John E. Hartley, Jr., the above captioned petitioner, commenced this holdover proceeding seeking to dispossess his sister, Christine Hartley, the respondent, from the real property premises located at 4 Ardra Court, Hauppauge, New York. A trial was conducted on January 14, 2014, at which time the following facts were determined:

1. The petitioner received a deed from his father, John Hartley, Sr.( hereafter "the father") dated June 21, 2013 purportedly conveying the father's interest in the premises located at 4 Ardra Court, Hauppauge, New York (hereafter "the premises") to him. (See Exhibit No.1). The deed was executed in a nursing home facility in the State of Florida.

2. The respondent resides at the premises by virtue of being either a "licensee" or a "tenant at will"; a status granted by her father. [*2]

3. The respondent is a 1/4th beneficiary of her father's estate as detailed in his last will and testament dated March 16, 2005. (See Exhibit A).

4. The father was gravely ill and on his death bed when he executed the subject deed. He died within a day thereafter.

5. The subject deed was notarized by a Georgia notary who asserts that it was "acknowledged" on June 20,2013, the day before the deed was executed on June 21, 2013. The deed was recorded with the Suffolk County Clerk on June 21, 2013.

6. The deed was not formally witnessed, but a health care employee testified that she assisted the father in signing the deed. The testimony did not indicate the precise date of the deed execution or that the father orally acknowledged that he was making a conveyance of real property in signing the deed.

7. The petitioner was the father's attorney-in-fact. See Exhibit B.

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Discussion

It is the respondent's contention that the subject deed is defective and a forgery. Although the signature on the deed is little more than an X, and does not match his usual signature as contained in his last will and other documents; the Court determines only that he did in fact sign a document. What is not apparent from the record is whether the father understood what he was signing. However, as the deed did come into the petitioner's possession and was thereafter recorded, the Court will accept it into evidence.^[FN1]

Normally, a properly executed and acknowledged deed is considered prima facie evidence of it genuineness. Leavitt v. Thornton, 123 A.D. 683 (N.Y.A.D. 2nd Dept. 1908). A finding of ownership in this action would require this Court to issue a warrant of eviction as the parties have not placed in controversy any other available defenses. However, the subject deed contains two irregularities which raise an impediment to the petitioner's claim of ownership.

Firstly, although the premises are located in New York; the deed was executed in Florida, and witnessed by a Georgia notary. While quite irregular, such an error if committed by a New York notary is generally correctable and does not void the deed. See NY Exec. Law

§142 (a). However, the New York CPLR §4538 and Real Property Law §299 establish a different standard for curing defects in acknowledgments executed outside the state, which generally requires the acknowledgment to be admissible into evidence in a Court of the acknowledgment locale. The provisions of Title 10 of the Florida Statutes, Chapter 117 sets forth that the only [*3]persons granted jurisdiction to perform notarial acts are those commissioned within Florida. 10 Fla. Stat. 117.01, et. seq. Florida statutes grant the sole power to appoint notaries public in the State of Florida to the Office of the Governor. There is no provision for reciprocity to permit notaries of border-states to perform notarial acts in Florida and the law does not grant jurisdiction to non-Florida notaries to acknowledge deeds within its territorial jurisdiction. See West's F.S.A. §92.5 and §117.01 citing to Evans v. Dickensen, 114 F. 284 (5th Cir. 1902).

Secondly, the acknowledgment on the deed ascribes that the deed was executed on the 20th of June 2013, a day before it was dated on June 21, 2013. While New York law allows for deeds to be effective despite certain notary errors, it does not vitiate a strict requirement that a grantor orally acknowledge to the notary that it is his intention to convey real property via the deed he is or has executed. See Detmar v. Detmar, 248 AD2d 582 (NYAD 2nd Dept. 1998); 1 NY Jur. Acknowledgments, Affidavits, Oaths, Notaries and Commissioners, § 12 (2014). See also 1 Fla. Jur. 2d ed. "Acknowledgments" §§ 1, 8 (2014). The Court notes it is highly improbable that a deed dated June 21, 2013 in Florida could be recorded with the Suffolk County (New York) Clerk's office on the same day. What is more probable is that the deed was not dated when it was acknowledged on June 20, 2013. If the deed was not dated when executed, an inference arises about whether the grantor had chosen to make a present moment non-revocable transfer. It is clear that the father was in extremis and the record presented does not establish the necessary oral acknowledgment of a non—revocable transfer.

Without a proper acknowledgment the deed carries no presumption of legitimacy and it is the petitioner who bears the burden of proof of a conveyance. In a treatise like decision, Juliano v. Juliano, 42 Misc. 3rd 1226(A) (NY Sup. Ct. 2014), Justice Francois Rivera analyzed the law and the shifting burdens of proof when confronted with an irregularly transferred deed between a sibling and dying parent and came to the following conclusions:-2-

"To make a valid inter vivos gift the donor must intend to make an irrevocable present transfer of ownership, there must be a delivery of the gift, either by a physical delivery or the subject of the gift or a constructive or symbolic delivery, and there must be acceptance by the donee". . .

The delivery required must be such as to vest the donee with control and dominion over the property. . . [and] intention or mere words cannot supply the place of an actual surrender of control and authority over the thing intended to be given. The proponent of a

gift has the burden of proving each of these elements by clear and convincing evidence Ross v. Ross Metals Corp., 87 D3d 573, 575 [2nd Dept. 2011] citing Gruen v. Gruen, 68 NY2d at 53 [1986]. . .

The Juliano Court also noted that it is possible that the purported inter vivos transaction was invalid as it was the result of the exercise of undue influence when it opined; [*4]

"Normally, the burden of proving undue influence rests with the party asserting its existence (see Matter of DelGatto, 98 AD3d 975, 977-978 [2nd Dept. 2012] Sepulveda v. Aviles, 308 AD2d 1, 7 [1st Dept. 2003]. However, where there is a confidential relationship between the beneficiary and grantor, "an inference of undo "influence" arises which requires the beneficary to come forward with an explanation of the circumstances of the transaction, Matter of DelGatto, 98 AD3d 975, 978 [2nd Dept. 2012] citing Matter of Neenan, 35 AD3d 475,476 [2nd Dept. 2006] . . .

In the absence of an explanation, the beneficiary has the burden of proving by clear and convincing evidence that the transaction was fair and free from undue influence, Matter of DelGatto, 98 AD3d 975, 978 [2nd Dept. 2012] citing Matter of Gordon v. Bialystoker Ctr. & Bikur Cholim, 45 NY2d 692 [1978]. However, if a confidential relationship exists, the burden is shifted to the beneficiary of the transaction to prove the transaction fair and free from undue influence ( see Matter of Gordon v. Bialystoker Ctr. & Bikur Cholim, 45 NY2d 692,699 [1978] ) . . .

"Where a fiduciary relationship exists between parties, transactions between them are scrutinized with extreme vigilance, and clear evidence is required that the transaction was understood, and that there was no fraud, mistake or undue influence. Where those relations exist there must be clear proof of the integrity and fairness of the transaction, or any instrument thus obtained will be set aside or held as invalid between the parties". . .

Close family ties may negate the presumption of undue influence that would otherwise arise from a confidential or fiduciary relationship (see Mater of Walther, 6 NY2d 49 at 56 [1959] ).

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Where a familial relationship exists, it may only be viewed as a confidential or fiduciary relationship sufficient to shift the burden of establishing that the transaction was not the product of undue influence if coupled with other factors, such as where the donor is in a physical or mental condition such that he or she is completely dependent upon the defendant-donee for the management of his or her affairs and/or is unaware of the legal consequences of the transaction. ( see Peters v. Nicotera, 248 AD2d 969, 970 [4th Dept. 1998] see also Matter of Connelly, 193 AD2d 602 at 603 [2nd Dept. 1993] ). Emphasis added.

Clearly, the father was completely dependent and reliant upon the petitioner due to his health condition and the fact that the petitioner also held the father's power of attorney. It is the Court's determination that the petitioner's burden of proof has not been met as the proof of the irregular signature and acknowledgment are not overcome by the nurse's testimony ^[FN2] that she helped the father sign a document. This finding is without prejudice to a more thorough litigation [*5]of the facts in the Supreme or Surrogate Court where the parties are not hindered by the summary nature of this petition and wherein they will be afforded full and complete discovery.^[FN3]

Accordingly, the subject petition is dismissed.

Dated: March 19, 2014Hon. C. Stephen Hackeling

J.D.C.

Decision to be published on lineX yes____no.

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