| Matter of Capuano |
| 2012 NY Slip Op 01673 [93 AD3d 666] |
| March 6, 2012 |
| Appellate Division, Second Department |
| In the Matter of Maria Capuano, Deceased. Franco Niola,Petitioner; Narcola Sarno, Appellant; Carmine Noschese,Respondent. |
—[*1] Naved Amed, New York, N.Y., for objectant-respondent.
In a contested probate proceeding, the petitioner appeals from an order of the Surrogate'sCourt, Kings County (Johnson, S.), dated November 10, 2010, which denied his renewed motion,in effect, for summary judgment dismissing the objection to probate based on fraud and undueinfluence.
Ordered that the order is reversed, on the law, with costs payable by the objectant personally,and the petitioner's renewed motion, in effect, for summary judgment dismissing the objection toprobate based on fraud and undue influence is granted.
The decedent, Maria Capuano (hereinafter the decedent), while undergoing treatment forcancer, died unexpectedly at the age of 76 during a visit with her family in Salerno, Italy, onApril 30, 2002. The decedent was a longtime resident of Brooklyn, survived by, among others, asister and brother living in Italy, as her distributees under the Estates, Powers and Trusts Law.The decedent's estate consisted of her home in Brooklyn.
On April 9, 2002, the decedent had executed a will (hereinafter the will) at the nearby officeof her attorney and lifetime acquaintance, which left her estate to Nicola Sarno (hereinafter theappellant), who lived in Italy with his wife, the daughter of the decedent's sister, and who knewthe decedent from her visits to her sister in Italy throughout his 25-year marriage to the decedent'sniece. The will also provided that the decedent's friend and accountant was nominated theexecutor of the estate, and that if the appellant predeceased the decedent, the estate passed to hisheirs in accordance with his will.
The will was offered for probate in the Surrogate's Court, Kings County. The decedent'sbrother, Mario Capuano, filed objections to probate based on, among other things, fraud andundue influence. After Mario's death, his heir, Carmine Noschese (hereinafter the objectant) filedsupplemental objections to probate. The appellant moved for summary judgment dismissing theobjections to probate. In an order dated January 13, 2010, the Surrogate's Court granted the [*2]motion to the extent of dismissing all the objections to probateexcept for the objection based on fraud and undue influence, and denied that branch of themotion which was for summary judgment dismissing that objection without prejudice to renewalon the completion of discovery. After his deposition was completed, the appellant filed arenewed motion, in effect, for summary judgment dismissing the objection to probate based onfraud and undue influence. The Surrogate's Court denied the renewed motion. Sarno appeals, andwe reverse.
An objectant seeking to establish an objection to the probate of a will based on undueinfluence must show that "the influence exercised amounted to a moral coercion, whichrestrained independent action and destroyed free agency, or which, by importunity which couldnot be resisted, constrained the testator to do that which was against his free will and desire, butwhich he was unable to refuse or too weak to resist" (Matter of Zirinsky, 43 AD3d 946, 947-948 [2007] [internalquotation marks omitted]; see Matter of Walther, 6 NY2d 49, 53 [1959]; Matter of Eastman, 63 AD3d 738,740 [2009]). An objectant seeking to establish that a will is the product of fraud has the burden ofproving by clear and convincing evidence that the proponent of the will knowingly made falsestatements to the testator to induce him or her to make a will which disposed of property in amanner different from that in which the testator would otherwise have disposed of the property(see Matter of Eastman, 63 AD3d at 740; Matter of Klingman, 60 AD3d 949 [2009]; Matter ofZirinsky, 43 AD3d at 948).
The appellant established his prima facie entitlement to judgment as a matter of lawdismissing the objection to probate based on fraud and undue influence by demonstrating, interalia, that the decedent understood the will, and that the will was not the product of undueinfluence or fraud (see Matter of Eastman, 63 AD3d at 740; Matter of Klingman,60 AD3d at 950). Although the decedent was undergoing treatment for cancer at the time of herunexpected death, the witnesses who knew the decedent for many years, and interacted with heralmost daily, established that she was alert, did not appear to be ill, and was her usual self whenshe executed the will bequeathing her estate to the appellant.
In opposition, the objectant failed to raise a triable issue of fact (see Zuckerman v City ofNew York, 49 NY2d 557 [1980]), since his opposition was based on allegations which wereconclusory, speculative, and unsupported by admissible evidence (see Matter ofKlingman, 60 AD3d at 950; Matterof Dubin, 54 AD3d 945 [2008]; Matter of Bustanoby, 262 AD2d 407, 408[1999]).
Accordingly, the appellant's renewed motion, in effect, for summary judgment dismissing theobjection to probate based on fraud and undue influence should have been granted. Dillon, J.P.,Florio, Chambers and Roman, JJ., concur.