        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

283
CA 16-01578
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN,


GERALDINE H. BURGWARDT, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

RANDY F. BURGWARDT, DEFENDANT-RESPONDENT.


JOHN FENZ, WEST SENECA, MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (SHARON
STERN GERSTMAN OF COUNSEL), FOR PLAINTIFF-APPELLANT.

DEMARIE & SCHOENBORN, P.C., BUFFALO (WILLIAM E. SZCZEPANSKI OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John F.
O’Donnell, J.), dated October 7, 2015 in this declaratory judgment
action. The order denied plaintiff’s motion for summary judgment on
the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff and her husband (decedent) commenced this
declaratory judgment action against defendant, their son, seeking,
inter alia, a declaration that they were the lawful owners of the
subject premises and that a deed transferring the subject premises to
defendant must be canceled. We note at the outset that decedent
passed away during the pendency of the action and, pursuant to a
stipulated order, plaintiff was permitted to proceed as the sole
plaintiff in the action.

     Before conducting any discovery, plaintiff and decedent moved for
summary judgment on the complaint, contending that, although defendant
had been granted power of attorney for plaintiff and decedent under a
Statutory Short Form Power of Attorney ([POA] General Obligations Law
§ 5-1513), he was not granted written authority to make a gift to
himself of their real property under the requisite statutory gifts
rider (see § 5-1514 [1]). They thus contended that defendant lacked
the specific written authority to gift the real property to himself
(§ 5-1514 [4] [b]), and that the purported conveyance violated the
statute of frauds (see § 5-703). Additionally, they contended that
the conveyance of the property violated section 5-1514 (5) because the
conveyance, which was made pursuant to a POA, was not “in the best
interest of the principal.” We conclude that Supreme Court properly
denied the motion.
                                 -2-                           283
                                                         CA 16-01578

     “A written agreement that is clear, complete and subject to only
one reasonable interpretation must be enforced according to the plain
meaning of the language chosen by the contracting parties” (Brad H. v
City of New York, 17 NY3d 180, 185). “ ‘Extrinsic evidence of the
parties’ intent may be considered only if the agreement is ambiguous,
which is an issue of law for the courts to decide’ ” (Innophos, Inc. v
Rhodia, S.A., 10 NY3d 25, 29; see also Van Kipnis v Van Kipnis, 11
NY3d 573, 577). These principles of contractual interpretation have
been applied to powers of attorney (see 2A NY Jur 2d, Agency § 79).

     Contrary to plaintiff’s contention, the POAs and their attached
gifts riders, which “must be read together as a single instrument”
(General Obligations Law § 5-1501 [2] [n]), are ambiguous. In the
POAs, plaintiff and decedent had authorized defendant, among other
things, to make “real estate transactions” on their behalf, and
signified their intention to grant defendant authority to make “major
gifts and other transfers of [their] property” in accordance with the
particular authority specified in the attached gifts riders. The
attached gifts riders were executed by plaintiff and decedent, but all
of the boxes authorizing defendant to make any gifts, including gifts
to himself, were blank. We thus conclude that the instruments are
incomplete and internally inconsistent because they express an
intention to grant defendant authority to make gifts but then provide
no circumstances in which he can exercise any such authority. Indeed,
an optional gifts rider is executed only when the principal intends to
authorize the agent to make major gifts and analogous transfers of the
principal’s property (see § 5-1514 [1]). Thus, there would have been
no need for the gifts riders if plaintiff and decedent did not intend
to authorize defendant to make gifts. Inasmuch as “a court should not
read a contract so as to render any term, phrase, or provision
meaningless or superfluous” (Givati v Air Techniques, Inc., 104 AD3d
644, 645; see Beal Sav. Bank v Sommer, 8 NY3d 318, 324), we conclude
that the execution and attachment of gifts riders that failed to
authorize any gifts created an ambiguity concerning the scope of
defendant’s authority (see Boyd v Haritidis, 239 AD2d 820, 821-822).
Parol evidence is thus admissible “to complete the writing” (Smith v
Slocum, 71 AD2d 1058, 1059; see Brad H., 17 NY3d at 186).

     The parol evidence submitted by defendant raises triable issues
of fact whether plaintiff and decedent intended to authorize defendant
to make a gift to himself of a remainder interest in the real property
and, as a result, whether the requirements of General Obligations Law
§§ 5-1514 and 5-703 were met.




Entered:   May 5, 2017                          Frances E. Cafarell
                                                Clerk of the Court
