Documents reviewed: 1. Notice of Motion by objectant filed July 11, 2023. 2. Affidavit of objectant in support of motion for summary judgment filed July 11, 2023. 3. Affirmation of Raymond P. Raiche, Esq. in support of motion for summary judgment filed July 11, 2023, together with Exhibits A-I. 4. Notice of Cross Motion by proponent filed July 24, 2023. 5. Affidavit of proponent in support of cross-motion for summary judgment filed July 24, 2023. 6. Affirmation of George R. Redder, Esq. in support of cross-motion for summary judgment filed July 24, 2023. DECISION/ORDER lauren Ashley Samaritan (“proponent”) has offered for probate a hand-written document as the last will and testament of her mother, Cassandra Samaritan (“decedent”). The document disposes only of decedent’s real estate and her “belongings,” which are specifically bequeathed to proponent. There is no residuary clause, nor is an executor nominated. Daniel Esposito (“objectant”), decedent’s son, is not a beneficiary under the instrument offered for probate. He objects to its probate and has filed a motion for summary judgment. In opposition, proponent has filed a cross-motion for summary judgment. In support of their respective motions, the parties offer their own affidavits and the Article 14 testimony of the attesting witnesses. Objectant also offered a billing summary of procedures and medications administered to decedent during her hospitalization. SUMMARY JUDGMENT. Summary judgment is designed to eliminate from the trial calendar litigation which can be resolved as a matter of law (see Andre v. Pomeroy, 35 NY2d 361 [1974]). Allegations must be specific and detailed and substantiated by evidence in the record (see Matter of Foranoce, NYLJ, Aug 7, 2000, at 25, col 6 [Surr Ct NY Cty]). The court’s customary role on a motion for summary judgment is to identify for trial any disputed material facts (Sillman v. Twentieth Century-Fox Film Corp, 3 NY2d 395, 404 [1957]). Its primary task is thus not to determine contested facts, but merely to determine if any such issues of fact exist (Barr v. County of Albany, 50 NY2d 247, 254 [1980]; In re Estate of Gonzalez, 196 Misc 2d 986). By virtue of their competing motions for summary judgment, the parties in this case have effectively stipulated that there are no material issues of fact. Kuehne & Nagel, Inc. v. Baiden, 36 NY2d 539, 544 [1975] (“where there are cross motions for summary judgment, in the absence of either party challenging the verity of the alleged facts,…there is, in effect, a concession that no question of fact exists”). The Court’s task is thus to examine the record and determine if either of the parties made a prima facie case as a matter of law which would entitle them to judgment by tendering sufficient evidence to demonstrate the absence of material issue of fact (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]). If the moving party fails to meet its burden of proof, summary judgment must be denied “regardless of the sufficiency of the opposing papers” (Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012]). Proponent’s burden is to demonstrate by a preponderance of the evidence that the Will was duly executed and that the decedent was possessed of testamentary capacity at the time she signed her will (Will of Watson, 37 AD2d 897 [3d Dept 1971]). Due execution is proved by conduct which conforms to the requirements of EPTL 3-2.1(a). Testamentary capacity is established by demonstrating that decedent understood the consequences of executing the will, knew the nature and extent of the property being disposed of and knew the persons who were the natural objects of her bounty, and her relationship to them (see Matter of Kumstar, 66 NY2d 691, 692 [1985]; Matter of Brower, 4 AD3d 586, 588 [3d Dept 2004]). Objectant’s burden on its motion for summary judgment is to “offer positive proof that the formal requirements of [EPTL 3-2.1(a)] were not met” (Matter of Buchting, 111 AD3d 114 [3d Dept 2013]) or that the decedent was subjected to undue influence or fraud (Matter of Peters, 75 Misc3d 1235 (A)[Sur Ct Erie Cty 2022]). Undue influence must be proved by specific allegations as to how, where and when such acts occurred (Matter of Peters, citing Matter of Friedman, 26 AD3d 723, 726 [3d Dept 2006]). FACTS. The following facts are few, but undisputed. At age 63, the decedent was diagnosed with advanced colon cancer. She was admitted to the Vassar Brothers Hospital for surgery. Decedent was hospitalized from April 28 through May 3, 2018. On May 1, 2018, decedent was visited in the hospital by Rosemary Cioffi (her aunt) and Michael Hanrahan (her brother). Cioffi testified that her niece was “tired and weak” when she visited that day1. Her niece, she recounted, said she wanted to “make a statement regarding her affairs, her belongings, because she did not know what was going to happen…. she said ‘Aunt Ro, I want to make a will and have everything I own go to my daughter, Lauren.’” Cioffi testified that she then transcribed decedent’s words and handed the paper to decedent, who then signed it. In his Article 14 testimony, Hanrahan confirmed that “[his] sister stated that she wanted to write a last will and testament.” He confirmed that decedent dictated the language to Cioffi, who transcribed it. He further confirmed that decedent signed the instrument. Hanrahan identified his signature on the document and confirmed that he and Cioffi signed it after decedent. He further testified that after she signed the instrument the decedent stated “this is [my] last will and testament.” Neither of the attesting witnesses testified that they saw decedent read her transcribed words to confirm their accuracy, nor was there testimony that decedent asked them to serve as witnesses. Only one of the attesting witnesses recalled during the Article 14 examination that the decedent stated that the instrument was her last will and testament (Matter of Peters, 75 Misc3d 1235 (A)[Sur Ct Erie Cty 2022]: “[the] testator must also at some time during the execution ceremony declare that the instrument being signed is their Will (EPTL 3-2.1 [a] [3])”(emph added). During her Article 14 examination, Cioffi testified that she could not remember if the decedent made any statements other her initial request to create a will. Notwithstanding her inability to remember any other statements during her Article 14 examination, Cioffi added the following to the errata sheet annexed to the transcript of her testimony: [Decedent] signed it after I wrote it [and] read it back to her to make sure I wrote her wishes [and] will the way she dictated it [and] wanted it. She then read it [and] signed it [and] kept it. The errata sheet was signed on May 2, 2023 and notarized by proponent’s attorney nearly two months after the Article 14 examinations. While the terms of the errata sheet call only for “changes or corrections” to the transcript, Cioffi’s additional statement offers entirely new evidence of material facts which she did not recall at the time of her examination. Material or critical changes like these are barred by CPLR 3116(a) unless “a statement of the reasons given by the witness for making them” is provided. Cioffi offers no explanation for her failure to offer this testimony during her deposition and the Court will not consider these material and substantive additions to Cioffi’s testimony in this decision (see, Ashford v. Tannenhauser, 108 A.D.3d 735, 736 [2d Dept 2013]: in the absence of “an adequate reason for materially altering the substance of [plaintiff's] deposition testimony, the altered testimony could not properly be considered in determining the existence of a triable issue of fact”). DECISION. There is no attestation clause following decedent’s signature in the Will, nor was an attorney involved in the drafting or execution of the Will. The absence of an attestation clause in the instrument does not preclude its probate (Estate of Tooker, 21 AD2d 928 [3d Dept 1964], but it does deprive the proponent of the useful presumption of due execution that would otherwise arise (Matter of Costello, 136 AD3d 1028 [2d Dept 2016]). The want of an attorney to supervise the execution of the proffered instrument creates another challenge for proponent, as she is denied the presumption of regularity that the instrument was properly executed (Matter of Collins, 60 NY2d 466 [1983]; Matter of Grancaric, 68 AD3d 1279 [3d Dept 2009], citing Matter of Kindberg, 207 NY 220, 227-78 [1912])2. The self-proving affidavit proffered by proponent would customarily create a presumption of due execution and constitutes prima facie evidence of the facts therein attested by the witnesses, including testamentary capacity (Matter of Cameron, 126 AD3d 1167, 1168 [3d Dept 2015]). However, when objections are made to probate, the objectant is, by implication, objecting to the self-proving affidavit as well (Margaret Valentine Turano, Practice Commentaries, McKinneys Cons Laws of NY SCPA 1406). SCPA 1406(1)[a] operates to strip the presumption from self-proving affidavits, depriving these statements of “independent probative effect” for purposes of proving the subject will (Matter of Buchting, 111 AD3d 1114, 1116 [3d Dept 2013]). The Article 14 testimony of the attesting witnesses is intended to provide the testimony which, in the absence of objections, would be derived from the self-proving affidavits. In the absence of the presumptions arising from attorney supervision, an attestation clause or a self-proving affidavit, proponent must rely on the Article 14 testimony alone to establish due execution and testamentary capacity on the date the Will was signed. Here, the rather meager testimony of the attesting witnesses is of limited utility. There was no testimony addressing how Cioffi and Hanrahan came to serve as witnesses, or even how they happened to visit the decedent at the same time. One wonders, for example, how it was that decedent decided she should sign her last will and testament that day: was the subject first broached by decedent? Or was it prompted by the suggestion of one of the witnesses or another person who might have been in contact with decedent? The instrument she signed only refers to her home and personal property. Was she aware that she had a bank account or that she owned an automobile? Did she have a life insurance policy or other non-probate assets? In a similar vein, there is no affirmative proof that she acknowledged the existence of her son, from whom she was estranged but who nevertheless was a presumptive “natural object of her bounty” (Matter of Kumstar, 66 NY2d at 692). Finally, there was no testimony that the decedent read the instrument prepared by Cioffi. The attesting witnesses also failed to address the decedent’s mental state at the time she signed her Will. The itemized billing statement for decedent’s hospital stay reflects that the painkillers oxycodone and gabapentin were administered to her several times each day. On May 1, 2018, the day that decedent signed her Will, she received 4 units of oxycodone (5 mg each) and 2 units of gabapentin (300 mg each). It is not known whether decedent had a meal before she met with the attesting witnesses or how many doses of painkillers she had received at that point in her day (see, Matter of Fraccaro, 161 AD3d 1275, 1277 [3d Dept 2018]). Without knowing the time of day when decedent signed her will or when she received doses of these powerful painkillers, a question of fact is found, as “the appropriate inquiry is whether the decedent was lucid and rational at the time the will was signed” (Matter of Buchanan, 245 AD2d 642, 644 [3d Dept 1977]). The paltry evidence offered in this proceeding renders the Court incapable of assessing decedent’s testamentary capacity at the time she signed her Will or whether the requirements of EPTL 3-2.1(a) for due execution were satisfied that day. As should be clear from the Court’s recital of material issues of fact, neither proponent nor objectant have made out a prima facie case in this proceeding. Proponent has not demonstrated by a preponderance of the evidence that the instrument offered for probate was duly executed and that the decedent was possessed of testamentary capacity at the time she signed her will (Will of Watson, 37 AD2d 897 [3d Dept 1971]). Objectant has not offered any evidence that the instrument was the product of undue influence and only a lay person’s assessment of the possible forgery of the instrument (Matter of Peters, citing Matter of Friedman, 26 AD3d 723, 726 [3d Dept 2006]: undue influence must be proved by specific allegations as to how, where and when such acts occurred; and In re Will of Hynes, 2023 N.Y. Misc. LEXIS 797, *16 [Sur Ct Queens Cty]: “where an objectant intends to offer proof that the instrument offered for probate has been forged by another, the proponent is entitled to particulars of the forgery, and where known, the name and address of the person or persons who forged the instrument”). The Court having identified multiple material issues of fact which are not resolved by the parties’ submissions (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]), the parties’ respective motions for summary judgment are denied. It is, therefore, ORDERED and DECIDED that objectant’s motion for summary judgment is denied; and it is further ORDERED and DECIDED that proponent’s cross motion for summary judgment is denied. A scheduling conference shall be held via Microsoft Teams on November 20, 2023 at 11:00 am. The Court has considered the balance of objectant’s arguments not addressed herein and finds them to be without merit. 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: October 10, 2023
