Matter of Robinson

2024 NY Slip Op 33002(U)

• Court: Surrogate's Court, New York County
• Decided: August 16, 2024
• Docket: File No. 2021-3463
• Status: Unpublished

Opinion

Matter of Robinson 2024 NY Slip Op 33002(U) August 16, 2024 Surrogate's Court, New York County Docket Number: File No. 2021-3463 Judge: Rita Mella 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. New York County Surrogate's Court 1 DATA ENTRY DEPT.

SURROGATE'S COURT OF THE STATE OF NEW YORK AUG 16 2024 COUNTY OF NEW YORK -----------------------------------------------------------------------x Probate Proceeding, Estate of

DECISION and ORDER ANDREW ROBINSON, File No.: 2021-3463

Deceased. -----------------------------------------------------------------------x MELLA, S.:

The court considered the following submissions in determining the instant motion for

summary judgment:

Papers Considered Numbered

Petitioner's Amended Notice of Motion for Summary Judgment Dismissing Objections, dated April 2, 2024 ................................................................... 1

Affirmation of Abraham S. Mazloumi, Esq., in Support of Motion, dated March 28, 2024, with Exhibits ............................................................ 2

Affirmation of Maureen M. Pritchard, Esq., in Opposition to Motion. dated April 19, 2024, with Exhibits .............................................................. 3

Affidavit of Dana Andrews-Mungin in Opposition to Motion, dated April 19, 2024, with Exhibits ................................................................... .4

Affidavit of Doretha Conner in Opposition to Motion, dated April 18, 2024 ..................................................................................... 5

Reply Affirmation of Abraham S. Mazloumi, Esq., dated April 26, 2024 ................ 6

At the call of the calendar of April 30, 2024, the court granted the motion of Sheila

Kennedy (Proponent) for summary dismissal of the single objection lodged by Dana Andrews-

Mungin (Objectant) in this contested probate proceeding in the estate of Andrew Robinson

[* 1] (CPLR 3212). 1

Background

Decedent died on May 5, 2020, at the age of 96, leaving a probate estate of

approximately $240,000. I le was survived by one granddaughter, Objectant, as his sole

distributee. Under the propounded instrument dated May 14, 2018, decedent specifically

disinherited Objectant and instead left his estate to two nieces, Proponent and Francine Goethe.

Decedent nominated Proponent as Executor and Preliminary Letters Testamentary issued to her

on January 28, 2022. Objectant challenged the propounded instrument alleging that it was the

product of undue influence exerted by Proponent. After discovery, the instant motion followed.

Discussion

On a motion for summary judgment, it is incumbent on the movant to "make a prima

facic showing of entitlement to judgment as a matter of law, tendering sufficient evidence to

demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320,

324 [19861). Once this showing is made, the burden shifts to the opponent to produce proof

sufficient to establish the existence ofa material issue that requires a trial (id.; CPLR 3212lbJ).

Summary judgment may be granted only where it is clear that no triable issue of material fact

exists (see Alvarez, 68 NY2d 320).

With regard to the objection at issue here, undue influence requires a showing that the

propounded instrument was the result of influence over the testator that amounted to "moral

coercion, which restrained independent action and destroyed free agency, or which, by

1 As a threshold matter, Proponent had asserted that Objectant's opposition papers should not be considered since they were untimely filed. The court, in view of its independent responsibility to be satisfied that every will that is admitted to probate is valid (SCPA 1408), accepted and considered the opposition papers.

[* 2] importunity which could not be resisted, constrained the testator to do that which was against his

free will and desire" (Children sAid Society of the City ofNew York v Loveridge, 70 NY 387,

394 l1877]). Motive, opportunity, and the actual exercise of undue influence must be

demonstrated (see Matter of Walther, 6 NY2d 49 [1959]).

In this case, the court found that Proponent made a prima facie showing of entitlement to

judgment as a matter of law by offering evidence, including the sworn testimony of the attorney-

drafter, Ellen Frank Bayer, Esq. (Frank), that the propounded instrument reflected the wishes of

the decedent rather than those of the Proponent. Frank testified that she had no prior relationship

with the decedent or with any member of his family when he was referred to her for pro bona

services by the Elder Law Project of the City Bar Justice Center. Frank further testified that she

met with decedent alone, once in person and several other times over the phone, to discuss the

terms of the will which were provided by decedent himself.

The proof also established that, while Frank was drafting the will, her only contact with

Proponent was on one occasion when Frank called Proponent to obtain her address. According

to Frank, she never discussed the terms of the will with Proponent. After the execution of the

will, decedent and Frank spoke on two occasions, at which time decedent discussed other legal

matters, including his desire to amend his Power of Attorney to possibly designate Objectant as

his agent. According to Frank, decedent never expressed any desire to make changes to his will

to include a bequest to Objectant.

The testimony of the witnesses to the will, decedent's home health aide and his upstairs

neighbor, also supported Proponent's prima facie case. Both testified that on May 14, 2018,

decedent was lucid and aware that he was executing his will and that he asked each of them to

serve as a witness. According to the neighbor, decedent was independent "to the day he died."

[* 3] In response, Objcctant did not dispute that Proponent had no prior relationship with the

attorney-drafter and had no involvement in the drafting of the propounded instrument. Instead

she attempted to raise an issue of fact by arguing that the propounded instrument was the result

of Proponent's undue influence. First, Objcctant alleged that Proponent isolated decedent with

the goal of influencing him to execute a will that benefitted Proponent. The claim was based

solely on Objectant's inability to reach decedent by telephone for several months in 2018, which

she concluded was the result of Proponent having arranged for decedent's telephone number to

be changed. Objcctant did not dispute, however, that Proponent resided at all relevant times in

South Carolina, hundreds of miles away from decedent's Manhattan apartment, and could not

have controlled daily access to decedent. Nor docs Objcctant dispute that decedent's new

telephone number was eventually provided to her and that she was able to freely communicate

with decedent until the time of his death. The only proof that Objcctant presented in support of

her claim that Proponent changed decedent's telephone number in order to isolate him from

Objcctant was speculative and thus insufficient to raise a material triable issue.

Objcctant also argued that the reason decedent disinherited her was that he believed her

to be a "drug addict," a characterization, she alleged, which could only have come from

Proponent. I Iowcvcr, Objcctant provided no evidence to support such contention - only

speculation which is insufficient to raise a material issue of fact (see Zuckerman v City of New

York, 49 NY2d 557, 562 11980]). For these reasons, the court granted summary judgment and

dismissed the objection based on undue influence.

Finally, the court observed that although Objcctant did not challenge the validity of the

will on grounds other than undue influence, upon a review of the evidence offered, the court

found that Proponent established that decedent had testamentary capacity on May 14, 2018, and

[* 4] that the will was duly executed that day in accordance with EPTL 3-2.1. Accordingly, the court

determined that the propounded instrument would be admitted to probate.

This decision, together with the transcript of the April 30, 2024 proceedings, constitutes

the order of the court.

Settle probate decree.

Dated: August 16, 2024 srl:;J{oATE

[* 5]