then lacked mental capacity (PRA454). The evidence shows that Muriel declined to this 33 point not later than her visit in July of 2003, but it could have been at any time after her visit in November of 2002, the month before Respondents started the massive renovation on their home paid out of Muriel’s funds (PRA458-59). Appellant alludes to the “top quality of care” (PRA328) that Respondents gave to Muriel (AB20). Yet the fact that Respondents treated Muriel well does not rebut the claim of undue influence. Just as their resentment toward Christopher and William, mixed with feelings of entitlement, supports an inference unfavorable to Respondents, that treatment itself supports the inference that by doing so they created an atmosphere in which they could more effectively exert that subtle and pervasive form of coercion and influence over Muriel that allowed them to “rob her blind.” (PRA119, 196, 344, 418, 487, 647, 719, 739-47, 980-84, 991-92). 34 Conclusion For all of the reasons set forth above, the judgment appealed from should be affirmed with costs awarded to the Estate of Muriel Nealon. Dated: October 17, 2012 Parisi, Coan & Saccocio, PLLC Attorneys for Petitioner-Respondent 376 Broadway, 2nd Floor Schenectady, New York 12305-2520 (518) 377-9096 _____________________________ Nicholas E. Tishler, of counsel 35 Nicholas E. Tishler Digitally signed by Nicholas E. Tishler DN: cn=Nicholas E. Tishler, o=Nicholas E. Tishler, Esq., ou, email=appealsusa@gmail.com, c=US Date: 2012.10.24 12:46:53 -04'00'