                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 10, 2014                     517534
________________________________

In the Matter of AUDREY
   BONCZYK et al.,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

TINA WILLIAMS,
                    Respondent.
________________________________


Calendar Date:   May 29, 2014

Before:   Peters, P.J., Rose, Egan Jr., Lynch and Devine, JJ.

                             __________


      Parisi, Coan & Saccocio, PLLC, Schenectady (Gerald F.
Parisi of counsel), for appellants.

                             __________


Lynch, J.

      Appeal from an order of the Supreme Court (Reilly Jr., J.),
entered November 27, 2012 in Schenectady County, which, in a
proceeding pursuant to General Obligations Law § 5-1510,
partially denied petitioners' motion for a declaration that a
fiduciary and confidential relationship existed between
respondent and Antoinette Bonczyk.

      In November 2004, Antoinette Bonczyk, the parties' mother
(hereinafter decedent), executed a durable power of attorney
designating respondent as her attorney-in-fact. In June 2010,
petitioners commenced this special proceeding pursuant to General
Obligations Law § 5-1510 (2) (e) seeking judicial approval of the
receipts, disbursements and transactions entered into by
respondent on behalf of decedent. After Supreme Court determined
that petitioners had standing to commence this special
proceeding, it ordered respondent to produce records of the
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transactions that she made as decedent's attorney-in-fact.
Decedent passed away on October 29, 2011. In May 2012,
petitioners sought an order determining, as a matter of law, that
"based on the facts and law presented . . . a confidential and
fiduciary relationship" existed between respondent and decedent.
The court denied the motion as to the issue of a confidential
relationship without prejudice to renewal at trial, finding that
it could not be resolved "at this early juncture."1 Petitioners
appeal and we affirm.

      Ordinarily, petitioners would bear the burden of proving
that the transactions between respondent and decedent were
affected by respondent's undue influence (see Matter of Connelly,
193 AD2d 602, 602 [1993], lv denied 82 NY2d 656 [1993]; Feiden v
Feiden, 151 AD2d 889, 891 [1989]). Where there is a confidential
relationship between parties to a transaction, however, "the
burden [shifts] to the stronger party in such a relationship to
prove by clear and convincing evidence that a transaction from
which . . . he or she benefitted was not occasioned by undue
influence" (Matter of Graeve, 113 AD3d 983, 984 [2014]; see Oakes
v Muka, 69 AD3d 1139, 1141 [2010], appeal dismissed 15 NY3d 867
[2010]). A confidential relationship is one that is "of such a
character as to render it certain that [the parties] do not deal
on terms of equality" (Matter of Gordon v Bialystoker Ctr. &
Bikur Cholim, 45 NY2d 692, 698-699 [1978]).2 Such inequality may
occur from either one party's "superior knowledge of the matter
derived from a fiduciary relation, or from an overmastering


    1
        At oral argument, petitioner's counsel confirmed that,
during the pendency of this appeal, Supreme Court clarified that,
as a matter of law, there was a fiduciary relationship between
respondent and decedent.
    2
        In Matter of Gordon v Bialystoker Ctr. & Bikur Cholim (45
NY2d at 696), the challenged transactions were made by a nursing
home resident who was 85 years old and medical evidence
established that, at the time of the transactions, she was
"confused, drowsy and at times semicomatose, partially paralyzed,
unresponsive and uncooperative, . . . of impaired hearing, . . .
not coherent . . . and was not capable herself of understanding."
                              -3-                517534

influence" or from the other's "weakness, dependence, or trust
justifiably reposed" on the stronger party (id. at 699; see
Matter of Nealon, 104 AD3d 1088, 1089 [2013], affd 22 NY3d 1045
[2014]).

      The limited issue presented on this appeal is whether
Supreme Court erred when it declined to find, as a matter of law,
that there was a confidential relationship between respondent and
decedent. The basis for petitioners' claim that such a
relationship existed was, in part, the familial relationship
between respondent and decedent. A familial relationship,
however, is not necessarily a confidential relationship (see
Matter of Graeve, 113 AD3d at 984; Matter of Rella, 105 AD3d 607,
607 [2013]; Matter of Nealon, 104 AD3d at 1089; Matter of
Antoinette, 238 AD2d 762, 764 [1997]). Importantly, the
existence of a confidential relationship is ordinarily a factual
determination based upon "evidence of other facts or
circumstances showing inequality or controlling influence"
(Matter of Nealon, 104 AD3d at 1089 [internal quotations marks
and citation omitted]). To this end, petitioners also point to
decedent's poor health and need for continuous care in
respondent's home, and to respondent's role as decedent's
attorney-in-fact.

      In support of their motion, petitioners presented to
Supreme Court excerpts of testimony by decedent and respondent at
their respective examinations before trial. The submissions
established that after she suffered a fall while living
independently, decedent moved into respondent's home in 2009.
There, decedent was cared for by respondent and her family and a
number of home health aides. According to respondent, from 2009
until her death in 2011, decedent suffered from the progressively
worsening effects of her chronic obstructive pulmonary disease,
including anxiety and depression. Decedent relied on respondent
to cook for her, help with her medications, bathe and dress her,
and, over time, to feed her. Respondent also testified that even
before decedent moved into her home, she paid decedent's bills
and handled her financial affairs as her attorney-in-fact.
Decedent's testimony confirmed that she lacked the ability to
recall specific details with regard to her income and
expenditures and that she relied on respondent to handle her
                              -4-                517534

finances.

      We agree with Supreme Court's conclusion that the motion
was premature. Petitioners neither argued nor presented any
evidence to support a claim that a confidential relationship
influenced decedent's execution of the power of attorney in 2004.
Moreover, a party's use of a power of attorney to pay bills is
not necessarily evidence of a confidential relationship (see
Matter of Jacobs, 93 AD3d 917, 918 [2012]). Further, even where
there is evidence of one party's complete dependence on the other
as a result of physical limitations, the relationship may not be
unequal as a matter of law if, at the time of the challenged
transactions, the physically weaker party remained able to
exercise free will (see Matter of Nealon, 104 AD3d at 1089).
Here, petitioners rely on an unsworn medical record purportedly
evincing a dementia diagnosis in September 2010 and respondent
testified that decedent was diagnosed with dementia in August
2011. The unsworn record is not sufficient proof (see Thomas v
Laustrup, 21 AD3d 688, 690 [2005]), and such diagnosis does not
establish that decedent lacked capacity to make decisions (see
Matter of Nealon, 57 AD3d 1325, 1327 [2008]). Without evidence
that respondent was controlling decedent's financial decisions,
her health status, alone, does not establish a confidential
relationship (see id. at 1089; Feiden v Feiden, 151 AD2d at 891;
compare Oakes v Muka, 69 AD3d at 1140 [testimony at trial
established that, in addition to his physical dependence, the
decedent was at the time of challenged transactions "not oriented
to time or place, suffering from hallucinations and delusional
. . . and in a rapidly deteriorating, mental condition"]
[internal quotation marks and brackets omitted]). In our view,
as the proof did not establish the nature of the relationship as
a matter of law, Supreme Court properly denied petitioners'
motion.

     Peters, P.J., Rose, Egan Jr. and Devine, JJ., concur.
                        -5-                  517534

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
