Surrogate Margarita Lopez Torres

 

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In this contested probate proceeding, petitioner moved for extension of time to conduct discovery, or to strike the notice of issue as discovery was incomplete. Objectants moved for summary judgment dismissing the proceeding. Petitioner sought to probate a 2015 written instrument purported to be decedent’s will, leaving the estate to 16 beneficiaries, including the parties herein. The instrument directed the sale of two parcels of real property, and distribution of the proceeds. Objectants asserted claims of lack of capacity, lack of due execution and undue influence. SCPA 1404 examinations and depositions of petitioner were held, but objectants’ depositions were not. The court found that incorrect material facts were asserted in the certificate of readiness as discovery was incomplete, and there was no waiver of discovery. As discovery was incomplete, the matter was not ready for trial, and filing of the note of issue was premature, hence, it and the certificate of readiness must be vacated. Further, as objectants failed to establish entitlement to judgment as a matter of law on issues of lack of due execution and capacity, and undue influence, their motion for summary judgment was denied.