This is a motion by petitioner Peggie Murray (“Peggie”) for summary judgment dismissing the objections filed by Gloria Jean Singletary (“Gloria”) and the issuance of letters of administration to her pursuant to SCPA 1001 (9). The pertinent facts are as follows. Lynn Bowden, Jr. died on July 7, 2017. An instrument purporting to be his last will and testament, dated July 26, 2016, was filed by Gloria in the Surrogate’s Court, Kings County. A few weeks later Gloria filed a petition seeking to probate the purported will and the issuance of letters of administration, c.t.a. to herself. Accompanying the petition was a waiver and consent allegedly executed by Joyce Bowden (“Joyce”), a legatee under the instrument, and an individual acknowledged by Gloria to be decedent’s daughter. Motion practice thereafter ensued and by decision and order dated May 24, 2018, Surrogate Margarita Lopez Torres granted Joyce’s motion to revoke the waiver and consent. Over the ensuing months, Gloria never endeavored to amend her petition, ascertain the whereabouts of decedent’s distributees, submit a proposed petition or take any other action to complete jurisdiction. Consequently, by decision and order dated April 12, 2019, Surrogate Lopez Torres made findings regarding the existence and identity of decedent’s distributees, and then dismissed Gloria’s petition “…for failure to prosecute such petition with diligence” pursuant to SCPA 209 (8). After two more years of inactivity, in April of 2021, Peggie commenced the instant proceeding which was transferred to this Court. Gloria, in response, filed objections which did not specifically address petitioner’s request for relief under SCPA 1001(9). Referencing the instrument on file, the objections recite that decedent “made out a Last Will and Testament leaving everything to me and Joyce his daughter” and state that “There is no citation on the record dismissing the Will, the Will is still in full affect (sic).” The balance of Gloria’s objections focuses on allegations that Peggie and her siblings, Lennell and Eric, are not decedent’s children or distributees of the decedent and, therefore, are ineligible to be administrators of his estate. Totally absent is any explanation as to the reason for the delay in probating the instrument or what efforts she made in the four years since the decedent’s death to do so. After conducting depositions and completing pre-trial discovery, Peggie served and filed the instant motion for summary judgment. SCPA 1001 (9) provides that letters of administration may be granted by the court in any case in which a paper writing purporting to be a will has been filed in the court and proceedings for its probate have not been instituted within a reasonable time or have not been diligently prosecuted. Petitioner’s motion papers are sufficient to make a prima facie showing of entitlement to summary judgment granting relief under this section as a matter of law (CPLR 3212[b]; Zuckerman v. City of New York, 49 NY2d 557; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065; Matter of Parravani, 211 AD2d 965). In her submission Peggie set forth evidence that decedent was not married at the time of his death; that Gloria’s petition incorrectly identified herself to be Joyce’s daughter; that, by decision and order dated April 12, 2019, Surrogate Lopez Torres found that the decedent was survived by four children Peggie, Joyce, Lennell and Eric; that Peggie is a distributee of decedent’s estate entitled to the issuance of letters of administration; that Gloria is unrelated to the decedent or his distributees; that, although Gloria filed a paper purporting to be decedent’s last will and testament and petitioned for its admission to probate in July of 2017, Surrogate Lopez Torres, by decision and order dated April 12, 2019, made a finding that the probate proceeding had “languished for almost twelve months without action by the petitioner” and that Gloria failed “…to prosecute such petition with diligence;” and that Gloria has still not taken any action to advance the probate of the instrument since Surrogate Lopez Torres’ decision and order. In opposition Gloria filed an affidavit accompanied by 11 exhibits. Similar to the objections, the opposition papers do not address the core issue of whether Gloria was diligent in probating the decedent’s purported last will and testament. Rather, Gloria concentrates on the fact that the purported will and a death certificate were filed in the Surrogate’s Court with a petition. No mention is made regarding her efforts to obtain the issuance of a citation to all necessary parties. The remainder of her opposition consists of a renewed attack on Peggie’s status as one of decedent’s children which is in direct contravention of Surrogate Lopez Torres’ holding of April, 2019. Additionally, Gloria exhibits confusion about her own kinship relationship to the decedent, alleging alternatively to be decedent’s sister and decedent’s granddaughter. Accordingly, since Gloria has failed to raise issues of fact regarding her failure to diligently prosecute the proceeding or concerning Peggie’s ability to serve as administrator, petitioner’s motion for summary judgment dismissing Gloria’s objections should be granted. Yet, the Court can not be totally unmindful that a purported last will and testament is on file, or of its paramount duty is to fulfill a testator’s intent regarding the distribution of estate assets. Obviously, if the motion is granted, the estate assets will be distributed pursuant to the mandates of EPTL 4-1.1, while the instrument filed with the court provides for a different distribution. In the Court’s opinion, this dichotomy is an insufficient basis to deny the application. The plain language of the statute provides that if delay occurs in either the commencement or prosecution of a probate matter, the court may, in its discretion, grant letters of administration regardless of the propriety of a purported last will and testament [SCPA 1001 (9)]. Although it appears older case law intimated that the granting of letters of administration in these instances should be limited to those matters where the court found potential irregularities, more recent authority has found no such pre-requisite exists (See: Matter of Von Ripper, 95 Misc 2d 952). It also appears that the only analogous appellate authority endorses a Surrogate’s ability to grant this relief, while cautioning the court should not abuse its discretion in a manner that would to permit the intentional frustration of a testator’s intent (Matter of Fischer 24 AD3d 858). With this in mind, the Court notes that the instrument on file consists of two papers stapled together. The first page consists of a “backing” cover containing only the words “Will of Lynn Bowden Jr. Dated, 7-26-2016.” The front side of the second paper consists of a Blumberg form “Last Will and Testament” containing, inter alia, the following handwritten entries: Every that (sic) I have I give to Gloria Jean Singletary. She can do whatever she see to do. My money belongs to her for staying by my side and helping me… If I should pass away before my 93rd birthday the money in the Chase Bank is her (sic) to have, I want to give give (sic) to Joice (sic) my real daughter $10,000. It does not contain any signatures or initials… The back side of the second page contains the words “Affidavit of Subscribing Witnesses” indicating, inter alia, that the “Will was executed under the supervision of Gloria Jean Singletary, attorney(s) for the Testator.” Gloria acknowledged in her deposition that the instrument was neither prepared, nor its execution supervised, by an attorney. Underneath this language are three signatures purporting to be those of decedent, Gloria Singletary and Nathaniel Benjamin. The three signatures were supposedly notarized. The Court is satisfied, under the circumstances set forth herein, that despite having ample opportunity to do so, Gloria Jean Singletary has failed to prove the genuineness and validity of the instrument; that a valid excuse for her failure to timely probate the instrument does not exist; that the petitioner has shown sufficient basis for the relief requested in the petition; that petitioner is qualified to receive letters of administration; and it is a proper exercise of the Court’s discretion to grant the requested relief. Accordingly, the motion is granted. Letters of Administration shall issue to the petitioner upon her duly qualifying. The administrator shall distribute the net distributable estate pursuant to EPTL §4-1.1. Short form order signed simultaneously herewith. Settle decree. Dated: August 4, 2022
