Widom v. Mittman

Appellate Division of the Supreme Court of New York

Widom v. Mittman

39 A.D.3d 374, 833 N.Y.S.2d 502

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 19, 2007

StatusPublished

Cited by1 cases

This text of 39 A.D.3d 374 (Widom v. Mittman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Widom v. Mittman, 39 A.D.3d 374, 833 N.Y.S.2d 502 (N.Y. Ct. App. 2007).

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Opinion

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered November 17, 2006, which, to the extent appealed from as limited by the briefs, granted defendants’ motion pursuant to CPLR 3211 to dismiss the fourth cause of action, unanimously affirmed, with costs.

The elements necessary for an effective gift are: (1) an intent on the part of the donor to make a present transfer; (2) delivery of the gift, either actual or constructive, to the donee; and (3) acceptance by the donee (see Rubenstein v Rosenthal, 140 AD2d 156, 158 [1988]). As to donative intent, the August 2005 agreement refers simply to “anticipation” of Mittman’s “investment.” It further notes that the $750,000 “will be” derived from proceeds of the sale of real property, not to take place until November of that year. Accordingly, there was no present transfer by virtue of the written agreement, nor was there an accepted delivery. Mittman was not yet in possession of the money to be gifted, and her receipt of such moneys was dependent on the culmination of a future transaction, with delivery anticipated only after the closing. Given the absence of a present donative intent and the fact that Mittman did not yet possess, much less relinquish control over, the money at the time of the purported gifting, Refuah Research cannot establish its fourth cause of action (see Lichtenstein v Eljohnan, Inc., 161 AD2d 397 [1990]). Concur—Andrias, J.P., Saxe, Nardelli, Williams and Catterson, JJ.

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Order, Supreme Court, New York County (Jane S. Solomon, J.), entered November 17, 2006, which, to the extent appealed from as limited by the briefs, granted defendants’ motion pursuant to CPLR 3211 to dismiss the fourth cause of action, unanimously affirmed, with costs.

The elements necessary for an effective gift are: (1) an intent on the part of the donor to make a present transfer; (2) delivery of the gift, either actual or constructive, to the donee; and (3) acceptance by the donee (see Rubenstein v Rosenthal, 140 AD2d 156, 158 [1988]). As to donative intent, the August 2005 agreement refers simply to “anticipation” of Mittman’s “investment.” It further notes that the $750,000 “will be” derived from proceeds of the sale of real property, not to take place until November of that year. Accordingly, there was no present transfer by virtue of the written agreement, nor was there an accepted delivery. Mittman was not yet in possession of the money to be gifted, and her receipt of such moneys was dependent on the culmination of a future transaction, with delivery anticipated only after the closing. Given the absence of a present donative intent and the fact that Mittman did not yet possess, much less relinquish control over, the money at the time of the purported gifting, Refuah Research cannot establish its fourth cause of action (see Lichtenstein v Eljohnan, Inc., 161 AD2d 397 [1990]). Concur—Andrias, J.P., Saxe, Nardelli, Williams and Catterson, JJ.

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Bluebook (online)

39 A.D.3d 374, 833 N.Y.S.2d 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/widom-v-mittman-nyappdiv-2007.

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