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

926
CA 15-01939
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, AND SCUDDER, JJ.


IN THE MATTER OF THE ESTATE OF MANSFIELD B.
JORDAN, DECEASED.
----------------------------------------------    MEMORANDUM AND ORDER
NORMA J. MOBLEY AND MANSFIELD B. JORDAN, JR.,
CO-EXECUTORS OF THE ESTATE OF MANSFIELD B.
JORDAN, DECEASED, PETITIONERS-RESPONDENTS;

VERONICA T. REYES, RESPONDENT-APPELLANT.


MCMAHON, KUBLICK & SMITH, P.C., SYRACUSE (RALPH S. ALEXANDER OF
COUNSEL), FOR RESPONDENT-APPELLANT.

THE MARRONE LAW FIRM, P.C., EAST SYRACUSE (ANTHONY A. MARRONE, II, OF
COUNSEL), FOR PETITIONERS-RESPONDENTS.


     Appeal from an order of the Surrogate’s Court, Jefferson County
(Peter A. Schwerzmann, S.), entered June 8, 2015. The order denied
the motion of respondent for summary judgment dismissing the petition.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, and judgment is granted
in favor of respondent as follows:

          It is ORDERED, ADJUDGED and DECREED that respondent is
     entitled to the proceeds of the Fidelity investment account
     at issue.

     Memorandum: As relevant on appeal, petitioners commenced this
proceeding in Surrogate’s Court seeking a declaration that the
proceeds of a Fidelity investment account must be issued to
petitioners. Decedent’s will was admitted to probate on April 23,
2013 and letters testamentary were issued to petitioners. Petitioner
Norma J. Mobley was the sole beneficiary on the Fidelity investment
account until December 17, 2012, when decedent designated respondent,
a woman he had been dating prior to his death, as the sole
beneficiary. Respondent moved for summary judgment dismissing the
petition and requested that the proceeds of the Fidelity investment
account be distributed to her. The Surrogate denied the motion, and
we reverse. We note at the outset that the proper remedy is to grant
a declaration in favor of respondent, and not to dismiss the petition
(see generally Boyd v Allstate Life Ins. Co. of N.Y., 267 AD2d 1038,
1039).

     It is well established that “[t]he essential elements of a gift
                                 -2-                           926
                                                         CA 15-01939

are (1) donative intent, (2) delivery, and (3) acceptance” (Spallina v
Giannoccaro, 98 AD2d 103, 106, appeal dismissed 62 NY2d 646). “The
element of donative intent presupposes that the donor possesses the
mental capacity to make a gift” (id.). In support of her motion,
respondent submitted the sworn statements of two disinterested
witnesses who indicated that they were decedent’s close friends, had
spent time with him during December 2012, including Christmas of that
year, were aware of respondent’s criminal history, and ultimately
concluded that decedent was of sound mind and was fully cognizant of
his intent to transfer the subject Fidelity investment account to
respondent. In addition, respondent provided a sworn statement in
which she attached a Fidelity envelope, dated December 19, 2012,
addressed to decedent with “Happy Birthday Veronica” handwritten in
the area above decedent’s printed address. In view of the foregoing,
we conclude that respondent established her entitlement to judgment as
a matter of law (see generally Zuckerman v City of New York, 49 NY2d
557, 562).

     In opposition, petitioners submitted the affidavit of counsel and
the affidavit of a medical expert with his attached expert report.
Counsel contended that, because respondent has a criminal history and
decedent left financial related passwords out in the open, there is a
question of fact whether respondent changed the designation on the
subject Fidelity account herself. That contention, however, is based
on “mere conclusions, expressions of hope or unsubstantiated
allegations,” which are insufficient to defeat a motion for summary
judgment (id.). In addition, although we agree with petitioners that
“an expert may rely on out-of-court material if ‘it is of a kind
accepted in the profession as reliable in forming a professional
opinion,’ ” it is well established that “there must be evidence
establishing the reliability of the out-of-court material” (Hambsch v
New York City Tr. Auth., 63 NY2d 723, 726). Here, petitioners’ expert
concluded that decedent did not have the capacity to change the
beneficiary designation on the Fidelity investment account, and would
not have done so but for his dementia. The expert then listed the
“sources of information” upon which he relied in forming his opinion,
but the expert failed to attach any of those “sources,” and thus his
affidavit and report have no probative value (see Costanzo v County of
Chautauqua, 108 AD3d 1133, 1133-1134; Daniels v Meyers, 50 AD3d 1613,
1614). Inasmuch as petitioners’ expert did not examine decedent prior
to his death, the expert did not reference any medical records that
established decedent’s incapacity during the relevant time period, and
the expert relied to “a great extent on hearsay statements from
unspecified witnesses,” we conclude that the expert’s affidavit and
report are insufficient to raise an issue of fact (Gardner v Ethier,
173 AD2d 1002, 1003; see San Andres v 1254 Sherman Ave. Corp., 94 AD3d
590, 592). We therefore reverse the order and grant judgment in favor
of respondent, declaring that respondent is entitled to the proceeds
of the Fidelity investment account.


Entered:   November 18, 2016                   Frances E. Cafarell
                                               Clerk of the Court
