Matter of Bellasalmo

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[*1] Matter of Bellasalmo 2017 NY Slip Op 50193(U) Decided on February 9, 2017 Surrogate's Court, Queens County Kelly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 9, 2017
Surrogate's Court, Queens County

In the Matter of the Probate Proceeding, Will of Bernice Bellasalmo, Deceased.



2015-4699



Christopher T. Owen, Esq., for Petitioner

Steven M. Davids, Esq., for Objectant
Peter J. Kelly, J.

The decedent, Bernice Bellasalmo, died on October 31, 2015 at the age of ninety-five years, leaving two daughters, Theresa Knuth ("Knuth") and Madeline Ayers ("Ayers") as her distributees. Offered for probate in this proceeding is an attorney drafted instrument dated August 16, 2007, purported by the Petitioner, Sandra Viola, the decedent's niece-in-law and nominated fiduciary, to be the Last Will and Testament of the decedent. The offered instrument provides for the decedent's entire estate to be distributed equally between the Petitioner and her husband, Robert Viola, a nephew-in-law of the decedent. With respect to the decedent's daughters, Article Second of the offered instrument states as follows: "I do not leave anything to my two children, Madeline Ayers and Theresa Knuth. I have provided for them to a great extent during my life."

Prior to conducting examinations pursuant to section 1404 of the Surrogate's Court Procedure Act ("SCPA"), both Knuth and Ayers, through their attorneys, filed Objections to the validity of the offered instrument in this Court. The Objections allege that the offered instrument is invalid on the grounds that it was not duly executed; the decedent lacked testamentary capacity; the instrument was the product of a mistake; and the instrument was procured by fraud, duress, and undue influence. The Petitioner now moves for summary judgment admitting the instrument to probate and dismissing the Objections. Counsel for Objectant, Knuth [FN1] has filed a

Cross-Motion seeking to compel discovery and further contending that triable issues of fact exist as to each and every objection, rendering summary judgment inappropriate.

Addressing Objectant's Cross-Motion first, Knuth argues that Petitioner's motion is untimely, in that completion of "essential discovery" remains outstanding. In opposition to the Cross-Motion, Petitioner's counsel contends that timely responses and all relevant documents have been provided. Petitioner's counsel also attaches several subpoenas apparently issued by Objectant's counsel to non parties for which he claims responses have been provided, and further argues that some of the items sought by Objectant are irrelevant.

Section 3212(f) of the Civil Practice Law and Rules ("CPLR") authorizes the Court to deny summary judgment when facts essential to justify opposition to the motion exist, but cannot be stated (see e.g. Peerless Ins. Co. v. Allied Bldg. Prods. Corp., 15 AD3d 373 [2d Dept 2005]). The mere fact that discovery is not complete, or that issues remain outstanding at the time this motion was served, will not, however, warrant denial of the motion (see e.g. Country Glen, LLC v. Himmelfarb, 4 Misc 3d 1015(A) [Sup Ct, NY County 2004]). For the Court to delay action on this motion, there must be a likelihood that the discovery will lead to evidence that will provide a basis to oppose the motion (see id.; Reale v. Tsoukas, 2017 NYApp Div Lexis 202 [2d Dept 2017]; In re Estate of Wilson, 266 AD2d 164 [1st Dept 1999]). Indeed no purpose would be served if courts routinely granted such relief without considering whether, if at all, the outstanding discovery sought is germane to the issues before it.

In this proceeding, the "essential" items sought by the Objectant are generally described as "decedent's banking and financial statements" and "all documents verifying an [sic] validating the power of attorney granted to Sandra Viola and/or Robert Viola." These items were sought in post deposition discovery notices served by Objectant's counsel. As an aside, the Court initially observes that Objectant's Post Deposition Discovery Demand dated August 5, 2016 is, in large part, overly broad and improper in that it seeks the decedent's banking records and personal income tax returns from 2007 to the present. In accordance with section 207.27 of the Uniform Rules of the Surrogate's Court, the permissible scope of discovery in this proceeding is August 16, 2004 to August 16, 2009.

Notwithstanding the breadth of the Objectant's demand, Petitioner did provide a written response dated September 14, 2016 stating that the Petitioner was not in possession of any further responsive documents. By letter dated September 28, 2016, Objectant acknowledged receipt of decedent's 2014 income tax return [FN2] , advised the Petitioner that the response was otherwise inadequate, and stated that the examination of Robert Viola, scheduled for November 2, 2016, would not proceed in the absence of this "essential" information.

Nevertheless, the examination of Robert Viola was held on November 2, 2016, and Objectant served an additional Post Deposition Discovery Demand on November 16, 2016. This demand was likewise responded to by Petitioner's counsel on December 5, 2016 at which time a power of attorney dated October 19, 2015 was produced. Hence, in this proceeding it appears that documents in Petitioner's possession, both relevant and irrelevant to the issues before the Court, have been furnished by the Petitioner to Objectant's counsel.

To the extent that the Objectant seeks carte blanche disclosure of decedent's "banking [*2]and financial records" from 2007 to the present, the Petitioner has provided responsive items in her possession. The record reveals that counsel for Objectant served several non party subpoenas to obtain the information directly from the banking institutions, but counsel does not indicate in his moving papers whether these subpoenas were complied with, or what, if any actions have been taken to procure compliance.

Additionally, Objectant seeks "all documents verifying an [sic] validating the power of attorney granted to Sandra Viola and/or Robert Viola." The Petitioner furnished the Objectant with a power of attorney executed in 2015 and indicated that she has nothing further in her possession. According to the Petitioner, the power of attorney was not utilized.

In any event, the Court fails to see how the decedent's power of attorney or documents relating to it, if any, generated over eight (8) years subsequent to the offered instrument will assist the Objectant in opposing this motion. At oral argument, Objectant was given ample opportunity to provide this Court with some basis to conclude that additional discovery concerning a power of attorney executed in 2015 would be probative to the validity of a testamentary instrument that originated in 2007. Objectant's counsel failed to do so. (See In re Estate of Wilson, 266 AD2d 164 [1st Dept 1999].)

Hence, Objectant's counsel has not demonstrated in either his moving papers or in his oral argument the existence of essential facts in Petitioner's exclusive possession which would warrant the denial of summary judgment. (See CPLR § 3212[f]; Matter of Zirinsky, 43 AD3d 946 [2d Dept 2007]; Matter of DiCorcia, 35 AD3d 463 [2d Dept 2006]; Delaney v. Good Samaritan Hosp., 204 AD2d 678 [2d Dept 1994]; Home Sav. Bank v. Arthurkill Assoc., 173 AD2d 776 [2d Dept 1991].) Based on all of the foregoing, the Objectant's Cross-Motion seeking to compel discovery is denied.

Turning to the Motion for Summary Judgment, Petitioner, as the movant must establish prima facie entitlement to judgment as a matter of law in the first instance (see generally Zuckerman v. NY, 49 NY2d 557, 562 [1980]; see also e.g. Matter of Mooney, 74 AD3d 1073 [2d Dept 2010]; Matter of DiChiaro, 39 AD3d 751 [2d Dept 2007]). More specifically, the Petitioner has the burden of demonstrating that the instrument offered for probate was duly executed in accordance with section 3-2.1 of the Estates Powers and Trusts Law ("EPTL") and that the Decedent possessed testamentary capacity at the time the instrument was executed (see e.g. Matter of Mooney, supra; Matter of DiChiaro, supra).

Once the requisite proof has been proffered by the movant, the Objectant must assemble and lay bare affirmative proof that his claims are real and capable of being established at trial (see Stainless, Inc. v Employers Fire Ins., 69 AD2d 27 [1st Dept 1979] aff'd 49 NY2d 924 [1980]). Although the Objectant is to be afforded every favorable inference that may be drawn from the evidentiary facts alleged (see e.g. Matter of Wimpfheimer, 8 Misc 3d 538 [Sur Ct, Bronx County 2005]), allegations must be specific, detailed, and substantiated by evidence. General conclusory and unsupported allegations are insufficient to defeat a motion for summary judgment. (See Matter of Zirinsky, 10 Misc 3d 1052(A) [Sur Ct, Nassau County 2005] aff'd 956 NYS2d 122 [2d Dept 2012].)

In support of the branch of the motion to dismiss the objections based on lack of due execution, the Petitioner submitted a copy of the Will, which includes an attestation clause and a [*3]contemporaneous self-proving affidavit, and the transcripts of the SCPA section 1404 examinations of Nicholas Fortuna ("Fortuna"), the attorney draftsperson who also supervised the execution of the instrument, and two of three attesting witnesses, attorney Megan Muoio ("Muoio") and Mauricio Calle ("Calle").

The foregoing evidence demonstrated prima facie that the instrument offered for probate was duly executed (see EPTL § 3-2.1; Matter of Selvaggio, 2017 NY App Div Lexis 304 [2d Dept 2017]; Matter of Templeton, 116 AD3d 781 [2d Dept 2014]; Matter of Mooney, supra; Matter of Malan, 56 AD3d 479 [2d Dept 2008]). Because the execution of the instrument was done under the supervision of an attorney and the instrument included an attestation clause as well as a self-proving affidavit, a presumption of regularity and compliance with the statutory requirements arose. (See e.g. Matter of Templeton, supra; Matter of Tuccio, 38 AD3d 791, 792 [2d Dept 2007].)

In opposition, Objectant relies primarily on the fact that the attesting witnesses at their 1404 examinations could not specifically recall certain aspects of the execution ceremony. However, the law does not require attesting witnesses—who are oftentimes employees or colleagues of the attorney draftsperson routinely called upon to perform such duties—to vividly recall or otherwise provide exacting detail as to the specifics of each and every will execution ceremony, the appearance of the testator, and the precise words that were uttered. (See In re Estate of Collins, 60 NY2d 466[1983].) Passage of time erodes such memories, particularly when the event is unremarkable, thereby providing no means of distinguishing it from any other will execution ceremony. (See e.g. id.; Matter of Wilkinson, 2010 NY Misc Lexis 5328 [Sur Ct, Nassau County 2010].)

Here, in addition to the documentary evidence provided, all of which was contemporaneous to the event, attesting witness Muoio, also an attorney, identified her signatures on the instrument as well as the self-proving affidavit. Attesting witness Calle also acknowledged his signatures and was able to testify to some extent to the standard practice employed by the law firm in overseeing its will executions which was corroborative of the publication requirement set forth in the statute. Finally, attorney draftsperson Fortuna also testified as to his customary practice, further substantiating compliance with all of the statutory formalities.

Based on the foregoing, the Court finds Objectant has failed to raise an

issue of fact as to whether the dictates of EPTL 3-2.1 have been satisfied. Accordingly, the branch of the motion for summary judgment dismissing the objection alleging lack of due execution is granted.

The Petitioner also has the burden of demonstrating by a preponderance of the evidence that the decedent, at the time of the execution of the offered instrument had testamentary capacity (see In re Estate of Kumstar, 66 NY2d 691 [1985]). In other words, that decedent understood the nature and consequences of executing a will; was aware of the nature and extent of her assets; and knew the natural objects of her bounty and her relations with them (see e.g. Matter of Anella, 88 AD3d 993 [2d Dept 2011]; Estate of Raymond W. Harper, 2014 NYLJ Lexis 4032 [Sur Ct, Bronx County 2014]). The mental capacity to execute a Will is less than that required of other legal documents, requiring only a lucent moment at the time of the instrument's execution. (See e.g. Matter of Rottkamp, 95 AD3d 1338 [2d Dept 2012]; In re Coddington's Will, 281 AD 143 [*4][3d Dept 1952]; Matter of Schure, 2012 NY Misc Lexis 5755 [Sur Ct, Nassau County 2012].)

By virtue of the attestation clause as well as the self-proving affidavit—which expressly stated that the testator was of "sound mind, memory and understanding"—and the submission of the 1404 transcripts in which, among other things, attorney draftsperson Fortuna testified that the decedent was "sharp," "clear-minded," and "determined" at the time of the instrument's preparation and execution, Petitioner has satisfied her initial burden that the decedent possessed testamentary capacity when the Will was executed. (See Matter of Curtis,130 AD3d 722 [2d Dept 2015]; Matter of Vosilla, 121 AD3d 1489 [2d Dept 2012].) Although Petitioner also submitted medical records in support of testamentary capacity, the Court did not need to rely on those records [FN3] in coming to the conclusion that the onus now turned to the Objectant to submit admissible evidence to demonstrate the existence of a triable issue of fact with respect to the



decedent's capacity (see Estate of Schlaeger, 2009 NYLJ Lexis 4475 [Sur Ct, NY County 2009]).

Offered by Objectant in opposition is a copy of an affidavit of Edward J. Knuth ("Edward"), the Objectant's brother-in-law, whose self-proclaimed expertise is as a "doctoral prepared family nurse practitioner with extensive experience dealing with elderly patients." Edward states that he has known the decedent for thirty years and has observed since the death of decedent's husband [FN4] a "steady decline" in decedent's "cognitive functioning, ability to articulate, remember, and understand new information." Edward goes on to generally conclude that the testator had "signs and symptoms of advancing dementia."

Absent from the affidavit is any concrete specificity as to Edward's education, namely where and when he received his training, and the level of his experience at or about the time he was observing the testator; precisely what behavior Edward observed and the methodology he employed that led him to his various conclusions; and the frequency in which Edward actually encountered and/or observed the testator. Consequently, his qualifications as an expert are questionable. More importantly, whether the opinion represents that of an expert or that of a fact witness, the affidavit does not establish that Edward had any contact with the decedent at or about the time of the execution of the offered instrument.

Hence, even presuming all of the allegations in the affidavit to be true, it remains insufficient to establish an issue of fact with respect to the testator's



capacity [FN5] . To hold otherwise would set an irresponsible precedent. (See e.g. Matter of Vosilla, [*5]121 AD3d 1489 [3d Dept 2014]; Matter of Aoki, 2010 NYLJ Lexis 1348 [Sur Ct, NY County 2010].) Accordingly, the branch of the motion for summary judgment dismissing the objection alleging lack of capacity is granted.

As to the branch of the motion seeking to dismiss the Objectant's claim that the instrument was executed by mistake, by submission of the 1404 transcript of Fortuna, in which he testified that he reviewed and confirmed with the testator all of the instrument's provisions, Petitioner has established prima facie the accuracy of its terms. Although cited as a distinct ground for objecting to the offered instrument, Objectant's Cross-Motion and opposition does not address this issue.

That said, a party seeking to withstand summary dismissal of an objection grounded in mistake must offer evidence that the decedent did not understand the provisions of the will or that the drafting attorney somehow misinterpreted the testator's instructions (see e.g. Estate of Roymark Malan, 2007 NY Misc Lexis 6513 [Sur Ct, Westchester County 2007] aff'd 56 AD3d 479 [2d Dept 2008]). To the extent that an argument can be gleaned from Objectant's moving papers, there is no evidence present in the record to support a claim that the decedent did not understand the terms of this simple instrument or that her attorney erred in



interpreting the testator's instructions. Accordingly, the branch of the motion for summary judgment dismissing the objection to the validity of the instrument on the grounds of mistake is granted.

Similarly, the Petitioner, by submission of the self-proving affidavit, as well as the 1404 examinations and party examinations, has demonstrated prima facie that the offered instrument was not procured by fraud. To prevail on a claim of fraud, the Objectant was required to demonstrate by clear and convincing evidence that knowingly false statements were made to the decedent that induced her to execute an instrument she would not have otherwise made (see In re Gross, 242 AD2d 333 [2d Dept 1996]). Again, Objectant does not address fraud in his opposition. Since the Petitioner has established the absence of fraud, and the moving papers in opposition are bereft of any argument or evidence in support of this claim, the branch of the motion for summary judgment dismissing the objection to the validity of the offered instrument on the grounds of fraud is granted.



Additionally, as is often the case, the Objections also include duress as a basis to invalidate the offered instrument. Practitioners and courts alike tend to treat duress and undue influence as being one and the same. However, distinctions can be found between the two among the rather scarce decisional law on this topi" target="_blank">Matter of Rosasco, 31 Misc 3d 1214 (A) [Sur Ct, NY County 2011]).

Petitioner, by her submissions, has established prima facie the absence of duress. Moreover, Objectant's papers do not specifically address the issue of duress, short of combining it with the issue of undue influence which will be discussed infra. A search of the record did not reveal any facts or evidence suggesting that the offered instrument was forcibly procured by way of a wrongful act or the threat of a wrongful act against the testator on the part of the Petitioner and/or her husband. Accordingly, the branch of the motion for summary judgment dismissing the objection to the instrument on the grounds of duress is granted.



Lastly, turning to the branch of the motion for summary judgment dismissing the objection to the instrument on the grounds of undue influence, the Petitioner, by submission of the self-proving affidavit, and by virtue of Fortuna's testimony, among other things, as to his long-standing relationship with the testator and the fact that he met with the testator alone and took instruction only from her, has demonstrated prima facie the absence of undue influence.

In order for the Objectant's claim of undue influence to survive summary dismissal, it is incumbent upon Objectant to demonstrate that the "influence exercised amounted to moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist" (Children's Aid Soc. v. Loveridge, 70 NY 387, 394 [1877]). Circumstantial evidence may be proffered to sustain a claim of undue influence, but such indirect proof must be of a substantial nature. (See Matter of Zirinsky, 43 AD3d 946 [2d Dept 2007].)

In support of her objection, Knuth contends that the Petitioner was associated with attorney draftsperson, Fortuna; the decedent was isolated from friends and family by the Petitioner and her husband; the Will represents a radical departure from decedent's prior Wills; there is a dispute as to capacity at the time the decedent made the purported Will; the Petitioner and her husband controlled the testator's lifetime affairs, including bank accounts and taxes; and the Petitioner and her husband are the sole beneficiaries of the offered instrument. Additionally, Objectant argues that the Petitioner and her husband occupied a confidential relationship with the decedent.

Upon review of the record, Objectant's claim that the Petitioner is associated with attorney draftsperson Fortuna is disingenuous. At his examination, Fortuna testified that he is the decedent's grand-nephew and that he visited with her on a regular basis as he was growing up. Further, the decedent and her husband Marco would call upon Fortuna periodically when they had legal issues, and due to their relationship, Fortuna would gratuitously provide them with advice. The Court observes that Objectant has [*6]submitted with her opposition prior Wills of the decedent and her husband, one of which was also prepared by Fortuna back in 1996. Also offered were exhibits marked at Fortuna's deposition, which included a copy of a note to Fortuna from the testator signed "Love ya, Aunt Bea & Uncle Marco." Hence, the relationship between the decedent and Fortuna was familial, close, and firmly and independently established many years ago. The mere fact that Fortuna had occasion to meet the Petitioner and her husband at a handful of family functions without more, cannot be a basis to establish undue influence.

Further, claims of isolation of the testator are belied by the Objectants' sworn testimony from which it is apparent that Knuth, who lives in upstate New York, and Ayers, who lives in Texas, were content to live out their lives with little to no personal contact with either their parents or even each other [FN6] .

According to Ayers, her parents last visited her in Texas in 1991 and the last holiday Ayers spent with the decedent was in 1994. Ayers had not visited her parents from 2002 until 2007, after her father passed away. Subsequent to that, she last personally visited the testator in 2012. According to Knuth, she too did not spend the holidays with her parents, who instead spent them with the Petitioner and her husband. The last time the testator visited Knuth at her home was before the passing of decedent's husband in 2007, some eight years prior to the testator's death. Knuth testified that she never accompanied her widowed mother to any doctor's visits.

In short, neither Knuth nor Ayers provided any evidence to demonstrate that Petitioner or her husband actively isolated the testator from them. The frequency of visits between the decedent and her children before and after the execution of the offered instrument did not change and were consistent in that they rarely occurred. Further, Objectants both testified that they communicated often with the decedent by telephone, thereby undermining their allegations that



the Petitioner and her husband were deliberately curtailing their access to the testator.

Objecant's counsel includes two prior testamentary instruments of the decedent in his opposition papers in which the testator had named her husband as the beneficiary, with her daughters as contingent beneficiaries. The testator's departure from a prior testamentary scheme is a factor to consider, but standing alone, it is not enough to demonstrate the exercise of undue influence. That the testator elected to revisit her estate plan subsequent to the death of her primary beneficiary is not unusual and the testator's reasons for omitting her daughters in this latest instrument were conveyed by the testator to the same attorney that drafted her prior Will. The unrefuted testimony in the record is that the decedent and Fortuna were the only persons present when this conversation took place.

Left remaining is Objectant's contention that the Petitioner and her husband "controlled" the testator's financial affairs and occupied a confidential relationship with the testator. Among the evidence offered in support is a copy of a bank statement reflecting a deposit of $232,824.84 on July 5, 2007 into an account held solely by [*7]decedent at Astoria Bank and a bank statement reflecting a deposit of $25,000.00 on the same day in decedent's Astoria Bank checking account. Also included are two checks that were issued from the decedent's North Fork checking account on August 4, 2008, one for $60,000.00 and the other for $90,000.00. Both checks were made payable to the testator herself and both were signed and endorsed by the testator. Without more, the only information that can be derived from the documents provided by the Objectant is that the testator, contrary to Objectant's allegations, was actively managing her own financial affairs before and apparently after the Will's execution.

Although evidence indicates that the decedent added Petitioner to one or more of her accounts three years subsequent to the Will, and that Petitioner's husband provided assistance to the decedent with her taxes, this does not demonstrate the existence of a reliant or disparate relationship at or about the time of the offered instrument's execution. That the decedent may have grown increasingly dependent on the Petitioner and her husband as she approached her nineties should be of no surprise, given the duration and nature of their "family-like" relationship and the distance—in miles and otherwise—of her daughters (see e.g. Matter of DiDomenico, 101 AD3d 998 [2d Dept 2012]). Under these circumstances, the fact that Petitioner and her husband came to occupy a position of trust with the testator does not create a factual issue (see Will of Llewellyn, 2014 NYLJ Lexis 7446 [Sur Ct, NY County 2015]; Matter of Zirinsky, 10 Misc 3d 1052(A) [Sur Ct, Nassau County 2005] aff'd 43 AD3d 946 [2d Dept 2007]).

In short, the Objectant has produced no evidence to demonstrate that the decedent's actions were anything other than voluntary and has failed to demonstrate that an issue of fact exists with respect to the exercise of undue influence (see e.g. Matter of Mole, 113 AD3d 858 [2d Dept 2014]; Matter of DiDomenico, supra). Accordingly, the branch of the Petitioner's motion for summary judgment dismissing the objection to the validity of the instrument on the grounds of undue influence is granted.

Any remaining contentions of the Objectant not specifically addressed herein are without merit.

Based upon the foregoing holding of the court, the evidence submitted, and a review of the instrument offered for probate, the court finds the instrument was duly executed in conformity with the requirements for a will pursuant to EPTL section 3-2.1. and that at the time of its execution, the decedent was in all respects competent to make a will and was not under restraint.

Accordingly, the petition is granted and the instrument is admitted to probate.

Letters Testamentary shall issue to Petitioner upon duly qualifying.

This is the Decision and Order of the Court.

Settle Decree.



Dated: February 9, 2017 Footnotes

Footnote 1:A withdrawal of counsel had been filed on behalf of Objectant Ayers evidencing her intent to continue unrepresented by counsel. No opposition has been filed by Ayers to Petitioner's motion.



Footnote 2:Disclosure of which was not warranted pursuant to Uniform Rule 207.27.

Footnote 3:Nor did the Court have to consider the incongruous argument made by

Objectant's counsel that the uncertified medical records were not admissibleeven though he himself procured and furnished the records to the Petitioner (see e.g. Arbour v. Comm. Life Ins. Co., 240 AD2d 1001 [3d Dept 1997]).

Footnote 4:The decedent's husband Marco passed away on May 27, 2007.

Footnote 5:Inasmuch as Objectant failed to raise an issue of fact with respect to capacity, the Court did not have to rely upon or consider the affidavit of thedecedent's treating physician.

Footnote 6:Knuth and Ayers have never visited each other's homes. Knuth has never mether niece, Alyssa, who is 24 years of age.