In re the Estate of Pennino

Appellate Division of the Supreme Court of New York

In re the Estate of Pennino

289 A.D.2d 248, 734 N.Y.S.2d 477, 2001 N.Y. App. Div. LEXIS 11833

Appellate Division of the Supreme Court of the State of New York·Decided December 3, 2001·Published·Cited by 3 cases

Opinion

In a contested probate proceeding, the objectant, Christopher Pennino, appeals from a decree of the Surrogate’s Court, Nassau County (Radigan, S.), dated May 30, 2000, which, upon a jury verdict finding that the decedent was not unduly influenced in executing his will, admitted to probate the last will and testament of the decedent, Gabriel Pennino.

Ordered that the decree is affirmed, with costs.

Contrary to the objectant’s contentions, he waived the protection of CPLR 4519 (the “Dead Man’s Statute”), by eliciting testimony from the proponent of the will regarding otherwise-protected transactions involving the decedent (see, Matter of Wood, 52 NY2d 139; Nay v Curley, 113 NY 575).

The issue of whether the Surrogate erred in admitting into evidence a letter written by the decedent’s daughter regarding their estranged relationship is unpreserved for appellate review (see, Crapazano v County of Nassau, 272 AD2d 363; Calabrese v Chan, 244 AD2d 376). In any event, although the letter constituted hearsay, it was immaterial to the issue of whether the decedent was subject to undue influence, particularly since the letter was written eight days after the will was executed. Accordingly, its admission into evidence was harmless (see, Barracato v Camp Bauman Buses, 217 AD2d 677; Willinger v City of New Rochelle, 212 AD2d 526). Friedmann, J. P., Smith, Adams and Cozier, JJ., concur.

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In a contested probate proceeding, the objectant, Christopher Pennino, appeals from a decree of the Surrogate’s Court, Nassau County (Radigan, S.), dated May 30, 2000, which, upon a jury verdict finding that the decedent was not unduly influenced in executing his will, admitted to probate the last will and testament of the decedent, Gabriel Pennino.

Ordered that the decree is affirmed, with costs.

Contrary to the objectant’s contentions, he waived the protection of CPLR 4519 (the “Dead Man’s Statute”), by eliciting testimony from the proponent of the will regarding otherwise-protected transactions involving the decedent (see, Matter of Wood, 52 NY2d 139; Nay v Curley, 113 NY 575).

The issue of whether the Surrogate erred in admitting into evidence a letter written by the decedent’s daughter regarding their estranged relationship is unpreserved for appellate review (see, Crapazano v County of Nassau, 272 AD2d 363; Calabrese v Chan, 244 AD2d 376). In any event, although the letter constituted hearsay, it was immaterial to the issue of whether the decedent was subject to undue influence, particularly since the letter was written eight days after the will was executed. Accordingly, its admission into evidence was harmless (see, Barracato v Camp Bauman Buses, 217 AD2d 677; Willinger v City of New Rochelle, 212 AD2d 526). Friedmann, J. P., Smith, Adams and Cozier, JJ., concur.

In re the Estate of Pennino, 289 A.D.2d 248, 734 N.Y.S.2d 477, 2001 N.Y. App. Div. LEXIS 11833 (N.Y. Ct. App. 2001).

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