| Matter of Mooney |
| 2010 NY Slip Op 05401 [74 AD3d 1073] |
| June 15, 2010 |
| Appellate Division, Second Department |
| In the Matter of Rosemary Mooney, Deceased. George Mooney,Appellant; Theresa McIntyre, Respondent. |
—[*1] Stephen G. Levy, Albany, N.Y., for respondent.
In a contested probate proceeding, the objectant appeals (1) from an order of the Surrogate'sCourt, Richmond County (Gigante, S.), dated March 6, 2009, which, inter alia, granted thepetitioner's motion for summary judgment, dismissed the objections to probate, reinstated apreviously vacated decree which admitted to probate the decedent's will dated December 20,2005, and denied that branch of his cross motion which was for summary judgment dismissingthe probate petition, and (2), as limited by his brief, from so much of an order of the same courtdated July 7, 2009, as, upon reargument, adhered to the original determination in the order datedMarch 6, 2009.
Ordered that the appeal from the order dated March 6, 2009, is dismissed, as that order wassuperseded by the order dated July 7, 2009, made upon reargument; and it is further,
Ordered that the order dated July 7, 2009, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the petitioner.
Rosemary Mooney (hereinafter the decedent) died on December 29, 2005, at the age of 82,at Staten Island University Hospital, survived by four sons. Two days after she was admitted tothe hospital on December 18, 2005, she executed a will that her nephew had previously draftedat her request, in a ceremony that he supervised at the hospital in the presence of the decedent'stwo nieces. Under the terms of the will dated December 20, 2005, the decedent's sister wasappointed the executor of the estate, her son George received the real property which thedecedent owned in New Jersey, half of the net proceeds from the sale of her Staten Islandresidence, half of her personal property, and half of the residuary estate, while the remainder ofthe estate was divided equally among the decedent's sister, her daughter-in-law, and threegrandchildren.[*2]
Six months after the will was admitted to probate, theSurrogate permitted George (hereinafter the objectant) to withdraw his consent to probate andfile objections to probate based on lack of due execution, lack of testamentary capacity, fraud,and undue influence.
Following discovery, the petitioner-executor moved for summary judgment dismissing theobjections to probate. The objectant opposed the motion and cross-moved, inter alia, forsummary judgment dismissing the probate petition.
The petitioner made a prima facie showing that the propounded will was duly executedpursuant to EPTL 3-2.1 (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]) by submitting thedeposition testimony of the attorney-drafter and the two witnesses to the will, neither of whomwas a beneficiary under the will, regarding the events preceding the will execution and theceremony supervised by the attorney-drafter. The attestation clause and self-proving affidavitaccompanying the propounded will also gave rise to a presumption of compliance with thestatutory requirements (see Matter of Collins, 60 NY2d 466, 471 [1983]; Matter of Malan, 56 AD3d 479[2008]; Matter of Moskoff, 41AD3d 481 [2007]). In opposition to the petitioner's prima facie showing of entitlement tojudgment as a matter of law dismissing the objection alleging that the will was not dulyexecuted, the unsupported assertion of the objectant's experts that the decedent's signature on thewill was forged was insufficient to raise a triable issue of fact (see Matter of James, 17 AD3d366 [2005]; Matter of Herman, 289 AD2d 239, 240 [2001]).
The petitioner also established that the decedent understood the nature and consequences ofmaking a will, the nature and extent of her property, and the natural objects of her bounty(see Matter of Kumstar, 66 NY2d 691 [1985]). In opposition, the objectant failed to raisea triable issue of fact regarding the decedent's alleged lack of testamentary capacity (see Matter of Tuccio, 38 AD3d791 [2007]; Matter ofWeinberg, 1 AD3d 523, 524 [2003]; Matter of Rosen, 291 AD2d 562 [2002]).
The objectant also failed to raise a triable issue of fact in opposition to the petitioner's primafacie showing of entitlement to judgment as a matter of law dismissing the objections allegingfraud and undue influence. These objections rested on the objectant's pure speculation that suchissues may arise if the decedent's signature was forged and she lacked testamentary capacity,which have been determined to be without merit (see Matter of Eastman, 63 AD3d 738, 740 [2009]; Matter of Klingman, 60 AD3d949, 950 [2009]).
The objectant's remaining contention is without merit. Fisher, J.P., Lott, Austin and Sgroi,JJ., concur.