The following papers were considered in determining this motion for summary judgment: Papers Numbered Amended Notice of Motion for Summary Judgment, Affirmation of Sonia M. Tanksley, Esq. with Exhibits, Affidavit of Joseph Scantlebury 1, 2, 3 Affirmation of Nicholas Stockton, Esq. in Opposition with Exhibits, Affidavit of Deborah Kendrick 4, 5 Reply Affirmation of Andrew Chan, Esq 6 DECISION In this contested probate proceeding, Joseph Scantlebury (the proponent) filed a petition on December 15, 2017 seeking to probate of a written instrument dated January 5, 2010 (the propounded instrument) which purports to be the last will and testament of Millicent Brown a/k/a Millicent Viola Brown (the decedent). Verified objections to probate were filed on July 22, 2019 by Deborah Kendrick (the objectant) in which she challenges due execution and testamentary capacity, and asserts the propounded instrument is the product of fraud, duress, and undue influence exercised by the proponent. The proponent now moves for summary judgment to dismiss the objections, and for costs and sanctions pursuant to 22 NYCRR 130-1.1 on the ground that the objections are frivolous. The objectant has filed opposition and requests denial of summary judgment. Background / Factual Allegations The decedent died on January 31, 2014 at age 99 without spouse or issue. The propounded instrument dated January 5, 2010 leaves all real estate, personal property and residuary to the proponent, with the proponent’s son as contingent beneficiary. The propounded instrument also makes a $25,000.00 cash bequest to the objectant. The proponent describes himself as decedent’s “godson,” but he is of no relation to the decedent. The objectant describes herself as a “goddaughter by love,” but is also of no relation to the decedent. A prior will dated December 1, 2004 bequeathed all real estate in equal shares to the proponent and the objectant, and should neither survive the decedent, then to the objectant’s children. The 2004 will further bequeathed all personal property to the objectant and the residuary estate in equal shares to the proponent and the objectant, with the objectant’s children as contingent beneficiaries. The propounded instrument was attorney-drafted and its execution supervised by Lawrence Etah. The propounded instrument was also witnessed by three individuals who signed self-proving affidavits before a notary public. The affidavits state that the witnesses observed the decedent declare the propounded instrument to be her last will and testament and sign it before them. The affidavits further state that in the witnesses’ respective opinions, the decedent was of sound mind, memory and understanding, and under no constraint, duress, fraud or undue influence. SCPA 1404 examinations of the three witnesses were conducted on November 20, 2017. Apparently, attorney Etah has yet to appear for a SCPA 1404 examination despite being served with a so-ordered judicial subpoena with a return date on June 4, 2018. The SCPA 1404 examinations revealed that of the three witnesses, Ricardo Corbett and Dawn Kaam testified that they are lifelong friends and distant relatives of the proponent and that they attended the execution ceremony at the request of the proponent. The third witness, Angelica Fonseca-Green, testified that she attended at the request of Ms. Kaam who is her cousin. In support of his summary judgment motion, the proponent submits an affidavit stating that the decedent informed him in and around 2009 that she wished to change her will; asked him to be present at the execution ceremony; and asked him to bring three witnesses as instructed by the attorney. The proponent denies that he was aware of what changes to the will were being made. The proponent further states that at the time of execution, the decedent was of sound mind, memory, and understanding. He also denies that he influenced or coerced the decedent in any way. The proponent also states that the decedent had full mental capacity until a couple of years after the will execution, when she first began showing signs of some mental decline. In support of that contention, the proponent submits a copy of the decedent’s hospital record for an admission on November 17, 2012. That record indicates that the decedent’s admitting diagnosis was “altered mental status” and that she was taken to the hospital by ambulance after she was found wandering outside without shoes. The record states that the objectant reported to hospital staff that she has been acting as the decedent’s caretaker and that the decedent had several incidents of wandering in the past. The record further states, “[Patient] is pleasantly demented, likely progression of her previously [diagnosed] Alzheimers.” The proponent contends that there is no other medical or hospital record showing that the decedent had any mental decline prior to that hospitalization.1 In opposition, the objectant argues that the motion is premature because the parties have not conducted CPLR discovery following the filing of objections. Specifically, the attorney-drafter has yet to be deposed and the proponent himself has yet to submit himself to a deposition. The objectant argues that the attorney-drafter is now under parole supervision and may be more inclined to obey a judicial subpoena and appear for a deposition.2 The objectant further argues that there are other medical or hospital records yet to be disclosed in discovery, which may indicate the decedent’s mental condition in 2010 when the propounded instrument was executed. The objectant also submits an affidavit stating that she has known the decedent her entire life and that they were “family,” although not biologically related. Objectant states that she lived in the decedent’s home and helped care for her, until the proponent moved the decedent to his mother’s house and then to live with an unknown person in the Bronx. The objectant further states that the decedent in her later years allowed the proponent to make decisions for her because he was a lawyer. The objectant also believes that the proponent possessed power-of-attorney over the decedent’s medical decisions. The objectant also alleges that when the propounded instrument was executed, the decedent was suffering from advanced Alzheimer’s disease and that she did not understand her finances, the extent of her property, or the consequences of signing legal documents. Further, the objectant noticed by 2008 that something “was seriously wrong” with the decedent in that her bills were not being paid. The objectant attempted to assist the decedent in paying bills, but the decedent had difficulty in making out checks or understanding how much was owed. Objectant further states that around 2008, the decedent stopped recognizing people she had known for years and began wandering outside and getting lost in her own neighborhood. Discussion Generally, where discovery is incomplete and it appears that facts “essential to justify opposition may exist but cannot then be stated,” the court may deny a dispositive motion as premature or order a continuance for discovery to be completed. CPLR 3212(f); Matter of Fasciglione, 73 A.D.3d 769 (2d Dep’t 2010); Lantigua v. Mallick, 263 A.D.2d 467 (2d Dep’t 1999). However, “determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence.” Lambert v. Bracco, 18 A.D.3d 619, 620 (2d Dep’t 2005). Here, the proponent submits a self-serving affidavit in support of his motion that appears to satisfy his burdens of proof in this proceeding. However, the proponent has yet to be deposed and thus, the objectant has not had the benefit of cross-examining his testimony. The proponent was present for the execution ceremony, requested the three witnesses to be present, and admittedly has a close relationship with two of the witnesses. Therefore, the proponent’s testimony is of critical probative value to the issues in this proceeding. Further, his cross-examined testimony is particularly crucial to the question of undue influence, since there may be information in his exclusive knowledge and possession which the objectant is entitled to probe. Additionally, the proponent himself submitted copies of the decedent’s hospital record to support his contention that the decedent’s mental capacity issues did not manifest until 2012. However, the hospital record fails to establish that the decedent had no mental capacity issues in 2010, when the propounded instrument was executed. Rather, the record raises more questions as to when the decedent’s Alzheimer’s and general mental decline began. To the extent that there are medical and/or hospital records from in and around 2010 that may elucidate the issue, the objectant is entitled to further disclosure. While conditions such as Alzheimer’s and dementia are not necessarily inconsistent with testamentary capacity, the objectant must be allowed an opportunity to obtain records that may substantiate her claim that the decedent had capacity issues as early as 2008. Conclusion At this juncture, there are numerous questions which remain unanswered or unexamined by the record before the court and completion of discovery is necessary to resolve all issues in this proceeding. Accordingly, summary judgment is denied as premature, without prejudice to renew upon completion of discovery. Consequently, the proponent’s motion for sanctions is also denied as without any merit. This constitutes the decision of this court. Dated: May 3, 2020
