Ingram v. Cunningham

—In an action to rescind a deed, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Rockland County (Bergerman, J.), dated June 18, 1998, as denied her cross motion pursuant to CPLR 3211 (a) (7) and (c) to dismiss the complaint for failure to state a cause of action and for summary judgment.

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

The Supreme Court properly denied the defendant’s cross motion to dismiss the complaint for failure to state a cause of action and for summary judgment. A triable issue of fact exists as to whether the plaintiff had the requisite donative intent to make a valid inter vivos gift of the subject property to her son Arthur Cunningham, who died several years after the transfer was made (see, Gruen v Gruen, 68 NY2d 48, 53; Matter of Szabo, 10 NY2d 94, 98; Chiaro v Chiaro, 213 AD2d 369; Matter of Partos, 203 AD2d 578).

Further, CPLR 4519 is not applicable to the plaintiff’s statements in her affidavit regarding her donative intent, since they were not based on any conversation, transaction, or communication with her now-deceased son (see, Friedman v Sills, 112 AD2d 343; Brezinski v Brezinski, 84 AD2d 464). Bracken, J. P., O’Brien, Krausman and McGinity, JJ., concur.