| Matter of James |
| 2009 NY Slip Op 03732 [62 AD3d 707] |
| May 5, 2009 |
| Appellate Division, Second Department |
| In the Matter of the Estate of John James, Also Known as AnthonyJohn James, Deceased. Lordlin Primus, Respondent; Beryl James et al.,Appellants. |
—[*1] Greenberg & Wilner, LLP, New York, N.Y. (Harvey L. Greenberg of counsel), forrespondent.
In a contested probate proceeding, the objectants appeal from (1) an order of the Surrogate'sCourt, Kings County (Torres, S.), dated January 8, 2008, which granted the proponent's motionfor summary judgment dismissing the objections to probate and admitting the will to probate,and denied their cross motion to disqualify the beneficiaries and dismiss the probate petition, and(2) a decree of the same court dated September 17, 2008, which, upon the order, admitted thewill to probate. The notice of appeal from the order is deemed to also be a notice of appeal fromthe decree (see CPLR 5501 [c]).
Ordered that the order and the decree are affirmed, with one bill of costs.
In opposition to the proponent's prima facie demonstration of entitlement to judgment as amatter of law dismissing the objections to probate and admitting the will to probate, theobjectants failed to raise a triable issue of fact as to testamentary capacity, undue influence, orfraud (see Matter of Fiumara, 47 NY2d 845, 846-847 [1979]; Matter of Zirinsky, 43 AD3d 946,947-948 [2007]; Matter of Haley,38 AD3d 894, 895 [2007]; Matter of Leach, 3 AD3d 763, 765 [2004]; Matter of Hedges,100 AD2d 586, 588 [1984]). Accordingly, the Surrogate's Court properly granted theproponent's motion.[*2]
The objectants' contention that the probate petitionshould have been dismissed because the proponent failed to produce one of the beneficiaries iswithout merit. In 2004 this Court determined that summary judgment for the proponent withrespect to testamentary capacity, undue influence, and fraud was premature due to lack ofdiscovery (see Matter of James, 5AD3d 487, 489 [2004]). The objectants have now deposed the executor, the draftingattorney, the two witnesses to the execution of the will, and all but one of the beneficiaries. Thewhereabouts of the sole beneficiary yet to be deposed are unknown, and she is not within thecontrol of anyone involved in the proceedings (see Karras v County of Westchester, 71AD2d 878 [1979]). Moreover, there is no need for additional discovery. The objectants'contention that the missing beneficiary, who was a child when the will was executed, hasinformation relevant to this matter is purely speculative (see Matter of Korn, 25 AD3d 379, 380 [2006]; Matter ofLeach, 3 AD3d at 766; Matter of Wilson, 266 AD2d 164 [1999]; Friend vRegina, 189 AD2d 853 [1993]). Accordingly, the Surrogate's Court properly denied theobjectants' cross motion.
The objectants' remaining contentions are without merit. Mastro, J.P., Skelos, Santucci andHall, JJ., concur.