Matter of Engstrom (Leonard B. Harmon 2003 Trust)

[*1] Matter of Engstrom (Leonard B. Harmon 2003 Trust) 2014 NY Slip Op 51936(U) Decided on December 19, 2014 Sur Ct, Suffolk County Czygier, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2014
Sur Ct, Suffolk County

In the Matter of the Petition of Michelle Engstrom as a beneficiary of the Leonard B. Harmon 2003 Trust, Created pursuant to instrument, dated April 25, 2003, as restated by instrument dated January 27, 2010, for a decree determining and declaring invalid the instrument purporting to be a restatement of the LEONARD B. HARMON 2003 TRUST, dated January 27, 2012.



2013-918



Farrell Fritz, P.C.

By: Frank T. Santoro, Esq.

Attorneys for Petitioner

1320 RXR Plaza

Uniondale, New York 11556

Greenfield Stein & Senior, LLP

By: Elana L. Danzer, Esq.

Attorneys for Respondent

600 Third Avenue

New York, New York 10016

Shlom & Littman, Esqs.

Attorneys for Unitarian Universalist

Congregation of the South Fprk

370 Lexington Avenue, Suite 202

New York, New York 10017

Office of the Attorney General

Of the State of New York By: Robert R. Molic, Esq.

Assistant Attorney General

Charities Bureau

120 Broadway

New York, New York 10271
John M. Czygier Jr., J.

Before the court are a motion and cross-motion for summary judgment in the captioned proceeding. For the reasons set forth herein, respondent's motion is granted, in part, and denied, in part; petitioner's cross-motion is denied.

Background and Arguments

Leonard B. Harmon ("Harmon") died testate on November 27, 2012. His last will and testament, dated April 5, 2003, and a codicil, dated December 23, 2003, were admitted to probate by this court on November 22, 2013, whereupon letters testamentary issued to Richard Pinner and Harris Polanksy. The residuary estate, pursuant to the terms of said will, poured over into captioned trust. According to the probate petition, Harmon was survived by only one distributee, a paternal first cousin, who has no beneficial interest in his estate.

Petitioner describes herself as a close family friend, upon whom Harmon came to depend. According to petitioner, respondent Richard Pinner ("Pinner") is an attorney, who was Harmon's godson. It is alleged that Pinner was Harmon's attorney-in-fact, who orchestrated a change in Harmon's dispositive (trust) provisions in order to benefit himself and his sister.

As restated by the instrument dated January 27, 2010, Harmon made $100,000 bequests to petitioner, Maxine Pinner, Elizabeth Pinner, Richard Pinner and the Unitarian Universalist Congregation of the South Fork in Water Mill, New York. The balance of the trust was to be divided among Elizabeth Pinner Glezerman (3 shares), Richard Pinner (3 shares) and petitioner (2 shares). The instrument named Harmon, Pinner and Harry Polansky (an accountant and friend) as trustees. According to the January 27, 2012 restatement at issue herein, Pinner was named sole trustee; $100,000 was bequeathed to petitioner, Maxine Pinner, Elizabeth Pinner Glezerman and Pinner; $25,000 was bequeathed to the Unitarian Universalist Congregation of [*2]the South Fork; and the residue was to be split between Pinner and his sister (Elizabeth). The instrument was executed ten (10) days after Harmon suffered a stroke and was residing in a nursing home. Petitioner alleges that Harmon was significantly impaired, at that time.

Respondent Pinner, in his responsive pleading, refers to petitioner as a housekeeper hired by Harmon's late wife who stayed on after her death; and that this proceeding is merely an expression of her disappointment in the gift left to her by the latest version of the trust, which was amended no fewer than six times in nine years. Pinner denies all allegations of undue influence and fraud; and registers a counterclaim against petitioner for funds allegedly owing the trust in an uncertain amount (less than $2,000).

In her reply to the counterclaim, petitioner avers that the counterclaim fails to state a cause of action and is barred by the doctrine of laches, unclean hands, waiver and estoppel.

It is noted that the Office of the Attorney General has also filed a responsive pleading in this matter, asking the court to determine the allegations made in the petition.

Respondent Pinner has moved for summary judgment, supported by numerous exhibits obtained during the course of discovery, claiming that Harmon communicated all changes embodied in his most recent restatement of trust to his personal attorney (Attorney Hager) in private conversations more than a month before the stroke he sustained on January 17, 2012. Pinner alleges that he did not contribute to the most recent restatement, which was, he maintains, not a significant deviation from prior iterations of the trust. It is also Pinner's argument that Harmon's care givers and medical providers all assessed his mental status just before execution of the 2012 instrument and found him to be competent.

Pinner and his sister Elizabeth were Harmon's godchildren, the children of a very close friend of Harmon's who is deceased. They are named in each of the versions of the trust executed after Harmon's wife died in 2003.

Medical records obtained from Stony Brook University Hospital for the period following Harmon's transfer from Southampton Hospital (January 17, 2012 - January 20, 2012) where he was initially hospitalized after a stroke affected his speech, repeatedly refer to Harmon as alert, oriented and able to communicate and make his needs known. Such descriptions continued upon his admission to Smithtown Center for Rehabilitation and Nursing Care on January 20, 2012 and continued through the morning of January 27, 2012. Indeed, Pinner notes that Harmon's examining physician opined that he had full mental capacity and his social worker concluded that he could participate in medical decisions.

Respondent Pinner argues that the record reflects that Harmon's attorney (Hager) delivered the drafted version of the 2012 restatement to Pinner so that he could obtain Harmon's execution of same. When questioned during his deposition in this matter, Hager testified that Pinner was unaware of the dispositive provisions in the latest restatement, and that he (Hager) [*3]was unaware of any cognitive impairment affecting Harmon's ability to sign the papers, which had been discussed and drafted before Harmon's stroke. Harmon himself told the staff at Smithtown Center that someone would be bringing him documents to sign and that he would require a notary. The social worker noted in her progress notes that Harmon had a clear understanding of what he was signing. The notary confirmed that her signature on the document reflected that she was satisfied that Smithtown Center's policy had been followed concerning Harmon's understanding with respect to the instrument he was signing.

Pinner also refers to the testimony of a private duty nurse (Baan), who saw Harmon at Smithtown Center and attested to his recognizing her and watching the game show Jeopardy on television and answering correctly, as supporting his allegations of Harmon's cognitive awareness.

It is Pinner's argument that, not only is there no evidence of undue influence, but the trust agreement, although amended six times, consistently left the majority of assets to Pinner and his sister Elizabeth. According to Pinner, petitioner is the one who explained why Harmon reduced the bequest to the Unitarian Universalist Congregation of the South Fork in the 2012 restatement. In fact, Pinner stresses that Harmon was handling his own finances up until the time he suffered the stroke in January 2012, and that it was petitioner who sent Pinner the checkbook so that Harmon's bills could be paid. Pinner notes that Harmon's financial advisor discussed investments with Harmon up until August, 2012; and, while acknowledging that his physical health was in decline, his mind was still sharp.

Based on the foregoing view of the facts at his disposal, Pinner maintains that petitioner, who Pinner argues has the burden of proof on issues of undue influence and Harmon's mental acuity, cannot offer more than speculative and conclusory allegations concerning these issues. It is Pinner's argument that petitioner must overcome a presumption of competency; and that the mere fact that Harmon had a stroke does not, in and of itself, establish the contrary. Harmon was not isolated and, apparently, had access to various care givers, as well as acquaintances. Further, Pinner claims that he took no action either under the power of attorney or as co-trustee. It is also claimed that the court should counterbalance the power of attorney with Pinner and Harmon's "close, family-like relationship" (Memorandum of Law in Support Pinner's Motion for Summary Judgement, p.38).

In addition, Pinner argues that there is no evidence of fraud. No statement appears to be forthcoming that would allow for the conclusion that Pinner exercised fraud in order to obtain the latest restatement of trust. Nor is there any evidence supporting an allegation of duress.

Finally, Pinner contends that the 2012 restatement was executed in accordance with the requisites of EPTL 7-1.17(a).

In opposition to the motion and in support of her cross-motion for summary judgment, petitioner essentially claims that Pinner is cherry-picking the evidence obtained during discovery. [*4]Pinner stood in a confidential relationship with the decedent when the 2012 restatement was executed and that it was not properly acknowledged, making it void ab initio. Further, she claims that Harmon's capacity is a question of fact, which should be submitted to the trier of fact. It is noted that petitioner filed a jury demand on May 1, 2013.

Petitioner maintains that, after the death of Harmon's wife in 2003, she (petitioner) became "most precious" (Affirmation in Opposition..., p.2, ¶4) to Harmon whose health steadily waned in the years since his wife's death. By 2011, there are indications that Harmon was suffering from memory loss, noted by Pinner in an email at the end of 2011. Petitioner argues that Harmon was a different man after the stroke in January, 2012.

It is petitioner's claim that the execution presided over by Pinner was botched and that the notary admitted during depositions that no acknowledgment took place, as required by EPTL 7-1.17.

An email exchange between Pinner and Harmon's attorney Hager reflects an advance discussion concerning the changes to the 2012 restatement, including questions concerning Harris Polansky's continuing as co-trustee.

Petitioner maintains that, as Pinner was in a confidential relationship with Harmon, the burden of proving that the 2012 restatement was procured without undue influence is Pinner's burden.

It is petitioner's contention that she began working as a housekeeper for Harmon in the 1980's, but eventually after his wife passed, they became the "closest of friends" (Affirmation in Opposition..., p.7, ¶23).

Petitioner refers to medical records obtained from Harmon's primary care physician (Dr. Dempsey) indicating that Harmon was being treated for depression and memory loss as early as 2009, and was referred to a neurologist in 2011 for memory loss.

Petitioner produces emails generated by Pinner in 2011 indicating that he felt Harmon's cognition was waning, and contacting Harmon's legal advisors to curtail transactions undertaken by Harmon without his (Pinner's) approval. This allegedly became more compelling after Harmon's stroke in January, 2012. Petitioner produces medical records from Stony Brook University Hospital, indicating that an occupational therapist noted Harmon's impaired orientation and limited cognition. Petitioner, as Harmon's health care agent, signed the papers after Harmon's stroke for his medical treatment. Upon Harmon's transfer to the Smithtown Center, petitioner points to a short term care plan produced as an exhibit that indicates Harmon was confused and was alert and oriented only as to person (not place). Cognitive decline was noted in his occupational therapy progress reports subsequent to the date of the January, 2012 trust restatement.

Petitioner maintains that respondent Pinner acted as Harmon's attorney-in-fact, and often attorney-at-law, after the stroke. Attorney Hager's deposition testimony supports the contention that Hager came to the conclusion that Harmon suffered a small stroke and had capacity to execute the trust restatement.

On his sole visit to the Smithtown Center, Pinner brought the trust restatement, documents concerning Harmon's social security and military pension, and a deed to effectuate the transfer of Harmon's home into the trust.

Petitioner points out inconsistencies in the Smithtown Center's social worker's deposition, argues that the notary did not verify Harmon's identity and could not establish that an acknowledgment took place.

Petitioner supports her arguments with affidavits from a licensed practical nurse who tended Harmon from 2010 to 2012 (Baan); Harmon's accountant, long time friend and co-trustee (Polansky); a personal friend (Greenberger); Harmon's minister (Cornish); an aide who provided care to Harmon from 2007 until his death (Lowig); and petitioner's spouse (Engstrom). All of these individuals attest to petitioner and Harmon's devotion to each other and the change in his condition after the stroke he suffered in January, 2012.

In response to the foregoing, respondent Pinner produces an affidavit from Attorney Hager, who emphasizes his private discussions with Harmon concerning the changes Harmon himself wanted to make to the trust on three separate occasions before Harmon had his stroke. Hager insists that he did not take direction from Pinner concerning the trust restatement, but merely answered Pinner's questions concerning administration of the trust. Hager states that it was his suggestion that Pinner take the draft to Harmon for execution, when he learned that Harmon would not have received the draft(s) sent to Harmon's home while he was either in the hospital or the nursing home. Hager further insists that Pinner knew nothing about the dispositive provisions of the restatement before he was asked to bring them to Harmon for execution.

Also in reply to petitioner's papers, respondent Pinner reiterates his position that petitioner is merely disappointed with the specific bequest Harmon left her in the 2012 trust restatement, and that petitioner has failed to demonstrate fraud or duress, or establish that Pinner wielded power over Harmon. Pinner emphasizes the notes of medical personnel minutes before the trust execution to show that Harmon was alert and oriented, with the requisite understanding, at that time (emphasis added), dismissing his sister Elizabeth's testimony that Harmon had experienced a cognitive decline as the result of a comparison of Harmon to his younger self and not the more objective measurement employed by Harmon's care givers and medical providers.

With respect to the acknowledgment, the notary had no independent recollection of the event, but Pinner notes that she testified that her usual practice and the facility's policy required that she determine whether Harmon understood what he was signing.

Pinner argues that all indications from Harmon's medical records and providers' notes reflect that he had capacity at the time the restatement was executed. He further states that petitioner was named as a residuary beneficiary on only one iteration of the trust (the 2010 restatement), the residuary bequests to Pinner and his sister Elizabeth appear in each iteration.

In short, Pinner argues that all indications are that Harmon had capacity at the time the 2012 restatement was executed, petitioner has failed to satisfy the requisites of her undue influence claim and has not demonstrated the presence of a disparate power of Pinner over Harmon sufficient to establish that a confidential relationship should shift the burden of proof to respondent Pinner, has provided no admissible evidence of fraud or duress, and has failed to provide evidence that the restatement was not properly acknowledged, pursuant to EPTL 7-1.17(a).

Discussion and Analysis

Summary judgment is designed to eliminate from the trial calendar litigation that can be resolved as a matter of law (see Andre v. Pomeroy, 35 NY2d 361). The court's burden is not to resolve issues of fact, but merely to determine if such issues. exist (see Dyckman v. Barrett, 187 AD2d 533). It is a drastic remedy that will only be awarded where there is no triable issue of fact (see Barclay v. Denckla, 182 AD2d 658). The court, therefore, must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person of her day in court (see Russell v. A. Barton Hepburn Hospital, 154 AD2d 796).

The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Zarr v. Riccio, 180 AD2d 734). Failure to make out a prima facie case requires a denial of the motion regardless of the sufficiency of opposing papers (see Winegrad v. New York University Medical Center, 64 NY2d 851). If, however, this burden is satisfied, the burden of going forward shifts to the opposing party to establish the existence of material issues of fact requiring a trial (see Romano v. St. Vincent's Medical Center, 8 AD2d 467), by the tender of evidentiary proof in admissible form (see Friends of Animals, Inc. v. Associated Fur Manufactures Inc., 46 NY2d 1065).

EPTL 7-1.17(a) requires that:

Every lifetime trust shall be in writing and shall be executed and acknowledged by the person establishing such trust and, unless such person is the sole trustee, by at least one trustee thereof, in the manner required by the laws of this state for the recording of a conveyance of real property or, in lieu thereof, executed in the presence of two witnesses who shall affix their signatures to the trust instrument.

A copy of the 2012 trust restatement reflects the signatures of Harmon, as grantor and trustee, and Pinner, as trustee. Both signatures are notarized; Pinner's on January 30, 2012, and [*5]Harmon's on January 27, 2012 by Donna M. Paliugli, stating that Harmon "...personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual...executed the instrument as grantor and trustee."

In the notary's deposition testimony (Cross-Motion Exhibit KK), she testified that she does not notarize a Smithtown Center resident's documents unless a social worker advises her that the resident understands what he/she is signing (Paliugli Deposition Transcript, pp. 18-19). She had no independent recollection of notarizing Harmon's signature (Paliugli Deposition Transcript, p. 22, l.4), but then testified to her usual procedure when asked to notarize a resident's signature. This procedure includes being present when a social worker, who the deponent later indicated asks all the questions during the process, identifies the resident (Paliugli Deposition Transcript, p. 25, ll.13-15).

This process was also the subject of social worker Duffy-Phillip's deposition, who testified that while assessing a resident's ability to make a decision, she does not take into account the complexity of the specific document being signed (Duffy-Phillip Deposition Transcript, p.34, ll.16-21, Cross-Movant Exhibit LL). The social worker also indicated that her notes reflected that Harmon verbalized to her his understanding of what it was he was signing (Duffy-Phillip Deposition Transcript, p.56, ll.15-25).

It is petitioner's argument that, in the absence of an oral declaration by Harmon and the notary's verification of Harmon's identity, the certificate of acknowledgment attached in accordance with RPL §306 is meaningless (Petitioner's Memorandum of Law in Support of Cross-Motion, p.17). Petitioner cites Galetta v. Galetta, 21 NY3d 186 for this proposition. In response to this argument, Pinner notes that petitioner has the burden of proving that the document was not properly executed, citing language from Galetta, supra, to argue that all the relevant statutes require is that the notary knew the signer or obtained satisfactory evidence of the signer's identity (RPL §303), its primary purpose being to prove the identity of the signer.

The court finds that the statutory requisites of EPTL 7-1.17(a) concerning acknowledgments has been satisfied by the statement that the notary received proof "...on the basis of satisfactory evidence..." that Harmon was the individual whose name was subscribed on the 2012 trust restatement, and upon the notary's testimony concerning the process she followed when asked to notarize an instrument for a resident.

Before addressing the claims of undue influence, fraud and duress, the court must address the allegations concerning whether respondent Pinner stood in a confidential relationship with Harmon.

The burden of establishing the existence of a confidential relationship rests with the party asserting it. A confidential relationship may be inferred if one party has disparate power over the [*6]other such as the power of an attorney, an attorney-in-fact, guardian, clergymen, doctor or nursing home director (Matter of Zirinsky, 10 Misc 3d 1052(A)*8, aff'd. 43 AD3d 946, lv den. 9 NY3d 815; see also Matter of Hoerter, 15 Misc 3d 1101(A)*9; citing Ten Eyck v. Whitbeck, 156 NY 341, 353), where a confidential relationship is said to exist as a matter of law. The law recognizes, however, that a close family relationship "counterbalances any contrary legal presumption" and it has been said that an "explanation by the [agent] is not required" (Matter of Hoerter, supra; citing NY PJI 7:56; other citations omitted).

The relationship between an attorney-in-fact and the grantor of that power of attorney is one which can rise to the level of a confidential relationship when the relationship is one of disparate power (see Estate of Lee, 11/23/2009 NYLJ p.41, (col.5); citing In re Petix, 15 Misc 3d 1140(A)). As indicated, despite the existence of a power of attorney and any presumptions that may arise through this relationship, a close family relationship can "counterbalance any contrary legal presumption" (In re Walther's Will, 6 NY2d 49; In re Moskowitz' Will, 279 AD 660, aff'd, 303 NY 992; In re Camac, 300 AD2d 11). The essence of the confidential relationship is the disparate power of one party over another (In re Zirinsky, 43 AD3d 946; Ten Eyck v. Whitbeck, 156 NY 341) where one party is in a position of weakness, dependence or trust (Gordon v. Bialystoker Center and Bikur Cholim, Inc., 45 NY2d 692, 699; In re Mazak, 288 AD2d 682). When one acts as attorney-in-fact for another, he is considered the agent of the principal and from such agency necessarily flows a relationship of trust and confidence that the agent will act with the utmost good faith and loyalty toward the principal (In re Estate of DeBelardino, 77 Misc 2d 253). Once a confidential/fiduciary relationship is found to exist between the parties, transactions between them must be scrutinized with extreme vigilance and there must be a clear showing of integrity and fairness (Matter of Gordon v. Bialystoker Ctr. & Bikur Cholim, supra). Thus, under certain circumstances, such transactions are presumed void (Cowee v. Cornell, 75 NY 91). In the absence of such proof, the transaction must be set aside.

In the case before the court, Pinner maintains that he merely used the power of attorney to pay Harmon's bills after he became ill. While petitioner alleges that Pinner also drafted the deed, effectuating the funding of Harmon's home into the trust, which was executed when the 2012 restatement was executed, Pinner argues that every allegation petitioner makes concerning his alleged use of the power of attorney took place after the restatement was executed.

The court does not accept Pinner's contention that there was a close "family-like" relationship negating any possible finding of a confidential relationship as the only relationship enunciated here was one of a "god child" of Harmon, and, as such, is too far removed to be considered a "close family relationship" (Matter of Hirschorn, 11/5/2008, NYLJ p.36, (col.3)). The court, however, cannot conclude that petitioner has established as a matter of law that the relationship between Pinner and Harmon was confidential. Pinner resided and worked in New York City and was rarely a presence on Harmon's property. All indications from the evidence before the court is that he was unaware of the 2012 restatement dispositions until shortly before its execution. The use of the power of attorney was only demonstrated after the fact of the restatement's execution, and there is no evidence that Pinner exercised any authority as co-trustee [*7]of the trust up until that time.

While Harmon may have been in decline prior to his stroke, there is no demonstrated dependency on Pinner for his daily care. Reliance on someone in order to pay bills does not rise to the level of disparate power necessary to allow for the conclusion that this was a confidential relationship (Estate of Stanton, 12/5/2014, NYLJ p. 22, (col.6); citations omitted).

Assuming that petitioner has laid bare her proof, she has failed to establish that Pinner had a confidential relationship with Harmon allowing for the burden of proof to shift on the issues of fraud, duress and undue influence (see Weber v. Burman, 22 Misc 3d 1104(A)*6; citing Matter of Connelly, 193 AD2d 602, lv den. 82 NY2d 656; Sepulveda v. Aviles, 308 AD2d 1, 7; Matter of Gordon v. Bialystoker Center & Bikur Cholim, Inc., 45 NY2d 692, 699; other citations omitted; In re Mazak, 288 AD2d 682). The elements of fraud include a knowing misrepresentation of a material fact, deception, and resultant injury (see Matter of Zirinsky, 43 AD3d 946; Matter of Spangenberg, 248 AD2d 543; Matter of Walther, 6 NY2d 49). An instrument may be set aside for fraud where the signer knew the contents of the instrument he executed, but was induced to execute it by the fraudulent representations of the grantee under such instrument or of someone in privity with the grantee (see Matter of Coniglio, 242 AD2d 901). There is absolutely no proof in the record before the court that Harmon was induced to sign the 2012 restatement by any fraudulent misrepresentations made by Pinner.

Nor is there any proof that Harmon was under duress or being threatened in any way (see In re Estate of Rosasco, 31 Misc 3d 1214(A)).

Petitioner also has the burden of proving that the trust amendment was the product of undue influence. The influence exerted must amount to a moral coercion which restrained Harmon's independent action and destroyed his free agency, or which constrained him to do something against his wishes (Matter of Walther, supra; see also Matter of Fiumara's Estate, 47 NY2d 845; Matter of Efros, 19 Misc 3d 1113(A)).

To establish the undue influence claim, petitioner must show (1) the existence and exercise of undue influence; (2) the effective operation of undue influence as to subvert the mind of the grantor at the time of the execution of the testamentary instrument; and (3) the execution of a testamentary instrument that, but for undue influence, would not have occurred. Thus, the three elements are motive, opportunity and the actual exercise of the influence (Matter of Walther, supra; Matter of Foranoce, NYLJ, 8/7/2000, 25 (col. 6); citing, Matter of Fiumara, supra; Matter of Holly, 16 AD2d 611, aff'd, 13 NY2d 746). Among the factors to be considered when the court is asked to make a determination concerning a claim of undue influence are: (1) the testator's or principal's physical and mental condition; (2) whether the attorney who drafted the will (or instrument at issue) was the testator's/grantor's attorney; (3) whether the testamentary instrument at issue deviates from the testator's/grantor's prior testamentary pattern; (4) whether [*8]the person who allegedly wielded undue influence was in a position of trust; and, whether the testator/grantor was isolated from the natural objects of his affection (Weber v. Burman, 22 Misc 3d 1104(A)*7; citations omitted).

As indicated above, there is no indication that Pinner influenced Harmon to make the 2012 changes to the trust. All indications, including the testimony of his personal attorney (Hager) are that the changes sought were drafted prior to Harmon's stroke and Pinner's increased participation in Harmon's affairs.

Petitioner has raised a triable issue of fact concerning whether Harmon had the requisite capacity at the time the 2012 restatement was executed. A person is, of course, presumed competent and it is up to the person challenging that competence to establish incapacity at the time the action, execution of the contested document(s), took place (Matter of Obermeier, 150 AD2d 863). On this record, it is unclear whether Harmon fully understood the terms of the trust at the time of its execution (see Estate of Roth, 9/15/2006, NYLJ, p. 33, (col.1); Matter of Prevratil, 121 AD3d 137). Even Pinner's papers admit that there were good days and bad days (Respondent's Memorandum of Law in Further Support, p. 22). The court agrees that the moment of execution is the time at which Harmon's capacity must be measured. Indeed, Pinner almost appears to be arguing that, having directed his attorney to make the disputed changes in the trust agreement, Harmon's execution of same may be treated as a ministerial act.

While Pinner characterizes the testimony and assessment of the social worker and the medical records as "overwhelming" compared to Baan's testimony concerning Harmon's condition on the day in question and other medical records indicating an aging man in decline for at least a few years, this issue should be left to the trier of fact.

Accordingly, for the reasons set forth herein, it is

ORDERED that respondent Pinner's motion for summary judgment is granted solely to the extent of dismissing petitioner's claims sounding in fraud, duress, undue influence and improper execution; and it is further

ORDERED that the motion is denied with respect to petitioner's claims that Harmon lacked capacity on the day the 2012 restatement was executed, petitioner having raised triable issues of fact with respect thereto; and it is further

ORDERED that petitioner's cross-motion for summary judgment or partial summary judgment is denied.

Counsel for the parties shall appear in the Suffolk County Surrogate's Court on January 22, 2015 at 9:30am for further proceedings consistent herewith.

___________________________

JOHN M. CZYGIER, JR.,