Matter of Carl A. Lucia

Matter of Lucia 2003 NY Slip Op 19508 [2 AD3d 638] December 15, 2003 Appellate Division, Second Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

In the Matter of the Estate of Carl A. Lucia, Deceased. Craig J. Lucia, Respondent; Barbara Lucia, Appellant.

—

In a proceeding to settle the account of the executor, Craig J. Lucia, the objectant, Barbara Lucia, appeals, as limited by her brief, from so much of an order of the Surrogate's Court, Nassau County (Riordan, S.), dated November 22, 2002, as granted those branches of the executor's motion which were for summary judgment dismissing objection nos. 1, 2, 6, and 7.

Ordered that the order is affirmed insofar as appealed from, with costs payable by the appellant personally.

In response to the appellant's objections to the accounting, the executor made a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact as to whether the testator revoked the testamentary disposition of shares in a closely-held corporation by entering into an agreement to sell the shares back to the corporation (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; see also EPTL 3-4.2; Matter of Call, 65 Misc 2d 751 [1970]; Matter of Jakubowicz, 71 Misc 2d 840 [1972]; cf. Matter of Powers, 166 AD2d 534 [1990]). In opposition, the appellant failed to establish the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The appellant's remaining contentions are without merit. Luciano, J.P., Schmidt, Cozier and Rivera, JJ., concur.