In Re the Estate of Haines , 156 A.D.3d 1471 ( 2017 )

Matter of Haines (2017 NY Slip Op 09068)

Matter of Haines

2017 NY Slip Op 09068

Decided on December 22, 2017

Appellate Division, Fourth 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 December 22, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, CARNI, TROUTMAN, AND WINSLOW, JJ.

1488 CA 16-02319

[*1]IN THE MATTER OF THE ESTATE OF PATRICIA S. HAINES, DECEASED. PETER L. HAINES AND MINNIE H. BRENNAN, AS COEXECUTORS OF THE ESTATE OF PATRICIA S. HAINES, DECEASED, PETITIONERS-RESPONDENTS; HOLLY WEST, RESPONDENT-APPELLANT.

CARMEL, MILAZZO & DICHIARA LLP, NEW YORK CITY (CHRISTOPHER P. MILAZZO OF COUNSEL), FOR RESPONDENT-APPELLANT.

BURNS & SCHULTZ LLP, PITTSFORD (ANDREW M. BURNS OF COUNSEL), FOR PETITIONERS-RESPONDENTS.

Appeal from a decree of the Surrogate's Court, Steuben County (Marianne Furfure, S.), entered September 15, 2016. The decree, among other things, awarded petitioners the sum of $868,892.96 against respondent Holly West.

It is hereby ORDERED that the decree so appealed from is unanimously affirmed without costs.

Memorandum: Petitioners, the coexecutors of decedent's estate, commenced this proceeding seeking, inter alia, an order directing respondent to return funds to the estate. Respondent asserted a counterclaim seeking an order directing petitioners to return to her shares in certain corporations that were allegedly the subject of an inter vivos gift from decedent to respondent. We reject respondent's contention that Surrogate's Court erred in determining, following a trial, that she failed to meet her burden of establishing a valid inter vivos gift. Although there is no dispute that decedent endorsed in blank three stock certificates in the presence of the parties, respondent presented no evidence that there was actual or constructive delivery of those certificates to her (see generally Gruen v Gruen, 68 NY2d 48, 56-57 [1986]; Bader v Digney [appeal No. 2], 55 AD3d 1290, 1291 [4th Dept 2008]). Respondent's remaining contentions are not preserved for our review inasmuch as she failed to present to the Surrogate the specific arguments that she now raises on appeal (see generally Nary v Jonientz [appeal No. 2], 110 AD3d 1448, 1448 [4th Dept 2013]).

Entered: December 22, 2017

Mark W. Bennett

Clerk of the Court