Matter of Augustine

2007 NY Slip Op 34620(U)

• Court: Surrogate's Court, New York County
• Decided: November 14, 2007
• Docket: File No. 1560/03
• Status: Unpublished
• Author: Renee R. Roth

Opinion

Matter of Augustine 2007 NY Slip Op 34620(U) November 14, 2007 Surrogate's Court, New York County Docket Number: File No. 1560/03 Judge: Renee R. Roth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. SURROGATE'S COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------ -------x Probate Proceeding, Will of - File No. 1560/~ ROSEL. AUGUSTINE, cJ1 -: :J ) ~ ':J Deceased. _:_9. J. -

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ROTH, S. Incident to this contested probate proceeding in the Estate

of Rose Augustine, the preliminary executors move for summary

judgment dismissing the objections filed by the Drisha Institute

for Jewish Education, the principal beneficiary under decedent's

penultimate will (SCPA 1410).

Rose Augustine was 93 years old when she died on April 21,

2003, leaving an estate of approximately 30 million dollars. She

was survived by a brother and three children of predeceased

siblings. During her lifetime, decedent had been the owner and

chief executive of Albert Augustine Ltd., a guitar string

manufacturing company which she had operated since her husband's

death in 1967.

The penultimate and propounded instruments were executed

within two months of decedent's death.

Under the propounded will, dated April 3, 2003, decedent,

after making small gifts to certain relatives and establishing a

[* 1] fit of Patricia Carter (her long- trust of $500,000 for the bene he residuary to The Augustine time secretary), disposed Of t 'ch she had established during her lifetime. Foundation, Whl tamentary issued on May 2, 2003, to Carter Preliminary letters tes

and Steven Griesgraber, a Yo ung employee of "Guitar Review," a

classica 1 gui·t ar magazi'ne which decedent had published and

subsidized. As noted above, Drisha, adversely affected by the propounded

will, filed objections (SC~A 1410).

The background which led to this contested probate

proceeding is as follows. In late 2002, Mrs. Augustine decided

to increase the gift to Drisha she had made in her 1991 will,

which left two-thirds of her residuary estate to the Foundation

and one-third to Drisha, and named her attorney and friend Harry

Silber along with his son David (the founder and dean of Drisha),

as executors. Since Harry had died, she asked David to recommend

a lawyer. He referred her to an experienced trusts and estates

lawyer, Jonathan Herlands, who drafted the penultimate will and

inter vivos trust agreement as well as a health care proxy and

power of attorney. These instruments provided small cash

bequests to decedent's nephew and nieces, a $100,000 cash bequest

to Carter, and four-fifths of the residuary to Drisha and one- fifth to the Foundati' on. S'lb 1 er was named as fiduciary and his wife, Devora Steinmetz, as successor fiduciary.

[* 2] However., shortly after she executed these documents,

decedent apparently had second thoughts. Among other things, she

said that she preferred to give Carter an income interest in a

trust rather than an outright bequest; that she did not like

Devora Steinmetz and did not want her to be a fiduciary; and that

the documents failed to dispose of her personal property or

direct the continuation of "Guitar Review."

Over the next few weeks, decedent appeared to be preoccupied

with the documents and she allegedly blamed Silber because he had

recommended the draftsman. According to the testimony of her

long-time accountant, Allan Rubin, her anger at Silber developed

into hatred. She consulted another lawyer, Inna Fershtyn, on

March 10th to discuss revising the documents. She told Fershtyn

that although she wanted to eliminate Silber, she still intended

to leave part of her estate to Drisha. Mrs. Augustine, however,

was apparently offended by Fershtyn's suggestion that she should

have a medical examination before proceeding any further and

never retained her.

Mrs. Augustine's behavior and physical condition appear to

have deteriorated significantl y during the month of March. She fell a number of times, her speech became slurred and her

behavior was somewhat erratic. Decedent allegedly became angry and distrustful when Rubin asked her to · sign an apparently innocuous document. In the latter part of March, Rubin, on his

[* 3] decided to stop trading on her account.

on Friday, March 28, 2003, Mrs. Augustine called Silber to

her office to talk about the penultimate documents. Carter and

Griesgraber were present. A tape recording of the meeting was

made at decedent's direction. It shows that her speech was

slurred and that she was confused and agitated. She accused

Herlands and Silber of being "crook(s]q and of "chopping out" and

"slipp[ing] in" provisions of her will against her wishes. She

said that Herlands had called her "crazy" (an apparent reference

to the suggestion by Fershtyn, rather than Herlands, that she

have a medical exam) and accused Silber of trying to control

everything and put her into an insane asylum. Near the end of

the meeting, she said that she had not slept in three weeks, did

not trust anyone, wanted to kill everybody, and was "mixed up"

and did not "know what I want." Decedent, however, agreed that

she would take the weekend to consider whether new documents

would be drafted by Herlands, Fershtyn, or a new lawyer. After

Silber left, despite her accusations against him, decedent told

Griesgraber and Carter that she thought he "had nothing to do with it."

On the following Monday (March 31, 2003) decedent said that

she wanted a new lawyer. Griesgraber contacted Elizabeth Harris

and arranged a meeting with decedent the next morning (April 1 st)

at the office of Albert Augustine Ltd. When decedent failed to

[* 4] appear, Griesgraber and Carter went to her home, where she lived

alone, and found her on the floor where she had lain after

falling the night before. She refused medical attention and

insisted on seeing the lawyer. Harris came to decedent's home

and interviewed her in the presence of Griesgraber and Carter.

Since decedent was very deaf and her speech was garbled,

Griesgraber and Carter acted as interpreters . Harris testified

that decedent said she wanted to exclude Drisha from her will

because she had been "betrayed" by David Silber who had obtained

too much power over her through the penultimate instruments . She

described Silber as greedy and crooked, and said that she did not

like his wife. st Decedent fell again that evening (April 1 , 2003)and

remained on the floor for 15 hours until Griesgraber and Carter

found her. Although she was screaming, presumably in pain,

decedent nonetheless protested when she was taken by ambulance on

April 2 nd to St. Vincent's Hospital. The intake physician noted

her slurred speech and facial droop.

At Griesgraber 's urging, Harris completed drafting the will

and brought 1·t to the h ospi't a 1 on th e evening of April 3r, ct

accompanied by her associate, Alexander Trias. They found

Griesgraber and Carter in decedent's hospital room, along with

another employee of the Augustine company, Natavan Aleskerova,

and decedent's friend Leonidas Mavrovitis. With respect to

[* 5] decedent's mental condition, although a social worker who saw her

earlier on the day of the will execution reported that she was

alert and oriented, the hospital records establish that she was

"very confused and agitated" throughout the night immediately

following the will execution, and tore out her i.v. tubes at 4:30

a.m.

It is undisputed that decedent signed the will in the

presence of two attesting witnesses, Trias and Mavrovitis. The

recollection s of those present differ, however, as to decedent's

review of the document she signed. Harris testified that while

sitting on the edge of decedent's bed she had discussed each

provision of the will which Carter then repeated because decedent

was very hard of hearing. According to Harris, such repetition

gave her a "comfort level" that decedent understood the contents

of the document. Trias, however, said that Carter repeated some,

but not all, of the provisions. Carter, on the other hand,

denied any participatio n whatsoever in the process, and

Griesgraber and Aleskerova supported her version. In addition,

although Harris and Mavrovitis both said that decedent

participated in calculating fiduciary commissions, others did not

recall any such discussion. Aleskerova testified that the only

comment from decedent was an admonition to Harris not to talk to

her as if she were a child.

Decedent's hostility to Silber remained. Around the time

[* 6] the will was executed, she instructed Griesgraber to write "go

to hell" on a get well card Silber had sent and to mail it back

to him. She also told Rubin that she wanted to shoot Silber.

According to the hospital records, decedent's mental state

fluctuated in the ensuing days, with periods of lucidity and

periods of agitation and confusion. The diagnosis included

dementia, cerebral atherosclerosis, and cerebral vascular th infarct. She was released from the hospital on April 14 ' after She was readmitted arrangements were made for 24-hour home care.

three days later and died on April 21, 2003.

Although summary judgment may be granted in probate

proceedings (Matter of Cioffi, 117 AD2d 860), the movant "must

make a prima facie showing tendering sufficient evidence to

demonstrate the absence of any material issues of fact" (Alvarez

v. Prospect Hosp., 68 NY2d 320, 324). If the movant establishes

a prima facie case, the burden shifts to the objectants to

produce evidence to establish the existence of material issues of

fact sufficient to preclude summary judgment (Alvarez v. Prospect

Hospital, supra; Matter of Pollock, 64 NY2d 1156, 1158).

We turn first to the question of decedent's testamentary

capacity, namely, whether she understood the nature and extent of

her property, the natural objects of her bounty and the

provisions of the instrument (Matter of Kumstar, 66 NY2d 691,

692, rearg denied 67 NY2d 647). Alth - oug h old age, weakness and

[* 7] ons iste nt with sen ile dem enti a are not nec ess aril y inc 100 AD2 d 586 , 588 ; see test ame ntar y cap acit y (Ma tter of Hed ges, 387 , 392 -93 ), also Chi ldre n's Aid Soc v Lov erid ge, 70 NY -- ch it cou ld be foun d tha t obj ecta nt has offe red evid enc e from whi at the time tha t the dec ede nt's med ical and men tal con diti on exe cute d may hav e prop oun ded inst rum ent was pre par ed and tter of Hed ges, sup ra). prev ente d her from acti ng kno win gly (Ma resp ect to her con fusi on For exam ple, dec ede nt's stat eme nts with she met the atto rne y- and ina bili ty to slee p, the fac ts tha t r hav ing spe nt the nig ht on draf tsm an for the firs t time jus t afte ded wil l in the hos pita l the floo r, tha t she sign ed the prop oun aga in and rem aini ng on the whe re she had been take n afte r fall ing ge in the dis pos itiv e floo r all nig ht, and the dram atic chan que stio ns abo ut her pro visi ons of the inst rum ent, all rais e er and her cap acit y. Fur ther mor e, dec ede nt's hos tili ty to Silb kery and tric ker y con vict ion tha t she was the vict im of croc und er an insa ne delu sion ind icat e tha t she may have been labo ring the prop oun ded inst rum ent rend erin g her inca pac itat ed to exe cute ter of Eto ll, 30 AD2d (Ma tter of Hon igma n, 8 NY2d 244 , 250 ; Mat men t dism issi ng this 224, 228 -29) . Acc ordi ngly , sum mary judg obje ctio n is den ied. due exe cuti on. We nex t turn to the obj ecti on con cern ing g tha t the prop oun ded Prop one nt has the burd en of esta blis hin the form alit ies inst rum ent was exe cute d in acco rdan ce with

[* 8] of Cio ffi, suo ra; Ma tter req uire d by ETL 3-2 .1 (see , e.g ., Ma tter

of Wat son , 37 AD2d 897 , 898 ). The rec ord ref lec ts tha t the

two atte stin g wit nes ses , inst rum ent bea rs the sig nat ure s of is sup por ted by a con tain s an atte sta tio n cla use and vit (SCPA 140 6), and was con tem pora neo us self -pr ovi ng aff ida ns abo ut a tes tat or' s sup erv ised by a law yer . Whe re que stio of suc h exe cut ion are rais ed, com pete nce to und erst and the imp ort ma liti es is ins uff icie nt to how ever , the mer e obs erv anc e of for gro und s (se e, e.g ., Ma tter of dism iss obj ect ion s on due exe cut ion Thi s is par ticu lar ly tru e Ma rtin ez, NYLJ 11/ 19/ 07 p 33 col 4. com mun icat ion wit h the whe re, as her e, dec ede nt had lim ited was sig nif ica ntl y imp aire d atto rne y-d raft sma n, whe re her hea ring ny as to whe ther she and whe re the re is con flic ting test imo it. Acc ord ing ly, sum mar y revi ewe d the wil l bef ore she sign ed to due exe cut ion is den ied . judg men t dism issi ng the obj ecti on as obj ect ion alle gin g und ue Pro pon ent also mov es to dism iss the pro pou nde d ins trum ent by infl uen ce in the pro cure men t of the er. Ob jec tan ts bea r the Pat rici a Car ter and Stev en Gri esg rab d· t t burd en of pro ving tha t the pro pou nde ins rum en was pro cur ed by nd d 49, 54; Ma tter of u ue infl uen ce (Ma tter of Wa lthe r, 6 NY2 Sch ille nge r, 258 NY 186 ). I nflu enc e is und ue whe n it "su bve rts the inte nt or wil l of the tes tato r, inte rna lize s wit hin the min d

of the tes tato r the des ire to do tha t whi ch is not his int ent but

the inte nt and end of ano ther " (Ma tter of Bur ke, 82 AD2d 260 ,

[* 9] AD2 d 464 , 483 , aff d 15 NY2 d 270, quo tin g Ma tter of Kau fma nn, 20 mu st sho w tha t the 825 ). To pro ve und ue inf lue nce , obj ect ant suc h inf lue nce not onl y had the per son all ege d to hav e exe rte d t tive and opp ort uni ty to inf lue nce the dec ede nt, but als o tha mo and by doi ng so des tro yed the he act ual ly use d suc h inf lue nce liti on (W arre n's Hea ton , tes tat or' s own jud gm ent and vo th ed rev ]; Ma tter of 42- 126 [6 Sur rog ate s' Co urt s §42 .07 [1] at of Soc v Lov erid ge, sup ra; Ma tter Wa lthe r, sup ra; Ch ild ren 's Aid NY 582 ). Sin ce dir ect evi den ce Wi llia ms, 180 AD 203 , aff 'd 223 ilab le, the law per mit s of und ue inf lue nce is seld om ava n from cir cum sta nti al evi den ce app rop ria te inf ere nce s to be draw . (M atte r of Cam ac, 300 AD2d 11, 12) efi ted from the exe rci se Wh ere a per son alle ged to hav e ben of a wil l is in a con fid ent ial of und ue inf lue nce in the mak ing fac t-fi nde r may dra w an rel atio nsh ip wit h the tes tat or, the tic ula rly whe re suc h per son als o infe ren ce of suc h inf lue nce , par atio n or exe cut ion of the had som e inv olv eme nt in the pre par Ba rte l, 214 AD2 d 476 , 477 ). To pro pou nde d ins trum ent (Ma tter of alle ged to hav e exe rci sed it cou nte r suc h inf ere nce , the par ty on for th e tes tat or' s gif ts mus t pro vid e an alte rna te exp lan ati' (Ma -a::=~ of Ne n~a~n, 35 AD3d 475 , 476 , cit ing Ma tter of Put nam , 257 tter -=---- ==-= ~~e~ NY 140 ) .

Ob ject ant s hav e rais ed su f f 'ici ent que stio ns as to wh eth er

Car ter and Gri esg rab er wer e 1· ~ a con fid ent ial rel ati ons hip wit h

[* 10] lue nc e / 'de ced en t an d wh eth er un du e inf wa s ex erc ise d to ma nda te

ob jec tio n. The rec ord sug ge sts tha t as aga in st dis mi ssa l of the hav e s he alt h and me nta l sta tus de ter ior ate d, she ma y de ce de nt' to und ue n the m and mo re vu lne rab le bec om e mo re de pe nd en t upo fro m Sil be r and pre ssu re fro m the m. Af ter she bec am e est ran ge d ed app ear to pe rso ns on whom she dep end di str us tfu l of Ru bin , the the flo or e be en Ca rte r and Gr ies gra be r who pic ke d he r up off hav d for he r me dic al ca re. In ad dit ion , af ter he r fa lls and arr an ge pro cur em ent re dir ec tly inv olv ed in the Gr ies gra be r and Ca rte r we un ded wi ll. Gr ies gra be r arr an ge d the and ex ecu tio n of the pro po de ced en t, and ey -dr aft sm an , Ha rri s, and me eti ng bet we en the att orn wi th at Ha rri s's in iti al me eti ng bo th of the m we re pre sen t the wi ll was exe cut ed. Fu rth erm ore , Ha rri s de ced en t and wh en en t. An he r com mu nic ati on wi th de ced rel ied on the m to fa cil ita te ded nsi de red is tha t the pro po un ad dit ion al fac tor to be co en tar y nt ma ter ial ly de via tes fro m de ce de nt' s pr ior tes tam ins tru me rte r and tte rn (M att er of Bru sh, 1 AD2d 625 , 628 ) and tha t Ca pa ion do lla r uc iar ies of thi s mu lti -m ill Gr ies gra ber are nam ed as fid ssi on s. ld exp ect sig nif ica nt com mi est ate , fro m wh ich the y cou mi ssa l of upo n the for ego ing , pro po ne nt' s mo tio n see kin g dis Ba sed by nde d ins tru me nt wa s pro cu red the ob jec tio n tha t the pro pou und ue inf lue nce is den ied . by tha t the wi ll wa s pro cu red The fin al ob jec tio n all eg es ivi ty ud of Ca rte r and Gr ies gra be r or pe rso ns ac tin g in pr the fra

[* 11] with them . To prov e frau d, it mus t be show n that the "pro pon ent

dent to exec ute kno wing ly mad e a fals e stat eme nt that caus ed dece man ner diff eren t from a wil l tha t disp osed of his prop erty in a abse nce of that the disp osit ion he wou ld have made in the Obj ecta nt stat eme nt" (Ma tter of Con iglio , 242 AD2d 901, 902) . obje ctio n, whic h is did not offe r any fact s in supp ort of this

acco rdin gly dism isse d. Cou rt. This dec isio n con stitu tes the orde r of the

S U R R O G A T E

Nove mber 14, 2007

[* 12]