Cullin v. Lynch (In re Lynch)

• Decision Date: 01 August 2012
• Citation: 2012 N.Y. Slip Op. 05821,949 N.Y.S.2d 454,98 A.D.3d 510
• Parties: In the Matter of Kenneth D. LYNCH, also known as Kenneth Lynch, deceased. Karen Cullin, objectant-appellant, Keith Lynch, petitioner-respondent, Gary Lynch, et al., respondents-respondents.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 510

949 N.Y.S.2d 454

2012 N.Y. Slip Op. 05821

In the Matter of Kenneth D. LYNCH, also known as Kenneth Lynch, deceased. Karen Cullin, objectant-appellant, Keith Lynch, petitioner-respondent, Gary Lynch, et al., respondents-respondents.

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

Aug. 1, 2012.

Paul W. Haug, Medford, N.Y., for appellant.

John J. O'Grady, Garden City, N.Y. (Mary Ellen O'Brien of counsel), for petitioner-respondent and respondent-respondent Gary Lynch.

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SHERI S. ROMAN, JJ.

In a contested probate proceeding, the objectant appeals, as limited by her brief, from so much of an order and decree (one paper) of the Surrogate's Court, Nassau County (McCarty III, S.), dated September 9, 2011, as, upon a decision of the same court dated August 5, 2011, denied her motion for summary judgment dismissing the petition, granted the petitioner's cross motion for summary judgment dismissing her objections to probate based, inter alia, on fraud, and admitted to probate the last will and testament of Kenneth D. Lynch, also known as Kenneth Lynch, dated May 5, 2003.

ORDERED that the appeal is dismissed, with costs payable by the appellant personally.

“It is the obligation of the appellant to assemble a proper record on appeal” ( Wen Zong Yu v. Hua Fan, 65 A.D.3d 1335, 1335, 885 N.Y.S.2d 605;see LaSalle Bank N.A. v. Henderson, 69 A.D.3d 679, 680, 891 N.Y.S.2d 655;Matter of Remy v. Mitchell, 60 A.D.3d 860, 874 N.Y.S.2d 387). An appellant's record must contain all the relevant papers submitted on the underlying motion ( seeCPLR 5526; Wen Zong Yu v. Hua Fan, 65 A.D.3d at 1335, 885 N.Y.S.2d 605;Cohen v. Wallace & Minchenberg, 39 A.D.3d 689, 833 N.Y.S.2d 623;see also Matter of Coopersmith, 48 A.D.3d 562, 852 N.Y.S.2d 247).

Here, the record assembled on appeal does not include, inter alia, the instrument submitted for probate, the objectant's affirmation in support of the motion for summary judgment dismissing the petition, and certain documentary evidence, including affidavits and deposition testimony, submitted by the petitioner in opposition to the motion and in support of his cross motion. Moreover, the record assembled does not include any evidence submitted to the Surrogate's Court by the objectant which addressed her claim that the instrument was procured by fraud. As the record submitted is inadequate to enable this Court to render an informed...