Matter of Catalano

[*1] Matter of Catalano 2013 NY Slip Op 51292(U) Decided on June 3, 2013 Sur Ct, Nassau County McCarty III, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 3, 2013
Sur Ct, Nassau County

In the Matter of the Estate of Gregory Catalano, Deceased.



2011-363596



Cullen & Dykman(for movant)

177 Montague Street

Brooklyn, NY 11201

Gerald Gardner Wright, Esq. (for respondent)

168 Nassau Avenue

Freeport, NY 11520

Jules A. Epstein, Esq.(for movant)

600 Old Country Road

Suite 505

Garden City, NY 11530

Joseph Canzoneri, Esq. (for objectant)

248 Scherer Boulevard

Franklin Square, NY 11010

Karin Schult Ryan, Esq. (estate attorney)

301 Morris Avenue

Rockville Centre, NY 11570

Edward W. McCarty III, J.

In this contested probate proceeding, the proponent moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the objections and admitting the will to probate. As explained below, the motion is granted in part and denied in part.

The decedent Gregory Catalano was 54 years old at the time of his death on

December 28, 2010. He was never married, had no children, and was survived by his three adult siblings, Carmille Benincaso, John Catalano, and Joseph Catalano as his only distributees. Gregory, Carmille, and John are siblings of the full blood, their mother having died when they were children. Their father remarried and there was one child of the marriage, the decedent's half-brother Joseph. The will which has been offered for probate, dated May 23, 2000, leaves the entire estate to Carmille and nominates her as executor. John and Joseph are the objectants and oppose the motion for summary judgment. The objections filed contend that the will was not duly executed, that the decedent lacked the capacity to execute a will at the time of its purported [*2]execution, and that if it was, in fact, executed by the decedent, it was as the result of fraud or undue influence having been exerted on the decedent by Carmille.

The decedent and Joseph were business partners who ran a neighborhood supermarket. The supermarket business actually consisted of three corporations: a corporation that ran the fish market within the supermarket; a corporation which ran the meat market within the supermarket; and the overall corporation which ran all other aspects of the business. The brothers were equal shareholders in the overall corporation and the fish market, while the decedent was the sole shareholder of the meat market. Carmille testified at her deposition that the decedent Gregory approached her because he needed money for the supermarket, either the initial purchase in 1984 or 1985 or for related expenses shortly thereafter. In consideration of Carmille extending the sum of $150,000 to Gregory, he conveyed title to a home he owned in Elmont to Carmille and she agreed to assume responsibility for payment of the outstanding mortgage.

There is testimony that Gregory would stay at Carmille's house, sometimes for days or weeks at a time. While his primary residence was in Plainview with the parties' father (he died in 2008), Carmille testified that the dynamic in the home was often troubling to Gregory, especially after their step-mother's Parkinson's disease had progressed. Gregory never stayed with either of his brothers.

Carmille alleges that Gregory complained to her that Joseph was taking more money from the businesses than Gregory was receiving. She alleges that in 1998 Gregory told her he had hired a private investigator regarding Joseph's alleged stealing from the businesses, but she was not able to identify the investigator nor the results, if any, of any purported investigation. According to Carmille, Gregory was aware of Joseph's personal banking information and was able to get automated telephone information of the deposits Joseph was making into his personal bank account(s), which he monitored. Carmille also indicated that she also monitored the automated telephone information regarding Joseph's personal bank accounts at Gregory's direction. Carmille also alleges that Gregory had asked Joseph for a copy of their shareholders' agreement [FN1] and that Joseph said it was in the closet in the Plainview residence but Gregory was unable to find it there. Gregory also purportedly told her that he "wasn't getting anywhere" with Joseph in his attempts to get the shareholders' agreement.

At this point, in February 2000, Carmille called an attorney, Karin Shulte Ryan, who had previously represented her in the drafting of a will and obtaining a satisfaction of mortgage. The record is not entirely clear whether Carmille asked Gregory if he would like her to call Ryan or if Carmille called Ryan on her own without Gregory's knowledge.[FN2] In either event, Carmille testified that she called Ryan to find out whether attempting to obtain the corporate kit or shareholders' agreement was something Ryan would do. Carmille denies that her referral to Ryan had anything to do with the preparation of a will for Gregory and she avers that she was unaware until after Gregory's death that he had executed a will or that she was named as the executor and sole beneficiary. Ryan testified that she told Carmille she would be happy to assist but she [*3]recommended to Carmille that Gregory first attempt to get a copy of the document on his own from the attorney who prepared it.

Ryan's testimony corroborates Carmille's to the extent that the only subject of their conversation on this occasion was the possibility of Ryan's being retained to assist Gregory regarding the shareholders' agreement. After Gregory was unsuccessful in obtaining a copy of the shareholders' agreement on his own, he contacted Ryan directly. He contacted her by telephone and made an appointment to meet with her in her home office. After a series of written correspondence between Ryan and the corporate attorney, ultimately a copy of the shareholders' agreement was obtained by Ryan on April 13, 2000.

After Ryan received the copy of the shareholders' agreement, she had another meeting with Gregory, again in her home office. As with the first meeting, Gregory drove himself to the meeting and was not accompanied by Carmille or anyone else. In the discussion of the shareholders' agreement, Ryan advised Gregory that the life insurance policy which he had purchased to fund a buyout in the event of Joseph's death was ill-advised because as the owner of the policy, the proceeds would be included in Gregory's estate for estate tax purposes. In further discussion, Gregory purportedly advised Ryan that he wanted the beneficiary designation on the existing $500,000 policy changed to name Carmille as the beneficiary and that he would obtain a new policy as required by the shareholders' agreement. In response to a question at her deposition whether Gregory told her why he wanted to name Carmille as the beneficiary, Ryan responded that Gregory told her that Carmille had lent him money to buy the supermarket and that he felt indebted to her and that Carmille had taken him in and helped him, fed him, etc. Ryan also testified that it was also during the conversation regarding the life insurance policy that she inquired of Gregory whether or not he had a will. He advised her that he did not and asked her to prepare one for him. Succinctly stated, she further testified that Gregory did not want to leave anything to his father because his father was in his 80's and was transferring property to minimize his own estate, nor to Joseph who Gregory believed was shortchanging him with regard to the business, nor to John who Gregory felt was unstable and whose relationship with his former wife, who allegedly had abused drugs, was upsetting to Gregory.

Ryan then drafted a will and purportedly mailed it to Gregory at Carmille's home address. Thereafter Gregory contacted Ryan by telephone and noted a typographical error in the draft before making the appointment to come to Ryan's office for the will execution. When Gregory arrived for the will execution on May 23, 2000, he again drove himself to Ryan's home office and was alone. Ryan testified that she went over the contents of the will with Gregory and she and her sister acted as the attesting witnesses after Gregory responded in the affirmative to Ryan's questions whether this document was his last will and testament and whether he wanted Ryan and her sister to witness his signature. Ryan testified that she gave the original will to Gregory after the execution ceremony. Carmille allegedly found it among Gregory's papers in his residence after his death on December 28, 2010.

Summary Judgment

Summary judgment may be granted only when it is clear that no triable issue of fact exists (see e.g. Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Phillips v Joseph Kantor & Co., 31 NY2d 307, 311 [1972]). The court's function on a motion for summary judgment is "issue finding" rather than issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d [*4]395, 404 [1957]), because issues of fact require a hearing for determination (Esteve v Abad, 271 App Div 725, 727 [1st Dept 1947]). Consequently, it is incumbent upon the moving party to make a prima facie showing of entitlement to summary judgment as a matter of law (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Zarr v Riccio, 180 AD2d 734, 735 [2d Dept 1992]). If there is any doubt as to the existence of a triable issue, the motion must be denied (Hantz v Fishman, 155 AD2d 415, 416 [2d Dept 1989]).

If the moving party meets his or her burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In doing so, the party opposing the motion must lay bare his or her proof (see Towner v Towner, 225 AD2d 614, 615 [2d Dept 1996]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to overcome a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see Prudential Home Mtge. Co., Inc. v Cermele, 226 AD2d 357, 357-358 [2d Dept 1996]).

Summary judgment in a contested probate proceeding is appropriate where an objectant fails to raise any issues of fact regarding testamentary capacity, the due execution of the will, undue influence, or fraud (see e.g. Matter of DeMarinis, 294 AD2d 436 [2d Dept 2002]; Matter of Rosen, 291 AD2d 562 [2d Dept 2002]; Matter of Bustanoby, 262 AD2d 407 [2d Dept 1999]).

Due Execution

The proponent of a will offered for probate has the burden of proving that the instrument was properly executed. Due execution requires that the testator's signature be affixed at the end of the will in the presence of witnesses, that the testator publish to the witnesses that the instrument is his will, the attesting witnesses must know that the signature is that of the testator, and at least two of the attesting witnesses must attest to the testator's signature and sign their names and affix their residences within a thirty-day period (EPTL 3-2.1). The supervision of a will's execution by an attorney will give rise to an inference of due execution (see, e.g. Matter of Finocchio, 270 AD2d 418 [2d Dept 2000]; Matter of Hedges, 100 AD2d 586 [2d Dept 1984]). Further, as in the case at bar, if an attestation clause accompanies the instrument, that also gives rise to a presumption that the statutory requirements have been met (Matter of Farrell, 84 AD3d 1374 [2d Dept 2011], and cases cited therein).

As indicated above, the will's execution was supervised by an attorney giving rise to an inference that the statutory requirements have been met. Coupled with the testimony of the two attesting witnesses regarding the execution ceremony, the proponent has made out a prima facie case for summary judgment on the issue of due execution. In opposition, the objectants have raised merely procedural irregularities which do not effect the integrity of the execution itself. For example, they point out that the will nominates Carmille's husband as trustee for any minor beneficiaries, but the only possible minor beneficiaries would be the children of Carmille and her husband and they would only take if both Carmille and her husband had predeceased the decedent. They also point out that Ryan's license as a notary public had expired when she notarized her sister's signature on the will's self-proving affidavit and Ryan's own signature was never notarized by anyone. While these irregularities may be somewhat embarrassing to Ryan, [*5]as indicated they do not effect the integrity of the execution itself. Accordingly, the branch of the motion seeking to dismiss the objection on due execution is granted.

Testamentary Capacity

The proponent also has the burden of proving testamentary capacity. It is essential that a testator understand in a general way the scope and meaning of the provisions of his will, the nature and condition of his property and his relation to the persons who ordinarily would be the natural objects of his bounty (see Matter of Kumstar, 66 NY2d 691[1985]; Matter of Bustanoby, 262 AD2d 407 [2d Dept 1999]). A testator must understand the plan and effect of the will and less mental faculty is required to execute a will than any other instrument (see Matter of Coddington, 281 App Div 143 [3rd Dept 1952], affd 307 NY 181[1954]). Mere proof that the decedent suffered from old age, physical infirmity and progressive dementia is not necessarily inconsistent with testamentary capacity and do not preclude a finding thereof (see Matter of Fiumara, 47 NY2d 845, 847 [1979]; Matter of Hedges, 100 AD2d 846 [2d Dept 1984]) as the relevant inquiry is whether the decedent was lucid and rational at the time the will was made (see Matter of Hedges, 100 AD2d 846 [2d Dept 1984]). "When there is conflicting evidence or the possibility of drawing inferences from undisputed evidence, the issue of capacity is one for the jury" (Matter of Kumstar, 66 NY2d 691, 692 [1985]). "One may be able to make a valid will though afflicted with a fatal disease, or possessing an imperfect mind or memory. A will may not be rejected simply because the testator does not make it until near death, or because he is ill or weak" (3 Warren's Heaton on Surrogate's Court Practice §42.06 [1], at 42-93 [7th ed] ).

In this case, the record establishes that Gregory was hospitalized three times in the two-year period prior to the will's execution. In Joseph's own words, Gregory's illnesses were something of a "mystery" because there was apparently no formal diagnosis of a particular ailment. He appeared to be subject to high fevers which would require hospitalization and within a few days he was released and returned to work shortly thereafter. The testimony of the attesting witnesses is that Gregory was of sound mind and memory on the date of the will's execution. Although there is an entry in the hospital record for Gregory's final hospitalization approximately five months before the will's execution of an "altered mental state" there is no other evidence of any cognitive defect, Joseph's testimony that Gregory "was not 100%" after returning to work notwithstanding. The court is satisfied that the proponent has made out a prima facie case for summary judgment on the issue of testamentary capacity and the objectants have failed to raise a triable issue of fact. Accordingly, the branch of the motion to dismiss the objection for lack of testamentary capacity is also granted.

Fraud and Undue Influence

The objectants bear the burden of proof on the separate issues of fraud and undue influence (see Matter of Gross, 242 AD2d 333 [2d Dept 1997]; Matter of Burke, 82 AD2d 260 [2d Dept 1981]). To prove fraud, the contestants must show by clear and convincing evidence that a false statement was made to the testator that induced him to make a will disposing of his property differently than he would have if he had not heard the fraudulent statement (see Matter of Gross, 242 AD2d 333 [2d Dept 1997]). There is simply no evidence adduced that the will was the product of fraudulent conduct and, therefore, the branch of the proponent's motion for summary judgment dismissing the objection of fraud is granted. [*6]

In order to prove undue influence, the contestants must show (1) the existence and exertion of an influence; (2) the effective operation of such influence as to subvert the mind of the testator at the time of the execution of the will; and (3) the execution of a will, that, but for undue influence, would not have been executed (cf., Matter of Walther, 6 NY2d 49 [1959]). Undue influence can be shown by all the facts and circumstances surrounding the testator, the nature of his will, his family relations, the condition of his health and mind and a variety of other factors such as the opportunity to exercise such influence (see generally, 2 NY PJI 7:55). It is seldom practiced openly but it is the product of persistent and subtle suggestion imposed upon a testator fostered by the exploitation of a relationship of trust and confidence (Matter of Burke, 82 AD2d 260 [2d Dept 1981]). Without a showing that undue influence was actually exerted upon the decedent, mere speculation that opportunity and motive to exert such influence existed is insufficient (see Matter of Chiurazzi, 296 AD2d 406 [2d Dept 2002]; Matter of Herman, 289 AD2d 239 [2d Dept 2001]).

Here, Carmille had both motive and opportunity, with Gregory's frequent, extended stays at her residence to exercise undue influence. What is missing is evidence that undue influence was actually exerted on Gregory, other than the fact of the will itself and Carmille's becoming the beneficiary of the $500,000 life insurance policy. However, as Joseph's attorney points out, "[w]here a will has been prepared by an attorney associated with a beneficiary, an explanation is called for, and it is a question of fact for the jury whether the proffered explanation is adequate" (Matter of Moles, 90 AD3d 473, 474 [1st Dept 2011], quoting Matter of Elmore, 42 AD2d 240, 241 [3d Dept 1973]; see also Matter of Gerdjikian, 8 AD3d 277 [2d Dept 2004]). While the court does not read these cases to preclude a grant of summary judgment in every case where the attorney who drafted the will had ever been retained by the proponent, here Ryan's representation of Carmille in two matters, including the preparation of a will, was fairly close in time to her retention by the decedent. The subject of a will was also raised by Ryan, not Gregory, Carmille became the beneficiary of a substantial existing life insurance policy, and there is evidence of a social relationship, though limited, between Carmille and Ryan. Finally, Ryan testified in some detail regarding her conversations with Gregory, which occurred some eleven years prior to her deposition, and she did so purely from memory without the benefit of any notes of her meetings with him, her notes allegedly having been destroyed. On these facts, the court would not direct a verdict in favor of the proponent and therefore cannot grant a motion for summary judgment in her favor (CPLR 3212[b]; Carmody Wait 2d § 39:144).

Accordingly, the branch of the motion seeking summary judgment on the issue of undue influence is denied and the matter will proceed to trial on that issue only.

Settle order.

Dated:June 3, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court

Footnotes

Footnote 1:Carmille's deposition testimony is somewhat unclear on this point as to whether Gregory wanted a copy of the shareholders' agreement or the corporate kit.

Footnote 2:Ryan testified that Carmille did not say that Gregory had requested that Carmille call Ryan.