Before the court is an accounting proceeding commenced by Dennis Hoerter as attorney-in-fact for the decedent Charles Hoerter. Objectant Karen Gulemi moves for summary judgment and the turnover of $137,872.76, plus nine percent interest from January 17, 2003, the date of the alleged taking by Dennis from a bank account originally titled in decedent's name, with Karen named as beneficiary. Dennis opposes the requested relief on the ground that material issues of fact exist. For the reasons that follow, the motion is granted in part and denied in part.

The following facts are undisputed. Dennis is a son of the decedent. Karen is one of the decedent's daughters. Dennis and Karen are half-siblings, the children of different mothers. The decedent had two bank accounts at GreenPoint Bank, one of which (the "Account") was titled in his name alone, with Karen listed as beneficiary. The second account was titled as Charles Hoerter or Mary Hoerter, who was the decedent's wife. It is the first Account that is at issue in this motion.

According to the signature card ("Signature Card 1"), on January 26, 2002, the Account was opened in the decedent's name in the amount of $132,582.96. In a box labeled "Beneficiary 1" the name "Karen Gulemi" and the word "daughter" are handwritten, along with an address, and under "Date of Birth" appears a month and date, separated by backslashes, but no year. Several additional deposits totaling approximately $1,550 were made to the Account in 2002. Decedent did not make any withdrawals from the Account. No checks were written. The GreenPoint Bank statements show that the assets of the Account remained liquid.

On December 13, 2002, the decedent was admitted to North Shore University Hospital in Plainview, New York. He was discharged from the hospital on February 28, 2003. Upon his release, he was admitted to Hempstead Park Nursing Home, in Hempstead, New York, where he remained until March 14, 2003. According to the death certificate, the decedent died on that date after being taken to the emergency room at the Island Medical Center, a hospital located in Hempstead, New York.

On January 3, 2003, a form entitled, "Durable General Power of Attorney" ("POA"), and bearing the name "GreenPoint Bank" was executed. There is a signature on the POA on page 2 above the line labeled "Signature of Principal." The signature of Patricia Johnson appears on the line provided for "Notary Public" in the section provided for the notary to attest that the principal [*2]acknowledged that he executed the POA. The date, January 3, 2003, is hand-printed in that section. There is a blank where the principal's name was to be inserted by the notary.

The decedent's name is hand-printed on page 1 on the line provided for "Principal" and Dennis's name is hand-printed on the line for "Agent." An "x" and the decedent's initials are handwritten below "(A) Banking Transactions" and (2) "(B) Retirement Benefit Transactions." An "x," but no initial, is hand-printed below "(C) Gifts" in the space provided to the left of the words "[m]aking gifts to my spouse, children and more remote descendants, and parents, not to exceed in the aggregate $10,000 to each of such persons in any year." Dennis's signature appears on page 2 of the POA on the first line provided for "signature(s) of Agent(s)" and, on the line to the right of his signature, the word "son" is hand-printed on the first line provided for the agent's "relationship to Principal."

Finally, the Medical Certification on page 2 of the POA was completed by Peter Buffa, M.D., the decedent's treating physician, whose signature was acknowledged on January 6, 2003 by a notary named Susan Brenner-Smith. The certification reads as follows:

I, Peter Buffa, a duly licensed physician with offices at Island Medical Group, certify that Charles Hoerter, a patient under my care, prepared the Power of Attorney on this form in my presence. At the time they signed the Power of Attorney, they were, in my professional opinion of sound and disposing mind and memory and capable of understanding the nature of the transaction involved. Any variation between their signature and the original on file at your office may be due to my patient's physical impairment.

Other than the words "Peter Buffa," "Island Medical Group" and "Charles Hoerter," which are hand-printed, the language in the Medical Certification is typeset on the POA.

On January 6, 2003, Dennis and Mary went to GreenPoint Bank. Dennis used the POA to change the title of the Account. A new signature card ("Signature Card 2") for the Account was created by GreenPoint Bank. Title to the Account is typewritten on the Signature Card 2 as "Charles Hoerter, Mary Hoerter and Dennis Hoerter POA." Dennis signed the Signature Card 2 on the line provided for the decedent's signature with "P.O.A." handwritten next to Dennis's name. Mary also signed the Signature Card 2. Signature Card 2 states "Name Added" in the box labeled "Account Information." Karen's name does not appear anywhere on Signature Card 2, and the boxes provided for beneficiary designations are blank. The Account number remained the same.

Eleven days later on January 17, 2003, Mary withdrew all the funds contained in both accounts at GreenPoint Bank; $136,575.95 was withdrawn from the Account and $15,494.21 was withdrawn from the other account. Mary received an official check from GreenPoint Bank in the amount of $152,170.16. She endorsed the check. Sometime between that date and January 21, 2003, Dennis deposited the proceeds of the check into an account at Washington Mutual Bank. The Washington Mutual account was initially titled in Dennis's name, with Mary named either as co-owner or as the beneficiary. Mary's name was subsequently removed from the account. After making a series of withdrawals, Dennis closed the account on December 7, 2004.

In September 2004, Karen filed a petition to compel Dennis to account as attorney-in-fact. Dennis did not appear on November 24, 2004, the return date of the Supplemental Citation, although proof of service of the Supplemental Citation upon him had [*3]been filed with the court. On January 14, 2005, the court issued an order directing Dennis to account within ten days after personal service upon him of a certified copy of the order. Dennis was personally served, but did not file his account. On May 23, 2005, the court issued an Order to Show Cause directing Dennis to show cause on June 8, 2005 why the court should not issue an order punishing him for contempt of court. Dennis appeared before the court on June 8, 2005. In September 2005, he filed his accounting for the period January 3, 2003 to March 14, 2003.With respect to the accounts at GreenPoint Bank, the rider to Schedule J of Dennis's Accounting states:

1. Pursuant to the express directions of his father, Charles Hoerter, [Dennis] added his father's wife's name to . . . Account . . . in conjunction with the power set forth in paragraph "A" [Banking Transactions] of the Durable General Power of Attorney; and had no activity regarding [the other] GreenPoint Bank account . . . .

2. During the term of his appointement [sic], Dennis Hoerter received no principal related to these bank accounts, exercised no control over these two accounts, made no deposits and wrote no checks from these accounts.

3. Prior to adding his father's wife's name to [the Account], this bank account was in Charles Hoerter's name only, and Dennis Hoerter was niether [sic] told, nor aware, that this account had any payable on death designation.

Among other objections to Dennis's accounting, Karen objected to the inclusion of the Account. Karen asserts that, upon the decedent's death, the Account was to be paid to her as beneficiary.

After document discovery, the SCPA 2211 examination of Dennis and the depositions of Linda Butler, who is another of the decedent's daughters, and Mary,^[FN1] Karen moved for summary judgment. She argues that she is entitled to summary judgment on the grounds that: (1) the POA is invalid because the decedent was not competent on the date that he allegedly executed it; (2) the decedent did not initial the POA in the space provided that would have authorized him to make gifts limited to $10,000 per year to the decedent's spouse, children and other relatives, thereby making any gifts under the POA ineffective as a matter of law; (3) Dennis exercised fraud, deception and undue influence upon the decedent to execute the POA; (4) Dennis violated his fiduciary duty to the decedent by engaging in self-dealing; and (5) Dennis's acts under the POA did not benefit the decedent and should, therefore, be negated.

Summary judgment may be granted only when it is clear that no triable issue of fact exists (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320, 323 [1986]; Phillips v Joseph Kantor & Co., 31 NY2d 307, 311 [1972]). The court's function on a motion for summary judgment is "issue finding" rather than issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d [*4]395, 404 [1957], quoting Esteve v Abad, 271 App Div 725, 727 [1st Dept 1947]), because issues of fact require a hearing for determination (Esteve v Abad, 271 App Div 725, 727 [1st Dept 1947]). Consequently, it is incumbent upon the moving party to make a prima facie showing that he is entitled to summary judgment as a matter of law (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 563 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Zarr v Riccio, 180 AD2d 734, 735 [2d Dept 1992]). The papers submitted in connection with a motion for summary judgment are always reviewed in a light most favorable to the nonmoving party (Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). If there is any doubt as to the existence of a triable issue, the motion must be denied (Hantz v Fishman, 155 AD2d 415, 416 [2d Dept 1989]).

If the moving party meets his burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of law that would require a trial (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In doing so, the party opposing the motion must lay bare his proof (see Towner v Towner, 225 AD2d 614, 615 [2d Dept 1996]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to overcome a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]); see Prudential Home Mtge. Co., Inc. v Cermele , 226 AD2d 357 [2d Dept 1996]).

THE DECEDENT'S CAPACITY

Karen asserts that on January 3, 2003, the decedent lacked the requisite capacity to execute the POA and, as a result, Dennis could not act as the decedent's agent to change the title to the Account. In support of her motion for summary judgment on this issue, Karen offers certified copies of the decedent's medical records from the hospital and the nursing home for the time period in which he was in each facility. Entries in the medical records show that the decedent was suffering from some degree of dementia. There are entries in the medical records, including those for January 3, 2003, that state that he was confused at times. The records indicate he had a "history significant for dementia" and, on December 28, 2002, there is an entry stating "[p]atient now with dementia." The medical records also note that, at times, the decedent was restrained to keep him from climbing out of bed and dislodging his feeding tube.

Karen also offers a form entitled, "Consent for Operative/Invasive/Diagnostic Procedures Requiring Anesthesia or Sedation/Analgesia," which was signed on December 17, 2002 by Dennis, giving permission to the hospital to administer an MRI of the brain and another form dated December 27, 2002, granting permission to the hospital to perform a "percutaneous endoscopic gastrostomy tube placement with intravenous sedation" on which the words "[t]elephone [c]onsent obtained from son Dennis Hoerter." The latter form bears the decedent's signature. Karen asserts that these forms are evidence that the decedent was unable to consent to his own medical procedures and that the hospital "required" Dennis's consent.

Karen also relies on Linda's deposition testimony. Linda testified that the decedent had "dementia for a long period of time, a 20-year period," that he had had "strokes for over 20 years, a series of strokes." She responded in the negative when asked if it would surprise her that the decedent's hospital file contained a notation indicating "confusion and forgetfulness" every day from the second week of December 2002 to the second week of January 2003, except for January 2, 2003, since those records were not in the file. [*5]

For a power of attorney to be valid, the principal must have "sufficient mental capacity" at the time he executes it (Matter of Ferrara, 3 Misc 3d 944, 945 [Rockland County Sur Ct 2004], aff'd 22 AD3d 578 [2d Dept 2005], order revd on other grounds by 7 NY3d 244 [2006]). "Sufficient mental capacity" is an indefinite term, one that is certainly open to interpretation.

The medical records show that, although there were times when the decedent exhibited confusion, there were also times when he was noted to be alert and oriented. Dr. Buffa certified on the POA, which Karen made a part of the record, that the decedent was a patient of his and, in his "professional opinion," was "of sound and disposing mind and memory and capable of understanding the nature of the transaction involved" at the time he executed the POA in Dr. Buffa's presence. Karen submitted an affidavit of Dr. Buffa in which he attests, among other things, that he does not recall signing the Medical Certification, although he recognizes his signature on it, that he does not recall if he witnessed the execution of the POA or whether page 1 was "filled out at all" when he signed it. However, none of these statements negates those Dr. Buffa made in the Medical Certification.

Accordingly, the court finds that Karen has not established her right to judgment as a matter of law on the issue of whether the decedent lacked the capacity to execute a valid power of attorney on January 3, 2003 and her motion in that regard is denied.

It is uncontroverted that an "x" and an initial appear on the POA in the blank space in category "(A) Banking Transactions" in the section that reads "[t]o conduct any and all banking transactions in connection with GreenPoint Bank," as well as in the blank space in category "(B) Retirement Benefit Transactions." It is also uncontroverted that the decedent did not initial the blank space provided in category "(C) Gifts" in the section that states, "Making gifts to my spouse, children and more remote descendants, and parents, not to exceed in the aggregate $10,000 to each of such persons in any year." Only an "x" appears in that space. Dennis testified that the reason that the decedent did not write his initials in that space was because he was too "weak." According to Dennis, the decedent said he was "too tired" to do so. On that basis, Karen asserts that Dennis did not have any gift-giving authority and that any gifts Dennis made as the decedent's attorney-in-fact under the POA are void as a matter of law.^[FN2]

The form for a durable statutory short-form power of attorney is set forth in GOL § 5-1501[1]. The statute lists fifteen types of matters about which a principal can appoint an attorney-in-fact to act "as each of them is defined in Title 15 of Article 5 of the New York General Obligations Law" (GOL § 5-1501[1]). These matters are construed in GOL § 5-1502A [*6]through § 5-1502O.

The instructions for execution of a power of attorney form are specified within the statute as follows:

(DIRECTIONS: Initial in the blank space to the left of your choice any one or more of the following lettered subdivisions as to which you WANT to give your agent authority. If the blank space to the left of any particular lettered subdivision is NOT initialed, NO AUTHORITY WILL BE GRANTED for matters that are included in that subdivision. Alternatively, the letter corresponding to each power you wish to grant may be written or typed on the blank line in subdivision "(Q)", and you may then put your initials in the blank space to the left of subdivision "(Q)" in order to grant each of the powers so indicated) (emphasis added).

The form the decedent is alleged to have executed bears the heading "Durable General Power Of Attorney" and "GreenPoint Bank." The POA, apparently printed by GreenPoint Bank, does not contain all fifteen categories of authority set forth in GOL § 5-1501[1], but the form states that it is "intended to constitute a Durable General Power of Attorney pursuant to Article 5, Title 15 of the New York General Obligations Law." The POA sets forth three categories of matters that a principal executing the form can delegate to the attorney-in-fact: "(A) Banking Transactions"; "(B) Retirement Benefit Transactions"; and "(C) Gifts." There is also category "(D)" whereby the principal can authorize the delegation of his powers by the attorney-in-fact to another person or persons of his choosing. The directions on the POA state:

Initial in the blank space to the left of your choice any one or more of the following lettered subdivisions as to which you WANT to give your agent authority. If the blank space to the left of any particular lettered subdivision is NOT initialed, NO AUTHORITY WILL BE GRANTED for matters that are included in that subdivision.

When a principal executes a power of attorney, he appoints an attorney-in-fact to act in his "Name, Place and Stead" and, in the case of a durable power of attorney, even if the principal becomes incapacitated or otherwise disabled, as to those matters about which the principal specifically authorizes the attorney-in-fact to act (GOL § 5-1501, Matter of Ferrara, 7 NY3d 244, 251 n 2 [2006]). The statute and the directions on the POA explicitly state that the blank space provided must be initialed in order for the attorney-in-fact to have the authority to act with respect to that power, and, if the blank space is not initialed, no authority is granted. The requirement safeguards the principal against the potential for abuse if, for example, after execution the agent were to add an "x" in a blank space and surreptitiously acquire a power the principal did not authorize him to have.

Dennis argues that the decedent's placement of an "x" in the blank space provided for the power to gift satisfies the execution requirement, that an "x" is sufficient to act as the decedent's initial and, that, in any case, a material issue of fact exists precluding summary judgment. Dennis's arguments are unavailing. The execution requirement is quite explicit; the statute requires that the blank space must be initialed or no authority is granted. Moreover, although an "x" may be sufficient where a principal routinely signs his name or his initials with an "x," that is not the case here, as shown by the fact that the decedent initialed the blank spaces provided for banking and retirement benefit transactions and did not use an "x" when he signed his name on Signature Card 1 and the POA. [*7]

Dennis also opposes this aspect of Karen's motion for summary judgment, arguing that the act of changing the account from the decedent's name alone to that of the decedent and Mary was a banking transaction under section "A" of the POA and not a gift under section "C." Section "A" of the POA states that the agent has the power "[t]o conduct any and all banking transactions in connection with all accounts at GreenPoint Bank." Dennis relies on GOL § 5-1502D[1], which construes "banking transactions" to mean that the principal has authorized the agent "[t]o continue, to modify and to terminate any deposit account, or other banking arrangement made by or on behalf of the principal prior to the creation of the agency." There is no question that the act of adding Mary's name to the account constituted a banking transaction.

The question remains whether, as a matter of law, the transaction also constituted a gift under section "C" of the POA. If the decedent had initialed that space on the POA, he would have authorized Dennis to "mak[e] gifts to [the decedent's] spouse, children and more remote descendants, and parents, not to exceed in the aggregate $10,000 to each of such persons in any year." The language of the POA is an almost verbatim recitation of the pertinent language found in GOL § 5-1502M[1]. GOL § 5-1502M qualifies the gift-giving power to mean that the principal authorizes the agent to make such gift or gifts "only for purposes which the agent reasonably deems to be in the best interest of the principal" (GOL § 5-1502M[1]).

New York Banking Law § 675 states, in relevant part, that

"(a) When a deposit of cash . . . has been made or shall hereafter be made in or with any banking organization . . ., in the name of such depositor . . . and another person and in form to be paid or delivered to either, or the survivor of them, such deposit , , , and any additions thereto made, by either of such persons, after the making thereof, shall become the property of such persons as joint tenants and the same, together with all additions and accruals thereon, shall be held for the exclusive use of the persons so named, and may be paid or delivered to either during the lifetime of both or to the survivor after the death of one of them. . . ."

The Account was originally titled in the decedent's name alone, and there is nothing in the record that creates a material issue of fact about whether the funds deposited into the account when it was opened on January 26, 2002 belonged to him. Dennis offers no proof to support his suggestion that the funds were Mary's and that the decedent used them to open the Account against her wishes. His self-serving statement is not enough to create an issue of fact.

It is uncontroverted that, on January 6, 2003, Dennis went to GreenPoint Bank and caused Mary's name to be added to the Account. "Title" on Signature Card 2 is listed in the names of the decedent, Mary and "Dennis POA." Dennis does not claim that title vested in him in his individual capacity. Nowhere on Signature Card 2 as it appears in the record does it indicate how the account is to be paid on the decedent's death.

Had Dennis possessed the authority to make gifts, the re-titling of the Account in the names of the decedent and Mary presumably would have established a joint tenancy and a rebuttable presumption that the decedent made a gift of one-half of the proceeds of the Account to Mary (Banking Law § 675[a]; Silbert v Silbert, 22 AD2d 893, 894 [2d Dept 1964], affd 16 NY2d 564 [1965]; Susan W. v Martin W., 89 Misc 2d 681, 688 [Supreme Court New York [1977]). Even if Dennis had the power to make gifts under the POA, any gift or gifts to Mary would have been limited $10,000 in 2003. [*8]

The court finds, as a matter of law, that Dennis did not have the power to make gifts as the decedent's attorney-in-fact under the POA and that retitling of the Account constituted a gift to Mary.

The court notes that the parol evidence rule would not bar Dennis at trial from presenting "extrinsic evidence to demonstrate that he was authorized to make gifts . . . since even where a power of attorney does not explicitly grant the attorney-in-fact authority to make gifts of the decedent's property . . .courts permit the attorney-in-fact to present evidence of the principal's donative intent" (Matter of Kislak, 24 AD3d 258, 260 [1st Dept 2005]).

SELF-DEALING

Karen also moves for summary judgment on the grounds that Dennis engaged in self-dealing and in violation of his fiduciary duty to act solely in the best interest of the decedent. An agent owes a duty of undivided loyalty to a principal and cannot act in his own self-interest (see Matter of Rothko, 43 NY2d 305, 319 [1977]). He must act with the same degree of prudence and diligence as prudent individuals of "discretion and intelligence employ in their own like affairs" (Matter of Watson, 115 App Div 310, 315 [1st Dept 1906], affd 187 NY 541 [1907].) " [A] power of attorney ... is clearly given with the intent that the attorney-in-fact will utilize that power for the benefit of the principal"' (Matter of Ferrara, 7 NY3d 244, 254 [2006], quoting Mantella v Mantella, 268 AD2d 852, 852 [3d Dept 2000]). It is incumbent on the attorney-in-fact to "act in accordance with the highest principles of morality, fidelity, loyalty and fair dealing'" (Matter of Ferrara; 7 NY3d 244, 254 [2006] quoting Semmler v Naples, 166 AD2d 751, 752 [3d Dept 1990]).

GOL § 5-1505M "unambiguously imposes a duty on the attorney-in-fact to exercise gift-giving authority in the best interest of the principal" (id. at 252). When an agent makes a gift to himself or, as in this case, to a third party, there is a presumption of impropriety and self-dealing. That presumption can be rebutted only with the "clearest showing of intent on the part of the principal to make the gift" (Matter of DeBelardino, 77 Misc 2d 253, 257 [Monroe County Sur Ct 1974], affd 47 AD2d 589 [4th Dept 1975]).

"[E]vidence excludable under the Dead Man's Statute [CPLR 4519] should not be used to support summary judgment" (Phillips v Joseph Kantor & Co., 31 NY2d 307, 313 [1972]). However, it may be used in opposition to such a motion (Matter of Penn, 14 Misc 3d 1203A [Nassau County Sur Ct 2006]). During his SCPA 2211 examination, Dennis testified that, while he was in the hospital, the decedent told him to add Mary to the Account so that she would have use of the money in the event she needed it for living expenses and that the money was to be used for the decedent's rehabilitation when he went home. The record is otherwise devoid of any evidence of an intention on the decedent's part to make a gift in favor to Mary or, for that matter, that the decedent was even aware of it.

The court's role on a motion for summary judgment is to find, rather than determine, issues of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). An issue of fact exits about whether Dennis's act of placing the decedent's wife's name on the Account and, hence, making a gift to her under the POA, was in the decedent's best interest and at his discretion. The court cannot say, as a matter of law, that the transaction constituted self-dealing, even though the proceeds of the account soon came to be deposited in Dennis's Washington Mutual account. This determination is for the fact finder after a trial on the issue. [*9]

Accordingly, the court denies Karen's motion for summary judgment on the issue of self-dealing.

Typically, the allegation of undue influence arises in the context of a probate proceeding, and the party alleging it has the burden of proving it (Matter of Clapper, 279 AD2d 730, 732 [2d Dept 2001]; Matter of Bustanoby, 262 Ad2d 407, 408 [2d Dept 1999]). In order to prevail, the party alleging undue influence must show the existence and exertion of influence the effective operation of such influence to subvert the mind of, in this case, the principal at the time of the execution of the power of attorney, and the execution of the instrument would not have occurred but for the undue influence. Thus, the three essential elements of undue influence are said to be motive, opportunity and the actual exercise of undue influence (Matter of Fiumara, 47 NY2d 845, 846 [1979]; Matter of Walther, 6 NY2d 49, 53 [1959]).

"Undue influence is seldom practiced openly, but it is, rather, the product of persistent and subtle suggestion imposed on a weaker mind and calculated, by the exploitation of a relationship of trust and confidence, to overwhelm the victim's will to the point where it becomes the willing tool to be manipulated for the benefit of another" (Matter of Burke, 82 AD2d 260, 269 [2d Dept 1981]).

"Fraud is defined broadly to include any cunning, deception, or artifice employed by one person to deceive or gain an unfair advantage to the detriment of another.... It is well settled that the elements of a common law fraud are: (i) a representation or omission of a material fact, (ii) falsity, (iii) scienter, (iv) deception, and (v) injury" (Matter of Mayo, 11 Misc 3d 1072A [Nassau County Sur Ct 2006], quoting Matter of Colonna, NYLJ, Oct. 13, 1998, at 33 [Westchester County Sur Ct], affd 271 AD2d 444 [2d Dept 2000]).

Karen moves for summary judgment on the ground that Dennis exercised "deception, fraud and undue influence over the decedent in inducing him to execute the purported POA" while the decedent was in a "compromised and weakened state." As is often the case, Karen has no direct evidence of fraud or undue influence. Karen relies on the undisputed fact that the proceeds of the Account were deposited in to Dennis's Washington Mutual account and on her assertion that Dennis was in a confidential relationship with the decedent as the latter's son and attorney-in-fact. Karen asserts that the burden thus shifts to Dennis to show that the transaction was free of fraud or undue influence.

A confidential relationship may be inferred if one party has disparate power over the other (see Ten Eyck v Whitbeck, 156 NY 341, 353 [1898]), such as an attorney-in-fact, guardian, clergyman or doctor, where a confidential relationship is said to exist as a matter of law (NY PJI 7:56 [in the context of probate contests]). However, the law recognizes that a close family relationship "counterbalances any contrary legal presumption" (id., citing Matter of Walther, 6 NY2d 49 [committee and ward were sisters]; Matter of Moskowitz, 279 App Div 660 [2d Dept 1951], affd 303 NY 992 [1952] [attorney and client were son and father]) and "explanation by the [agent] is not required" (NY PJI 7:56).

In this case, it cannot be said that, as a matter of law, a confidential relationship existed between Dennis and the decedent. Thus, the burden of proving fraud and undue influence remains with Karen. She has not made a prima facie show of entitlement to summary judgment [*10]on the issues of fraud and undue influence.

Several years ago, the New York Court of Appeals explained that

"[a] Totten trust—born a century ago in Matter of Totten (179 NY 112 [1904])—is essentially an account which the depositor holds `in trust for' or `as trustee for' another person, the beneficiary. The trust may be revoked during the lifetime of the depositor by withdrawal of the funds or other affirmative acts, but if the depositor predeceases the beneficiary without revoking the trust, the beneficiary takes the balance of the funds at the time of the depositor's death without the funds passing through the depositor's estate. The account, in effect, is an alternative testamentary provision" (Eredics v Chase Manhattan Bank, N.A., 100 NY2d 106, 109 [2003].)

Totten Trusts are governed by Part 5 of Article 7 of the EPTL. EPTL 7-5.1(d) defines a "trust account" as including a "savings, share, or certificate of deposit account in a financial institution established by a depositor describing himself as trustee for another, other than a depositor describing himself as acting under a will, trust instrument or other instrument, court order or decree."

Signature Card 1 lists Karen as the "beneficiary" of the Account, but nowhere on it is the decedent described as "trustee." The top of Signature Card 1 is cut off on the photocopy annexed to Karen's moving papers and the copy annexed to Dennis's opposition papers. Nowhere on it as presented does it state that it is a trust account, or what type of account it is, for that matter. The certified copy of the Account records produced by GreenPoint Bank does not contain a copy of either signature card for the Account. There are no sworn statements in the record from a GreenPoint Bank officer as to the nature of the Account.

The Account appears to be a Totten Trust account. However, from the evidence presented, the court cannot make either that determination or the determination that Karen is entitled to the proceeds of the Account as a matter of law. Thus, Karen's motion on this issue is denied for failure to make a prima facie showing of entitlement to summary judgment.

Having said that, the court need not address Dennis's arguments in opposition to this aspect of Karen's motion. The court does note that Dennis's assertion that Karen has not proved that she is the individual named as beneficiary on Signature Card 1 because the year of her birth is not written on it and because she has not proven that she lived at the address listed is unpersuasive. On Signature Card 1, under "Beneficiary," the words "Karen Gulemi daughter" are written, along with the month and date of her birth. It is highly unlikely that the decedent had anyone other than his daughter, Karen Gulemi, in mind.

Karen's motion for summary judgment is granted to the extent that the court finds, as a [*11]matter of law, that Dennis did not have the power to make gifts under the POA as the decedent's attorney-in-fact and that the change in the Account would have constituted a gift to Mary. The motion is denied in all other respects.

A conference on this matter is scheduled on March 22, 2007, at 10:00 a.m. to fix a date for trial on the issues remaining in this proceeding.

This constitutes the decision of the court.

Settle order on five days' notice.

Dated: March 8, 2007

JOHN B. RIORDAN

Judge of the

Surrogate's Court