In the Matter of the Estate of David G. Vlock, Deceased. Maria Vlock, as Executrix of David G. Vlock, Deceased, Appellant; Alicja Wesolowska, Respondent

In the Matter of the Estate of David G. Vlock, Deceased. Maria Vlock, as Executrix of David G. Vlock, Deceased, Appellant; Alicja Wesolowska, Respondent. [644 NYS2d 264] [MAJORITY] The Surrogate properly found that the claim against the estate of the decedent, a dentist, seeking a refund of $3,600, which had been paid in advance by claimant for contracted dental services which the decedent had failed to complete prior to his death, was established by clear and convincing evidence (see, Matter of Gordon, 8 NY2d 71, 76; Ausch v St. Paul Fire & Mar. Ins. Co., 125 AD2d 43, 45, lv denied 70 NY2d 610). Claimant’s evidence, consisting of testimony of the dentists to whom decedent had transferred his practice prior to his death, and of the decedent’s office manager and assistant at the time decedent was treating the claimant, clearly established that the work for which the claimant had paid $3,600 in advance to the decedent, described in a bill for professional services rendered, which was typed on the decedent’s letterhead and addressed to the claimant, bearing a notation in the decedent’s handwriting reading "Paid in Advance”, had not been performed by the decedent prior to his demise, thereby entitling claimant to the refund sought. We have considered appellant’s remaining arguments and find them to be without merit. Concur—Murphy, P. J., Rosenberger, Rubin and Williams, JJ.