BACKGROUND

On December 17, 2009, plaintiffs Ronald Juliano, Arlene Ratner and Alan Holden, commenced the instant action by filing a summons, a verified complaint and a notice of [*2]pendency with the Kings County Clerk's Office. The plaintiffs and defendant Frank Arthur Juliano are siblings and the children of Beatrice Juliano, who died in October of 2009. The complaint contains twenty three allegations of fact in support of three causes of action. The first cause of action is for a judgement declaring that the defendantFrank Arthur Juliano fraudulently diverted plaintiffs' interest in the property of Beatrice Juliano to himself. The second cause of action is for an accounting. The third cause of action is for the expenses incurred in prosecuting the instant action.

Plaintiffs' complaint seeks an order (1) declaring that Beatrice Juliano's gift of her home to Frank Arthur Juliano by a quitclaim deed (hereinafter the deed) is null and void; (2) directing the Kings County Clerk's office to strike the deed from its records; (3) directing Frank Arthur Juliano to account for his conduct as attorney-in-fact for Beatrice Juliano for the three year period prior to her death; (4) directing Frank Arthur Juliano to account for any rent he collected for the subject premise; and (5) awarding plaintiffs monetary sanctions.

The verified answer of defendant Frank Arthur Juliano ^[FN1], dated January 10, 2010, purports to plead four affirmative defenses and three counterclaims. The first affirmative defense claims that the action was brought in bad faith and must be dismissed. The second affirmative defense claims that relief is barred by documentary evidence. The third affirmative defense claims that necessary parties have not been joined. The fourth affirmative defense claims that the complaint is frivolous.

On October 29, 2013, defendant Frank Arthur Juliano discontinued with prejudice all counterclaims asserted in his answer with the consent of the plaintiffs.

THE TRIAL

The issues in this action were tried before Part 52 of this Court without a jury on October 28th and 29th of 2013. Ronald Juliano, Douglas Shackles and Brett Shatner testified on behalf of the plaintiffs. Douglas Shackles is Beatrice Juliano's financial advisor and Brett Shatner is her grandson from her daughter Arlene Ratner.

Frank Arthur Juliano was the sole witness for his defense. Plaintiffs admitted into evidence Beatrice Juliano's will and testament dated March 14, 1995 (hereinafter the will). Frank Arthur Juliano admitted into evidence, a Power of Attorney dated October 8, 2003 and the deed dated October 3, 2003.

Pursuant to CPLR 4213 the parties were afforded an opportunity to submit requests for findings of fact and did so. The court makes the following findings of fact.

FINDINGS OF FACT

Beatrice Juliano is the mother of the four individual parties and was the sole owner of her home located at 1819 Avenue X, Brooklyn, New York (hereinafter the subject [*3]premise). On March 14, 1995, she executed a will and testament (hereinafter the will ^[FN2]) naming her sons, plaintiff Ronald Juliano and defendant Frank Arthur Juliano (hereinafter the defendant) as co-executors. According to the terms of the will, she intended to bequeath her entire estate to her four children equally, with her daughters' shares to go into a supplemental needs trust. Her daughters, Arlene Ratner and Alana Holden, are disabled and in receipt of social security disability benefits. They are also tenants in the subject premise and have been paying $700 monthly rent to the defendant. The defendant has also been collecting $1,475.00 monthly rent from tenants on the first floor of the subject premises.

In November, 2007, Beatrice Juliano obtained a mortgage on the subject premise in the amount of $200,000.00 to refinance a prior mortgage. At that time, the prior mortgage had a balance due of approximately $157,000.00. The mortgage closing occurred in the defendant's presence at the subject premise. Beatrice Juliano continued to pay the mortgage on the subject premise for some time after October, 2003. On June 22, 2009, while she was recovering from a stroke, the defendant obtained her signature on a Power of Attorney, giving him the power to act on her behalf.

Brett Ratner testified that since the time he lived at the subject premises in the 1980's until Beatrice Juliano's death, she and the defendant had a troubled relationship, with constant arguments. He also testified that in June, 2009, he found Beatrice Juliano to be unaware of her surroundings. Douglas Shackles testified that she and the defendant had a tenuous relationship that bordered on her fearing the defendant.

On the day of Beatrice Juliano's funeral, the defendant informed Ronald Juliano, for the first time, that their mother had transferred title to the subject premise to him by the deed executed in October of 2003. On September 24, 2009, the defendant recorded the deed with the Kings County Clerk's office.

The defendant testified that he purchased a blank deed form from Staples and that he entered all the handwritten data on the deed with the help of an attorney. He also testified that before recording the deed, and after Beatrice Juliano allegedly signed it, he crossed out several terms of the deed, including the date and certain text relating to allowing his mother and sisters to reside at the premises at a reasonable rent. Defendant alleged that Beatrice Juliano initialed the changes on page 1 of the deed next to the date "October 8, 2003" in 2009.

The defendant testified that in 2003 he was not ready to own the subject premise because he was receiving Medicaid and he could not own real property under his name. By his own admission, he did not accept his mother's gift of the subject premises until September 24, 2009, the day he recorded the deed. When pressed during cross-examination about the nearly six year gap between the execution and the recording of the [*4]deed, he asserted his Fifth Amendment right against self-incrimination.

The defendant attempted to close out Beatrice Juliano's brokerage account several months before she died by utilizing the power of attorney. The legal department of the brokerage firm would not accept the power of attorney submitted by Frank Arthur Juliano to close out Beatrice Juliano's brokerage account.

LAW AND APPLICATION

The plaintiffs claim, among other things, that their mother's alleged gift of her home was not properly accepted by the defendant and that the purported gift was a product of the defendant's undue influence. The defendant claims that their mother willingly gave him the subject premise as a gift and that she willingly entrusted him with a power of attorney to manage her income and assets.

"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 of the subject of the gift or a constructive or symbolic delivery, and there must be acceptance by the donee" (Ross v Ross Metals Corp., 87 AD3d 573, 575 [2nd Dept 2011] citing Matter of Partos, 203 AD2d 578, 578 [2nd Dept 1994]). "An inter vivos gift requires that the donor intend to make an irrevocable present transfer of ownership; if the intention is to make a testamentary disposition effective only after death, the gift is invalid unless made by will" (Ross v Ross Metals Corp., 87 AD3d 573, 575 [2nd Dept 2011] citing Gruen v Gruen, 68 NY2d 48, 53 [1986]). Moreover, 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'(Ross v Ross Metals Corp., 87 AD3d 573, 575 [2nd Dept 2011] citing Matter of Szabo, 10 NY2d 94, 98 [1961]). 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 AD3d 573, 575 [2nd Dept 2011] citing Gruen v Gruen, 68 NY2d at 53 [1986]).

As he is the proponent of the gift, it is Frank Arthur Juliano's burden to show clearly and convincingly that his mother made an irrevocable present transfer of ownership of her home to him, that she made a physical or symbolic delivery of the gift to him and that he accepted the gift. For the foregoing reasons he failed to do so. Beatrice Juliano allegedly executed the deed in 2003 and the defendant kept possession of it after it was executed. The defendant, however, did not intend to accept the gift at the time of the delivery of the deed. By his own testimony, he held onto the deed and did not decide to accept the gift until September 24, 2009, almost six years later, when he recorded it. By that time his mother had suffered a stroke and was incapacitated. Therefore, crediting the defendant's testimony regarding the circumstances surrounding the purported gift, he did not clearly and convincingly accept the alleged gift at the time it was delivered (Ross v Ross Metals Corp., 87 AD3d 573, 575 [2nd Dept 2011] citing Matter of Partos, 203 AD2d 578, 578 [2nd Dept 1994]). Accordingly, Beatrice Juliano did not make a valid [*5]inter vivos gift of the subject premise to the defendant.

The plaintiffs have established that their mother's purported inter vivos gift of the subject premise to the defendant was not properly accepted. Plaintiffs also contend that the purported inter vivos transaction was the result of the defendant's exercise of undue influence over their mother. "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 the grantor, "[a]n inference of undue influence" arises which requires the beneficiary 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 Center & Bikur Cholim, Inc., 45 NY2d 692, 699 [1978]). In Matter of Gordon, the Court of Appeals held that in light of the fiduciary relationship between the 85-year-old donor and the defendant nursing home-donee at the time of the donor's gift of funds, the burden shifted to the home to establish that it did not acquire the donor's property by fraud, undue influence or coercion, a burden that the nursing home failed to meet (45 NY2d 692, 412 NYS2d 593, 385 NE2d 285). As the Gordon Court explained: "[W]here 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" (45 NY2d at 698) (internal citations omitted).

On the other hand, the inference of undue influence, requiring an explanation of a gift, does not generally arise from the confidential relationship between close family members, such as a father and daughter since the sense of family duty is inexplicably intertwined in this relationship which, under the circumstances, counterbalances any contrary legal presumption (see Matter of Swain, 125 AD2d 574, 575 [1986], quoting Matter of Walther, 6 NY2d 49 at 56 [1959]; see also 39 NY Jur 2d, Decedents' Estates § 532). Thus, close family ties may negate the presumption of undue influence that would otherwise arise from a confidential or fiduciary relationship (see Matter of Walther, 6 NY2d 49 at 56 [1959]).

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 [*6]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]).

The court finds that Beatrice Juliano was elderly, infirm and not in an equal position with the defendant. Her declining physical health and mental acuity coupled with her advanced age made her vulnerable and increasingly dependent on the defendant. The court credits Douglas Shackles' testimony that she and the defendant had a tenuous relationship that bordered on Beatrice Juliano fearing the defendant. The court finds that other factors were present in Beatrice Juliano and the defendant's relationship to render it a confidential relationship.

Plaintiffs correctly contend that the inference of undue influence based upon the holding of Matter of Gordon should be applied in this case based upon the confidential relationship between the defendant and their mother (45 NY2d at 698-699). The defendant did not proffer sufficient evidence of the circumstances of the purported gift to establish clearly and convincingly that it was not the product of his exercise of undue influence over his mother. However, inasmuch as the proffered inter vivos gift of the subject premise was not properly accepted, it is unnecessary to find that the transaction was the product of undue influence to void the gift.

Plaintiffs also seek an order directing the defendant to account for his conduct as attorney-in-fact for Beatrice Juliano and for any rent he collected for the subject premise. The right to an accounting is premised upon the existence of a confidential or fiduciary relationship and a breach of the duty imposed by that relationship respecting property in which the party seeking the accounting has an interest (Lawrence v Kennedy, 95 AD3d 955, 958 [2nd Dept 2012]). Such a relationship is created where one party entrusts to another some money or property with respect to which such other is bound to reveal his or her dealings (Kastle v Steibel, 120 AD2d 868 [3rd Dept 1986]).

There is no dispute that for some time prior to his mother's death, Frank Arthur Juliano had a confidential relationship with his mother respecting his management of the subject premise and that he had a fiduciary relationship with her as her attorney-in-fact. However, he has no such relationship with the plaintiffs. Each plaintiff has asserted an individual claim against the defendant and no plaintiff is acting as a representative of their mother's estate. Accordingly, the plaintiffs have no basis for seeking an order directing the defendant to account to them.

Plaintiffs also seek a monetary award for all expenses, including attorney's fees incurred in prosecuting the instant action. Plaintiffs concede in their submitted proposed findings of fact, however, that they have offered no evidence in support of this claim. "Under the general rule, attorney's fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between [*7]the parties, statute or court rule" (Pickett v 992 Gates Ave. Corp., —- NYS2d ——, 2014 WL 553521 [2nd Dept 2014] citing Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 [1989]). Accordingly, there is no basis for ordering a monetary award for the expenses of prosecuting the instant action including attorney's fees.

CONCLUSION

The first cause of action for a declaratory judgment is granted. It is the judgment of this court that Beatrice Juliano's attempted gift of her home, the subject premise, to defendant Frank Arthur Juliano by a quitclaim deed is null an void.

The Kings County Clerk's office to directed to strike the quitclaim deed from its records.

The second cause of action for an order directing Frank Arthur Juliano to submit an accounting is denied.

The third cause of action for an award of monetary sanctions for the expenses incurred in prosecuting the instant action is denied.

The foregoing constitutes the decision, order and judgment of this court.

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J.S.C.

February 17, 2014