In re the Estate of Goldberg

Appellate Division of the Supreme Court of New York

In re the Estate of Goldberg

180 A.D.2d 528, 580 N.Y.S.2d 655, 1992 N.Y. App. Div. LEXIS 1634

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 18, 1992

StatusPublished

Cited by6 cases

This text of 180 A.D.2d 528 (In re the Estate of Goldberg) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Goldberg, 180 A.D.2d 528, 580 N.Y.S.2d 655, 1992 N.Y. App. Div. LEXIS 1634 (N.Y. Ct. App. 1992).

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Opinion

Decree granting probate, Surrogate’s Court (Renee R. Roth, S.), entered March 29, 1991, which, after granting proponent’s motion for summary judgment against objectant, admitted to probate the Last Will and Testament of Simon A. Goldberg and decreed that letters testamentary and letters of trusteeship be issued to proponent, unanimously affirmed, without costs.

The sole issue raised on appeal by objectant decedent’s widow is that she was entitled to a trial on her claim of undue influence. We affirm for the reasons stated on that issue by the Surrogate in her decision dated February 13, 1991, and would add that the facts alleged by objectant to establish a triable issue of undue influence fall far short of the requisite showing of moral coercion that restrains independent action and destroys free will (Matter of Kumstar, 66 NY2d 691, 693, rearg denied 67 NY2d 647).

We also note that objectant’s argument that she should not be deprived of a jury trial because of the failure of her witnesses to come forward until after the motion was made is unsupported by evidence that any witnesses were present at the making of the will other than those who were deposed pursuant to SCPA 1404. In any event, such an argument is more appropriate in the first instance to a motion for leave to renew pursuant to CPLR 2221. Concur—Sullivan, J. P., Carro, Rosenberger, Kassal and Rubin, JJ.

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Decree granting probate, Surrogate’s Court (Renee R. Roth, S.), entered March 29, 1991, which, after granting proponent’s motion for summary judgment against objectant, admitted to probate the Last Will and Testament of Simon A. Goldberg and decreed that letters testamentary and letters of trusteeship be issued to proponent, unanimously affirmed, without costs.

The sole issue raised on appeal by objectant decedent’s widow is that she was entitled to a trial on her claim of undue influence. We affirm for the reasons stated on that issue by the Surrogate in her decision dated February 13, 1991, and would add that the facts alleged by objectant to establish a triable issue of undue influence fall far short of the requisite showing of moral coercion that restrains independent action and destroys free will (Matter of Kumstar, 66 NY2d 691, 693, rearg denied 67 NY2d 647).

We also note that objectant’s argument that she should not be deprived of a jury trial because of the failure of her witnesses to come forward until after the motion was made is unsupported by evidence that any witnesses were present at the making of the will other than those who were deposed pursuant to SCPA 1404. In any event, such an argument is more appropriate in the first instance to a motion for leave to renew pursuant to CPLR 2221. Concur—Sullivan, J. P., Carro, Rosenberger, Kassal and Rubin, JJ.

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Bluebook (online)

180 A.D.2d 528, 580 N.Y.S.2d 655, 1992 N.Y. App. Div. LEXIS 1634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-goldberg-nyappdiv-1992.

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