Sofsky v. Rosenberg

New York Court of Appeals

Sofsky v. Rosenberg

564 N.E.2d 662, 76 N.Y.2d 927, 563 N.Y.S.2d 52, 1990 N.Y. LEXIS 3287

CourtNew York Court of Appeals

DecidedOctober 18, 1990

StatusPublished

Cited by6 cases

This text of 564 N.E.2d 662 (Sofsky v. Rosenberg) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sofsky v. Rosenberg, 564 N.E.2d 662, 76 N.Y.2d 927, 563 N.Y.S.2d 52, 1990 N.Y. LEXIS 3287 (N.Y. 1990).

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Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

In order to defeat the defendants’ motions for summary judgment, plaintiff was required to show a triable issue of fact concerning the delivery of the deed to Rosenberg (CPLR 3212 [930]*930[b]; McGahee v Kennedy, 48 NY2d 832). Rosenberg’s possession of the deed creates a presumption that the deceased grantor had delivered the deed to him before her death (see, Herrmann v Jorgenson, 263 NY 348). While a court may consider attendant circumstances surrounding the transfer of real property when delivery of the deed of transfer is adequately disputed or when undue influence is adequately alleged (see, Ten Eyck v Whitbeck, 156 NY 341, 353), unsupported, conclusory allegations that the deed had not been delivered are insufficient to overcome the presumption of delivery (see, McGahee v Kennedy, supra, at 834). In this case, plaintiff failed to satisfy that burden; accordingly, he failed to raise any triable issue of fact.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.

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OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

In order to defeat the defendants’ motions for summary judgment, plaintiff was required to show a triable issue of fact concerning the delivery of the deed to Rosenberg (CPLR 3212 [930]*930[b]; McGahee v Kennedy, 48 NY2d 832). Rosenberg’s possession of the deed creates a presumption that the deceased grantor had delivered the deed to him before her death (see, Herrmann v Jorgenson, 263 NY 348). While a court may consider attendant circumstances surrounding the transfer of real property when delivery of the deed of transfer is adequately disputed or when undue influence is adequately alleged (see, Ten Eyck v Whitbeck, 156 NY 341, 353), unsupported, conclusory allegations that the deed had not been delivered are insufficient to overcome the presumption of delivery (see, McGahee v Kennedy, supra, at 834). In this case, plaintiff failed to satisfy that burden; accordingly, he failed to raise any triable issue of fact.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.

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Bluebook (online)

564 N.E.2d 662, 76 N.Y.2d 927, 563 N.Y.S.2d 52, 1990 N.Y. LEXIS 3287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sofsky-v-rosenberg-ny-1990.

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