In re Peters

• Decision Date: 31 March 2022
• Docket Number: 2022-50734,No. 2022-50734
• Citation: 2022 NY Slip Op 50734 (U)
• Parties: In the Matter of the Estate of Ruth Peters, Deceased.
• Court: New York Surrogate Court

2022 NY Slip Op 50734(U)

In the Matter of the Estate of Ruth Peters, Deceased.

No. 2022-50734

Surrogate's Court, Erie County

March 31, 2022

Unpublished Opinion

ROBERT M. CIESIELSKI, ESQ. Appearing for David Bialkowski

THOMAS F. HEWNER, ESQ. Appearing of Counsel to Robert Ciesielski Esq.

BOND SCHOENECK & KING, PLLC Appearing for The Diocese of Buffalo, N.Y.

Dennis K. Schaeffer, Esq. of Counsel ELIZABETH A. INGOLD, ESQ. Appearing for Nancy Kolack

SEAN A. FITZGERALD, ESQ. Appearing as Guardian ad Litem for Evelyn Marchlewicz, an Adult Under Disability and for Possible Unknown Heirs

HON. LETITIA JAMES, NYS ATTORNEY GENERAL Appearing for Charitable Beneficiaries

Melissa H. Thore, Esq., Asst. Attorney General of Counsel

HON. ACEA M. MOSEY SURROGATE JUDGE

Ruth Peters [hereafter, decedent], a former school principal in the Town of Cheektowaga, New York, died on July 29, 2019 at the age of 90. Her husband, Matthew, had predeceased her in 2014, and she had no issue or siblings. However, decedent was survived by five known first cousins, including Evelyn Marchlewicz [hereafter, Marchlewicz] and Nancy Kolack [hereafter, Kolack].

Decedent's Last Will and Testament, dated November 2, 2016, left $125,000 to David Bialkowski [hereafter, Bialkowski]. The Will contains no residuary clause denominated as such, and appoints Bialkowski as executor ^[1]. Bialkowski filed a petition to probate that Will on August 14, 2019, and preliminary letters testamentary were issued to him on August 26, 2019. Sean A. Fitzgerald, Esq. was appointed guardian ad litem [hereafter, the GAL] for possible unknown heirs and for Marchlewicz, an adult under disability. SCPA 1404 hearings were held on January 19, 2021 and October 4, 2021, at which the attorney-draftsperson (and one of the witnesses to the Will), Robert Ciesielski, Esq. [hereafter, Ciesielski], Sara Moretta [hereafter, Moretta], a witness to the Will, and Bialkowski, testified.

Objections to probate were filed on February 26, 2021 by both the GAL on behalf of Marchlewicz and unknown heirs, and by Elizabeth A. Ingold, Esq. on behalf of Kolack. The GAL alleged, inter alia, that (1) decedent was not of sound mind or memory on November 2, 2016, and was not mentally capable of making a Will, (2) decedent was not aware of the natural objects of her bounty, (3) decedent was not aware of the nature, extent, and condition of her property, (4) decedent did not understand the scope and meaning of the provisions of the paper writing alleged to be her Will, (5) decedent executed the Will by mistake, (6) the Will was procured by undue influence, fraud, and/or duress practiced upon decedent by Bialkowski and/or another person or persons; and (7) Bialkowski lacks the qualifications required of a fiduciary by reason of dishonesty or improvidence, or is otherwise unfit for the execution of the office of executor. Kolack's objections echo those of the GAL.

Bialkowski filed a motion for summary judgment on November 9, 2021 seeking dismissal of the objections and admission of the Will to probate. Objectants oppose the motion, contending that material issues of fact exist which require a trial. The motion having been finally submitted, I now find and decide as follows.

(A)

On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law (Matter of Cameron, 126 A.D.3d 1167, 1168 [2015]). If such a showing is made, the burden then shifts to the party opposing the motion to "produce sufficient evidence to establish the existence of material issues of fact which require a trial" (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]):

"Summary judgment may be granted only where it is clear that no triable issue of material fact exists (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]; Phillips v. Joseph Kantor & Co., 31 N.Y.2d 307 [1972]). The traditional reluctance to grant summary judgment in probate proceedings has long since passed, and it is now recognized that 'although summary judgment must be exercised cautiously, it is proper in a contested probate proceeding where the proponent submits a prima facia case for probate and the objectant fails to raise any genuine factual issues (Matter of Coniglio, 242 A.D.2d 901 [1997]). Indeed, it is also clear that summary judgment may be granted even where such proceedings involve issues of a fact-sensitive nature, such as fraud and undue influence (see, e.g. Matter of Neuman, 14 A.D.3d 567 [2005]; Matter of Goldberg, 180 A.D.2d 528 [1992]).

* * *

To defeat a motion for summary judgment, the opponent must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact (Stainless, Inc. v. Employers Fire Ins. Co., 69 A.D.2d 27 [1979], affd 49 N.Y.2d 924 [1980]). Allegations must be specific and detailed, substantiated by evidence in the record; mere conclusory assertions will not suffice (Matter of Newman, 14 A.D.3d 657 [2005]). Moreover, the court is required to search the record when it is engaged in the process of issue finding (Fullman v. 142 E. 27th St. Assocs., 1 NY3s 211 [2004]; Insurance A.G. v. Moor-Jankowski, 77 N.Y.2d 235 [1991])" (Matter of Zirinsky, 10 Misc.3d 1052 A [2005], emphasis added, affd 43 A.D.3d 946 [2007]; see also Matter of Colverd, 52 A.D.3d 971 [2008], Matter of Ryan, 34 A.D.3d 212 [2006], and Matter of Kubecka, 15 Misc.3d 1129 A [2007]).

A Court may grant probate when it is "satisfied with the genuineness of the will and the validity of its execution" (SCPA 1408[1]). The Will must have been duly executed, and the testator at the time of its execution must have been competent to make a Will and not under any restraint (SCPA 1408[2]). A testator must sign the Will at its end (EPTL 3-2.1 [a] [1]), and must sign in the presence of at least two attesting witnesses or acknowledge their signature to each attesting witness separately (EPTL 3-2.1 [a] [2] and [4]). The testator must also at some time during the execution ceremony declare that the instrument being signed is their Will (EPTL 3-2.1 [a] [3]).

The proponent of the Will bears the burden of proving due execution of the Will and testamentary capacity (see e.g. Matter of Kumstar, 66 N.Y.2d 691, 692 [1985]; see also Matter of Sundmacher, 192 A.D.3d 898 [2021]), whereas the burden of proof on the issues of fraud and undue influence rests on the party who asserts such claims (see e.g. Matter of Walther, 6 N.Y.2d 49, 54 [1959]; see also Matter of Mele, 113 A.D.3d 858, 860 [2014]).

The issue before this Court is whether Bialkowski has established his prima facie entitlement to summary judgment dismissing the objections and admitting the Will to probate, and, if so, whether the objectants have raised any material issue of fact which would require a trial (see Matter of Bordell, 150 A.D.3d 1446, 1446 [2017]; see also Matter of Pollock, 64 N.Y.2d 1156 [1985]).

(B)

(i)

At the SCPA 1404 hearing, Bialkowski testified that he met decedent in 1995 when he worked at St. John Gualbert Church as a priest and moderator of the parish's Ladies Guild. Bialkowski stated that decedent was an active member of the parish community, and served as a lector, Eucharistic minister, and president of the Ladies Guild.

While Bialkowski was in active ministery at St. John Gualbert Church, decedent asked him to be the executor of her Will. Bialkowski testified that he has not served as an executor for any parishioner other than decedent, but that a priest is allowed to serve as an executor for parishioners who ask them to assume that role.

Bialkowski stated that he did not have any contact with decedent other than birthday and Christmas cards between the years 2011 and 2015. After decedent's husband Matthew passed away in 2014, decedent asked Bialkowski to help her collect Matthew's belongings and organize his house. ^[2]

Bialkowski testified about the nature of his relationship with decedent after Matthew's death:

"So we [organized Matthew's house] for a couple of months, I would say into the summertime, only because I remember her giving me tea from the fridge and it was hot in the house. And so then - then she asked me to help her with statements that pertained to utility bills, property taxes and she asked me to organize them according to location and according to who was the owner. Some were owned by Matthew her deceased husband, and some were owned - and she brought hers, her mail, and she wanted that organized and it was all done on the kitchen table on Brookedge Road. There was no checks at that time initially. And then gradually she would pull out her checkbook from her purse and she would say dictate to me who this is going to be paid for and the amount, and I would dictate it and then she would hand me the check and she would say, check it to make sure it's all correct, and I would check it and then she would sign it and then I would - she had a system. It had to be attached with a stapler to the bill and even though I told her, it says right on the envelope, do not attach with a staple, you couldn't tell her what to do. She was a principal for decades and sometimes I felt like her student. So that's what I was doing. After a couple months, by later in the year 2015, she said her printing wasn't so good; could you write this check. And then after I would write it out, I would give it to her. She would look at it and then she would sign it. Her checkbook was always in her purse, which was always by her. She did not leave a checkbook out to be accessible to myself or anyone. She was always in full control. And her mind was outstanding. She never, ever had any type of dementia or anything like that" (emphasis added).

Bialkowski testified that he assisted decedent with these projects about every...