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
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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