In re the Estate of Hauck

—Order, Surrogate’s Court, New York County (Eve Preminger, S.), entered on or about July 8, 1993, which, after hearing, dismissed the petition to compel delivery of a certain 1948 painting by Jackson

For reasons similar to those stated in Matter of Hauck (200 AD2d 405 [decided herewith]), the evidence presented at the hearing concerning the 1948 painting does 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 testimony at the 1993 hearing was equally consistent with a wish that the Pollock painting be taken for safe-keeping (as was admittedly the case with the work of another artist, taken by the putative donee at the same time) as it was with a donative intent. It was also consistent with the claimant’s status as a specific legatee of the painting under decedent’s will.

We have considered the appellant’s remaining arguments, and find them to be without merit. Concur — Sullivan, J. P., Carro, Wallach and Asch, JJ.