In re Ramirez

• Decision Date: 30 July 2020
• Docket Number: 2018-2652/A
• Parties: MATTER OF Ulysses J. RAMIREZ, a/k/a Ulysses Joseph Ramirez, Deceased.
• Court: New York Surrogate Court

68 Misc.3d 1207 (A)

129 N.Y.S.3d 684 (Table)

MATTER OF Ulysses J. RAMIREZ, a/k/a Ulysses Joseph Ramirez, Deceased.

2018-2652/A

Surrogate's Court, New York, Queens County.

Decided July 30, 2020

Attorney for Petitioner: Rex Whitehorn, Esq., Rex Whitehorn & Associates, P.C., 11 Grace Avenue, Suite 411, Great Neck, NY 11021, (516) 829-5000

Attorney for Respondent: Richard T. Kerins, Esq., Mahon, Mahon, Kerins & O'Brien, LLP, 254 Nassau Boulevard South, Garden City, New York 11530, (516) 538-1111

Peter J. Kelly, S.

In this proceeding for probate of an instrument dated April 11, 2018, the objectants move for summary judgment dismissing the petition upon the grounds that decedent lacked testamentary capacity, the instrument was not duly executed and that it was the product of fraud, forgery and/or undue influence. The petitioner, decedent's surviving spouse, cross-moves for summary judgment dismissing the objections and granting probate to the instrument.

The decedent, Ulysses Ramirez, died on April 23, 2018 survived by Francesca, his fourth wife, and Mikhail and David, decedent's adult children from prior marriages. Ulysses had first met Francesca the previous year, in May 2017, at which time he was being treated for terminal metastic prostate cancer

. Six months after they met, in or about December 2017, decedent left the condominium where he had lived long-term with Mikhail and moved into Francesca's house, where she either had been or still was residing with her ex-husband. Thereafter, Ulysses and Francesca advanced their planned wedding date from Spring 2018 to December 2017, apparently in consideration of decedent's deteriorating health.

The eight page type-written instrument at issue was drafted by Francesca's family-attorney N. Lyman ("Lyman") and bears the date of April 11, 2018, less than two weeks prior to decedent's death. It nominates Francesca as executor and bequeaths to her all of decedent's property including his condominium in Flushing where Mikhail lived, worth approximately $750,000.00. Lyman, whose office was located over 350 miles away in Albion, New York, was contacted by Francesca via text-messages on April 10, 2018, allegedly at decedent's behest, requesting that he draft decedent's will and a power of attorney naming her as agent. Although Lyman never met decedent nor ever had a conversation with him, he prepared the will and power of attorney according to the terms Francesca furnished.

The instrument erroneously states that decedent has only one son, Mikhail. Specifically, it states that:

I have one child by a prior relationship, MIKHAIL RAMIREZ. References to "my child" or "my children" mean my child above-named.

The omission of decedent's other son David was either due to Francesca's failure to inform Lyman or her own misunderstanding of decedent's next-of-kin. Decedent's medical records of the same date, April 10, 2018, show he provided a social history to his medical provider acknowledging he had two sons. Francesca asked Lyman to forward the draft of the will and power of attorney to an e-mail address that, unbeknownst to him, actually belonged to Francesca's next-door neighbor Karen L. ("Karen"). Karen printed the draft will and the power of attorney together with written instructions provided by Lyman as to how they should be executed, and gave them to Francesca. There are no other notes pertaining to the drafting of the instrument other than the text messages and the e-mail.

The propounded will was not executed under the supervision of an attorney, but it bears decedent's signature at the end thereof and an attestation clause together with the signatures of two witnesses, Francesca's neighbor Karen and her son Alexander F. ("Alexander"). Francesca requested that Karen and Alexander be witnesses to the decedent's will in a ceremony that was to take place at her house, purportedly at the decedent's behest, and in accordance with Lyman's written instructions concerning the need for two witnesses. Besides being neighbors, Karen owed Francesca a substantial debt of $35,000.00.

Although the instrument states that it was executed on April 11, 2018, the attached SCPA 1406 self-proving affidavit of Karen and Alexander indicates that it was actually executed three days later, on April 14, 2018. Karen testified that she took the instrument to her home to make copies and scan it when she noticed the erroneous date of "11" pre-typed on the Affidavit of Subscribing Witnesses. She proceeded to change the date from "11" to "14."¹ The dates appearing on the self-proving affidavit are clearly changed to read "April 14, 2018," said changes being written over white correction fluid. Karen also testified that she did not notice the same erroneous date of "April 11" appearing on pages 6 and 7 of the will and, therefore, did not change those. Both witnesses testified that the will was executed on April 14, 2018 in the presence of decedent and in the presence of each other in Francesca's dining room while she was present elsewhere in her house.

The propounded instrument bears staple holes in the top-left corner which Karen attributes to her removal of the staple at the time she made the handwritten change of date on the affidavit and made copies and scanned the instrument to her personal computer.

The Affidavit of Subscribing Witnesses is notarized by an attorney, Levan N. ("Levan"), who testified that he was present when the will was executed on April 14, 2018. He repeatedly testified that his role was solely to act as a notary and that he neither supervised the execution of the will nor had knowledge of trusts and estates law.²

Although Karen and Alexander acknowledge that decedent was of sound memory and understanding and competent to make a will, decedent's contemporaneous medical records reveal that his health was in a serious state of decline. On April 5, 2018, Francesca called decedent's doctor to state that he was "mentally not there," and "very debilitated, not eating, vomits intermittently" and has overall body pain which only goes away with medication that makes him "sleep the day away." Decedent had been taking the opioid narcotic Oxycodone

and medical records show that he was then given additional prescriptions for more powerful opioid narcotics, Dilaudid and Fentanyl. On April 10, 2018, four days prior to the purported execution of the instrument, he was admitted to the hospital and diagnosed and treated for "Failure to Thrive." His Fentanyl dosage was increased and he was then prescribed Morphine. In hospital records, Francesca states "he knows he is dying." The hospital record for April 11, 2018 provides that palliative medical services were consulted and Morphine Sulfate injections were started. On April 12, 2018, his Morphine prescription was increased. Decedent's death certificate dated April 23, 2018 confirms that he had received hospice care during the time period when the instrument was executed, although Francesca denies this.

The medical records of decedent's condition are corroborated by the testimony of his first wife, L. Klein ("Klein"), also a registered nurse, that throughout March and April of 2018 decedent was continuously "drowsy," "sleepy," "groggy" and "not clear of thought" due to the medication and "couldn't keep what [he] was saying straight" and was incompetent to make decisions regarding financial matters and assets. Based upon her observations, decedent could not read, understand or be aware of the contents of a will by the time it was executed. Further, E. McCann ("McCann"), a long-time acquaintance of decedent, testified that decedent had been six days without food when the will was executed.

Both Klein and decedent's former brother-in-law, R. Filandro ("Filandro"), testified that decedent had a prior will, which thus far has neither been located nor produced, wherein decedent bequeathed all his property to his son Mikhail with the exception of a specific devise of some money to each of Klein's two daughters. Both also testified that decedent disclosed to them that, upon marrying Francesca, they made an oral agreement whereby each of them would retain ownership of their own mon-marital property.

Summary judgment is a drastic remedy that can be granted only when it is clear that no genuine issues of fact exist (see Alvarez v. Prospect Hospital , 68 N.Y.2d 320 [1986] ; Andre v. Pomeroy , 35 N.Y.2d 361 [1974] ; Phillips v. Joseph Kantor & Co. , 31 N.Y.2d 307 [1972] ). On a motion for summary judgment the proponent must establish his or her claim or defense sufficient to warrant the court in awarding judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital , 68 N.Y.2d 320 ; Friends of Animals Inc. v. Assoc. Fur Mfrs., Inc. , 46 N.Y.2d 1065, 1067 [1979] ). When the movant makes out a prima facie case, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York , 49 N.Y.2d 557 [1980] ; Albouyeh v. County of Suffolk , 96 A.D.2d 543 [2d Dept. 1983], aff'd 62 N.Y.2d 681 [1984] ). Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient (see Zuckerman v. City of New York , 49 N.Y.2d at 562 ; Leonard v. Kinney Sys., 199 A.D.2d 470 [2d Dept. 1993] ).

Here, both parties assert that they have sustained their respective burdens on the motions for summary judgment and that each of their motions should be granted.

The proponent of the will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements ( EPTL 3-2.1 ; see Matter of Moskowitz , 116 A.D.3d 958 [2d Dept. 2014] ). To establish due execution, petitioner must show that: 1) the testator subscribed or signed at the end of the instrument, and 2) the testator signed in the presence of at least...