| Matter of Dubin |
| 2008 NY Slip Op 07125 [54 AD3d 945] |
| September 23, 2008 |
| Appellate Division, Second Department |
| In the Matter of the Estate of Sylvia Dubin, Deceased. SusanBrooks et al., Respondents; Joan Levine, Appellant, et al.,Respondents. |
—[*1] Proskauer Rose LLP, New York, N.Y. (Leonard S. Baum and Erin C. Durba of counsel) andFarrell Fritz, P.C., Uniondale, N.Y. (Ilene Cooper of counsel), for petitioners-respondents (onebrief filed).
In a contested probate proceeding, the objectant Joan Levine, appeals as limited by her brief,from so much of a decree of the Surrogate's Court, Nassau County (Riordan, S.), dated April 5,2007, as granted that branch of the petitioners' motion which was for summary judgmentdismissing her objections to probate and admitted to probate the last will and testament of SylviaDubin dated November 5, 1996, and a codicil dated December 9, 2001.
Ordered that the decree is affirmed insofar as appealed from, with costs.
The decedent Sylvia Dubin died in 2004 leaving behind a sizeable estate. One significantasset of the estate is the decedent's stock in the Slant/Fin company. This contested probateproceeding, which has exposed long-standing family rivalries, concerns, inter alia, thedistribution of that stock as between the children of the decedent's two sisters. The petitioners,Susan Brooks and Richard Brooks, are the children of the decedent's sister Delcy Brooks. Theobjectant Joan Levine is the child of the decedent's sister Mollie Levine, who predeceased thedecedent. The petitioners offered for probate two written instruments—the last will andtestament of Sylvia Dubin dated November 5, 1996 (hereinafter the will), and a codicil datedDecember 9, 2001 (hereinafter the December codicil). The December codicil revoked all priorcodicils and, in effect, republished the will. The objectant filed objections to both the will and the[*2]December codicil, alleging that both were the product ofundue influence and fraud. After extensive disclosure, the petitioners moved, inter alia, forsummary judgment dismissing the objections. In the decree appealed from, the Surrogate, amongother things, granted that branch of the motion which was for summary judgment dismissing theobjections and admitted the will and the December codicil to probate. We affirm the decreeinsofar as appealed from.
In opposition to the petitioners' prima facie demonstration of entitlement to judgment as amatter of law dismissing the objections and admitting the will and December codicil to probate,the objectant failed to raise a triable issue of fact as to undue influence or fraud (see Matter of Coopersmith, 48 AD3d562 [2008]; see generally Matter of Walther, 6 NY2d 49, 53 [1959]; Matter of Zirinsky, 43 AD3d 946[2007]). Indeed, as to the will, for example, the objectant admitted that she had no personalknowledge of a specific instance of undue influence being exercised over the decedent, or of afalse statement being made to her. Rather, the objectant testified, it was the "overall atmosphere"surrounding the situation that led her to believe that there may have been undue influence. Inparticular, she heard that the petitioners or their mother might have exaggerated the amount ofmoney she had inherited from her mother (Mollie), and might have suggested that she wouldspend an inheritance in a frivolous manner, i.e., leaving it "to the dogs and to the cats." Thesespeculative allegations were insufficient to raise a triable issue of fact as to undue influence orfraud.
The objectant also described the execution of the will at the offices of the decedent's counselProskauer Rose LLP (hereinafter Proskauer Rose) as "a little too close for comfort." This wasbecause Bradley Ruskin, the husband of the petitioner Susan Brooks, was a partner at ProskauerRose. However, the attorney draftsman Henry Leibowitz testified that he drafted the will withoutany involvement by Ruskin or any other party, and only after he spoke alone with the decedentwho, to his knowledge, arrived unaccompanied at his office. Further, he testified, the will wasdrafted based on the decedent's then-existing will and a list of assets she brought to the meeting.Finally, the will was consistent with the trend evidenced by her prior wills, and provided for thedisposition of her property in a manner similar to her then-existing will, which the objectantagreed was "fair if not generous" to her, and which was drafted and executed by a prior attorneywith no connection to any party. Thus, on the facts presented, that the will was drafted by anattorney working for the same law firm as the husband of the petitioner Susan Brooks did notraise a triable issue of fact as to undue influence (see Matter of Walther, 6 NY2d 49[1959]).
The parties' remaining contentions are without merit. Ritter, J.P., Miller, Dillon andMcCarthy, JJ., concur.