

McCarthy v Kaminski (2015 NY Slip Op 06716)





McCarthy v Kaminski


2015 NY Slip Op 06716


Decided on September 2, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on September 2, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.


2013-09585

[*1]Michael N. McCarthy, etc., appellant, 
vFrank Kaminski, et al., respondents, et al., defendant. (File No. 2132/08)


Campolo, Middleton & McCormick, LLP, Ronkonkoma, N.Y. (Patrick McCormick and Lauren D. Kanter of counsel), for appellant.

DECISION & ORDER
In an action, inter alia, to set aside three deeds, which was transferred from the Supreme Court, Suffolk County, the plaintiff appeals from a decree of the Surrogate's Court, Suffolk County (Czygier, S.), entered August 7, 2013, which, upon a decision dated December 18, 2012, made after a nonjury trial, dismissed the complaint insofar as asserted against the defendants Frank Kaminski and Ernest Saasto.
ORDERED that the decree is affirmed, without costs or disbursements.
To establish the existence of a valid inter vivos gift, the donee must prove three elements by clear and convincing evidence: the donor's intent to make a present transfer; actual or constructive delivery to the donee; and the donee's acceptance (see Gruen v Gruen, 68 NY2d 48, 53; Bader v Digney, 55 AD3d 1290, 1291).
A court sitting as a factfinder at a nonjury trial has the advantage of being present for the witnesses' testimony and, accordingly, we give great deference on appeal to that court's credibility assessments (see Matter of Piterniak, 16 AD3d 513, 514). Here, taking into account the Surrogate Court's credibility assessments, we agree with that court that the defendants satisfied their burden of demonstrating that the decedent validly gifted the three subject properties to the defendant Frank Kaminski by deeds drafted by the defendant Ernest Saasto (see Bader v Digney, 55 AD3d at 1291-1292; Dwyer v Adler, 251 AD2d 535, 535). Therefore, we affirm the decree.
BALKIN, J.P., AUSTIN, SGROI and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


