Matter of Imperato (Amengual)

Matter of Imperato 2009 NY Slip Op 08616 [67 AD3d 909] November 17, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

In the Matter of Estate of Thomas Imperato, Deceased. Angela Amengual, Respondent; Alfred Zucaro, Jr., Appellant; Maria Zucaro, Nonparty Appellant.

—[*1] Stern Keiser Panken & Wohl, LLP, White Plains, N.Y. (Laurence Keiser of counsel), for appellant.

Sichol & Hicks, P.C., Suffern, N.Y. (William R. Sichol, Jr., of counsel), for respondent.

In a probate proceeding, the objectant Alfred Zucaro, Jr., appeals from an order of the Surrogate's Court, Rockland County (Berliner, S.), dated September 10, 2007, which granted the petitioner's motion, in effect, for summary judgment dismissing his objections to probate and admitting the will to probate, and nonparty Maria Zucaro appeals from the same order.

Ordered that on the Court's own motion, the appeal by nonparty Maria Zucaro is dismissed, as she is not aggrieved by the order (see CPLR 5511); and it is further,

Ordered that the order is affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondent.

The petitioner made a prima facie showing that, at the time the testator executed the subject will, he possessed the requisite testamentary capacity (see Matter of Kumstar, 66 NY2d 691, 692 [1985]; Matter of Malan, 56 AD3d 479, 480 [2008]; Matter of DiCorcia, 35 AD3d 463, 464 [2006]). Furthermore, the petitioner made a prima facie showing that the will was not procured through undue influence (see Matter of DiCorcia, 35 AD3d at 464). In opposition to the petitioner's prima facie showing, the objectant Alfred Zucaro, Jr., failed to raise a triable issue of fact (see Matter of James, 62 AD3d 707, 707-708 [2009]; Matter of DiCorcia, 35 AD3d at 464; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, the Surrogate's Court properly granted the petitioner's motion, in effect, for summary judgment dismissing the objections to probate and admitting the will to probate.

The objectant's remaining contentions are without merit. Dillon, J.P., Miller, Angiolillo and Dickerson, JJ., concur.