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,
to Discover Property Withheld and Belonging to Decedent.
BRIEF OF THE PETITIONER-RESPONDENT
Parisi, Coan & Saccocio, PLLC
Attorneys for Petitioner-Respondent
376 Broadway, 2nd Floor
Schenectady, New York 12305
Nicholas E. Tishler, of counsel
Date of Filing: October 17, 2012
Table of Contents
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’
(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
(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
Table of Contents, continued
LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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
Table of Contents, continued
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
The Surrogate properly denied Respondent-Appellant
Tracey Nealon’s motion for a directed verdict. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Table of Authorities
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
CPLR §4519 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii, 23-29
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
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.
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).
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
refused to voluntarily provide Christopher with information about Muriel’s finances
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
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,
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).
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
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
Medical evidence showed that Muriel was suffering from a progressive
degeneration of her cognitive functioning to the point where she lacked mental
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.
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.
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
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
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).
4. Depletion of Muriel Nealon’s Key Bank checking account to pay for
gifts for Respondents (Chart 4)(Jury Verdict Sheet Question B[##27-
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).
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.
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
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
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
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.
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
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).
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
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-
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
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
(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
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
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).
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
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
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
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).
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-
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.
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
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
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
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
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
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
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
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
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
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)
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.”
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,
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
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
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).
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
Nicholas E. Tishler, of counsel
Nicholas E. Tishler
Digitally signed by Nicholas E. Tishler
DN: cn=Nicholas E. Tishler, o=Nicholas E. Tishler,
Esq., ou, email@example.com, c=US
Date: 2012.10.24 12:46:53 -04'00'