| Matter of Chi-Chuan Wang |
| 2018 NY Slip Op 04090 [162 AD3d 447] |
| June 7, 2018 |
| Appellate Division, First Department |
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| In the Matter of the Estate of Chi-Chuan Wang, Deceased.Andrew Wang et al., Appellants; Yien Koo Wang King, Respondent. |
Kamerman, Uncyk, Soniker & Klein P.C., New York (Akiva Meir Cohen of counsel),for appellants.
Sam P. Israel P.C., New York, for (Sam P. Israel of counsel), for respondent.
Decree, Surrogate's Court, New York County (Rita Mella, S.), entered May 9, 2017, which,upon a jury verdict, denying probate to an instrument dated February 18, 2003, dismissingproponents-appellants' cross petition, and revoking the preliminary letters issued to AndrewWang, and bringing up for review an order, same court (Kristin Booth Glen, S.), entered April20, 2010, which denied proponents' motion for summary judgment, unanimously affirmed, withcosts.
The court properly denied proponents' motion for summary judgment, finding that objectantraised triable issues of fact as to decedent's testamentary capacity when he executed the Codiciland 2003 Will, and as to undue influence and fraud (see Matter of Kumstar, 66 NY2d691, 692 [1985]; Matter of Eastman,63 AD3d 738, 740 [2d Dept 2009]).
A jury verdict may not be set aside unless it plainly appears that the evidence sopreponderates in favor of the losing side that it could not have been reached on any fairinterpretation of the evidence. The evidence before the jury must be viewed in the light mostfavorable to the successful party and must be sufficient as a matter of law to sustain the verdict asto each specific question submitted to the jury (see Matter of S. Kornblum Metals Co. v IntselCorp., 38 NY2d 376, 379 [1976]).
Here, proponents challenge the documents and testimony admitted into evidence concerningsettlement negotiations in Shanghai at which proponent provided objectant with paintings hedenied having taken from decedent's bank vault. Although CPLR 4547 precludes presentation ofevidence of settlement negotiations, it expressly exempts exclusion of evidence, which isotherwise discoverable, solely because such evidence was presented during the course ofsettlement negotiations.
The list of paintings that was signed by proponent as part of the settlement conference inShanghai was admitted into evidence because it included a factual admission that proponentpossessed a painting that he accused objectant of stealing. Thus, its use at trial was permissible,notwithstanding that the factual statement was contained in a settlement document (see PRG Brokerage Inc. v AramarineBrokerage, Inc., 107 AD3d 559, 560 [1st Dept 2013]).
Proponents also challenge the court's missing witness charge with respect to two ofdecedent's treating doctors in the hospital and the attorney who drafted the will. The court did notimprovidently exercise its discretion in providing a missing witness charge with respect todecedent's treating doctors. The court's missing witness charge with respect to the attorney,Jerome Kamerman, was in error. Mr. Kamerman was living in Florida at the time of trial and wasunavailable to proponents (see Zeeck v Melina Taxi Co., 177 AD2d 692, 694 [2d Dept1991] [Proof that a witness is beyond the jurisdiction of the court is ordinarily sufficient to barthe [*2]inference as a matter of law]; People v Gonzalez,68 NY2d 424, 428 [1986]). In light of the testimony at trial regarding decedent's testamentarycapacity, we find the error to be harmless as a matter of law (see CPLR 2002;Nestorowich v Ricotta, 97 NY2d 393, 401 [2002] ["viewing the charge as a whole, and inlight of the evidence presented, counsel's arguments and the otherwise proper jury instructions,there is no indication that the 'error in judgment' charge clouded the issue or negativelyinfluenced the jury's determination"]).
Finally, proponents challenge the testimony of objectant's expert because his opinion wasbased in part on conversations with objectant regarding decedent's mental capacity. Apsychiatrist's opinion may be received in evidence even though some of the information on whichit is based is inadmissible hearsay, if the hearsay is "of a kind accepted in the profession asreliable in forming a professional opinion, or if it comes from a witness subject to fullcross-examination on . . . trial" (People v Goldstein, 6 NY3d 119, 124 [2005], cert denied547 US 1159 [2006] [internal quotation marks omitted]). The court properly permitted the expertto testify, despite his conversations with objectant, since she was subject to fullcross-examination at trial.
We have considered proponents' remaining arguments and find them unavailing.Concur—Manzanet-Daniels, J.P., Tom, Andrias, Kapnick, Singh, JJ.