DECISION In this probate proceeding, respondent has made the instant pre-objection application for dismissal of the underlying probate proceeding, pursuant to CPLR 3211(a)(7). Petitioner opposes the motion.BackgroundDecedent died on December 19, 2017 survived by two distributees, Lisa J. Waszmer, respondent, and Sandford A. Sardo. Although the underlying probate petition was filed on January 22, 2018 by JoAnn Borra, inadvertently, a petition for letters of administration was accepted by the court for filing on January 25, 2018 and issued a different index number (2018-313). That petition was granted and letters of administration were issued to Lisa J. Waszmer. She, in her capacity as administrator, as well as distributee, filed the instant motion seeking dismissal of the probate proceeding. For the reasons set forth below, the relief requested by respondent is denied.The underlying petition seeks to admit to probate a purported undated will of decedent consisting of three pages which was filed by petitioner, JoAnn Borra, a beneficiary under the propounded instrument. Respondent has not filed objections to the purported will, but has instead moved to dismiss the underlying probate petition asserting that the petition fails to state a cause of action.Discussion and Applicable LawRespondent asserts that the proffered instrument fails on its face to constitute a testamentary instrument as it is undated, does not name a fiduciary, lacks an attestation clause and addresses of the attesting witnesses, and purports to transfer a present interest in real property.In response, petitioner asserts that the instrument offered for probate expresses the wishes of this decedent and that same is in an admissible form, namely a writing. Further, she states that the appropriate remedy to be sought with respect to inconsistencies or vagueness within the instrument is construction, not dismissal.Pursuant to CPLR 3211(a) (7), a motion to dismiss may be granted on the ground that the pleading fails to state a cause of action. Upon such motion, the court must accept the facts alleged as true (see 219 Broadway Corp. v. Alexander’s Inc., 46 NY2d 506, 509). Thus, a determination of a motion to dismiss is limited to ascertaining whether the petition, liberally construed, states in some form a cause of action (see Leon v. Martinez, 84 NY2d 83), and whether there is any evidentiary support for the petition (see Glassman v. Catli, 111 AD2d 744, 745). The determination does not rest on the petitioner’s likelihood of success on the merits (see Jacobs v. Macy’s East Inc., 262 AD2d 607, 608), but whether it can be determined, from within the four corners of the petition, that a cognizable cause of action has been articulated (see Glassman v. Catli, supra at 745).Here, proponent has proffered a testamentary document purporting to be the last will and testament of this decedent, a review of which reveals that it allegedly bears the signatures of “Nicholas Sardo,” decedent, at the end of the instrument and two individuals purporting to be witnesses to its execution, namely “Jo Ann Borra,” petitioner, and “Prasad Murthy.” Even in the absence of an attestation clause, a testamentary instrument may be admitted to probate based upon the totality of the evidence (see In re Phillips, 98 NY 267).Whether proponent will ultimately be successful in establishing the genuineness of the proffered instrument or the validity of its execution is not the subject of inquiry for purposes of this motion. Nor is the dispositive effect of its provisions in light of the fact that the two witnesses, who are not distributees, are the primary beneficiaries (see EPTL 3-3.2). The sole inquiry is whether the petition and proffered will sufficiently state a cognizable claim for probate of a document purporting to be the last will and testament of this decedent.ConclusionUpon this record, petitioner has stated a cognizable claim that the subject instrument is the last will and testament of this decedent. Accordingly, the respondent’s motion is denied. This matter shall be restored to the court’s process calendar on October 23, 2018 for purposes of either scheduling SCPA 1404 examinations or filing objections.This decision constitutes the order of the court.
