Martinez v. Garcia

—In a proceeding, inter alia, for the partition of real property, the petitioner appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Queens County (Dunkin, J.), dated November 5, 1993, which, inter alia, declared that both parties owned 50% of the property, and that if either party paid more than one half of the mortgage, upon resale, that party would receive from the other party the amount in excess thereof.

Ordered that the order is affirmed insofar as appealed from, with costs.

The record supports the court’s finding that the respondent, who had a limited knowledge of English and of finance, had a confidential relationship with her son, the petitioner. In light of this relationship, it was the petitioner’s burden to disprove the respondent’s testimony that she paid the petitioner $500 per month towards expenses of the house (see, Matter of Gordon v Bialystoker Ctr. & Bikur Cholim, 45 NY2d 692). We find that the petitioner failed to satisfy this burden. Accordingly, the court’s determination shall not be disturbed.

The petitioner’s remaining contentions are without merit. Thompson, J. P., Joy, Goldstein and Florio, JJ., concur.