Blasi v. Blasi (In re Martinico)

• Decision Date: 20 November 2019
• Docket Number: File No. 3403/14,2017–01425
• Citation: 177 A.D.3d 882,113 N.Y.S.3d 722
• Parties: In the MATTER OF Eleanor MARTINICO, Deceased. Domenick Blasi, Respondent; v. Andrew B. Blasi, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 882
113 N.Y.S.3d 722

In the MATTER OF Eleanor MARTINICO, Deceased.

Domenick Blasi, Respondent;
v.
Andrew B. Blasi, et al., Appellants.

2017–01425
File No. 3403/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 10, 2019
November 20, 2019

113 N.Y.S.3d 723

Hall & Hall, LLP, Staten Island, N.Y. (Eugene Rabinovich and Vanessa Gazzola of counsel), for appellant James Blasi.

Finkelstein & Virga P.C., New York, N.Y. (Steven R. Finkelstein, Gerard Virga, and Keith H. Peterson of counsel), for respondent.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

177 A.D.3d 883

In a contested probate proceeding, the objectants, Andrew B. Blasi, Maria Joy Blasi, and James Blasi, appeal from a decree of the Surrogate's Court, Kings County (Margarita Lopez Torres, S.), dated October 19, 2016. The decree, upon a decision of the same court dated September 26, 2016, in effect, dismissed the objections and admitted a propounded will dated March 28, 2014, to probate.

ORDERED that the appeals by the objectants Andrew B. Blasi and Maria Joy Blasi are dismissed as abandoned; and it is further,

ORDERED that the decree is affirmed on the appeal by the objectant James Blasi; and it is further,

113 N.Y.S.3d 724

ORDERED that one bill of costs is awarded to the petitioner, payable by the objectant James Blasi.

Eleanor Martinico (hereinafter the decedent) died on May 20, 2014, and is survived by seven nieces and nephews, including the objectant James Blasi. The petitioner, who is the decedent's grandnephew and son of the decedent's nephew Joseph D. Blasi, as well as the nominated executor of the decedent's propounded will dated March 28, 2014, filed a petition for probate verified July 22, 2014. James Blasi, along with another niece and nephew of the decedent, Maria Joy Blasi and Andrew B. Blasi, respectively (hereinafter collectively the objectants), filed objections to probate on the grounds of lack of due execution, lack of testamentary capacity, undue influence, and fraud. After discovery, the objectants moved for summary judgement denying probate, and the petitioner cross-moved for summary judgment, in effect, dismissing the objections and admitting the will to probate. In a decision dated September 26, 2016, the Surrogate's Court determined that the objectants' motion should be denied and the petitioner's cross motion should be granted. The court issued a decree dated October 19, 2016, upon the decision, in effect, dismissing the objections and admitting the will to probate. The objectant James Blasi appeals from the decree, and we affirm.

We agree with the Surrogate's Court's determination, in effect, to dismiss the objection based on lack of due execution. "The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements" ( Matter of Christie, 170 A.D.3d 718, 719, 95 N.Y.S.3d 286 ; see Matter of Mele, 113 A.D.3d 858, 859, 979 N.Y.S.2d 403 ; Matter of Rottkamp, 95 A.D.3d 1338, 1339, 945 N.Y.S.2d 394 ). The petitioner

177 A.D.3d 884

demonstrated his prima facie entitlement to judgment as a matter of law by submitting a transcript of the deposition testimony and an affidavit of the attorney who drafted the will and witnessed its execution, along with a transcript of the deposition testimony and affidavit of the additional attesting witness, which demonstrated that the statutory requirements for due execution were satisfied. Moreover, "[w]here the will is drafted by an attorney and the drafting attorney supervises the will's execution, there is a presumption of regularity...