Recitation, as required by CPLR §2219(a), of the papers considered on the review of this motion to: award summary judgment to the petitioner, pursuant to CPLR §3212. Papers NYSEF Doc. # Notice of Motion and Affidavits Annexed 1-10 Order to Show cause and Affidavits Annexed Answering Affidavits 13-23 Replying Affidavits 24 Exhibits Other: Sur Reply 25 DECISION/ORDER Upon the foregoing cited papers, the Decision/Order on this motion is as follows: In this contested probate proceeding, Seth Frankel (the “petitioner”) moves pursuant to CPLR §3212 for summary judgment, seeking an order of the court dismissing the objections interposed by Jeremy Binckes and Lianne Binckes (together, the “objectants”) to the probate of a written instrument, dated November 8, 2002 (the “propounded instrument”), which purports to be the Last Will and Testament of Sylvia Bierfass Frankel (the “decedent”). The decedent died on August 7, 2017 and was survived by her son, Seth Frankel, and two grandchildren, Jeremy Binckes and Lianne Binckes.1 Pursuant to the propounded instrument, the petitioner is the nominated successor executor of the decedent’s estate and is the beneficiary of the decedent’s real property, 108 Rugby Road, Brooklyn, NY (“the subject property”), as a life tenant. The residuary estate is bequeathed to decedent’s son, Seth Frankel, and decedent’s daughter, Marneena S. Frankel Binckes, who pre-deceased the decedent. A specific bequest of 400 shares of Con-Edison stock is bequeathed to the decedent’s grandchildren, Lianne S. Binckes and Jeremy Binckes. Verified objections were filed on June 29, 2018, in which the objectants assert that the propounded instrument is the product of fraud and undue influence. Contentions Counsel for the petitioner has filed the instant motion for summary judgment seeking an order of the court dismissing the objections and admitting the propounded instrument to probate. In support, counsel has included affirmations from the attesting witnesses, Judge Frank Seddio (ret.)2 and Joseph R. Vasile, Esq., as well as excerpts of deposition testimony from the two attesting witnesses that corroborate petitioner’s assertion that the propounded instrument was executed in accordance with EPTL §3-2.1, and the testator had the requisite capacity at the time of the propounded instrument’s execution. Opposition has been filed by counsel for the objectants, which asserts, inter alia, that the petitioner has not made a prima facie showing of entitlement for summary judgment due to the failure to address the allegations of undue influence raised in the objections to the probate petition. In addition, the objectants list several events that they allege indicate undue influence.3 Most significantly, objectants refer to an alleged recording of a conversation that occurred on September 2, 2017, in which petitioner allegedly stated: “Oh no, I told her. She gave me the first will she’d done, the draft of it. And I said, ‘Okay this is fine. Me and Marna’s fine but I need the life estates [sic] because they’ve got to be in the city, in my title. And so just give me the life estate so that I can’t be thrown out the next day.” (See Exhibit “A” annexed to objectant’s Opposition to Petitioner’s Motion for Summary Judgment, p. 8).4 The objectants have also submitted the deposition testimony of Jeremey Binckes, in which he stated that “[my uncle] told me in 2017 that in 2002 he saw a draft of the will that did not have a life estate and he dragged my grandmother back to get a draft of the Will, a version of the Will that did have a life estate.” (Jeremy Binckes Deposition, Exhibit “C” annexed to objectant’s Opposition, p. 7, lines 12-16). Petitioner’s counsel filed a reply in which arguments addressing the allegations of undue inference were interposed. Counsel asserts that the events referred to in the objections are not enough to set aside an instrument that meets the requirements of due execution and testamentary capacity. Further, many of these events occurred thirteen (13) years or more after the decedent executed the propounded instrument and are irrelevant. With respect to the petitioner’s request of the decedent to change her will to give him a life estate in the subject property, petitioner’s counsel argues that there has been no evidence submitted that would show the request amounted to fraud or undue influence. Rather, petitioner asserts that the request was petitioner’s expression of a valid concern about being thrown out of the house right after his mother dies, and the fact that the decedent honored this request is not, in and of itself, indicative of fraud or undue influence. In response, counsel for the objectants has filed a sur-reply in which they assert, inter alia, that the arguments presented by petitioner in the reply should not be considered by the Court because raising a new substantive issue of law for the first time in a reply brief is improper. Counsel further argues that the events that occurred between 2015-2017 should be considered by the Court because the time limitations imposed by 22 NYCRR §207.27 (the “3-2 Rule”) only apply to examinations before trial and special circumstances exist that warrant the expansion of the scope of discovery. These special circumstances are the alleged existence of a “continuing pattern of undue influence and fraud.” Matter of Rosasco, 2011 NY Slip 50673 [NY Surr Ct. 2011]); In re Po Jun Chin, 55 Misc3d 1092 [Queens Surr Ct 2017]). Argument of the motion was heard on September 14, 2023 before the undersigned, at which counsel for the petitioner, Albert Goodwin, Esq. and counsel for the objectants, James W. LaPaglia, Esq., were present. Discussion Summary judgment is a drastic remedy that may be granted only where there is an absence of any material issues of fact requiring a trial. (See CPLR §3212(b); Vega v. Restani Const. Corp., 18 NY3d 499, 503 [2012]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence to demonstrate the absence of any material issues of fact. (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Failure to make this initial showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). In reviewing the sufficiency of the proponent’s submissions, the facts must be carefully viewed in the light most favorable to the nonmoving party. (Ortiz v. Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). Once a prima facie showing is made, the burden shifts to the party opposing the motion to produce evidentiary proof sufficient to establish the existence of material issues of fact requiring a trial of the action. (Chance v. Felder, 33 AD3d 645 [2d Dept 2006]); Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). In order to defeat a motion for summary judgment, the respondent must “lay bare their proof’ and demonstrate that there is a genuine triable issue of fact, by allegations that are specific and detailed and substantiated by admissible evidence in the record. (Towner v. Towner, 225 AD2d 614, 615 [2d Dept 1996]). Mere conclusory assertions will not suffice. (Matter of O’Hara, 85 AD2d 669, 671 [2d Dept 1981]); McGahee v. Kennedy, 48 NY2d 832 [1979]). Due Execution and Testamentary Capacity Although there were no objections to the due execution of the propounded instrument and the decedent’s testamentary capacity at the time of its execution, the court must be satisfied independently with “the genuineness of the will and the validity of its execution” before the propounded instrument is admitted to probate. (SCPA §1408(1)). In the instant matter, the petitioner has offered the original of the propounded instrument, the affidavits of attesting witnesses, and the deposition transcripts of attesting witnesses. The propounded instrument was executed on November 8, 2002, in the presence of two attesting witnesses, one of whom was the attorney-drafter, thereby giving rise to a presumption of proper execution. (See Matter of Sabatelli, 161 AD3d 872, 873-874 [2d Dept 2018]; Matter of Farrell, 84 AD3d 1374, 1374 [2011]; Matter of Mooney, 74 AD3d 1073 [2d Dept 2010]). The propounded instrument contains the signatures of the testator and the attesting witnesses and has an attestation clause, which is prima facie evidence of proper execution. (See Matter of Collins, 60 NY2d 466 [1983]). The affidavits submitted by each of the attesting witnesses state that the decedent “was suffering no defect of sight, hearing or speech, or from any other physical or mental impairment that would affect [her] capacity to make a valid Will.” This constitutes prima facie evidence of the facts attested to and creates a presumption of testamentary capacity. (see Matter of Jacobs, 153 AD3d 622 [2d Dept 2017]; Matter of Curtis, 130 AD3d 722, 722-723 [2d Dept 2015]). Accordingly, this court finds that the propounded instrument was duly executed in conformance with the statutory requirements and the testator did have capacity to make a valid will at the time of the propounded instrument’s execution. Undue Influence “On a motion for summary judgment dismissing an objection based upon undue influence, the movant bears the prima facie burden of demonstrating that the will was not the product of undue influence.” (Matter of Rozof, 219 AD3d 1428, 1429 [2d Dept 2023]; see Matter of Michels, 192 AD3d 1110, 1112 [2d Dept 2021]; Matter of Gobes, 189 AD3d 1402, 1403-1404 [2d Dept 2020]). Where undue influence is alleged, three elements of undue influence must be established: motive, opportunity, and the actual exercise of influence. (Estate of Malone, 46 A.D.3d 975 [3d Dept 2007]). To prove undue influence, “the objectant must demonstrate that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the [testator] to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist.” (Matter of Walther, 6 NY2d 49, 53 [1959], quoting Children’s Aid Society v. Loeveridge, 70 NY 387, 394 [1877]). As for fraud, “[a]n objectant seeking to establish that a will is the product of fraud must demonstrate by clear and convincing evidence that the proponent of the will knowingly made false statements to the testator to induce the testator to make a will disposing of his or her property in a manner contrary to that which the testator would have effected.” (Matter of Rottkamp, 95 AD3d 1338, 1339-1340 [2d Dept 2012]). Here, the petitioner has made a prima facie showing that the propounded instrument was an expression of decedent’s own intent rather than that of any other person. As stated above, petitioner has submitted the testimony of the attorney-drafter and witnesses, as well as the self-proving affidavits of the witnesses, which collectively support a determination that the propounded instrument was, in fact, a reflection of the decedent’s free will. (Estate of Samuel Stein, 2018 NYLJ LEXIS 116). While the evidence regarding petitioner’s request for a life estate may suggest the petitioner induced the inclusion of said request in the propounded instrument by undue influence, the evidence also suggests the propounded instrument expressed the decedent’s own voluntary intent. “An inference of undue influence cannot be reasonably drawn from circumstances when they are not inconsistent with a contrary inference.” (In re Reuf, 180 AD 203, 204 [2d Dept 1917]). Here, the “contrary inference” is that the decedent considered her son’s concerns and decided of her own free will to provide a secure residence for him until he no longer needed it. In addition, the propounded instrument is not unnatural or the result of an unexplained departure from a previously expressed intention of the decedent. (In re Will of Walther, 6 NY2d 49 [1959], citing Tyler v. Gardiner, 35 NY 559 [1866]). The decedent left her estate to her two children, and altered the draft of her will only to include a life estate for the child who was living at the subject property with her at the time. Petitioner explains in his deposition that he asked for the life estate because: “I didn’t want my sister to be able to have the house sold out from under me after my mother’s death without my consent. Since my mother had just bought a house for my sister the previous — that summer that she moved into so my sister had a place to live and I was working a title that required me to live in the five boroughs, I wanted — and I knew my sister would want the money as soon as possible, I felt it was beneficial all around that I would split the money with my sister when I sold the house, but in the meantime it would give me the convenience and ability to remain in my father’s house and her house until such time as I chose to sell it.” (Seth Frankel Deposition, Exhibit “B” annexed to objectant’s Opposition, p. 115 line 20 — p. 116 line 13). Petitioner also states that he did not take the decedent to Judge Seddio’s office on the day of the execution of the propounded instrument, and that he did not learn that his request was granted until the decedent showed him a copy of the executed instrument. “[L]awful influences which arise from the claims of kindred and family or other intimate personal relations are proper subjects for consideration in the disposition of estates, and if allowed to influence a testator in his last will, cannot be regarded as illegitimate or as furnishing cause for legal condemnation.” (Children’s Aid Soc. v. Loveridge, 70 NY 387, 395 [1887]; see also In re Will of Walther, 6 NY2d 49 [1959]). Even though the objectants claim there is an audio recording of a conversation that occurred on February 2, 2017, said recording has not been submitted to this Court in admissible form, and in any event the recording would, if made available, be insufficient to establish undue influence. After considering all submissions, this Court finds the allegations of undue influence advanced by the objectants are speculative and rest upon no solid evidentiary foundation. Accordingly, the objections with respect to fraud and undue influence are dismissed. Conclusion The petitioner has established a prima facie case for summary judgment on the issues of due execution, testamentary capacity, and lack of fraud and undue influence with respect to the execution of the purported will. All other arguments have been considered and found unavailing or otherwise moot. Accordingly, it is ORDERED that the motion for summary judgment is granted in its entirety; and it is further ORDERED that all objections to the probate of the purported Last Will and Testament of Sylvia Frankel dated November 8, 2002 are dismissed; and it is further ORDERED that the propounded instrument will be admitted to probate as decedent’s last will and testament and Letters Testamentary shall issue to petitioner upon duly qualifying according to law. Decree signed. Dated: May 7, 2024
