MURPHY BURNS BARBER & MURPHY LLP
ATTORNEYS AND COUNSELORS AT LAW
JAMES J. BURNS
PETER G. BARBER
THOMAS K. MURPHY
STEPHEN M. GROUDlNE
• also admitted in NM
t also admitted in DC
n also admitted in MA
Via Hand Delivery
226 GREAT OAKS BOULEVARD
ALBANY NEWYORK 12203
Hon. Andrew W. Klein, Chief Clerk
Court of Appeals
20 Eagle Street
Albany, NY 12207-1095
Re: Matter of Estate of Muriel M. Nealon, APL 2013-00111
Dear Mr. Klein:
CATHERINE A. BARBER't
JANET M. THA YERJ:l
WILLIAM J. MURPHY
Respondent Tracey Nealon respectfully provides this submission to show that
this Court lacks jurisdiction over petitioner's appeal under CPLR §5601(c) and that,
even if jurisdiction were present, this appeal lacks merit. As a result, pursuant to
CPLR §5615, the order of the Appellate Division, Third Department should be
affirmed and judgment absolute rendered in favor of respondents.
Petitioner asks this Court to reverse the Appellate Division's order which
reversed the Surrogate's Court and remanded for a new trial, among other reasons,
Andrew W. Klein Page 2 September 27, 2013
the fact-intensive issue on whether a confidential relationship existed among
decedent Muriel Nealon and her caregivers, her son Peter Nealon and her daughter-
in-law Tracey Nealon. Petitioner's submission, which rests solely upon the
argument that this issue is a question of law, is flawed for two reasons.
First, petitioner's submission addresses only one of the two distinct reasons
relied upon by the Appellate Division for ordering a new trial. Matter of
Nealon,103 A.D.3d 1088 (3rd Dept. 2013). The Appellate Division's remand was
not limited to the factual issue of whether a confidential relationship existed. The
Appellate Division also held that the Surrogate Court made erroneous rulings on the
application ofCPLR §4519, the Dead Man's Statute. Petitioner failed to address
this issue in either his jurisdictional or merits arguments.
The Appellate Division correctly held that petitioner, in seeking to prove
alleged undue influence, went beyond offering documentary evidence of the
banking transactions and also introduced respondents' deposition testimony about
specific transactions involving Peter, Tracey, and Muriel. Id. at 1090-91. Citing the
Dead Man's Statute, the Surrogate's Court had precluded Peter from testifying
about any discussions with his mother regarding these financial transactions (R630,
Andrew W. Klein Page 3 September 27,2013
633,692, 7231), observations about his mother's condition (R648), or his mother's
involvement in construction decisions regarding the modifications to the family
home, including his mother's new living quarters (R647-651).
In holding that the Surrogate Court erred in applying the Dead Man's Statute,
the Appellate Division stated:
This testimonial evidence about specific transactions between
respondents and decedent, opened the door to respondents' testimony
at trial regarding those specific transactions, thus rendering erroneous
some of Surrogate's Court's later rulings sustaining objections based
Nealon, 103 A.D.3d at 1091. Given petitioner's failure to address this legal basis
for a new trial, and, inasmuch as the Appellate Division was correct in ordering a
new trial, the Appellate Division's order should be affirmed and judgment absolute
entered in favor of respondents pursuant to CPLR §5615.
Second, the sole argument raised in petitioner's submission is his contention
that a confidential relationship existed among Peter, Tracey, and Muriel as a matter
of law. Resting upon the tenuous assertion that trial evidence weighs so heavily in
favor of finding Muriel's "weakness" and "dependence," petitioner argues that a
confidential relationship should be imposed as a matter of law and that Peter and
Tracey should bear the resulting burden of proving that each and every transaction
1 "R "refers to the Record on Appeal filed with the Appellate Division.
Andrew W. Klein Page 4 September 27,2013
was free of undue influence.
The Appellate Division disagreed and held:
Although petitioner introduced evidence that might support a factual
determination that a confidential relationship existed, such as
decedent's complete dependence on respondents due to her combined
mental and physical deterioration, respondents were entitled to have
the jury consider all the evidence regarding decedent's relationship
with respondents and to determine as a factual matter whether
decedent maintained the ability to exercise free will. ... Accordingly, a
new trial is necessary.
Nealon, 103 A.D.3d at 1089 (citations omitted).
In Heary Bros. Lighning Co, Inc. v. Intertek Testing Services, N.A., Inc., 4
N.Y.3d 615, 618 (2005), this Court held that a decision based upon weight of the
evidence is not reviewable while a decision based on "sufficiency" of the evidence
is reviewable. In applying this limited exception to the evidentiary rule, this Court
found that, "[in] effect, the Appellate Division directed a verdict against plaintiffs
as to post-April 2000 damages, a ruling of law that this Court is empowered to
Petitioner simply states that this case involves evidentiary "sufficiency," but
fails to show that the Appellate Division's decision fits within this narrow
evidentiary exception. The Appellate Division did not place any timeframe or
dollar limit upon petitioner's ability to prove damages at a new trial. Nor did the
Andrew W. Klein Page 5 September 27,2013
Appellate Division err on a question of law that, if wrong, would negate the need
for a new trial. Instead, the Appellate Division held that the Surrogate's Court,
after the close of proof, instructed the jury that the burden of proof had shifted to
Peter and Tracey. Citing long-standing precedent, the Appellate Division held that
this issue was a question of fact and that "respondents were entitled to have the jury
consider all the evidence regarding decedent's relationship with respondents and to
determine as a factual matter whether decedent maintained the ability to exercise
free will." Nealon, 103 A.D.3d at 1089 (emphasis added) (citations omitted).
Given the triable questions of fact on confidential relationship, and the
additional holding that the Dead Man's Statute was misapplied, the Appellate
Division was right to order a new trial. For these reasons, this Court does not
possess jurisdiction under CPLR §5601(c), and, pursuant to CPLR §5615, the
Appellate Division's order should be affirmed and judgment absolute entered in
favor of respondents.
II. RESPONDENT TRACEY NEALON'S POSITION ON MERITS.
Even if this Court finds that it possesses jurisdiction, the decision of the
Appellate Division should be affirmed. Petitioner's submission presents a factual
argument that is not supported by the record, and even relies upon an alleged offer
Andrew W. Klein Page 6 September 27,2013
of restitution by respondent, see Pet. Sub. at 11 n.3, which was excluded from proof
by the Surrogate's Court (R360).
Muriel had been living alone following the death of her husband in May
2001. In August 2002, Muriel's physician, Dr. Donahue, diagnosed her with early
cognitive impairment (R823, 829). Muriel's episodes of forgetfulness caused her
family to determine that she should not continue to live alone (R644).
No other family member, including her son Christopher, the petitioner,
volunteered to care for Muriel. In the end, Muriel accepted the invitation by her
son Peter and his then-fiancee Tracey to reside with their family (R645).
In September 2002, Muriel moved into Peter and Tracey's two-bedroom
home (R733). Peter and Tracey were the parents of a toddler with cerebral palsy
(R733), and were anticipating the birth of a second child in January 2003 (R737).
Peter and Tracey gave their own bedroom to Muriel and shared the smaller
bedroom with their toddler. Given the couple's existing needs to provide suitable
accommodations for a special needs child and an expected baby, and the added need
to provide appropriate accommodations for Muriel, the couple and Muriel agreed
upon necessary improvements to the two-bedroom home (R695, 733).
In October 2002, construction started on an addition which included a first
floor bedroom with handicapped-accessible bathroom for Muriel's use and a second
Andrew W. Klein Page 7 September 27,2013
story bedroom for Peter and Tracey (R647, 696). The existing bedrooms would be
used for their toddler and expected baby. Between November 2002 and November
2003, Muriel signed her own checks for the costs of construction, gifts to her
grandchildren, and a wedding gift for Peter and Tracey (R590, 591, 604). Muriel
also permitted Tracey to withdraw money from her account for Muriel's personal
and living expenses (R605).
In February 2003, Muriel gave a Power of Attorney to Peter and Tracey
(R589). In 2000, Muriel had given a Power of Attorney to her sons Christopher
and Peter. Christopher did not know if a copy of the 2000 Power of Attorney was
ever sent to Peter (R507). Muriel decided to change the Power of Attorney because
of increasing difficulties in reaching Christopher due to his extensive job-related
travel (R589). No Power of Attorney was used to sign checks or withdraw funds
for the challenged transactions (R708).
Peter and Tracey provided Muriel with her daily needs, including meal
preparation, laundry, housecleaning, transportation, and personal care (R585).
Visits by Muriel's other sons, including petitioner, were sporadic and no family
member volunteered to assist with Muriel's care. No family member was willing to
care for Muriel for brief periods to allow Peter and Tracey to take a vacation (R740,
Andrew W. Klein Page 8 September 27,2013
In February 2004, Muriel was admitted to the hospital with an infection
(R815). By March 2004, she was receiving hospice care, while still residing with
Peter and Tracey (R817). On May 18,2004, Muriel died (R818).
On January 28, 2005, Christopher Nealon, as Executor of Muriel's Estate,
filed a petition pursuant to SCPA §1401, seeking reimbursement from Peter and
Tracey for funds withdrawn by Muriel from her bank accounts between November
2002 and November 2003. Peter and Tracey filed a motion for summary judgment.
In a Decision and Order dated August 8, 2006, the Surrogate's Court
(Kramer, J.) granted summary judgment against petitioner's claims. The Court held
that there was no confidential relationship among Muriel, Peter and Tracey. The
Court found that a diagnosis of progressive dementia, without more, failed to create
a triable issue of fact as to capacity. The Court held that the Estate had failed to
meet its burden to present evidence of undue influence at the time of any of the
challenged transactions, and therefore no triable issue of fact existed as to the issue
of undue influence.
In Matter of Nealon, 57 A.D.3d 1325 (3rd Dept. 2008), the Appellate
Division affirmed the decision of the Surrogate's Court granting summary judgment
on the issues of capacity and confidential or fiduciary relationship, and remanded
on the issue of undue influence, finding that an issue of fact existed for trial.
Andrew W. Klein Page 9 September 27,2013
At trial, the only medical evidence presented by petitioner was the deposition
testimony of Muriel's physician, Dr. Donahue, who stated that it is common for a
person diagnosed with dementia to have changes from day to day, with waxing and
waning, including periods of complete lucidity and periods of confusion (R804,
805). Dr. Donahue stated that it would be necessary to observe Muriel in order to
know her mental state at any particular time (R827). Dr. Donahue further opined
that he had no medical reason to believe that Muriel, at any given time, lacked the
capacity necessary to control her own finances (R826, 827).
Others who observed Muriel during the time period in question spoke
favorably about her ability to understand and control her own affairs. Edmund
Laven, the contractor for the addition, testified that Muriel signed the checks
relating to the construction (R244, 245). He recalled that Muriel was not confused
and had appropriate conversations (R250, 251). Mr. Laven was Muriel's next-door
neighbor and observed her in the backyard with her grandson (R262, 263), and
never noticed her to be in any way neglected (R264).
Beth Kissinger, a Certified Public Accountant, who prepared Muriel's tax
returns, testified that at an office appointment in April 2002, Muriel was oriented
and asked appropriate questions about her tax returns (R220, 221). Muriel told Ms.
Kissinger that she was not happy with her son Christopher as trustee of a trust
Andrew W. Klein Page 10 September 27, 2013
which had been created by her (R229). In April 2003, while at Muriel's house to
discuss her tax return, Ms. Kissinger observed that Muriel asked Tracey to retrieve
her checkbook, and requested that Tracey fill out the check for her (R221). Ms.
Kissinger believed that this request was made because Muriel had hurt her shoulder
and it was physically difficult for her to write (R233). Ms. Kissinger saw Muriel
sign the check herself (R234). Ms. Kissinger testified that Muriel appeared very
happy and was insistent that she hold Peter's and Tracey's new baby (R231, 232).
Ms. Kissinger did not see Muriel in the April 2004 tax season, which was a month
before Muriel died (R232). Other witnesses who had contact with Muriel during
this period had also testified that Muriel was oriented, lucid, and had appropriate
conversations during the time period in question.
Petitioner presented no testimony, other than speculation, regarding Muriel's
capacity to understand her own finances. That is not surprising, considering that
petitioner visited his mother infrequently, and, during that time period, was
apparently quite content with leaving her care to others. Petitioner testified that he
did not witness any financial transactions by Muriel, and had no proof that Muriel
did not authorize them (R473, 474, 489). He simply posited that Muriel's diagnosis
of dementia was sufficient proof that Muriel did not authorize all of the transactions
(R539,540). Petitioner acknowledged that he had received a gift of $5,000 from
Andrew W. Klein Page 11 September 27,2013
Muriel in 1998, towards the purchase ofa truck (R543, 544).
Kathleen Nealon, Christopher Nealon's ex-wife, had no complaints about
Peter's and Tracey's care of Muriel (RI76). She visited Muriel at Peter's and
Tracey's house three or four times (RI55). She testified that over 12 years of
school, Muriel had paid $25,000 for petitioner's daughter to attend the Albany
Academy for Girls (RI66). Muriel did not make a similar gift to her other two sons
or their families (R328, 329).
Muriel's son William Nealon testified that he was not aware of any evidence
to support the Estate's claim of undue influence (RI97).
Debra Nealon, wife of William Nealon, testified that she knew very little
about Muriel's finances (R299). She stated that she visited Muriel several times a
year (R338). She testified that William had received a gift of money from Muriel,
and she did not know whether Peter received a similar gift (R345, 346).
Peter Nealon testified, consistent with his deposition testimony, that he first
used the Power of Attorney in February 2004, and never used it to write any checks
before that date (R657, 708). This testimony was unrebutted at trial by any other
testimony or evidence to the contrary.
To establish a confidential relationship, petitioner was required to establish
the transactions were the result of a "subtle, but pervasive form of coercion and
Andrew W. Klein Page 12 September 27,2013
influence by which [the proponent] overwhelmed and manipulated decedent's
volition to advance her own interests." Matter of Antoinette, 238 A.D.2d 762, 763
(3rd Dept. 1997). It is well-settled that where, as here, a family member would be
an expected beneficiary of a disposition, caution should be exercised before
illegitimate or unlawful motives are attached to a family member's influence over a
loved one. Matter of Walther, 6 N.Y.2d 49, 53-54 (1959). As the Appellate
Division correctly held, "[t]he existence of a family relationship does not, per se,
create a presumption of undue influence; there must be evidence of other facts or
circumstances showing inequality or controlling influence." Nealon, 104 A.D.3d at
1089, citing Matter of Feiden, 151 A.D.2d 889, 891 (3 rd Dept. 1989). The
Appellate Division further correctly held that "[t]he existence of such a relationship
will ordinarily be a question of fact." Id.
Petitioner mistakenly argues that the Appellate Division's decision is
contrary to "well-settled doctrine." Neither case cited for this assertion involves
imposing a fiduciary relationship upon family members under facts remotely similar
to those presented here. In Gordon v. Bialystroker, 45 N.Y.2d 692, 698 (1978),
respondent was not a family member, but a nursing home which had an
"indisputable" fiduciary relationship with decedent and was aware of the decedent's
mental and physical infirmities. Decedent had not previously heard of the nursing
Andrew W. Klein Page 13 September 27,2013
home's existence, and the challenged large charitable donation to the nursing home
had occurred prior to her transfer from a hospital to the nursing home.
In Allen v. LaVaud, 213 N.Y.322, 326 (1915), a daughter took in her
seriously ill father just weeks before his death and, during that short time, the father
conveyed real property to the daughter. This Court noted the conveyance was
within the "certain classes of contracts [that] are inherently subjects of suspicion
and scrutiny .... " This Court held that there was question whether a court "should
give validity to a conveyance executed under such rather sinister conditions
unrelieved by any word of explanation or evidence of honesty and fair dealing on
the part of the person. benefitted." Id. at 325-26.
In sum, it is beyond cavil to even suggest that the financial transactions here
arose under "sinister conditions" or devoid of explanation. Peter and Tracey were
family members who, to the exclusion of others including petitioner, voluntarily
assumed responsibility for Muriel's care despite respondents' own difficult
circumstances raising a special needs toddler and anticipating a baby. Nor is there
any dispute that the care provided by respondents to Muriel was exemplary without
complaint or criticism. Simply stated, it defies reason for petitioner to suggest that
these facts should, as a matter of law, shift the burden of proof and require Peter
and Tracey to prove that each transaction was free of undue influence on Muriel.
Andrew W. Klein Page 14 September 27,2013
The Appellate Division's order correctly found that a new trial was required
on the issue of confidential relationship and by the improper application of the
Dead Man's Statute. For these reasons, this Court does not possess jurisdiction
under CPLR §S601(c) and, pursuant to CPLR §S61S, the Appellate Division's
order should be affirmed and judgment absolute rendered in favor of respondents.
Catherine A. Barber, Esq.
Peter G. Barber, Esq.
Murphy, Bums, Barber & Murphy, LLP
Attorneys for Respondent Tracey Nealon
226 Great Oaks Boulevard
Albany, New York 12203
Tel: (SI8) 690-0096
Fax: (SI8) 690-00S3
STATE OF NEW YORK
C01JRT OF APPEALS
MATTER OF THE ESTATE OF MURIEL M.
CHRISTOPHER NEALON, AFFIDA VIT OF
Respondent, APL 2013-00111
STATE OF NEW YORK
COUNTY OF ALBANY
Marlene Whitmarsh, being duly sworn, deposes and says: that she is over
the age of 18, resides in Albany, New York, and is not a party to this action.
That on the 27th day of September, 2013, she served the Letter Response on
behalf of respondent Tracey Nealon, on NICHOLAS E. TISHLER, ESQ., attorney
for appellant, 1917 Mayfair Road, Niskayuna, New York, 12309-5428, and
PETER J. :NEALON, 3581 Carmen Road, Apartment 4, Schenectady, New York,
12303, Respondent, the addresses designated by said attorney and respondent for
that purpose, by enclosing a true copy of the Letter Response in properly
addressed, postpaid envelopes, and depositing in an official depository under the
exclusive care and custody of the USPS maintained in the Town of Guilderland,
State of New York. , /} J~;,;f ,. )
"",) /ILIuh~vz/ ~
Sworn to before me this
27th day of September, 2013
Notary~tMmlA~~Aceti ~w York
Notary Public, State of New York
No. 01 K06136427
Qualiffed in Albany County
Commission Expires Nov. 07, 20.10