Summary
In Sofsky v Rosenberg, 76 NY2d 927 (1990), for example, we affirmed summary judgment in favor of the defendant grantee because his "possession of the deed create[d] a presumption that the deceased grantor had delivered the deed to him before her death" (id. at 930).
Summary of this case from Mirvish v. MottOpinion
Decided October 18, 1990
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Eugene Nardelli, J.
Samuel Shapiro for appellant.
Mark C. Zauderer for David Rosenberg, respondent.
Alexander V. Sansone for Joseph Pomeranz, respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
In order to defeat the defendants' motions for summary judgment, plaintiff was required to show a triable issue of fact concerning the delivery of the deed to Rosenberg (CPLR 3212 [b]; McGahee v Kennedy, 48 N.Y.2d 832). Rosenberg's possession of the deed creates a presumption that the deceased grantor had delivered the deed to him before her death (see, Herrmann v Jorgenson, 263 N.Y. 348). While a court may consider attendant circumstances surrounding the transfer of real property when delivery of the deed of transfer is adequately disputed or when undue influence is adequately alleged (see, Ten Eyck v Whitbeck, 156 N.Y. 341, 353), unsupported, conclusory allegations that the deed had not been delivered are insufficient to overcome the presumption of delivery (see, McGahee v Kennedy, supra, at 834). In this case, plaintiff failed to satisfy that burden; accordingly, he failed to raise any triable issue of fact.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed, with costs, in a memorandum.