Wednesday, August 1, 2018

A VERY COMMON FAMILY DISPUTE



This is a common allegation and a common dispute when the caretaker of Mom or Dad is one of the siblings. In this case, we do not have the specific facts but it demonstrates that more than general allegations are needed.

Cascardo v Cascardo, 2018 NY Slip Op 0544,1 Decided on July 25, 2018, Appellate Division, Second Department:

"The plaintiff commenced this action against her brother, inter alia, to recover damages for fraud and breach of fiduciary duty in connection with powers of attorney executed by the parties' father, naming the defendant as his attorney-in-fact. The plaintiff alleges that the defendant fraudulently induced their father to execute a number of powers of attorney, and then used the powers of attorney to sell bonds jointly owned by the plaintiff and their father, close the father's various bank accounts, write checks and carry on banking transactions in the father's name, and obtain the father's social security and pension benefits. The defendant moved, among other things, for summary judgment dismissing the complaint, and the Supreme Court granted that branch of the motion.

In response to the defendant's prima facie showing of entitlement to judgment as a matter of law dismissing the complaint, made through admissible evidence, the plaintiff failed to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 559). The plaintiff failed to present evidence that the defendant committed fraud or used duress or undue influence in connection with the powers of attorney executed by their father or any transaction where he acted as their father's attorney-in-fact, and failed to otherwise present a genuine issue of fact (see generally Ginsburg Dev. Cos., LLC v Carbone, 134 AD3d 890, 892-893; JAF Partners, Inc. v Rondout Sav. Bank, 72 AD3d 898).

The plaintiff's remaining contentions are not properly before this Court.

Accordingly, we agree with the Supreme Court's determination granting that branch of the defendant's motion which was for summary judgment dismissing the complaint."

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