Opinion
2014-05324 Index No. 10007/12.
12-30-2015
In the Matter of DANIEL B. (Anonymous). Angelique M.B. (Anonymous), etc., petitioner, Betty Lawrence Lewis, etc., respondent, v. David Vision, et al., appellants.
David M. Harrison, Brooklyn, N.Y., for appellants. John R. Low–Beer, Brooklyn, N.Y. (Ira K. Miller of counsel) for respondent.
David M. Harrison, Brooklyn, N.Y., for appellants.
John R. Low–Beer, Brooklyn, N.Y. (Ira K. Miller of counsel) for respondent.
Opinion
In a guardianship proceeding in which Betty Lawrence Lewis, the guardian of the person and a coguardian of the property of Daniel B., an incapacitated person, petitioned pursuant to Mental Hygiene Law § 81.43 to recover certain property withheld from the estate of the incapacitated person, David Vision and Mutiya Vision appeal from a judgment of the Supreme Court, Kings County (Baily–Schiffman, J.), dated May 5, 2014, which, upon a decision and order of the same court dated April 1, 2014, is in favor of the petitioner and against them in the total sum of $206,538.60.
ORDERED that the judgment is affirmed, with costs.
In January 2012, Angelique M.B. petitioned, inter alia, for the appointment of a guardian of the person and property of her father, Daniel B., an incapacitated person. In April 2012, Betty Lawrence Lewis was appointed as the guardian of the property and a coguardian, with Angelique M. B., of the person of Daniel B. Subsequently, Lewis filed a petition pursuant to Mental Hygiene Law § 81.43 against David Vision and Mutiya Vision, seeking, inter alia, the turnover of certain funds allegedly wrongfully taken by the Visions from Daniel B. After a nonjury trial, the Supreme Court entered a judgment in favor of Lewis and against the Visions in the total sum of $206,538.60.
“In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses and hearing the testimony” (Matter of Frank A.L. v. Vaccarelli, 117 A.D.3d 740, 741, 985 N.Y.S.2d 618 [internal quotation marks omitted]; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809; Campbell v. Campbell, 50 A.D.3d 614, 615, 854 N.Y.S.2d 543). Here, the facts warranted the Supreme Court's determination that a fiduciary and confidential relationship existed between Daniel B. and David Vision, and that the Visions failed to prove by clear and convincing evidence that Daniel B. intended to give the subject funds to the Visions as a gift and that the transactions were fair, open, voluntary, and well understood, and therefore free from undue influence (see Matter of Boatwright, 114 A.D.3d 856, 859, 980 N.Y.S.2d 554; Campbell v. Campbell, 50 A.D.3d at 615, 854 N.Y.S.2d 543). The Supreme Court did not credit David Vision's testimony regarding those issues, and its credibility determinations are entitled to deference (see Matter of Frank A.L. v. Vaccarelli, 117 A.D.3d at 741, 985 N.Y.S.2d 618; Matter of Boatwright, 114 A.D.3d at 859, 980 N.Y.S.2d 554). We find no basis to disturb the Supreme Court's determination that the Visions were in possession of funds improperly taken from Daniel B.
Contrary to the contention of the Visions, the Supreme Court providently exercised its discretion in denying their application for recusal and a mistrial based on a comment made by the Supreme Court during the trial (see People v. Glynn, 21 N.Y.3d 614, 618, 977 N.Y.S.2d 692, 999 N.E.2d 1137; Washington Mut. Bank v. Schenk, 112 A.D.3d 615, 616–617, 975 N.Y.S.2d 902; Hass & Gottlieb v. Sook Hi Lee, 55 A.D.3d 433, 434, 866 N.Y.S.2d 72; see also York v. York, 98 A.D.3d 1038, 1038, 950 N.Y.S.2d 911, affd. 22 N.Y.3d 1051, 981 N.Y.S.2d 358, 4 N.E.3d 370). The Supreme Court also did not improvidently exercise its discretion in denying the Visions' request during trial for an adjournment to obtain new counsel (see generally Hawes v. Lewis, 127 A.D.3d 921, 922, 7 N.Y.S.3d 367; Verdi v. Ho, 71 A.D.3d 1004, 1005, 897 N.Y.S.2d 235).