Matter of Fiorentino
Annotate this CaseDecided on December 16, 2019
Surrogate's Court, Queens County
Probate Proceeding, Will of Pat Fiorentino, a/k/a Pasquale Fiorentino, Deceased.
2018-351
Attorney for Petitioner:
Angelo A. Giordano, Esq.
64 Avenue U
Brooklyn, NY 11223
718-266-2700
Attorney for Respondent:
Fred M. Schwartz, Esq.
317 Middle Country Road, Suite 5
Smithtown, NY 11787
631-724-2300
Peter J. Kelly, J.
In this probate proceeding the petitioner Carmela, decedent's sister-in-law, moves for summary judgment seeking to grant probate to an instrument dated July 3, 2014 and dismissing the objections filed by decedent's sister and distributee, Mary.
Decedent died on December 17, 2017 and was predeceased by his wife in June, 2006 and his son Frank in July, 2017. He was survived by his sister Mary and five nieces and nephews. Offered for probate is an instrument dated July 3, 2014 which nominated his then-living son Frank as executor and trustee and Carmela as successor executor and trustee. The will pours over into a revocable inter vivos trust named the Fiorentino Family Living Trust (Fiorentino Trust) also dated July 3, 2014. The trust provides for its net assets to be distributed to Frank upon decedent's death and, in the event that Frank predeceases, to Carmela and, in the event that she also predeceases, to St. Jude Children's Research Hospital (St. Jude's).
The seventeen page type-written and stapled instrument was executed under the supervision of an attorney. The attorney testified that she first met decedent in 1997 or 1998 when, in her separate capacity as a certified public accountant, she prepared tax returns for decedent and his wife Angela. She continued to prepare their tax returns during the ensuing years and, after Angela's death in 2006, she drafted and supervised the execution of decedent's first will on December 16, 2011 which named Frank as the sole beneficiary and, in the event Frank [*2]predeceased, Carmela as contingent beneficiary.
The attorney testified that decedent's testamentary scheme in the 2014 instrument differed to the extent that it provided for the estate assets to pour over into the Fiorentino Trust which, in addition, added St. Jude's as a beneficiary should both Frank and Carmela predecease. The attorney also testified that the addition of St. Jude's was part of decedent's plan to exclude the possibility of his sibling inheriting anything in the event his designated beneficiaries predeceased.
Counsel further averred that decedent had described two prior family events that were of major significance in this decision. The first concerned Frank's physical attack and stabbing of the decedent in 2008. Decedent did not "press charges" against Frank for the assault. Rather than disinherit him, decedent told the attorney that he still loved his son and that he wanted to "take care" of him. The other event involved decedent's sister Mary, who had sued him for partition of a parcel of real property in Brooklyn that they owned together and forced a sale of the property. At the time, decedent resided at the property. The attorney stated that decedent's dislike of Mary was "very intense" and that he did not want Mary to get anything, saying "I don't want anything to go to my sister Mary . . . She is cut out of my life. She's been nothing but mean to me all my life."[FN1]
Prior to drafting the instrument offered for probate, the attorney testified that decedent came to her office alone and they met "a couple of times" over the period of a week. The decedent gave her a list of assets, the attorney prepared a family tree and she then made a draft of the will which she read and went over with him. The attorney testified that the will was executed at her office under her supervision and direction. The two attesting witnesses worked for the attorney at that time. Attached to the instrument is the SCPA 1406 self-proving affidavit of the two attesting witnesses dated the same date.
The objections allege that the propounded instrument is not decedent's will, that it was not duly executed, that decedent lacked testamentary capacity to make a will and that it was the product of fraud and undue influence.
Petitioner, as the movant seeking summary judgment in a contested probate proceeding, must establish prima facie entitlement to judgment as a matter of law in the first instance (see e.g. Matter of Mele, 113 AD3d 858, 859-860 [2d Dept 2014]; Matter of Engelhardt, 88 AD3d 997, 998 [2d Dept 2011]; Matter of Mooney, 74 AD3d 1073, 1074 [2d Dept 2010]). In particular, the petitioner must demonstrate that the instrument offered for probate was duly executed in accordance with the requisites of EPTL 3-2.1 (see Matter of Moskowitz, 116 AD3d 958, 959 [2d Dept 2014]; Matter of Mele, 113 AD3d at 858; see e.g. Matter of Collins, 60 NY2d 466 [1983]; Matter of Rosen, 291 AD2d 562 [2d Dept 2002]) and that the decedent possessed testamentary capacity at the time the instrument was executed (see Matter of Kumstar, 66 NY2d 691 [1985]; Matter of Mooney, 74 AD3d at 1075; see also Matter of DiChiaro, 39 AD3d 751 [2d Dept 2007]).
Once the requisite proof has been proffered by the movant, the objectant must produce evidentiary proof in admissible form to rebut the prima facie showing so as to establish the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; [*3]Gesuale v Campanelli & Assoc. P.C., 126 AD3d 936 [2d Dept 2015]; Singer v Neri, 31 AD3d 738 [2d Dept 2006]). General conclusory and unsupported allegations are insufficient to defeat a motion for summary judgment (see William Iselin & Co. v Landau, 71 NY2d 420, 425-426 [1988]; see e.g. Matter of Newman, 14 AD3d 567 [2d Dept 2005]). Summary judgment may be granted only where it is clear that no triable issue of material fact exists (see Alvarez v Prospect Hosp., 68 NY2d at 320; Phillips v Joseph Kantor & Co., 31 NY2d 307 [1972]).
In support of the motion for summary judgment the petitioner submits, inter alia, the instrument offered for probate together with a copy of the pleadings and the transcripts of the SCPA 1404 examinations of the drafting attorney and two attesting witnesses.
The uncontradicted evidence submitted establishes that the attorney draftsperson also supervised the execution of the will. Accordingly, there is a presumption of regularity that the will was properly executed in all respects (see Matter of Moskowitz, 116 AD3d at 959; Matter of Tuccio, 38 AD3d 791 [2d Dept 2007]; Matter of Weltz, 16 AD3d 428, 429 [2d Dept 2005]). The presumption of due execution and compliance with EPTL 3-2.1 also arises here since the propounded will contains an executed attestation clause and a self-proving affidavit (see Matter of Greene, 89 AD3d 941, 943 [2d Dept 2011]; Matter of Farrell, 84 AD3d 1374 [2d Dept 2011]; Matter of Mooney, 74 AD3d at 1074).
Upon the testimony and the documents submitted, petitioner has established prima facie entitlement to judgment as a matter of law dismissing the objection based upon lack of due execution by demonstrating that the subject will was duly executed pursuant to EPTL 3-2.1 (see e.g. Matter of Mele, 113 AD3d at 860).
In opposition, objectant submits her own affidavit and the affidavit of her daughter, C. Guggino (Guggino), wherein they merely speculate that decedent never executed the instrument. It is well settled, however, that a party opposing a motion for summary judgment must lay bare its proof and present evidentiary facts sufficient to raise a triable issue of fact (see Zuckerman v City of New York; 49 NY2d 557 [1980]; Morgan v New York Tel., 220 AD2d 728, 729 [2d Dept 1995]), and mere conclusions, conjecture or surmise are insufficient (see Zuckerman, 49 supra at 562; Figueroa v Gallager, 20 AD3d 385, 387 [2d Dept 2005]).
The Court finds that the objectant has failed to raise a triable issue of fact as to whether decedent duly executed his will in conformity with the requirements of EPTL 3-2.1. Accordingly, the branch of the motion for summary judgment dismissing the objection alleging the lack of due execution of the will is granted.
With respect to the objection based upon decedent's alleged lack of testamentary capacity, Mary states in her affidavit that she believes her brother was not aware of the "object of his bounty" because she "was a close relative and there was no expression set forth in the will that it was his intent to specifically exclude [her]." The objectant's argument that she was a "close relative" is of no moment, particularly since decedent's son was in a closer degree of kinship to decedent than objectant and was alive when the will was executed. Moreover, contrary to objectant's belief, there is no requirement that a will explain the disinheritance of a family member. At most, objectant's argument is based upon mere surmise and fails to raise any triable issue of fact as to whether decedent lacked testamentary capacity (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Matter of Rosen, 291 AD2d 562 [2d Dept 2002]; Matter of MacGuigan, 2015 NY Misc. LEXIS 5820 [Sur Ct, New York County]; Matter of Ross, NYLJ, [*4]August 22, 2001 at 24, col 3 [Sur Ct, Nassau County]. Accordingly, the branch of the motion for summary judgment dismissing the objection alleging that decedent lacked testamentary capacity is granted.
Turning to the objection that the instrument offered for probate is not the "genuine" will of the decedent, objectant fails to come forward with any evidentiary proof in support thereof. In fact, it appears from her affidavit that this is nothing more than her own opinion based upon "having known" her brother.
Accordingly, petitioner is granted summary judgment dismissing the objection to the instrument based upon the grounds that it is not genuine.
Petitioner next seeks summary judgment dismissing the objection that the will was the product of undue influence exercised on decedent by his son Frank.
Petitioner has made a prima facie showing of entitlement to summary judgment as a matter of law by submitting the SCPA 1404 testimony of the attorney and the witnesses together with their self-proving affidavit, which demonstrate that the decedent understood the terms of the will when it was executed and was free of restraint, and that the will was not the product of undue influence or fraud. The role of the court, therefore, is to determine whether objectant raises any triable issues of fact (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).
For the will to be denied probate based upon undue influence, it must be shown that the influence exercised "amounted to a 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 [or her] free will and desire, but which he [or she] was unable to refuse or too weak to resist" (Matter of Walther, 6 NY2d 49, 53 [1959]; see Matter of Cianci, 165 AD3d 655, 657 [2d Dept 2018]; Matter of Capuano, 93 AD3d 666 [2d Dept 2012]; Matter of Zirinski, 43 AD3d 946, 947-948 [2d Dept 2007]). Undue influence may be proved by circumstantial evidence, but such indirect proof must be of a substantial nature (see Matter of Walther, 6 NY2d 49; Matter of Zirinski, 43 AD3d at 948).
Mary states in her affidavit that Frank stabbed the decedent in 2008 causing wounds requiring his hospitalization and, thereafter, decedent had expressed to her that he felt "constantly threatened" by his son. She states that decedent "would never have drafted a will in [Frank's] favor," and believes he did so because he was unduly influenced by Frank. She avers that decedent and Frank had a "contentious relationship" after the stabbing. Her daughter Guggino submits an affidavit wherein she also says that decedent "would never have named his son as a beneficiary of the estate" and she also believes that he was unduly influenced to draft a will in Frank's favor. She also states that Frank told her that he was afraid his son would harm him again, and that she had once heard Frank threaten decedent that he "better be in his will."
Although these affidavits are submitted in support of the objection based upon undue influence, they also support the unplead objection that the will was procured by means of duress. "Duress has "often been joined as a part of undue influence, although it possesses its own definition and. . . is also quite distinct" (Matter of Alini, 2017 NY Misc LEXIS 843 [Sur Ct, Richmond County]). Whereas undue influence concerns wrongdoing of a covert and oftentimes undefinable nature, duress encompasses wrongdoing that is more overt, such as threats of force or harm" (Matter of Bellasalmo, 54 Misc 3d 1216[A] [Sur Ct, Queens County]; see Matter of [*5]Rosasco, 31 Misc 3d 1214[A] [Sur Ct, New York County]; Matter of Martin, NYLJ, Oct. 26, 2015 at 26 [Sur Ct, NY County]). The law requires "not only that the testator . . . be free from physical restraint (duress), but that . . . the mind . . . or will, that dual principle of ego, should also be free and not coerced" (In Re Hermann's Will, 87 Misc 476 [Sur Ct., New York County 1914]). The test for duress is subjective and the proof concerns whether there was an actual threat which induced assent on the part of the person claiming to have been victimized by the duress (see Matter of Rosasco, 31 Misc 3d 1214[A]).
Although the affidavit submitted by Mary concerning an alleged conversation with decedent, or overheard by her, would be inadmissible hearsay at trial pursuant to CPLR 4519, it may still be considered to defeat the motion for summary judgment unless it is the only evidence (see Phillips v Joseph Kantor & Co., 31 NY2d at 313; Matter of Cavallo, 6 AD3d 434, 435 [2d Dept 2004]). In this case, it is not the only evidence since the affidavit of her daughter Guggino is additionally submitted.
Viewing the affidavits in the best light and assuming they are accurate, their import is tenuous because they are vague, without context and largely based upon generalized observations of decedent. To the extent certain statements or communications are attributed to Frank and decedent, they fail to specify when and where they were made and, significantly, whether they were made prior, subsequent, or contemporaneous with the 2014 will. This especially pertains to the statement by Guggino that she once heard Frank threaten decedent that he "better be in his will" which, in the absence of any connection to the time, place or circumstance of such a statement, is insufficient to raise a triable issue of fact. "At a minimum, the objectant must make a showing of actual acts of undue influence, including time and place of the occurrence" (Matter of Feller, 26 Misc 3d 1205[A] [Sur Ct., Monroe County 2010); see Matter of Friedman, 26 AD3d 723, 725-726 [3d Dept 2006]; Will of Winston Pearson, NYLJ, July 5, 2015 at 39 [Sur Ct, Kings County]; Estate of Osias Bender, NYLJ, April 12, 2010 at 39, col 6 [Sur Ct, Kings County]). Notably, both the 2011 and 2014 will's were drafted several years after the 2008 incident which the attorney draftsperson testified decedent had mentioned and considered before deciding the distribution of his estate.
More pertinent, the record is barren of any other factual evidence concerning the relationship among Frank, Carmella and decedent in the years subsequent to 2008, such as any incidents or examples of duress exerted by Frank against decedent which would explain why the natural disposition to his only child would be improper. Importantly, decedent's testamentary disposition with respect to Frank would have been identical after the 2008 incident whether decedent died intestate or, alternatively, testate pursuant to either the 2011 or 2014 will.
Most significantly, objectant's emphasis on the assault is merely a red herring since Frank predeceased the decedent and is not benefitting herein. The real issue in dispute, rather, is whether decedent was subject to undue influence or duress in the selection of his sister-in-law, who is the sole beneficiary pursuant to the will and trust, rather than Mary. Objectant offers absolutely no evidence that Frank exerted any undue influence or duress over decedent in his choice of Carmella as a beneficiary rather than Mary. Without a showing that undue influence was actually exerted, the mere speculation of a motive and opportunity is insufficient (see Matter of Romero, 137 AD3d 922 [2d Dept 2016]); Matter of Chiurazzi, 296 AD2d 406 [2002]). Further, the record is totally bereft of any evidence regarding Carmella's actions toward decedent, [*6]much less any behavior which could remotely be classified as undue influence.
Accordingly, petitioner is granted summary judgment dismissing the objection to the instrument based upon the grounds that it was procured by undue influence and, specifically, duress.
The next branch of the motion seeks summary judgment dismissing the objection to probate based upon fraud.
For probate of the will to be denied based upon fraud, there must be evidence that a beneficiary knowingly made a false statement to the testator which caused him to dispose of his property in a manner differently than he would have absent that statement (see Matter of Cavallo, 6 AD3d at 434; Matter of Evanchuk, 145 AD2d 559, 560 [2d Dept 1988]).
In opposition to petitioner's prima face showing of entitlement to summary judgment as a matter of law, objectant has failed to present any evidence of a false statement knowingly made by an individual that caused decedent to dispose of his property differently (see e.g. Matter of Zirinsky, 43 AD3d 946, 948 [2d Dept 2007]).
Accordingly, the branch of the motion for summary judgment dismissing the objection based upon fraud is granted.
All objections having been dismissed, the petition is granted and the will is admitted to probate. Letters testamentary shall issue to the petitioner upon duly qualifying.
Settle Decree.
Dated: December 16, 2019
___________________________
SURROGATE Footnotes
Footnote 1:The testimony by the attorney draftsperson relevant to the preparation of the will is admissible pursuant to CPLR 4503 [b].
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