Ross v. A.O. Fox Mem'l Hosp. (In re Estate of Fraccaro)

• Decision Date: 03 May 2018
• Docket Number: 525547
• Citation: 77 N.Y.S.3d 167,161 A.D.3d 1275
• Parties: In the MATTER OF the ESTATE OF Antonio FRACCARO, Deceased. Alberta Ross, Respondent; v. A.O. Fox Memorial Hospital, Appellant, et al., Respondent. (And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 1275
77 N.Y.S.3d 167

In the MATTER OF the ESTATE OF Antonio FRACCARO, Deceased.

Alberta Ross, Respondent;
v.
A.O. Fox Memorial Hospital, Appellant, et al., Respondent. (And Another Related Proceeding.)

525547

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

Calendar Date: March 29, 2018
Decided and Entered: May 3, 2018

77 N.Y.S.3d 168

Getman Law Firm, Oneonta (Michael F. Getman of counsel), for appellant.

Gozigian Washburn & Clinton, Cooperstown (Edward Gozigian of counsel), for Alberta Ross, respondent.

Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu of counsel), in his capacity under EPTL 8–1.1(f).

Before: Garry, P.J., Egan Jr., Devine, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

77 N.Y.S.3d 169

Appeal from an amended decree of the Surrogate's Court of Otsego County (Lambert, S.), entered March 23, 2017, which, among other things, admitted to probate an instrument purporting to be the last will and testament of decedent.

In October 2012, decedent executed a will that, as pertinent here, provided that his entire estate after satisfaction of his debts was to be given to respondent A.O. Fox Memorial Hospital (hereinafter the hospital). In late January 2015, decedent, who was terminally ill with cancer, was discharged from hospital treatment and moved into a family-type adult home owned and operated by petitioner. Decedent died less than three weeks later. Shortly after his death, respondent Elizabeth McPhail, executor of decedent's estate under the 2012 will, successfully petitioned for preliminary letters testamentary. Petitioner thereafter filed a petition seeking to admit decedent's purported 2015 will to probate; this document provided that she and her husband were to receive 50% of decedent's estate, together with certain personal items. McPhail, the hospital, and the Attorney General, on behalf of the unknown and ultimate charitable beneficiaries under the wills, moved for summary judgment dismissing the petition, arguing that the 2015 will was not properly executed, decedent lacked capacity, and petitioner had exercised undue influence. Surrogate's Court denied the motions, but held that a confidential relationship existed between petitioner and decedent. Following trial, the jury returned a verdict finding that the 2015 will was duly executed and that decedent was competent and not under undue influence at the time of its execution. McPhail, the hospital, and the Attorney General each moved for judgment notwithstanding the verdict, and the court denied these motions. Surrogate's Court thus issued an amended decree admitting the 2015 will to probate, issuing letters testamentary to petitioner and revoking those issued to McPhail. The hospital appeals.¹

The hospital and the Attorney General similarly argue that the jury's verdict, finding that the 2015 will was duly executed, was not supported by legally sufficient evidence and was against the weight of the evidence. A verdict may be set aside as unsupported by legally sufficient evidence where "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial" ( Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978] ; accord Longtin v. Miller, 133 A.D.3d 939, 940, 19 N.Y.S.3d 137 [2015] ; see Nolan v. Union Coll. Trust of Schenectady, N.Y., 51 A.D.3d 1253, 1255, 858 N.Y.S.2d 427 [2008], lv denied 11 N.Y.3d 705, 866 N.Y.S.2d 608, 896 N.E.2d 94 [2008] ). A jury verdict may be found to be against the weight of the evidence "where the proof so preponderated in favor of the unsuccessful party that the verdict could not have been reached on any

77 N.Y.S.3d 170

fair interpretation of the evidence" ( Matter of Grancaric, 68 A.D.3d 1279, 1280, 890 N.Y.S.2d 685 [2009] [internal quotation marks and citations omitted]; see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995] ; Nolan v. Union Coll. Trust of Schenectady, N.Y., 51 A.D.3d at 1255, 858 N.Y.S.2d 427 ).

As pertinent here, before a will may be admitted to...