Matter of Cirnigliaro

[*1] Matter of Cirnigliaro 2017 NY Slip Op 51931(U) Decided on December 28, 2017 Surrogate's Court, Sullivan County LaBuda, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 28, 2017
Surrogate's Court, Sullivan County

PROBATE PROCEEDING, WILL OF Rosario Cirnigliaro a/ka ROSARIO SAL CIRNIGLIARO a/k/a SAL CIRNI, Deceased.



2016-34



Law Office of Brett Peter Linn, Esq.

54 Pondersoa Road

Carmel, New York 10512

Per Diem Counsel for

GLENN KROLL, ESQ.

92 Main Street

Bloomingburg, New York 12721

Attorneys for Petitioner

Farrell Fritz, P.C.

400 RXR Plaza

Uniondale, New York 11556

By: John Barnosky, Esq. and Robert Harper, Esq.

Attorneys for Objectants
Frank J. LaBuda, J.

The decedent, Rosario Cirnigliaro, died testate a resident of Sullivan County on January 1, 2016. In a Will dated September 4, 2013, the petitioner bequeathed the sum of $10,000.00 to his son Peter Cirni. Petitioner devised his entire residuary estate to his long time companion of fifty years to Joan H. June. The decedent designated Joan H. June as his Executrix. On January 26, 2016, Joan H. June filed an application for letters testamentary and an application for preliminary letters testamentary. On January 28, 2016 the Surrogate Court issued an Order granting preliminary letters with limitations to Joan H. June. On April 22, 2016, the Surrogate Court issued Citation to Peter Cirni, decedent's son and to Brigett Martell and Chad Martell, decedent's grandchildren who are the children of decedent's pre-deceased daughter, Nancy Martell. On May 3, 2016, Peter Cirni, Brigett Martell and Chad Martell filed a Notice of Appearance. On May 12, 2016, the distributees filed a SCPA § 1404 Notice. On May 23, 2016, the distributees filed a Notice for Discovery and Inspection. On September 27, 2016, SCPA § [*2]1404 examinations were held. On November 17, 2016, the distributees filed a Notice of Objections and Jury Trial Demand.

The objectants maintain the purported Last Will and Testament of the deceased should not be admitted to probate as the decedent was 1) not competent to make a will as he was not of sound mind or memory and lacked the required testamentary capacity; 2) the decedent was subject to undue influence and 3)decedent's Last Will and Testament was procured and obtained by fraud. On April 14, 2017, the objectants moved for summary judgment pursuant to CPLR 3212 alleging the decedent lacked testamentary capacity to execute a Last Will and Testament dated September 4, 2013. The petitioner opposes the motion and does not cross-move for summary judgment on the issue of testamentary capacity. In addition, since neither the objectants or the petitioner move for summary judgment on the issues of undue influence or fraud, the Court will not address those objections.

"Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue." (McDay v. State, 130 AD3d 1359 [3rd Dept. 2016]). In deciding whether summary judgment is warranted, the Court's main function is issue identification, not issue determination. (Barr v. County of Albany, 50 NY2d 247 [1980]). The party seeking summary judgment has the burden of establishing its entitlement thereto as a matter of law. (Winegard v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). The evidence must be construed in a light most favorable to the party opposing the motion. (Davis v. Klein, 88 NY2d 1008 [1996]). In order to defeat a motion for summary judgment, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial of the action. (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). Failure to make such showing requires denial of the motion regardless of the sufficiency of the opposing papers. (Voss v, Netherlands Ins. Co., 22 NY3d 728 [2014]).

Summary judgment is rare in a contested probate proceeding. (Matter of Castiglione, 40 AD3d 1227 [3rd Dept. 2007], lv denied 9 NY3d 806 [2007]). Summary judgment while unusual in a contested probate proceeding, is nonetheless proper where the proponent established a prima facie case for probate and the objectant fails to raise a material triable issue of fact. (Matter of Leach, 3 AD3d 763 [3rd Dept. 2004]). However, where "there is conflicting evidence or the possibility of drawing conflicting inferences from undisputed evidence" summary judgment is inappropriate. (Matter of Kumstar, 66 NY2d 691 [1985]; Matter of Williams, 13 AD3d 954 [3rd Dept. 2004], lv denied 5 NY3d 705 [2005]).

The objectants claim the decedent and the petitioner had a long term relationship but never married. The objectants contend the petitioner contacted Attorney Kroll in 2009 in order to have a Will prepared for the deceased. On June 14, 2009, the decedent signed a Will and bequeathed $10,000 to his son, Peter Cirni and devised his residuary estate to Joan June. The Will was placed in a safe which was located on property owned by the decedent. In late 2011 or early 2012, someone broke into the home and removed the safe which contained the decedent's Will. Petitioner alleges the decedent was not immediately aware that the safe was stolen. Thereafter, the decedent realized he had to execute a new Will.

In support of the motion for summary judgment, the opponents maintain the decedent had been suffering from dementia since early 2011. The objectants claim the decedent received [*3]assistance at his home through a health care agency. Social worker Beverly Wiggins found the decedent "confused" and "forgetful in both short and long term spheres". In May 2012 Chris Feroli, a nurse practitioner assigned to the decedent was of the opinion that the decedent has "advanced dementia" and was "pleasantly confused. Ms. Feroli noted the petitioner provided round the clock care for the decedent. In the fall of 2012, VA nurse Lavern Glave observed that the decedent's mental condition continued to deteriorate and he suffered three falls in December 2012. In February 2013, it was noted that decedent's dementia was "moderately severe" and he sustained a fall that required a hospital evaluation.

Objectants claim the petitioner hired a new home healthcare agency, Hand in Hand Care in 2013. The decedent was evaluated by Carolyn Morse, a registered nurse, who found the decedent suffered from dementia, has a history of "wandering" and "falls", required assistance with his daily activities and was bladder and bowel incontinent. Healthcare aide Annette Griffin assisted the decedent from April 10, 2013 to May 3, 2013. Ms. Griffin found the decedent "was unable to so anything", was not able to control himself, regularly became enraged and made physical threats against her. Ms. Griffin alleges she observed the decedent shoving the petitioner into a hot oven. Ms. Griffin claims the decedent threw a hot cup of coffee at her and threatened her with a knife. Ms. Griffin immediately resigned after she was threatened.

Nurse Morse claims that from April, 2013 to August 2013, she had seen the decedent five times and believed he suffered from dementia and confusion. Ms Morse claims her agency stopped assisting the decedent in August 2013. In August 2013, the decedent was seen by Dr. Tomasini, an optometrist, for broken glasses as a result of a fall. Dr. Tomasini noted the decedent had dementia and was unsuccessfully treated with Namenda, an Alzheimer drug.

The objectants claim the petitioner contacted Attorney Kroll in August 2013 in order to have a will prepared for the decedent. Attorney Kroll prepared a will similar to the 2009 Will which was signed by the decedent on September 4, 2013 at Attorney Kroll's office. The objectants maintain the decedent did not know the objects of his bounty or his assets.

The objectants contend since the execution of the Will, the descendent's mental condition became worse. VA nurse Glave found the decedent sustained "severe cognitive impairment". However, she did not make a diagnosis of decedent's condition.

In opposition to the motion, the petitioner alleges the objectants have not produced any medical evidence that the decedent was diagnosed with dementia. The petitioner claims since the objectants had no relationship with the decedent, they have no personal knowledge demonstrating that the decedent lacked capacity on the day he signed the Will. The petitioner claims Peter Cirni moved to Arizona in the 1970's and had very little contact with his father. The petitioner alleges the objectant grandchildren never informed the decedent that his daughter, their mother, had died in 1995 until after she was buried. Petitioner claims the decedent's grandchildren had no contact with him for years.

The petitioner claims the decedent was never an easygoing man and was subject to moodiness, anger and aggressive behavior. The petitioner alleges the decedent was often curt and uncommunicative and spoke Italian when he was upset. The petitioner claims the visiting nurses, social workers and heath aides saw him infrequently and did not conduct a mental evaluation of the decedent. The petitioner alleges when the decedent was in his 90's, he need assistance with his daily living activities.

The petitioner claims the decedent conducted his real estate business and often spoke to his financial adviser in regard to his Oppenheimer account. The petitioner, her son and her grandson claim the decedent was competent and had the required testamentary capacity when he executed his Last Will and Testament on September 4, 2013. At the time of the execution of the Will, Attorney Kroll testified he did not know the decedent suffered from dementia.

The appropriate inquiry regarding testamentary capacity is whether the decedent was lucid and rational at the time the will was made. (Matter of Williams, 13 AD3d at 957). Once a decedent's testamentary capacity is challenged, the proponent of the will must demonstrate that the decedent understood (1) the nature and consequences of executing a will, (2) the nature and extent of his property and (3) the natural objects of his bounty and the relationship to them. (Matter of Castiglione, 40 AD3d at 1228; Matter of Kumstar, 66 NY2d at 692; Matter of Ruparshek, 36 AD3d 998 [3rd Dept. 2007]). A presumption of testamentary capacity is created when an attorney drafts a will and supervises its execution, particularly if the evidence submitted includes an affidavit by one of the subscribing witnesses stating that the testator was mentally acute. (Matter of Nofal, 35 AD3d 1132 [3rd Dept. 2006]).

The Court is mindful that the proponent has the burden to demonstrate that the decedent possessed the capacity to make a Will. (Matter of Elkan, 84 AD3d 603 [1st Dept. 2011] One need not have a perfect mind or memory to make a Will. (In re Horton's Will, 26 Misc 2d 843, aff'd 13 AD2d 506 [2nd Dept. 1961]). Moreover, a diagnosis of progressive or senile dementia is not inconsistent with testamentary capacity. (Matter of Friedman, 26 AD3d 723 [3rd Dept. 2006]). Proof of competency for purposes of executing a will entails only a demonstration that the person understood the nature and extent of his property, the natural objects of his bounty and the provisions of the instrument. (In re Estate of Colverd, 52 AD3d 791 [3rd Dept. 2008]). A testator only needs a general awareness of the assets in his estate. (Matter of Walker, 80 AD3d 865 [3rd Dept. 2011]).

The proponent has the burden to make a prima facie case of testamentary capacity with proof of the formal execution of the Will and the affidavits and testimony of the witnesses. (Matter of Schlaeger, 74 AD3d 405 [1st Dept. 2010]). Although the burden of proof never shifts, the objectants have the burden of going forward with evidence indicating lack of capacity and if the objectants fails to do so, probate may be directed. (In re Nealon, 57 AD3d at 1325 [3rd Dept. 2008]; In re Estate of Scaccia, 66 AD3d 1247 [3rd Dept. 2009]).

After a review of the motion, the objectants have failed to demonstrate that the decedent lacked the testamentary capacity to make a will as a matter of law . However, the objectants have raised issues of fact that precludes summary judgment that should be resolved at trial. The records indicate the decedent had multiple health problems and may have suffered from dementia. However, the VA medical records do not speak to the severity of the dementia and do not establish the level of decedent's capacity at the time the propounded instrument was executed, which is the key inquiry. (Matter of Williams, 13 AD3d at 957). In addition, the objectants have not produced any credible medical evidence demonstrating the decedent lacked testamentary capacity. (Will of Feinberg, 37 Misc 3d 1206(A) [2012]; In re Estate of Mooney, 22 Misc 3d 1138(A) [2009], appeal dismissed 74 AD3d 1073 [2nd Dept. 2010]).

The Court determines questions of fact exist in regard to whether the decedent was lucid and rational at the time the Will was made. (Matter of Paigo, 53 AD3d 836 [3rd Dept. 2008]). [*4]Objectants' motion for summary judgment on the issue of testamentary capacity to make a will is denied as questions of fact exist that precludes summary judgment. (Matter of Moskoff, 41 AD3d 481 [2nd Dept. 2007]).

This shall constitute the Decision and Order of this Court.

Dated: December 28, 2017

Monticello, New York

Hon. Frank J. LaBuda

Sullivan County Court Judge and Surrogate

Papers Considered:

1) Notice of Motion dated April 13, 2017; Affirmation of Robert H. Harper, Esq. dated April 13, 2017 with annexed exhibits A-CC; Objectants' Memorandum of Law dated April 13, 2017;

2) Petitioner's Memorandum of Law dated July 13 2017;

3) Reply Affirmation of Robert M. Harper, Esq. dated August 17, 2017 with annexed exhibits 1-6; Memorandum of Law dated August 17, 2017.