In re Neumann, 2022-30813

CourtNew York Surrogate Court
Writing for the CourtMELLA, S.
PartiesProbate Proceeding, Estate of DOLORES ORMANDY NEUMANN, Deceased.
Docket Number2022-30813,Index 2016-4105
Decision Date30 March 2022

Probate Proceeding, Estate of DOLORES ORMANDY NEUMANN, Deceased.

No. 2022-30813

Index No. 2016-4105

Surrogate's Court, New York County

March 30, 2022


Unpublished Opinion

DECISION

MELLA, S.

The following papers were considered in deciding this motion for summary judgment:

Papers - Numbered

Petitioner's Notice of Motion for Summary Judgment, Affirmation of Judd Burstein, Esq., in Support, with Exhibits 1-54, and Memorandum of Law...........................................................................1, 2, 3

Affidavit of John R. Morken, Esq., in Opposition to Motion for Summary Judgment, with Exhibits A-G (including corrected Ex. 10) and 1-45, and Memorandum of Law..............................4, 5

Affirmation of Donald Novick, Esq., in Opposition to Motion for Summary Judgment, with Exhibits A&B..........................................................6

Reply Affirmation of Judd Burstein, Esq., in Support of Motion for Summary Judgment, with Exhibits A-O, Reply Memorandum of Law in Support of Motion for Summary Judgment, with Exhibit A......................................7, 8

Affirmation of John M. Czygier, Jr., Esq., in Support of Motion for Summary Judgment....................................................................................9

Decedent Dolores Ormandy Neumann's daughter, Belinda Neumann Donnelly, moves for summary judgment to dismiss the objections to probate of a March 4, 2015 instrument that were filed by her father, Hubert Neumann, and her sister, Melissa Neumann. The court grants the motion to the extent of dismissing the objections grounded on the alleged lack of due execution and of capacity and the objection based on affirmative fraud. As analyzed below,

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questions regarding undue influence and the existence of a confidential relationship and, if one existed, whether such relationship was exploited, remain for trial.

Relevant Facts

On February 18, 2015, Dolores Ormandy Neumann (decedent) fell in her home and broke her hip. Her neighbor contacted decedent's daughter, Belinda (Belinda, Movant, or Proponent), [1]who took her to the emergency room.

The following day, in the hospital before her hip surgery, decedent executed a testamentary instrument, her penultimate will ("the February 19th document"). It was drafted and its execution overseen telephonically by an attorney in Florida, who worked for the Law Offices of Amy Holzman. Holzman, who works and resides in New York State, was away on vacation and out of the country at the time. That instrument sought to disinherit decedent's spouse, Hubert, and after certain specific bequests, including her most significant asset, a painting by the artist Jean-Michel Basquiat, to Belinda, the February 19th instrument also gave Belinda the residuary estate. Decedent and/or Belinda were referred to Holzman for estate planning and will drafting by Alison Wolfson, a family friend who was also involved in the art world and later became Belinda's business partner.[2] It appears that Holzman had discussed estate planning with decedent several months prior to her February 2015 hospitalization, though Holzman had not yet been formally retained.

Decedent wrote certain hand-written additions on the February 19th instrument prior to signing it. In those hand-written notes, decedent requested that Belinda use the legacies under the will to provide for decedent's third child, Kristina Neumann. Decedent also indicated to the

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initial drafter that she wanted to adjust the specific bequests, and when Holzman returned from vacation, a revised will was drafted and executed at the rehabilitation center where decedent had been admitted on February 26, 2015, after her hip surgery hospitalization.

The March 4, 2015 instrument, prepared by Holzman and with her colleague's assistance, contains dispositions modified from the February 19th instrument: it includes a bequest to the Philadelphia Orchestra, with which decedent's uncle was famously connected; it provides for bequests of certain tangible personal property-jewelry and art-to only three of her six grandchildren, that is, to the children of Belinda; and all other tangible personal property, including specifically bequeathed property of a small piano and harp, was given to Belinda. The Basquiat painting, entitled "Flesh and Spirit," was now directed to be sold, with the proceeds to be distributed as part of decedent's residuary estate.[3]

Instead of benefiting Belinda exclusively, the net residuary estate in the propounded instrument is to be divided into ten shares, with one share going to the trustees of a testamentary trust for the benefit of her daughter Kristina, [4] the lesser of one share or $1 million to her daughter Melissa, and the remaining eight shares to Belinda, [5] who is also nominated executor. With respect to Hubert, the propounded instrument again seeks to disinherit him. Additionally, a no contest clause was added.

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The circumstances of the genesis and execution of this March 4th instrument, the one at issue here, are as follows. On February 26, 2015, the day that decedent was released from the hospital and admitted to the rehabilitation center, Belinda met with Holzman in Holzman's offices for two hours, a meeting that Belinda does not remember. On the following day, Holzman spoke at length with decedent on the phone and on several occasions thereafter regarding the will's provisions.

On March 4th, Holzman and Orrit Hershkovitz, Esq., who would act as attesting witnesses, and a notary, Diana Sullivan, met decedent in the afternoon in an empty room in the rehabilitation center.[6] After exchanging pleasantries, Holzman showed decedent a copy of the will, went over the entire will, and read verbatim to decedent the dispositive provisions as well as the witnesses' affidavit. After being questioned as to whether this was her will, decedent confirmed that it was, and signed it without aid. Thereafter, Holzman and Hershkovitz signed the witness affidavit, which was notarized by Sullivan. Nothing suggests that Belinda was present at the rehabilitation facility or communicated with decedent at or around the time of the March 4th execution.

Decedent died a year-and-a-half later, on September 23, 2016, at age 81. Belinda filed a petition to probate the March 4, 2015 instrument on November 14, 2016. After conducting extensive discovery, on April 2, 2019 and April 8, 2019, respectively, Hubert and Melissa (collectively "Objectants") interposed objections to probate on the basis of a lack of testamentary capacity and of due execution and that the will was the product of undue influence and fraud. They further request that Proponent be denied appointment as executor and trustee because of her overreaching.

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This is not the only contested proceeding between and among these parties in this and other courts. In this court, there are proceedings by Belinda as Preliminary Executor to disqualify Hubert as surviving spouse, to partition cooperative shares and personal property/art work, and for Hubert's claimed tortious interference with the eventual sale (for over $30 million) of the Basquiat painting owned by decedent, the last of which was transferred to this Court from New York County Supreme Court.

Relevant to this probate proceeding, the record shows that decedent did have a previous testamentary instrument from May of 1999. That 1999 instrument gave $25, 000 to each of her grandchildren, distributed her estate to her three daughters equally, nominating all three as co-executors, and did not provide any bequest for Hubert.

Applicable Standards

On a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law and tender sufficient evidence to demonstrate the absence of any disputed material facts (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; CPLR 3212[b]). Upon such a showing, the burden shifts to the party opposing summary judgment, who must submit evidence demonstrating the existence of a genuine issue of material fact requiring a trial (Alvarez, supra, at 324; Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]).

Allegations by the party opposing the motion must be "specific and detailed, substantiated by evidence in the record" (Matter of O'Hara, 85 A.D.2d 669, 671 [2d Dept 1981]), and mere conclusory assertions, surmise, conjecture or speculation cannot serve as a substitute for evidence to defeat summary determination (Grullon v City of New York, 297 A.D.2d 261, 263-264 [1st Dept 2002]). All reasonable inferences, however, should be drawn in favor of the non-moving

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party, and the court should not pass on issues of credibility (Matter of Llewellyn, NYLJ, Jan. 5, 2015, at 19 [Sur Ct, New York County], affd 135 A.D.3d 499 [1st Dept 2016], citing Dauman Displays, Inc. v Masturzo, 168 A.D.2d 204 [1st Dept 1990]).

Here, Movant has established, prima facie, that the propounded instrument should be admitted to probate by pointing to the attestation clause in the will and by providing the contemporaneous affidavit of the two attesting witnesses which states that decedent was "of sound mind, memory and understanding" and "was not suffering from any defect of sight, hearing or speech, or from any other physical or mental impairment" that could affect her capacity to execute a will. The affidavit further explains that decedent was "under no constraint, duress, fraud or undue influence" and provides that the formal requirements regarding the ceremony of execution and attestation were satisfied. Movant also offers the deposition testimony of these two witnesses, both of whom are attorneys, one being the attorney-drafter. This is sufficient to establish Movant's prima facie case (Matter of Korn, 25 A.D.3d 379, 379 [1st Dept 2006]; see SCPA 1408).

Although the court has drawn all reasonable inferences, as it must, in favor of the...

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