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

623
CA 14-01997
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


KEITH A. BORDERS, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

BRIAN T. BORDERS, ELAINE MARIE PROSSER AND
JEFFREY BORDERS, DEFENDANTS-APPELLANTS.


DANIEL P. TIEDE, BUFFALO, FOR DEFENDANTS-APPELLANTS.

COLE, SORRENTINO, HURLEY, HEWNER & GAMBINO, P.C., BUFFALO (MICHAEL F.
BARRETT OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Diane
Y. Devlin, J.), entered January 14, 2014. The judgment settled title
to certain property.

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

     Memorandum: Plaintiff commenced this action pursuant to RPAPL
article 15, seeking a determination of competing claims with respect
to a parcel of real property. The parties herein are siblings, and
this litigation arises from the transfer of a parcel of real property
formerly owned by their parents. After their mother died, their
father executed a power of attorney in favor of defendants Brian T.
Borders and Elaine Marie Prosser (Brian and Elaine), granting them
power to dispose of his property. Defendants contended that several
judgments had been lodged against plaintiff, who was living with their
father, and that plaintiff was preventing the remaining siblings from
having any contact with their father. Purportedly in order to keep
plaintiff from obtaining title to the parcel and thereafter using the
parcel to satisfy the claims of his creditors, Brian and Elaine used
their power of attorney to transfer the parcel to defendants without
consideration, reserving a life estate therein to their father, by
deed recorded on November 20, 2008. Their father, however,
transferred the parcel to plaintiff, reserving a life estate therein
to himself, by executing a separate deed that was recorded on November
26, 2008. Plaintiff commenced this action seeking a determination
that the deed recorded on November 26, 2008 vested him with title to
the parcel and that the deed recorded on November 20, 2008 is null and
void. Defendants answered that they were entitled to judgment
dismissing the complaint, and the parties moved and cross-moved for
summary judgment. Defendants appeal from a judgment that, inter alia,
adjudged the deed transferring title to plaintiff to be valid and the
                                 -2-                           623
                                                         CA 14-01997

deed transferring title to them to be null and void.

     Contrary to defendants’ contention, the court properly concluded
that the deed transferring title to them is null and void. It is well
settled that “[a] power of attorney . . . is clearly given with the
intent that the attorney-in-fact will utilize that power for the
benefit of the principal” (Mantella v Mantella, 268 AD2d 852, 852
[internal quotation marks omitted]). “The relationship of an
attorney-in-fact to his principal is that of agent and principal . . .
and, thus, the attorney-in-fact ‘must act in the utmost good faith and
undivided loyalty toward the principal, and must act in accordance
with the highest principles of morality, fidelity, loyalty and fair
dealing’ . . . Consistent with this duty, an agent may not make a gift
to himself or a third party of the money or property which is the
subject of the agency relationship” (Semmler v Naples, 166 AD2d 751,
752, appeal dismissed 77 NY2d 936; see Matter of Ferrara, 7 NY3d 244,
254). “In the event such a gift is made, there is created a
presumption of impropriety [that can] be rebutted [only] with a clear
showing that the principal intended to make the gift” (Mantella, 268
AD2d at 852-853), or that the gift was in the principal’s best
interest (see Ferrara, 7 NY3d at 254).

     Here, the parties’ father transferred title of the parcel to
plaintiff while reserving a life estate to himself, thus demonstrating
that he did not wish to give the remaining interest in the parcel to
defendants. Furthermore, the evidence submitted by defendants in
support of the deed transferring title to them, including the fact
that there was no consideration given for the transfer, indicates that
the intent of Brian and Elaine in executing the deed was not to
protect their father but, rather, to protect defendants’ future
inheritance from their brother and his creditors. Consequently,
defendants failed to make the required showing under the holding of
Mantella (see 268 AD2d at 852-853), and the court properly determined
that the deed transferring title to them is null and void (see Moglia
v Moglia, 144 AD2d 347, 348).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
