Werder v. Stewart

— In an action, inter alia, to set aside a conveyance of real property, plaintiff Joan Werder appeals from so much of a judgment of the Supreme Court, Westchester County (Marbach, J.), entered March 18,1983, as granted defendant’s motion for judgment as a matter of law in her favor as against appellant and for cancellation and discharge of record of a certain notice of pendency of action filed. Judgment affirmed, insofar as appealed from, with costs. Special Term correctly concluded that plaintiffs failed to adduce sufficient evidence to indicate the arguable existence of a fiduciary relationship between defendant and the decedent Caroline G. Matthews (cf. Matter of Gordon v Bialystoker Center & Bikur Cholim, 45 NY2d 692, 698-699; Allen v La Vaud, 213 NY 322; Doheny v Lacy, 168 NY 213) which would then place upon defendant the burden of proving by clear and satisfactory evidence that decedent’s gift to defendant was free and voluntary (see, Hazel v Sacco, 52 AD2d 1042). Under the circumstances in [740] this record, defendant’s motion at the close of plaintiffs’ case was properly granted. Thompson, J. P., Bracken, Brown, and Rubin, JJ., concur.