| Matter of Zirinsky |
| 2007 NY Slip Op 06703 [43 AD3d 946] |
| September 11, 2007 |
| Appellate Division, Second Department |
| In the Matter of the Estate of Ruth Zirinsky, Deceased. RobertZirinsky, Respondent; Linda Zirinsky Gilbert et al., Appellants. Gary B. Freidman, NonpartyAppellant; Michael K. Feigenbaum, Nonparty Respondent. |
—[*1] Greenfield Stein and Senior, LLP, New York, N.Y. (Gary B. Freidman pro se of counsel), forGary B. Freidman, nonparty appellant. Farrell Fritz, P.C., Uniondale, N.Y. (John R. Morken, Ilene S. Cooper, and JacleneD'Agostino of counsel), for petitioner-respondent. Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (Michael K. Feigenbaum pro se andRobert F. Regan of counsel), for nonparty respondent.
In a contested probate proceeding, the objectants, Linda Zirinsky Gilbert and Jill ZirinskyHirsch, appeal, and Gary B. Freidman, as guardian ad litem for Julia Francis Hirsch, EmilyMargaret Hirsch, Kate Lauren Hirsch, Benjamin Samuel Gilbert, and Zachary William Gilbert,separately appeals, from a decree of the Surrogate's Court, Nassau County (Riordan, J.), datedDecember 6, 2005, which granted the proponent's motions for summary judgment dismissing theobjections to probate, denied the objectants' cross motion for additional discovery, and admittedthe will to probate.
Ordered that the decree is affirmed, with one bill of costs payable by the appellants appearingseparately and filing separate briefs.[*2]
The objectants in this probate proceeding are thedaughters of the decedent, Ruth Zirinsky. They contend that their brother, Robert Zirinsky, theproponent of the decedent's will, exercised undue influence over the decedent to induce her todepart from her longstanding estate plan which treated all three children equally, and to insteadexecute a new will in which she exercised a testamentary power of appointment in such a waythat the proponent would receive 50% of the family business and affiliated interests, and theobjectants would each receive 25%. The decedent explained in a letter to her children thataccompanied the will that she loved them "all equally," but had made the difficult decision that itwas "both equitable and in the long term interest of the business that Robert, as the only activeparticipant, should succeed to a larger share." The will was executed within a year after thedecedent had been diagnosed with cancer at the age of 63. The record is undisputed that, for thenext eight years until she died, the decedent continued to reside with her second husband, leadinga full and active life, and remaining close to all her children.
The Surrogate's Court granted the proponent's motions for summary judgment dismissing theobjections to probate of the decedent's will, and we affirm. In support of his motions, theproponent established his prima facie entitlement to judgment as a matter of law by showing,among other things, that the will had been duly executed, that the decedent possessedtestamentary capacity, and that no undue influence or fraud had been exercised upon the decedent(see Matter of Spinello, 291 AD2d 406, 407 [2002]; Matter of Bustanoby, 262AD2d 407, 408 [1999]). In opposition, the objectants and Gary B. Freidman, the guardian adlitem for the objectants' children, contended that an inference of undue influence sufficient torequire a trial arose from the evidence, inter alia, that the proponent, an attorney and cotrusteewith the decedent of trusts established for her benefit, was in a confidential relationship with thedecedent, and that he was involved in selecting the attorney who drafted the will and participatedin the first meeting between the decedent and the attorney draftsman.
For a will to be invalidated based on undue influence, " '[i]t must be shown that the influenceexercised amounted to a moral coercion, which restrained independent action and destroyed freeagency, or which, by importunity which could not be resisted, constrained the testator to do thatwhich was against his free will and desire, but which he was unable to refuse or too weak toresist' " (Matter of Walther, 6 NY2d 49, 53, quoting Children's Aid Socy. of City ofN.Y. v Loveridge, 70 NY 387, 394 [1877]). Undue influence "may . . . beproved by circumstantial evidence, but this evidence . . . must be of a substantialnature" (Matter of Walther, 6 NY2d at 54). The record as a whole establishes that thedecedent, although undergoing treatment for cancer, was alert, strong-minded, and financially,mentally, and emotionally independent when she decided to change her will to favor theproponent, who had actively managed the family real estate business. The fact that the proponentmay have been in a confidential relationship with the decedent (see Matter of Neenan, 35 AD3d475 [2006]) is counterbalanced in this case by the closeness of the family (see Matter ofWalther, supra at 56). No inference of undue influence arises in these circumstances (seeMatter of Fiumara, 47 NY2d 845, 847 [1979]; Matter of Walther, supra; Matter of Ryan, 34 AD3d 212[2006]; Matter of Seelig, 13 AD3d776 [2004]).
The Surrogate's Court also properly dismissed the objection based on fraud, since theobjectants and Freidman failed to submit any evidence that someone "knowingly made a falsestatement to the testator which caused [her] to execute a will that disposed of [her] property in amanner differently than [she] would have in the absence of that statement" (Matter ofEvanchuk, 145 AD2d 559, 560 [1988]; see Matter of Bianco, 195 AD2d 457, 458[1993]; Matter of D'Agostino, 284 AD2d 857, 861). Without a showing that undueinfluence or fraud was actually exercised upon the decedent, [*3]evidence that opportunity and motive existed to exert suchinfluence will not suffice to raise a triable issue as to whether the will reflected the intent of thetestator (see Matter of Fiumara, supra at 847; Matter of Walther, supra).
The objectants and Freidman failed to establish that facts essential to oppose the crossmotion were within the exclusive knowledge of the proponent (see CPLR 3212 [f]; Matter of DiCorcia, 35 AD3d 463[2006]).
The remaining contentions of the objectants and Freidman are without merit. Rivera, J.P.,Ritter, Florio and Fisher, JJ., concur. [See 10 Misc 3d 1052(A), 2005 NY Slip Op51881(U).]