Roundup of Decisions by the Four Appellate Division Departments

June 10, 2019

During the past year, the appellate courts have rendered decisions of interest to the field of trusts and estates. The opinions discussed in this month’s column should provide valuable instruction to the Surrogate’s Court practitioner.

Use of Power of Attorney To Make Gift Affirmed by The First Department

In Matter of Argondizza, 168 A.D.3d 426 (1st Dep’t 2019), the Appellate Division, First Department, affirmed an Order of the Surrogate’s Court, New York County (Mella, S.), which denied the petitioners’ cross-motion for summary judgment directing a turnover of assets, and granted respondent’s motion for summary judgment dismissing the petition.

The underlying proceeding, which had been commenced by the decedent’s children against their stepfather, the decedent’s surviving spouse, involved ownership of shares of stock in a cooperative apartment. The apartment had been owned by the decedent and the respondent, as tenants in common, until a year before her death. At that time, the respondent, utilizing a durable power of attorney, which had been signed by the decedent in the presence of one of the petitioners, transferred the decedent’s one-half interest in the residence to himself.

The power of attorney had been granted by the decedent to the respondent two years before she passed away in contemplation of her future medical and financial needs. Petitioners acknowledged that they were aware of the power of attorney, and its intended use. The record further reflected that the decedent and respondent had signed a letter to the managing agent of the cooperative housing corporation directing the transfer of the share certificate from her and the respondent’s name to the respondent’s name alone. Petitioners’ maintained that the transaction constituted a breach of fiduciary duty by the respondent, as attorney in fact, and required a return of the share certificate to the decedent’s estate. Respondent claimed that the transfer comported with the decedent’s wishes.

Ilene Sherwyn Cooper is a partner with Farrell Fritz, P.C. in Uniondale, where she concentrates in the area of trusts and estates. She is the past-chair of the New York State Bar Association’s Trusts and Estates Law Section.

Reprinted with permission from New York Law Journal, Monday, June 10, 2019, Vol 261 – No. 110

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  • Related Practice Areas: Estate Litigation, Trusts & Estates
  • Featured Attorneys: Ilene S. Cooper
  • Publications: New York Law Journal