Documents reviewed: 1. Notice of Motion to Renew by Richard L. Weber, Esq. efiled December 17, 2021. 2. Affidavit in Support of Motion by Thomas H. Benton, Esq. efiled December 17, 2021, with Exhibit A — I. 3. Affidavit in Support of Motion by Cathleen Ramos efiled December 17, 2021, with Exhibits A — C. 4. Affidavit in Support of Motion by Ravi Ramaswami, MD efiled December 17, 2021, with Exhibits A — C. 5. Affidavit in Support of Motion by Anne B. Pagano, LCSW, ACSW, BCD, C-ASWCM, with Exhibits A and B. 6. Memorandum of Law in Support of Motion by Richard L. Weber, Esq. efiled December 17, 2021. 7. Affidavit in Opposition to Motion by Jason Kovacs, Esq. efiled January 21, 2022. 8. Attorney Reply Affirmation in Further Support of Motion to Renew by Thomas H. Benton, Esq. efiled January 27, 2022. DECISION/ORDER Mary Ramos died on October 30, 2018 at age 104. Ramos lived alone, with some assistance from her daughter-in-law, Joan Ramos, and her grand-daughter (Joan’s daughter), Cathleen Ramos. In the summer of 2012, the decedent began meeting with an attorney, Catherine Stefanik, Esq., with the goal of replacing her existing will, which had been executed a few months before, in mid-June. The existing will, she told her attorney, was not satisfactory to her. It had been prepared at the request of Joan Ramos, who supplied its terms to the attorney-draftsperson. The decedent told her attorney “didn’t want to say anything or cause an issue or upset” her daughter-in-law, so she signed the will despite her unhappiness with its terms. Over the course of the following year, the decedent met with Stefanik in her home on several occasions as she formulated her own testamentary plan. The decedent told her attorney she was very concerned that her choice of agent and fiduciary would anger or alienate Joan Ramos and her daughter, Cathleen Ramos (the objectant), who had been appointed to those positions in the existing estate-planning documents. The decedent finally signed her last will and testament on November 15, 2013. It was offered for probate after her death. Cathleen Ramos objected. This Court’s August 2, 2021 decision/order (the “Order”) granted the proponent’s motion for summary judgment and accepted the decedent’s last will and testament for probate. The objectant has now filed a motion under CPLR 2221(e) for (1) leave to renew its motion for summary judgment; (2) to reverse, expunge and set aside the order granting summary judgment; and (3) extending the time for objectant to complete discovery. The objectant offers “evidence which has come to light that was not available at the time of the June 14, 2021 motion or at the time [opposition papers were filed] on July 7, 2021.” The objectant mischaracterizes its motion when it terms it an effort to “renew a prior motion” for summary judgment under CPLR 2221(e). When Objectant replied to the then-proponent’s motion, it was in the form of an affirmation — and not a motion — and it was in opposition to a “motion to dismiss,” not the motion for summary judgment actually filed by the proponent. Until the present pleading, objectant had never filed a motion of any kind in this Court (In re Damjanac, 2000 NYLJ LEXIS 2306 [Sur Ct Queens Cty 2000]). Notwithstanding that the present motion is “procedurally incorrect” (In re Damjanac, 2000 NYLJ LEXIS 2306), the Court will again disregard the defects in objectant’s pleadings and liberally construe her motion as one predicated on a prior prayer for relief actually filed in this Court (CPLR 3026). In a similar vein, Objectant also asks that the Court “reverse, expunge and set aside the [Order] granting summary judgment.” While this Court is without the power to reverse itself, it can certainly “stay, vacate or modify” its Order under CPLR 2221(a). The Court will therefore construe the objectant’s pleading as one seeking a remedy which is within this Court’s power to confer. A motion for leave to renew must offer new facts not previously offered and which would change the prior determination (CPLR 2221 (e)[2]). Such a motion must also provide reasonable justification for the failure to present such facts on the prior motion (CPLR 2221(e)[3]). The Court finds that the objectant has met the requirements of CPLR 2221(e) in that the facts offered with its current motion were not previously before the Court in their current form. A reasonable justification for the failure to present the facts on the prior proceedings has also been offered. The objectant’s motion to renew is therefore granted insofar as the Court will examine the newly-proffered evidence to assess whether its presentation would have changed the Court’s prior determination granting summary judgment as required under CPLR 2221(e)[2]. The new evidence offered by objectant consists of complete 911 incident reports, medical records and postmortem assessments of decedent’s capacity by medical professionals. The primary evidence offered by objectant consists of periodic reports of home visits made by K. Mahar, RN, ANP (hereinafter the “RN”).1 Also offered are 911 incident reports by the Saugerties Police Department, an affidavit by the objectant, and affidavits reviewing the RN’s reports and the 911 incident reports by Ravi Ramaswami, MD and Anne B. Pagano, LCSW, ACSW, BCD, C-ASWCM. The 911 incident reports provided to objectant pursuant to her FOIL request begin when decedent was 99 years old in January 2013 and end December 2014. As in any examination of facts relevant to testamentary capacity, the Court will focus primarily on evidence as to capacity at or around the time that decedent signed her November 15, 2013 will. Only two such entries were made at or around the time of the will-signing: On October 18, 2013 — 4 weeks before her will-signing — the decedent reported having trouble reaching her bank by phone. Police personnel reminded her that it was a weekend, when banks are typically closed. On December 10, 2013, 3 weeks after the will-signing, decedent called 911 because she was having difficulty calling her niece in New Jersey. The reporter adds that the decedent has “ongoing issue…unable to make phone calls, has called 911 and this agency multiple times for non-emergency requests.” All together, the 911 incident reports establish that the decedent had moments of confusion and anxiety and often expressed fears about how her daughter-in-law, Joan Ramos, would react to her plans for a new will. It is noteworthy that the decedent expressed the same concerns about Ramos in her conversations with the attorney-draftsperson. The RN reports begin in February 2011, when the decedent was 96 years old, and were intended to address “ongoing medical problems,” chiefly the decedent’s hypertension and deep vein thrombosis in her leg. Each report includes the RN’s lengthy summary of decedent’s medical condition, including observations about her mood and “neuro” and “psych” conditions. The RN found the decedent to be alert and oriented to time, person and place on virtually every occasion she visited with her. In June 2011, the RN diagnosed the decedent with “adjustment disorder with depression” and “anxiety disorder generalized,” citing the decedent’s concerns about hospitalization and home care. Anxiety and distrustfulness were also observed. Beginning in early 2013, the decedent was reported to be grieving, “suspicious and untrusting of family.” In April 2013, the RN diagnosed the decedent with “personality disorder” and referred to her “paranoidal ideations.” All told, the RN observed signs of the following conditions in decedent during her visits: personality disorder, psychosis, anxiety disorder, adjustment disorder with depression, frailty, paranoidal ideation, sadness, depression, anxiety and senility without psychosis.2 An RN is not a person legally competent to make a medical diagnosis (Abalola v. Flower Hospital, 44 AD3d 522 [1st Dept 2007]; NYS Office of the Professions, op.nysed.gov/prof/nurse [last accessed 3/28/2022]), but she can make referrals to counseling or psychiatric services. Sadly, despite their stated concerns about decedent’s ongoing depression, anxiety and occasional confusion, no one in her life — family or professional — thought it appropriate to recommend or seek counseling or psychiatric treatment to alleviate her distress. There are thus no referrals to specialists for mental health tests or other evaluations mentioned in the RN’s reports.3 The conditions from which decedent reportedly suffered — personality disorder, psychosis, anxiety disorder, adjustment disorder with depression, frailty, paranoidal ideation, sadness, depression, anxiety and senility without psychosis — were not diagnosed during decedent’s lifetime by persons legally competent to do so, nor were they treated. Anne B. Pagano, LCSW, ACSW, BCD, C-ASWCM was retained after the decedent’s death to review affidavits prepared for this proceeding and the records prepared by the RN and the Saugerties Police Department. Never having met the decedent, Ms. Pagano nevertheless pronounced her to be suffering from “omnipresent paranoid delusions and dementia” and “omnipresent mental illness” which were symptomatic of “her extreme mental decline” based solely on the observations and conclusions of the RN and Town of Saugerties police officers. The testimony of a medical expert who “never examined the [decedent] and was never involved in any way” with her treatment is “the weakest and most unreliable kind of evidence” and insufficient to create an issue of fact with respect to testamentary capacity (Estate of Van Patten, 215 AD2d 947, 949 [3d Dept 1995], quoting Matter of Slade, 106 AD2d 914, 915 [4th Dept 1984]). In contrast to Anne B. Pagano, LCSW, ACSW, BCD, C-ASWCM, Dr. Ramaswami spent 45 minutes with decedent one day before she signed her will. He found the decedent’s mood, thought process and affect to be “normal, without dementia, delusions or overt illogical thinking,” her judgment “realistic” and her insight “appropriate,” without “anxiety, paranoia, or incapacity.” It was only after reviewing the RN and 911 reports, and the affidavits of Cathleen Ramos and Anne B. Pagano, LCSW, ACSW, BCD, C-ASWCM prepared for this proceeding, that Dr. Ramaswami retracted the observations he made on November 14, 2013, and opined that the decedent was most likely suffering “significant mental decline and/or neurocognitive disorder.” It was nevertheless “several months” after this visit (and the will-signing) before Dr. Ramaswami prescribed anti-psychotics to the decedent. The conclusions of Anne B. Pagano, LCSW, ACSW, BCD, C-ASWCM, Dr. Ramaswami’s retraction of his real-time observations, and the reports of law enforcement officers do not, “without more, create a question of fact on the issue of testamentary capacity, as the appropriate inquiry is whether the decedent was lucid and rational at the time the will was signed” (Matter of Giaquinto, 164 AD3d 1527, 1528 [3d Dept 2018], internal quotation marks and citation omitted). Even a formal diagnosis of dementia — which is wholly absent in this case — would not create a triable issue of fact unless accompanied by evidence of “progressively worsening mental condition…difficulties performing activities of daily living and communicating effectively in the weeks prior to the executing the will” (Matter of Giaquinto, 164 AD3d 1532-1533). Opinion evidence based exclusively on a postmortem review of the testator’s medical records is not sufficient to raise a question of fact on the issue of decedent’s testamentary capacity, especially when all of the direct evidence of her condition (including Dr. Ramaswami’s examination) on or about the date that she signed her will supports a finding of testamentary capacity (Estate of Van Patten, 215 AD2d 947, 949 [3d Dept 1995]). Decedent was living alone, performing activities of daily living independently, when she signed her will. She was both “lucid and rational” at the moment she signed her will (Matter of Paigo, 53 AD3d 836, 838 [3d Dept 2008], expressing her wishes clearly and forcefully without any sign of the grief, personality disorder, psychosis, anxiety disorder, adjustment disorder with depression, paranoidal ideation, sadness, depression, anxiety or “senility” identified by the RN. That this period of lucidity may have been, as Dr. Ramaswami speculates, a mere respite in decedent’s confusion or diminished capacity, is of no moment in this proceeding (In re Chiurazzi, 296 AD2d 406, 407 [2d Dept 2002]). Where medical opinion testimony is contradicted by the facts, the facts must prevail (In re Horton’s Will, 272 AD 646, 651 [3d Dept 1947]). Objectant’s allegations of undue influence practiced by the proponent and her family are unsupported by any evidence, old or new. Objectant again offers no facts — no reference to dates, times, places or parties — from which undue influence can fairly and necessarily be inferred (Matter of Malone, 46 AD3d 975 [3d Dept 2007]). Completely absent are the hallmarks of the undue influence cited by New York courts, such as signs of domineering behavior on objectant’s part, as in In re Panek, 237 AD2d 82 [4th Dept 1997]; efforts to denigrate the objectant to the decedent (In re Estate of Antoinette, 238 AD2d 762, 764 [3d Dept 1997]); or to executor had no role in obtaining counsel, as in Matter of Neary, 44 AD3d 949 [2d Dept 2007], or in conveying decedent’s plans to her attorney-draftsman (Matter of Ford, 26 Misc 3d 1213(A)[Sur Ct Bx Cty 2010]). The objectant’s “bald allegations” of undue influence are not evidence and are insufficient to defeat a motion for summary judgment (Matter of Ruhle, 173 AD3d 1389,1391 [3d Dept 2019]). The facts offered by objectant on the issues of capacity or undue influence would not change the Court’s prior determination (GMAT Legal Tit. Trust 2014-1, U.S. Bank, Natl. Assn. v. Wood, 173 A.D.3d 1533, 1534 [3d Dept 2019]). The Court therefore adheres to its August 2, 2021 determination. It is, therefore, ORDERED and DECREED, that objectant’s motion to renew her opposition to the motion for summary judgment under CPLR 2221(e) is granted to the extent that the Court accepted and reviewed the new evidence obtained by objectant Cathleen Ramos; and it is further ORDERED and DECREED, that the Court declines to modify or vacate its decision granting summary judgment to the executor, Eileen Popovich; and it is further ORDERED and DECREED, the Court adheres to its August 2, 2021 decision/order. This constitutes the order of the Court. All papers, including this Order, are hereby entered and filed with the Clerk of the Surrogate’s Court. Counsel is not relieved from the applicable provisions of CPLR Section 2220 relating to service and notice of entry. Dated: April 8, 2022
