Schlage v. Barrett

Appellate Division of the Supreme Court of the State of New York

Mar 22, 1999

Versions:259 A.D.2d 691

686 N.Y.S.2d 845

1999 N.Y. App. Div. LEXIS 2703

In an action, inter alia, to set aside a deed to certain real property as fraudulently obtained, the plaintiff appeals from so much of a judgment of the Supreme Court, Queens County (Leviss, J.H.O.), entered December 18, 1997, as, after a nonjury trial, dismissed the complaint.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

Contrary to the plaintiff’s contention, the defendants established her intent to make an inter vivos gift by clear and *692convincing evidence (see, Gruen v Gruen, 68 NY2d 48, 53). Additionally, the plaintiff did not meet her burden of proving her incompetence at the time the gift was given (see, Smith v Comas, 173 AD2d 535; see also, Feiden v Feiden, 151 AD2d 889, 890).

The plaintiff’s remaining contentions are without merit. O’Brien, J. P., Ritter, Thompson and Joy, JJ., concur.