In Crawn v. Sayah, 31 AD3d 367, 819 N.Y.S.2d 61 (2d Dept 2006), the plaintiff sought to cancel a deed executed by a decedent on the ground that the decedent lacked mental capacity (see id. at 368 Miller, J., concurring in part and dissenting in part.)

The complaint alleged that decedent was 79 years old, was suffering from a critical illness and from "an extreme form of dementia" with "no understanding of the nature of his surroundings." (Id. at 368-369.)

It was further alleged that, while decedent was in such condition, the defendant removed him from a health care facility and transported him to an attorney's office where the decedent executed a deed.

On the defendant's motion for summary judgment, the Second Department held that the defendant met her prima facie burden, establishing that the deed was properly executed through the submission of the "affirmation of the attorney who prepared the deed and witnessed its execution". (See id. at 368.)

The defendant was not required to submit any evidence regarding the decedent's mental condition at the time of execution of the deed as part of her prima facie showing on summary judgment. (See id. at 369 Miller, J., concurring in part and dissenting in part.)

The majority, responding to criticism from the dissent that "the majority confuse the ultimate burden of proof at trial, on the one hand, with the shifting burdens that are involved on a motion for summary judgment, on the other hand" (see id. at 370), notes that "a party's competence is presumed and the party asserting incapacity bears the burden of proving incompetence" (id..)