| Matter of Engelhardt |
| 2011 NY Slip Op 07636 [88 AD3d 997] |
| October 25, 2011 |
| Appellate Division, Second Department |
| In the Matter of Alfred Engelhardt, Deceased. Alyssa Hellman,Respondent; Ellen Engelhardt, Appellant. |
—[*1] Connors and Sullivan, P.C., Brooklyn, N.Y. (Miles J. M. Stewart of counsel), forrespondent.
In a contested probate proceeding, the objectant appeals, as limited by her brief, from somuch of a decree of the Surrogate's Court, Queens County (Nahman, S.), entered February 17,2010, as, upon an order of the same court dated January 29, 2010, granting that branch of thepetitioner's motion which was for summary judgment dismissing the objections to probate basedon undue influence, admitted the subject will to probate. The notice of appeal from the order isdeemed to be a notice of appeal from the decree (see CPLR 5512 [a]).
Ordered that the decree is affirmed insofar as appealed from, with costs payable by theobjectant personally.
In his last will and testament dated September 18, 2003, the decedent, who died on July 29,2007, bequeathed his estate to Alyssa Hellman (hereinafter the proponent), who filed a petitionfor probate and sought the issuance of letters testamentary. The propounded will referred to thedecedent's daughter, Ellen Engelhardt (hereinafter the objectant), and named her as a contingentbeneficiary of the estate in the event that the proponent predeceased the decedent. The objectantfiled objections to probate which alleged, inter alia, that the execution of the propounded willwas procured by the proponent's exercise of undue influence.
To vitiate a will on the ground of undue influence, "it must be shown that the influenceexercised amounted to a moral coercion, which restrained independent action and destroyed freeagency, or which, by importunity which could not be resisted, constrained the testator to do thatwhich was against his free will and desire, but which he was unable to refuse or too weak toresist" (Children's Aid Socy. of City of N.Y. v Loveridge, 70 NY 387, 394 [1877]; seeMatter of Walther, 6 NY2d 49, 53 [1959]; Matter of Eastman, 63 AD3d 738, 740 [2009]; Matter of Zirinsky, 43 AD3d 946,948 [2007]; Matter of Greenberg,34 AD3d 806, 807 [2006]).
Here, the proponent established her prima facie entitlement to judgment as a matter of lawbased on evidence which demonstrated, inter alia, that "the will had been duly executed, that[*2]the decedent possessed testamentary capacity, and that noundue influence or fraud had been exercised upon the decedent" (Matter of Zirinsky, 43AD3d at 947; see Matter of Walther, 6 NY2d at 54; Matter of Eastman, 63 AD3dat 740). In opposition thereto, the objectant failed to raise a triable issue of fact (see Matter of Marin, 82 AD3d 982[2011]; Matter of Mooney, 74AD3d 1073 [2010]; Matter ofScher, 74 AD3d 827 [2010]; Matter of Imperato, 67 AD3d 909 [2009]). Accordingly, theSurrogate's Court properly granted that branch of the proponent's motion which was for summaryjudgment dismissing the objections to probate based on undue influence.
The objectant's remaining contentions are without merit. Dillon, J.P., Eng, Sgroi and Miller,JJ., concur.