Matter of Katz

Matter of Katz 2013 NY Slip Op 01008 Decided on February 14, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 14, 2013
Mazzarelli, J.P., Friedman, Manzanet-Daniels, Román, Clarke, JJ. Probate Proceeding, Will File
9255 497/08

[*1]of Reva Katz, Deceased.

Barbara Fortgang, et al., Petitioners-Respondents, Dr. Jeffrey I. Katz, Objector-Appellant.


Jack Dashosh, Sea Cliff, for appellant.
Goldfarb Abrandt Salzman & Kutzin LLP, New York (Michael
S. Kutzin of counsel), for respondents.

Order, Surrogate's Court, New York County (Kristin Booth Glen, S.), entered on or about September 28, 2012, which granted petitioners' motion for summary judgment dismissing objector's objections to probating the will, unanimously affirmed, without costs.

In opposition to the self-proving affidavits submitted by petitioners establishing the decedent's competency at the time her will was executed (see Matter of Schlaeger, 74 AD3d 405 [1st Dept 1995]), objector submitted a medical opinion to the contrary by a doctor who had never examined decedent and based her opinion solely on medical records (see Matter of Estate of Van Patten, 215 AD2d 947, 949 [3d Dept 1995], lv denied 87 NY2d 802 [1995]). Moreover, the decedent was examined shortly before she executed the will by a psychiatrist hired by her trust and estates lawyer and was found competent.

The fact that the decedent's lawyer was referred to her by petitioners is insufficient to raise an issue of fact as to undue influence (see Matter of Walther, 6 NY2d 49, 54-55 [1959]). [*2]Moreover, the decedent adequately explained in the will her exclusion of objector therefrom.

Objector failed to identify any knowing misstatement by petitioners to support his objection based on fraud.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 14, 2013

CLERK