Surrogate Robert Gigante

Movant law firm sought leave to amend its answer arguing discoverable facts arose after filing the original answer. The firm sought to include the affirmative defenses of estoppel and statute of limitations. It also moved for summary judgment on the construction of decedent’s will. Petitioner, decedent’s son, objected. He claimed leave to amend would be prejudicial, and opposed summary judgment arguing triable issues of fact existed. Movant filed an action after decedent’s death based on his asbestos exposure, resulting in a settlement. Petitioner sought a determination of the validity and construction of the will and to determine his rights to the proceeds of the settlement. The court found movant’s affirmative defenses were not without merit, thus was entitled to include them as defenses in an amended answer. It also noted the testator’s intent regarding who should share in the settlement proceeds was an issue of fact requiring a hearing to consider extrinsic evidence, noting decedent’s intent was unclear. Further, the court ruled summary judgment was inappropriate on the grounds that the will construction was barred as there were issues of fact regarding petitioner’s understanding of his rights as a distributee.