Simmons v. Stewart (In re Estate of Lewis), 1460

• Decision Date: 09 February 2018
• Docket Number: 1460,CA 16–02231
• Citation: 158 A.D.3d 1247,71 N.Y.S.3d 786
• Parties: In the MATTER OF the ESTATE OF Robyn R. LEWIS, Deceased. James Robert Simmons, Petitioner–Respondent; v. Meredith M. Stewart, Ronald L. Lewis, Ronald L. Lewis, II, and Jonathan K. Lewis, Objectants–Appellants.
• Court: New York Supreme Court — Appellate Division

158 A.D.3d 1247

71 N.Y.S.3d 786

In the MATTER OF the ESTATE OF Robyn R. LEWIS, Deceased.

James Robert Simmons, Petitioner–Respondent;

v.Meredith M. Stewart, Ronald L. Lewis, Ronald L. Lewis, II, and Jonathan K. Lewis, Objectants–Appellants.

1460

CA 16–02231

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

Entered: February 9, 2018

WITTENBURG LAW FIRM, LLC, SYRACUSE, D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR OBJECTANTS–APPELLANTS.

MENTER, RUDIN & TRIVELPIECE, P.C., SYRACUSE (JULIAN B. MODESTI OF COUNSEL), FOR PETITIONER–RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.

MEMORANDUM AND ORDERMemorandum:

Robyn R. Lewis (decedent) married James A. Simmons (ex-husband) in Texas in August 1991. On July 15, 1996, decedent and the ex-husband executed several estate planning documents at the office of their attorney in Texas. In a last will and testament (1996 will), decedent appointed the ex-husband, who at that time was still married to her, as executor of the 1996 will and beneficiary of all of her property. Also pursuant to the 1996 will, in the event that the ex-husband predeceased decedent, petitioner, the ex-husband's father, was named as the alternate executor and alternate beneficiary.

Upon their divorce in 2007, decedent was awarded real property in Clayton, New York (Clayton property) that decedent and the ex-husband had purchased from decedent's mother and an uncle several years earlier. Decedent relocated permanently to that residence, and she lived there until her death in March 2010. No will was found during a diligent postmortem search of decedent's residence and possessions.

Following decedent's death, amended letters of administration were issued to decedent's parents, who thereafter renounced their interest in the Clayton property so that it would pass to decedent's brothers. Several months later, petitioner commenced this proceeding seeking probate of the 1996 will and issuance of letters testamentary. Petitioner alleged that, because decedent's testamentary disposition with respect to the ex-husband had been revoked by operation of law upon their divorce (see EPTL 5–1.4[a] ), he was entitled to decedent's entire estate as the sole remaining beneficiary of the 1996 will. Objectants, who are decedent's parents and brothers, filed objections and supplemental objections to probate. Following a hearing, Surrogate's Court dismissed the objections and admitted the 1996 will to probate. Among his findings, the Surrogate noted that it was "not clear from the testimony of [the ex-husband] if the decedent and [the ex-husband] left the attorney's office with four original instruments or one original and three copies."

Upon appeal to this Court, the majority, as relevant to the present appeal, rejected the dissent's position that reversal was warranted on the ground that petitioner, by failing to account for all of the alleged copies of the 1996 will, failed to rebut the presumption that the 1996 will was revoked by an act of destruction performed by decedent (see EPTL 3–4.1[a][2][A] ) because objectants never raised such a challenge to probate of the 1996 will ( Matter of Lewis, 114 A.D.3d 203, 207–208, 978 N.Y.S.2d 527 [4th Dept. 2014], mod 25 N.Y.3d 456, 13 N.Y.S.3d 323, 34 N.E.3d 833 [2015] ; see id. at 219–224, 978 N.Y.S.2d 527 [Peradotto, J., dissenting] ). The dissent responded that "[w]here, as here, the testimony of petitioner's own witnesses raised a question of fact whether the will produced for probate was the original will, or one of several wills unproduced and unaccounted for, petitioner failed to meet [his] burden" as the proponent of admitting the 1996 will to probate ( id. at 224, 978 N.Y.S.2d 527 ). The dissent also asserted alternatively that, if it would be unfair to petitioner to decide the issue on appeal, then the appropriate remedy was to "remit the matter to Surrogate's Court to make a determination whether the 1996 will was executed in multiples" ( id. ).

On appeal, the Court of Appeals held, in pertinent part, that "the evidence before the Surrogate raised a most serious, and unresolved, question as to whether the 1996 will had been otherwise revoked, and while that question persisted the will should not have been admitted to probate" ( Lewis, 25 N.Y.3d at 462, 13 N.Y.S.3d 323, 34 N.E.3d 833 ). More particularly, the Court of Appeals determined that it was "manifest that the Surrogate's attention was drawn to the existence of will duplicates, but the consequently arising issues as to the will's validity were not resolved as they should have been in accordance with" the Court's precedent ( id. at 463, 13 N.Y.S.3d 323, 34 N.E.3d 833 ; see Crossman v. Crossman, 95 N.Y. 145, 152 [1884] ). The Court explained that "[p]etitioner was required not merely to exclude the possibility, but to rebut the legal presumption of revocation, sufficiently raised by the ex-husband's testimony as to the existence of will duplicates, one of which had been kept, but was not found after decedent's passing, at her post-divorce residence" ( Lewis, 25 N.Y.3d at 463, 13 N.Y.S.3d 323, 34 N.E.3d 833 ). The Court further "recognize[d] that the crucial issues raised by the duplicate will testimony were not framed for resolution as they should have been and that this may have operated to deprive petitioner of a fair opportunity to avoid or rebut the presumption of revocation which otherwise must control the outcome of this proceeding" ( id. ). Thus, the Court remitted the matter to the Surrogate for further proceedings (see id. ; see also id. at 463–465, 13 N.Y.S.3d 323, 34 N.E.3d 833 [Pigott, J., concurring] ).

Following a hearing upon remittal from the Court of Appeals, the Surrogate determined that the 1996 will, which was previously admitted to probate, is decedent's only original will. We affirm.

Objectants contend that the Surrogate erred in failing to draw an adverse inference against petitioner based upon his failure to call the Texas attorney as a witness at the hearing upon remittal. We reject that contention. "[T]he missing witness rule may be applied in a nonjury civil trial, where the trial court, as finder of fact, is permitted to draw a negative inference against a party failing to call a witness" ( Matter of Adam K., 110 A.D.3d 168, 177, 970 N.Y.S.2d 297 [2d Dept. 2013] ). "The preconditions for this [inference], applicable to both criminal and civil trials, may be set out as follows: (1) the witness's knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the ‘control’ of the party against whom the [inference] is sought, so that the witness would be expected to testify in that party's favor; and (4) the witness is available to that party" ( DeVito v. Feliciano, 22 N.Y.3d 159, 165–166, 978 N.Y.S.2d 717, 1 N.E.3d 791 [2013] ). The party seeking a missing witness inference has the initial burden of setting forth the basis for the request " ‘as soon as practicable’ " ( People v. Carr, 14 N.Y.3d 808, 809, 899 N.Y.S.2d 746, 926 N.E.2d 253 [2010] ; see People v. Gonzalez, 68 N.Y.2d 424, 428, 509 N.Y.S.2d 796, 502 N.E.2d 583 [1986] ; Herman v. Moore, 134 A.D.3d 543, 545, 21 N.Y.S.3d 254 [1st Dept. 2015] ; Buttice v. Dyer, 1 A.D.3d 552, 552–553, 767 N.Y.S.2d 784 [2d Dept. 2003] ). "The purpose of imposing such a burden is, in part, to permit the parties ‘[to] tailor their trial strategy to avoid substantial possibilities of surprise’ " ( Herman, 134 A.D.3d at 545, 21 N.Y.S.3d 254, quoting Gonzalez, 68 N.Y.2d at 428, 509 N.Y.S.2d 796, 502 N.E.2d 583 ). "Whether such a request is timely is a question to be decided by the trial court in its discretion, taking into account both when the requesting party knew or should have known that a basis for a missing witness [inference] existed, and any prejudice that may have been suffered by the other party as a result of the delay" ( Carr, 14 N.Y.3d at 809, 899 N.Y.S.2d 746, 926 N.E.2d 253 ). Once the party seeking the inference establishes prima facie entitlement to it, the opposing party can defeat the request by demonstrating that, among other things, the testimony would be cumulative, the witness would not be expected to testify in the opposing party's favor, or the witness is not available (see Gonzalez, 68 N.Y.2d at 428, 509 N.Y.S.2d 796, 502 N.E.2d 583 ; Herman, 134 A.D.3d at 545, 21 N.Y.S.3d 254 ).

Here, contrary to objectants' contention, their request for an adverse inference was untimely (see 3134 E. Tremont Corp. v. 3100 Tremont Assoc., Inc., 37 A.D.3d 340, 340, 830 N.Y.S.2d 538 [1st Dept. 2007] ; Chary v. State of New York, 265 A.D.2d 913, 914, 696 N.Y.S.2d 331 [4th Dept. 1999] ; see also Midstate Mut. Ins. Co. v. Camp Rd. Transmissions, Inc., 103 A.D.3d 1176, 1177, 959 N.Y.S.2d 328 [4th Dept. 2013] ; see generally Carr, 14 N.Y.3d at 809, 899 N.Y.S.2d 746, 926 N.E.2d 253 ). The record establishes that objectants, through direct contact with the attorney, were aware at the time of the initial hearing that the attorney may have had material information, but that he was uncooperative. During the hearing upon remittal, the ex-husband testified at length about the attorney's involvement in drafting and supervising the execution of the 1996 will, and objectants' counsel elicited testimony from the ex-husband on cross-examination that the attorney would have material information. Nonetheless, objectants did not request a missing witness inference at any point during petitioner's direct case or before the conclusion of the hearing, including after petitioner's counsel...