This motion by Melvyn Marcus ("Marcus") for an order, pursuant to SCPA §2103; 1) granting permission by this Court for Melvyn Marcus to take possession of his own personal property from Clancy Moving Systems, Inc., at their Holmes facility, with an address of 2287 Route 292, Holmes (Town of Pawling), Dutchess County, New York and have it shipped to his personal residence in Florida at the expense of Avi Katz and; 2) to sell any and all estate property stored at Clancy Moving Systems, Inc., at their Holmes facility; to be used in the first instance to satisfy any outstanding storage and access fees, is resolved as follows.

Branch 2 of the motion has been withdrawn without prejudice based upon movant's verification that all outstanding storage and access fees owed Clancy Moving Systems, Inc. have been paid to [*2]date. Additionally, respondent Avi Katz ("Katz") represents he has reinstituted automatic billing so as to keep the storage and access fees current.

Branch 1 of the motion is granted to the extent that Marcus is authorized to take possession of those items of personal property denoted as "[MINE]" in Exhibit 3 to the moving papers presently stored at the Clancy Moving Systems, Inc. facility at 2287 Route 292, Holmes, New York, and, at his sole cost and expense, ship those items to his residence in Sarasota County, Florida. Marcus would be responsible for paying all shipping costs had those items remained at the former marital abode at 36 Cortina Lane, Holmes, New York. The fact that they were moved to a storage facility does not change his obligation. The balance of this branch of the motion is denied.

The circumstances presented in this motion do not suggest that Marcus bears the burden of proving that the items he claims as "[MINE]" are in some way related to a claim that the decedent gifted them to him. If this were the case, then he would be required to prove the elements necessary for a valid gift, namely 1) intent of the donor to make an irrevocable present transfer of ownership; 2) physical or constructive delivery, sufficient to divest the donor of dominion and control over the property; and 3) acceptance of the gift by the donee. (Matter of Baum, 66 AD3d 412, 413 [1st Dept. 2009]; 62 NYJur2d, Gifts, §17.) The items identified as "[MINE]" are described with particularity so as to eliminate any doubt that they are, in fact, Marcus' personal property, as are those items identified as belonging to decedent's "[ESTATE]" (Ex. 3). A hearing is not required as no valid issue of fact has been raised by Katz regarding these items.

Marcus is directed to retrieve at his cost and expense the personal property identified in Exhibit 3 as "[MINE]" within thirty (30) days from the date of this decision and order. Katz is directed to arrange for Marcus to have access to the unit where the property is stored through his attorney and to otherwise refrain from interfering or otherwise obstructing the process.

On this application, the Court considered the order to show cause supported by an affirmation and affidavit with six (6) exhibits, answering affidavit with two (2) exhibits and reply affirmation with one (1) exhibit.

The foregoing constitutes the decision and order of the Court.

Dated: Poughkeepsie, New York

May 21, 2013

ENTER

[*3]

HON. JAMES D. PAGONES, S.C.J.

KAREN E. HAGSTROM, ESQ.

CORBALLY, GARTLAND & RAPPLEYEA, LLP

Attorneys for Movant

MELVYN MARCUS

35 Market Street

Poughkeepsie, New York 12601

STEPHEN E. DIAMOND, ESQ.

STENGER, ROBERTS, DAVIS & DIAMOND, LLP

Attorneys for Respondent

AVI KATZ

1136 Route 9

Wappingers Falls, New York 12590

CLANCY MOVING SYSTEMS, INC.

2963 Route 22

Patterson, New York 12563