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

351
CA 16-01342
PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND NEMOYER, JJ.


JOHN C. BLASE, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JOSEPH C. BLASE, DEFENDANT-APPELLANT.


MARK A. WOLBER, UTICA, FOR DEFENDANT-APPELLANT.

MICHAEL J. LAUCELLO, CLINTON, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Oneida County (Louis
P. Gigliotti, A.J.), entered October 30, 2015. The order denied the
motion of defendant for summary judgment.

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

     Memorandum: Prior to his death in 2012, Joseph V. Blase
(decedent) owned several accounts at a credit union. For each of
those accounts, decedent named two of his sons, plaintiff and
defendant, as equal beneficiaries. Defendant, acting pursuant to a
power of attorney that decedent signed while he was in a nursing home,
directed the credit union to remove plaintiff as a beneficiary on
those accounts, and defendant withdrew the funds from the accounts
after decedent passed away. Plaintiff commenced a proceeding in
Surrogate’s Court to transfer those funds to decedent’s estate, but
discovered that the accounts were not part of that estate. Plaintiff
then commenced this action seeking to recover half of the funds that
had been removed from the credit union accounts, alleging, inter alia,
that defendant misused the power of attorney. Defendant appeals from
an order denying his motion for summary judgment dismissing the
complaint. We affirm.

     Defendant contends that Supreme Court erred in denying that part
of the motion for summary judgment dismissing the cause of action
alleging that he exercised undue influence over decedent because
plaintiff failed to establish that defendant exercised such influence.
We reject that contention. It is well settled that, “where there was
a confidential or fiduciary relationship between the beneficiary and
the decedent, [a]n inference of undue influence arises which requires
the beneficiary to come forward with an explanation of the
circumstances of the transaction” (Bazigos v Krukar, 140 AD3d 811, 813
[internal quotation marks omitted]). Here, the allegations in the
complaint and the evidence submitted by defendant in support of his
                                 -2-                           351
                                                         CA 16-01342

motion, including his own affirmation, establish that he had a
confidential relationship with decedent (see Allen v La Vaud, 213 NY
322, 327-328; Peters v Nicotera, 248 AD2d 969, 970; Matter of
Connelly, 193 AD2d 602, 603, lv denied 82 NY2d 656). Thus, in order
to meet his burden on the motion of establishing his entitlement to
judgment as a matter of law (see generally Alvarez v Prospect Hosp.,
68 NY2d 320, 324), defendant was required “ ‘to show affirmatively
that no deception was practiced, no undue influence was used, and that
all was fair, open, voluntary and well understood’ ” (Matter of Gordon
v Bialystoker Ctr. & Bikur Cholim, 45 NY2d 692, 699). We agree with
the court that defendant failed to meet that burden, and thus that
part of the motion was properly denied “regardless of the sufficiency
of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d
851, 853). Similarly, contrary to defendant’s contention, he failed
to meet his burden on that part of the motion seeking summary judgment
dismissing the remaining causes of action, alleging that he breached
his duty under the power of attorney, inasmuch as he failed to
establish that, in removing plaintiff as a beneficiary on the
accounts, he “ ‘act[ed] in the utmost good faith and undivided loyalty
toward the principal, and . . . in accordance with the highest
principles of morality, fidelity, loyalty and fair dealing’ ” (Matter
of Ferrara, 7 NY3d 244, 254). Consequently, the court also properly
denied that part of the motion.

     We have considered defendant’s remaining contentions, and we
conclude that they do not require reversal or modification of the
order.




Entered:   March 31, 2017                       Frances E. Cafarell
                                                Clerk of the Court
