Muratore v. S (In re Mele)

• Decision Date: 29 January 2014
• Citation: 2014 N.Y. Slip Op. 00512,113 A.D.3d 858,979 N.Y.S.2d 403
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of Rocco MELE, deceased. Linda Muratore, et al., petitioners-respondents; Vincent Mele, et al., objectants-appellants.

113 A.D.3d 858

979 N.Y.S.2d 403

2014 N.Y. Slip Op. 00512

In the Matter of Rocco MELE, deceased. Linda Muratore, et al., petitioners-respondents; Vincent Mele, et al., objectants-appellants.

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

Jan. 29, 2014.

McCarthy Fingar, LLP, White Plains, N.Y. (Gail M. Buggio, Dina M. Aversano, and Frank W. Streng of counsel), for objectants-appellants.

Joseph A. Maria, P.C., White Plains, N.Y. (Frances Dapice Marinello of counsel), for petitioners-respondents.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and JEFFREY A. COHEN, JJ.

In a contested probate proceeding, the objectants appeal from a decree of the Surrogate's Court, Westchester County (Scarpino, Jr., S.), dated May 29, 2012, which, upon an order of the same court dated May 2, 2012, granting the petitioners' motion for summary judgment dismissing their objections to probate of a propounded will dated March 11, 2010, admitted the will to probate.

ORDERED that the decree is affirmed, with costs.

The decedent died on May 14, 2010, less than two months after the death of his wife, Barbara, and he was survived by four daughters and two sons. Two of the decedent's daughters, Linda Muratore and Angela LaPeccerella (hereinafter together the petitioners), commenced this proceeding to admit to probate a last will and testament dated March 11, 2010 (hereinafter the 2010 will). The will appointed the petitioners to serve as co-executors of the decedent's estate, bequeathed the sum of $1 each to the decedent's four remaining children, Vincent Mele, Lisa Ponce, Susan Ball, and Rocco Mele, Jr., and divided the residuary estate between the petitioners. The decedent had previously executed a will dated October 7, 2005, which left his estate to his wife and, in the event she predeceased him, to his six children equally.

The decedent executed the 2010 will in a ceremony supervised by the attorney who drafted it, and witnessed by the attorney's secretary and by a local contractor whose office was adjacent to the attorney's office.

Rocco Mele, Jr., consented to probate of the 2010 will, but Vincent Mele, Lisa Ponce, and Susan Ball filed objections to the will on the grounds that the decedent lacked testamentary capacity, that the will was not duly executed, and that the will was the product of undue influence and fraud on the part of the petitioners. After discovery was completed, the petitioners moved for summary judgment dismissing the objections. In an order dated May 2, 2012, the Surrogate's Court granted the petitioners' motion. In a decree dated May 29, 2012, the Surrogate's Court, upon the order, admitted the will to probate.

The Surrogate's Court properly granted that branch of the petitioners' motion which was for summary judgment dismissing the objection based on lack of testamentary capacity. The petitioners demonstrated their prima facie entitlement to judgment as a matter of law dismissing that objection by demonstrating that the decedent understood the nature and consequences of making the will, the nature and extent of his property, and the natural objects of his bounty ( see Matter of Rottkamp, 95 A.D.3d 1338, 1339, 945 N.Y.S.2d 394; Matter of Anella, 88 A.D.3d 993, 995, 931 N.Y.S.2d 408; Matter of Schlaeger, 74 A.D.3d 405, 406, 903 N.Y.S.2d 12; Matter of Malan, 56 A.D.3d 479, 479–480, 866 N.Y.S.2d 774). In opposition to the petitioners' prima facie showing, the objectants failed to raise a triable issue of fact ( see Matter of Rottkamp, 95 A.D.3d at 1339, 945 N.Y.S.2d 394; Matter of Anella, 88 A.D.3d at 995, 931 N.Y.S.2d 408; Matter of Malan, 56 A.D.3d at 480, 866 N.Y.S.2d 774; Matter of Tuccio, 38 A.D.3d 791, 792, 832 N.Y.S.2d 609).

The Surrogate's Court also properly granted that branch of the petitioners' motion which was for summary judgment dismissing the objection based on lack of due execution. “The proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements” (Matter of Rottkamp, 95 A.D.3d at 1339, 945 N.Y.S.2d 394; seeEPTL 3–2.1[a]; Matter of Collins, 60 N.Y.2d 466, 468, 470 N.Y.S.2d 338, 458 N.E.2d 797; Matter of Greene, 89 A.D.3d 941, 943, 932 N.Y.S.2d 544). The petitioners demonstrated their prima facie entitlement to judgment as a matter of law dismissing the objection based on lack of due execution by submitting the deposition testimony of the attorney who drafted the will and supervised the execution ceremony, along with the testimony of the two attesting witnesses, which demonstrated that the statutory requirements for due execution were satisfied. Moreover, the will contained an attestation clause and a “self-proving affidavit,” which gave rise to a presumption of compliance with the statutory requirements ( see Matter of Rottkamp, 95 A.D.3d at 1339, 945 N.Y.S.2d 394; Matter of Moskoff, 41 A.D.3d 481, 482, 836 N.Y.S.2d 708). In opposition, the objectants failed to raise a triable issue of fact ( see Matter of Rottkamp, 95 A.D.3d at 1339, 945 N.Y.S.2d 394; Matter of...