General
In the Matter of the Estate of Janet C. Hauck, Deceased. Citibank, N. A., et al. as Coexecutors of Janet C. Hauck, Deceased
200 A.D.2d 405608 N.Y.S.2d 800·New York Supreme Court, Appellate Division·1994·NY
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Opinion
In the Matter of the Estate of Janet C. Hauck, Deceased. Citibank, N. A., et al. as Coexecutors of Janet C. Hauck, Deceased.
[608 NYS2d 800]
[MAJORITY]
—Decree, Surrogate’s Court, New York County (Eve Preminger, S.), entered on or about February 8, 1993, which ordered, adjudged and decreed that a certain 1950 Jackson Pollock painting is the property of the estate of decedent Janet. C. Hauck, unanimously affirmed, without costs.
This appeal and a companion appeal (Matter of Hauck, 200 AD2d 405 [decided herewith]) concern two paintings by the artist Jackson Pollock. At issue here is the 1950 painting, bequeathed to respondent museum.
Since the parties stipulated that the issue would be decided on the basis of certain deposition transcripts and other documents, they cannot now be heard to complain that the court improperly received evidence covered in that stipulation. Further, the evidence presented at the hearing held with respect to this painting did not satisfy the putative donee’s burden of persuasion (Mortellaro v Mortellaro, 91 AD2d 862, 863) to present clear and convincing proof (Matter of Lefft, 44 NY2d 915, 918) of unequivocal donative intent (see, e.g., Matter of Giacalone, 143 AD2d 749). The putative donee showed only an equivocal expression of intent (see, e.g., Matter of MacGregor, 119 AD2d 909).
We have considered the appellant’s remaining arguments, and find them to be without merit. Concur — Sullivan, J. P., Carro, Wallach and Asch, JJ.