| Matter of Malone |
| 2007 NY Slip Op 09646 [46 AD3d 975] |
| December 6, 2007 |
| Appellate Division, Third Department |
| In the Matter of the Estate of Janet M. Malone, Deceased. Clyde F.Matteson, Jr., et al., Respondents; Gloria B. Cole et al., Appellants, et al.,Respondents. |
—[*1] Ross Law Offices, Middleburgh (Thomas F. Garner of counsel), for June HazardWeinheimer, appellant. Woods, Oviatt & Gilman, L.L.P., Rochester (Gordon S. Dickens of counsel), for Clyde F.Matteson, Jr., and others, respondents.
Mugglin, J. Appeal from an order of the Surrogate's Court of Chenango County (Sullivan,S.), entered February 13, 2007, which granted petitioners' motion for summary judgmentdismissing the objections to decedent's will, and admitted the will to probate.
Janet M. Malone (hereinafter decedent) died testate in June 2005, leaving a last will andtestament dated January 9, 2004. She was survived by three of her seven siblings and severalnieces, nephews, grandnieces and grandnephews. Petitioners filed a petition to admit the will toprobate and respondents filed objections thereto, claiming lack of testamentary capacity, lack ofdue execution and undue influence. A hearing was conducted pursuant to SCPA 1404 to examinethe attesting witnesses to the will. Thereafter, petitioners moved for summary judgmentdismissing all objections. Respondents opposed the motion only with respect to the objection of[*2]undue influence, thereby abandoning the other objections.Surrogate's Court granted petitioners' motion for summary judgment dismissing respondents'objections. Eight of the respondents (hereinafter collectively referred to as respondents) appealand assert two arguments, one procedural and one substantive.
Procedurally, respondents argue that it was error for Surrogate's Court, in awarding summaryjudgment to petitioners, to rely on testimony heard at the SCPA 1404 hearing because, except forminor excerpts, the transcript of that hearing was not submitted either in support of or inopposition to the motion for summary judgment. We granted petitioners' motion to file thetranscript as a supplemental record on appeal, reserving to respondents the right to argue thisissue.
Pursuant to CPLR 3212 (b), a motion for summary judgment shall be granted if, based on allthe "papers and proof submitted," there exists no triable issue of fact. To this end, the generalrule has evolved that trial courts may not base a summary judgment decision on facts outside therecord, independent knowledge, or other proceedings held before it (see e.g. Matter of Kelly vSafir, 96 NY2d 32, 39 [2001]; Madden v Dake, 30 AD3d 932, 936-937 [2006]; Vermont Fed.Bank v Chase, 226 AD2d 1034, 1035-1036 [1996]; see also McFarland v Michel, 2 AD3d 1297, 1298 [2003];Matter of La Bier v La Bier, 291 AD2d 730, 732 [2002], lv dismissed 98 NY2d671 [2002]; Klembczyk v DiNardo, 265 AD2d 934, 934 [1999]; Silberman vAntar, 236 AD2d 385, 385 [1997]; Terner v Terner, 44 AD2d 702, 702 [1974]).Nevertheless, in the broader context of the will contest, the transcript of the SCPA 1404 hearingis part of the record before the court. In fact, petitioners aver that they did not attach a copy of thetranscript to their motion papers because Surrogate's Court was already in possession of it.Therefore, it is only in the most technical sense that respondents allege that Surrogate's Courtwent outside of the record in awarding summary judgment to petitioners.
Moreover, both sides were fully aware of the testimony adduced at the SCPA 1404 hearing,both referred to it in their memoranda of law submitted to Surrogate's Court on the summaryjudgment motion and both have attached excerpts from it in their original appellate papers in thisCourt. Under these circumstances, the parties charted their own course and, as no party has beenprejudiced, it was not error for Surrogate's Court to have considered this testimony. Notably,respondents failed to raise this objection before Surrogate's Court either by making a motion toreargue or otherwise.
Addressing the substantive issue, respondents contend that summary judgment should havebeen denied because issues of fact exist as to whether decedent was subject to undue influence inmaking her will. To establish undue influence, the burden is on the objectant to show that theinfluencing party's actions are so pervasive that the will is actually that of the influencer, not thatof the decedent (see Matter of Clapper, 279 AD2d 730, 732 [2001]; Matter of Seelig, 13 AD3d 776,777 [2004], lv denied 4 NY3d 707 [2005]). The influence must rise to a level where it "'amount[s] to a moral coercion, which restrained independent action and destroyed free agency,or which, by importunity which could not be resisted, constrained the testator to do that whichwas against his [or her] free will and desire, but which he [or she] was unable to refuse or tooweak to resist' " (Matter of Walther, 6 NY2d 49, 53 [1959], quoting Children's AidSocy. of City of N.Y. v Loveridge, 70 NY 387, 394-395 [1877]; see Matter of Fellows, 16 AD3d995, 996 [2005]). Facts must be sufficiently set forth to show that the influencing party had amotive to influence, the opportunity to influence, and that such influence was actually exercised(see Matter of Fellows, 16 AD3d at 996).[*3]
While undue influence can rarely be shown by directproof, "there must be affirmative evidence of facts and circumstances from which the exercise ofsuch undue influence can fairly and necessarily be inferred" (Matter of Bundy, 217 AppDiv 607, 612 [1926] [internal quotation marks omitted]). Simply "[c]onclusory allegations andspeculation" without specificity as to times, dates, and places are insufficient to raise an issue offact as to undue influence (Matter of Young, 289 AD2d 725, 727 [2001] [internalquotation marks and citation omitted]; see Matter of Ruparshek, 36 AD3d 998, 1000 [2007]).Furthermore, if the circumstantial evidence offered would support conflicting inferences, aconclusion of undue influence cannot be made (see Matter of Fiumara, 47 NY2d 845,846 [1979]; Matter of Walther, 6 NY2d at 54). Absent an abuse of discretion, thedetermination of Surrogate's Court will be upheld (see Matter of Young, 289 AD2d at726).
Here, in essence, respondents argue that undue influence can be inferred from a "radical"change in decedent's testamentary plan after she reconciled with her brother, petitioner Clyde F.Matteson, Jr., who had both motive and opportunity to unduly influence her while driving herfrom the City of Norwich, Chenango County, to the City of Binghamton, Broome County, forchemotherapy and radiation treatments which left her in a weakened condition. Acknowledging,without conceding, that motive and opportunity may exist, petitioners argue, nevertheless, thattheir proof demonstrates that no issue of fact exists that Matteson actually exercised undueinfluence and that respondents' allegations are simply conclusory and speculative. Our review ofthe record leads us to the same conclusion. First, we do not perceive the change in testamentaryplan to be all that radical. The major difference between the earlier version of decedent's will andthe one submitted for probate is that the residue is left to different relatives. In the current will,along with two other 20% shares, 20% of the residue is left to Matteson's daughter, 20% to hisson, and 20% to his granddaughter. Notably, Matteson does not personally share in the residue.The testamentary plan is not an unnatural one and it is equally as inferable that decedent favoredsome of her relatives more than others as it is that her plan was changed because of undueinfluence. Beyond this, the record demonstrates that petitioners did not draft or dictate the will,they were not present when the will was discussed nor were they present when the will wasexecuted. Nor did they have control over decedent's daily activities or her financial affairs(see Matter of Buchanan, 245 AD2d 642, 643 [1997], lv dismissed 91 NY2d 957[1998]).
As a final matter, although respondents have submitted some evidence to establish thatdecedent was, at times, in a weakened or confused state, we note that some of this evidencepostdates the execution of the will and it is otherwise largely refuted by the affidavit ofdecedent's treating physician. Moreover, as the record lacks any evidence that undue influencewas actually exercised in connection with the preparation and execution of the will at issue,decedent's weakened state is neither relevant nor material.
Mercure, J.P., Spain, Carpinello and Kane, JJ., concur. Ordered that the order is affirmed,with costs.