MATTER OF MANCUSO

CourtNew York Surrogate Court
Citation764 N.Y.S.2d 800,196 Misc.2d 897
PartiesIn the Matter of the Estate of FAYE MANCUSO, Deceased.
Decision Date14 August 2003

196 Misc.2d 897
764 N.Y.S.2d 800

In the Matter of the Estate of FAYE MANCUSO, Deceased.

August 14, 2003.


Connors & Sullivan, Brooklyn (Edward Dorney of counsel), for petitioner.

Kevin Farrelly, New York City, for respondents.

OPINION OF THE COURT

MICHAEL H. FEINBERG, S.

In this contested probate proceeding, petitioner moves for an

[196 Misc.2d 898]

order suppressing the transcript of the deposition of the attorney-draftsman (CPLR 3116 [e]).

The propounded instrument was executed January 7, 2000. The decedent died January 9, 2000, two days later. Under the propounded instrument, the decedent left her residuary estate to Michael Pizzi, the petitioner. The decedent had an earlier will, dated August 31, 1987, in which she left her estate to her brother Carmine Mancuso and sister Antoinette Mancus (sic). If they predeceased her, which they did, she left $10,000 to the Servants of Relief for Incurable Cancer and the balance to her cousin Sebastian Grasso and his wife, Gloria Grasso, the objectants.

The objectants objected to the probate of the January 9, 2000 instrument on the grounds that the decedent lacked the physical and testamentary capacity to make a will and that the execution of the will was the product of petitioner's fraud and undue influence. In the course of discovery, the objectants deposed the attorney-draftsman. After receiving the transcript, petitioner made the instant motion to suppress the transcript on the ground that it was garbled and replete with errors. Objectants agreed that there are errors in transcription but denied that the errors required suppression of the entire transcript. Moreover, the objectants denied that there were inaccuracies in transcribing the questions and responses concerning petitioner's alleged undue influence.

In a prior decision, this court held that petitioner failed to establish that the entire transcript should be suppressed and set the matter down for a hearing on whether portions of the transcript should be suppressed (Matter of Mancuso, NYLJ, Feb. 4, 2003, at 20, col 6). Before the hearing began, the parties agreed to corrections to all of the alleged substantial errors except one. A hearing was then held on whether that one specific question and answer should be suppressed. The matter was tried before a court attorney-referee over three days.

In order to determine petitioner's objection, it is necessary to provide the context in which the disputed question and answer arose. The decedent lived with her elderly brother in their home on 7806 14th Avenue, Brooklyn, New York. In 1999, petitioner told the attorney that the decedent and her brother were considering entering a nursing home and asked the attorney to advise them of their options. In December 1999, petitioner again spoke to the attorney about advising the elderly pair. The attorney made an appointment and visited them at their house.

[196 Misc.2d 899]

The attorney testified that when he visited the decedent, the decedent, her brother, petitioner, and petitioner's mother were present. The decedent told him that she wanted to go to a nursing home. The attorney suggested that they try home health care first. During their conversation, the attorney asked the decedent if she had a will. She said she did and that it left everything to her brother, and if anything happened to him, to a cousin in Florida that she hadn't seen in years. The objectants' attorney followed up with the following questions and answers:

"Q: You testified earlier that you were surprised she was leaving her estate to cousins which she said she hasn't seen in a while?

"A: It wasn't so much I was surprised. I just laughed at it.

"Q: You laughed so she could hear you?

"A: I laughed inside because she was leaving a will to cousins she hadn't seen in years.

"Q: Did you say anything about that?

"A: I said you have to change your will."

It is this last exchange which the petitioner wishes suppressed.

At the hearing, the attorney-draftsman testified that at no time did he tell the decedent that she would have to change her will. He testified that he believed the question was, "did she say anything about that?" He asserted that the decedent told him that she had a will, that she wanted to change the beneficiaries and she told him what she wanted.

The attorney representing petitioners at the deposition testified that he did not remember the questioned passage. After his recollection was refreshed by reading his affidavit in support of the motion, he testified that he specifically recalled the disputed exchange. He testified that he believed the question was, "Did she [the decedent] say anything about that?" to which the attorney responded that the decedent said, "I have to change my will."

The next witness was an employee of the transcribing service. She testified that the office procedure is to take the stenographic record, in the form of a disk, from the reporter and, using software, collate and print out the transcript. The disks are filed and saved for six months. The agency no longer had the original disk, and had no other records relating to the preparation of the transcript.

The court reporter who transcribed the deposition lived in New Jersey and refused to come to New York to testify.

[196 Misc.2d 900]

However, she supplied an affidavit saying that her notes from the deposition were stored in her basement and destroyed when the basement was flooded. She did send a copy of the disk. Petitioner retained a second agency to transcribe a new transcript from the disk. Significantly, the new transcript is free from most of the errors of the original transcript. However, the objected to exchange is...

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3 practice notes
  • In re Van Horn, 2019-117
    • United States
    • New York Surrogate Court
    • August 5, 2020
    ...health failed to raise any triable issue of fact concerning undue influence or fraud); see also In re Prob. Proceeding Will of Mancuso , 196 Misc 2d 897, 903 (Sur. Ct., Kings Co., 2003) ("The giving of advice and the use of argument and persuasion do not constitute grounds for avoiding......
  • In re Porpora, 2018-751
    • United States
    • New York Surrogate Court
    • February 13, 2020
    ...a competent testatrix, even if the will was made in conformity with the advice so given." In re Prob. Proceeding Will of Mancuso , 196 Misc 2d 897, 903 (Sur. Ct., Kings Co., 2003).Thus, whether or not the Petitioner advised, argued for or persuaded the Decedent to execute the March 201......
  • In re Prob. Proceeding, 2018-751
    • United States
    • New York Surrogate Court
    • February 13, 2020
    ...a competent testatrix, even if the will was made in conformity with the advice so given." In re Prob. Proceeding Will of Mancuso, 196 Misc 2d 897, 903 (Sur. Ct., Kings Co., 2003). Thus, whether or not the Petitioner advised, argued for or persuaded the Decedent to execute the March 201......
3 cases
  • In re Van Horn, 2019-117
    • United States
    • New York Surrogate Court
    • August 5, 2020
    ...health failed to raise any triable issue of fact concerning undue influence or fraud); see also In re Prob. Proceeding Will of Mancuso , 196 Misc 2d 897, 903 (Sur. Ct., Kings Co., 2003) ("The giving of advice and the use of argument and persuasion do not constitute grounds for avoiding......
  • In re Porpora, 2018-751
    • United States
    • New York Surrogate Court
    • February 13, 2020
    ...a competent testatrix, even if the will was made in conformity with the advice so given." In re Prob. Proceeding Will of Mancuso , 196 Misc 2d 897, 903 (Sur. Ct., Kings Co., 2003).Thus, whether or not the Petitioner advised, argued for or persuaded the Decedent to execute the March 201......
  • In re Prob. Proceeding, 2018-751
    • United States
    • New York Surrogate Court
    • February 13, 2020
    ...a competent testatrix, even if the will was made in conformity with the advice so given." In re Prob. Proceeding Will of Mancuso, 196 Misc 2d 897, 903 (Sur. Ct., Kings Co., 2003). Thus, whether or not the Petitioner advised, argued for or persuaded the Decedent to execute the March 201......

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