| Matter of Chin |
| 2010 NY Slip Op 09259 [79 AD3d 867] |
| December 14, 2010 |
| Appellate Division, Second Department |
| In the Matter of the Estate of Victor Chin, Deceased. Monica Chin,Respondent; Susan Chin, Appellant, et al., Objectants. |
—[*1] David Scott, New York, N.Y. (Paul Biedka of counsel), for petitioner-respondent.
In a contested probate proceeding, Susan Chin, an objectant, appeals (1), as limited by her brief,from so much of an order of the Surrogate's Court, Kings County (Torres, S.), dated September 15,2009, as directed that the subject will be admitted to probate and denied the objectants' cross motionto declare their waivers and consents to probate void, and (2) from an order of the same court alsodated September 15, 2009, which denied the objectants' motion for summary judgment dismissing thepetition for probate on the ground that the motion was academic.
Ordered that the order dated September 15, 2009, inter alia, admitting the subject will to probateis affirmed insofar as appealed from; and it is further,
Ordered that the order dated September 15, 2009, denying the objectants' motion for summaryjudgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the petitioner-respondent payable by the appellantpersonally.
The decedent, Victor Chin, died on January 10, 1995, survived by three children from his firstmarriage (hereinafter collectively the objectants), his second wife of 30 years (hereinafter thepetitioner), their two sons, and two daughters born out of wedlock.
In 2001, the petitioner obtained waivers and consents to probate from all of the decedent's sevenchildren, including the objectants, of a will dated November 3, 1994 (hereinafter the will). Thepetitioner also obtained acknowledgments from the objectants that they received the bequests providedin the will.
The petitioner filed a petition dated September 5, 2006, for probate of the will. The will named thepetitioner as executor of the decedent's estate, provided specific bequests to each of the decedent'schildren, and bequeathed the residuary estate to the petitioner. The objectants filed objections toprobate dated May 27, 2009, based, inter alia, on allegations that the will was the [*2]product of fraud and undue influence and had been altered. The petitionermoved to dismiss the objections and admit the will to probate based on the waivers and consents andthe acknowledgments which the objectants executed in 2001.
"Under CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submittedconclusively establishes a defense to the asserted claims as a matter of law" (Leon v Martinez,84 NY2d 83, 88 [1994]; Goldfarb vSchwartz, 26 AD3d 462 [2006]). Contrary to the appellant's contention, the waivers andconsents which the objectants executed resolved all the factual issues as a matter of law andconclusively disposed of their contentions that their waivers and consents to probate were procured byfraud or overreaching, misrepresentation or other misconduct, or clerical error (see Matter of Coccia, 59 AD3d 716,717 [2009]). The Surrogate properly admitted the will to probate based on her finding that thewill was genuine and validly executed, and that, at the time of execution, the decedent was competentto make a will and not under any restraint (see SCPA 1408 [1]).
We likewise find that, even if the objectants' motion for summary judgment was not renderedacademic by the admission of the will to probate, the motion was subject to denial because theobjectants failed to make a prima facie showing of their entitlement to summary judgment on the groundthat the will was altered (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985];Qlisanr, LLC v Hollis Park Manor NursingHome, Inc., 51 AD3d 651, 652 [2008]).
The appellant's remaining contentions are without merit. Fisher, J.P., Angiolillo, Belen and Austin,JJ., concur.