MATTER OF AUQUI, 139 A.D.3d 411 (2016)
Court: Supreme Court of New York
Number: innyco20160503450
Visitors: 22
Filed: May 03, 2016
Latest Update: May 03, 2016
Summary: Given the undisputed medical evidence that the alleged incapacitated person (AIP) had suffered from a mental defect as a result of his 2003 accident, when he was hit on the head by a piece of plywood falling from the 50th floor of a building, the burden of proof on the issue of his competence to enter into the challenged agreements shifted to respondent, as the advocate of competency ( see Matter of Kaminester v Foldes, 51 A.D.3d 528 [1st Dept 2008], lv dismissed in part, denied in part
Summary: Given the undisputed medical evidence that the alleged incapacitated person (AIP) had suffered from a mental defect as a result of his 2003 accident, when he was hit on the head by a piece of plywood falling from the 50th floor of a building, the burden of proof on the issue of his competence to enter into the challenged agreements shifted to respondent, as the advocate of competency ( see Matter of Kaminester v Foldes, 51 A.D.3d 528 [1st Dept 2008], lv dismissed in part, denied in part ..
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Given the undisputed medical evidence that the alleged incapacitated person (AIP) had suffered from a mental defect as a result of his 2003 accident, when he was hit on the head by a piece of plywood falling from the 50th floor of a building, the burden of proof on the issue of his competence to enter into the challenged agreements shifted to respondent, as the advocate of competency (see Matter of Kaminester v Foldes, 51 A.D.3d 528 [1st Dept 2008], lv dismissed in part, denied in part 11 N.Y.3d 781 [2008]). In light of the ambiguous nature of the testimony of Dr. Kuhn, respondent's sole witness on this issue, respondent failed to meet its burden of showing by clear and convincing evidence that the AIP was able to act in a reasonable manner in connection with the transaction (see Ortelere v Teachers' Retirement Bd. of City of N.Y., 25 N.Y.2d 196, 204 [1969], citing Restatement [Second] of Contracts; Kaminester, 51 AD3d at 529; Morales v State of New York, 183 Misc.2d 839, 848 [Ct Cl 2000], affd 282 A.D.2d 245 [1st Dept 2001]). That the court evaluator and an occupational therapist interviewed the AIP before and after the period when he executed the agreements does not render the evidence they gave irrevelant (see Belda v Doerfler, 2015 WL 5737320, *9, 2015 US Dist LEXIS 133483, *27 [SD NY, Sept. 30, 2015, No. 14-cv-941 (AJN)]). Their observations were probative of the AIP's mental condition between the times they observed him.
Source: Leagle
