The following papers were considered in determining this motion for summary judgment:Notice of Motion for Summary Judgment,Affidavit, and Affirmation In Support 1, 2Affidavit in Opposition 3DECISION In this contested probate proceeding, petitioner Bernadette Cox (Bernadette or petitioner) petitions to admit to probate a document purporting to be the last will and testament of the decedent, Willian Monica Cox (decedent), dated April 1, 2003 (the propounded instrument), and seeks the issuance of letters of administration, c.t.a. to herself. Objections were filed separately by Russell Cox (Russell), Michael Cox (Michael) and Cuthbert Cox (Cuthbert) (collectively objectants).1 The objections do not dispute the validity of the propounded instrument, but rather only dispute Bernadette’s fitness to serve as the fiduciary. Petitioner now moves for summary judgment to dismiss the objections and for the issuance of letters to administer the decedent’s estate, which is in need of a fiduciary. In support of her motion, petitioner submits several affidavits, her attorney’s affirmation and various exhibits. Although, Russell, Michael and Cuthbert all filed objections, only Russell interposes opposition to the motion for summary judgment.BackgroundThe decedent died on May 15, 2016 at the age of 95, survived by Bernadette, her daughter; four sons, Cuthbert, Russell, Michael and Donald Cox (Donald); and one grandson, Bangaly Kaba, the son of the decedent’s pre-deceased daughter, Claudette Cox-Kaba (Claudette). Between 2001 until 2003, the decedent engaged in estate planning, and executed a power of attorney and health care proxy, naming Bernadette as her attorney-in-fact and proxy. The decedent also executed the propounded instrument, naming Claudette, now deceased, and Cuthbert, or the survivor of them, as the executors.The decedent owned and resided at 8902 Avenue A, Brooklyn, New York 11236 (the real property). Sometime in 2003, the decedent conveyed a 50 percent interest to Bernadette, and they held the real property as tenants in common. Bernadette was largely responsible for the care of the decedent, which included payment of her bills, managing and renovating the real property, and arranging and paying for private health aides who provided care to the decedent. Moreover, Bernadette personally incurred many of the costs associated with the decedent’s care. However, by 2013, she was no longer able to financially contribute to the decedent’s support, and the decedent’s mental state had deteriorated significantly, necessitating more skilled care. Accordingly, Bernadette, with the consent of all her siblings, retained a real estate broker to sell the real property. Thereafter, however, Russell and Michael, who reside in the real property, filed a petition in the Kings County Supreme Court (Supreme Court) pursuant to Article 81 of the Mental Hygiene Law, seeking the appointment of a guardian for the decedent and alleging, among other things, that Bernadette had systematically misappropriated the decedent’s funds for her own benefit. Bernadette filed a cross-petition alleging that she had been forced to resort to the sale of the decedent’s real property to provide the decedent with the financial means to receive skilled nursing care.After a trial, the Supreme Court issued an order dated March 25, 2015 (Supreme Court order) finding that Bernadette was best suited to “undertake the role of guardian” and appointed her as guardian of the person and property of Willian Monica Cox pursuant to Mental Hygiene Law 81.19(d). The Supreme Court order stated that the allegations against Bernadette “are largely unsubstantiated and demonstrate that Russell, in large measure, is out of touch with the realities of the AIP’s circumstances.” After Bernadette assumed her duties as the decedent’s guardian, she filed an annual account and a final account, both of which were approved by the Supreme Court, despite opposition from Russell.After the decedent’s death, Cuthbert, the propounded instrument’s nominated executor, did not immediately petition to probate the propounded instrument or to file it with the court, and Bernadette was forced to file a proceeding to compel its production. Once Cuthbert filed the propounded instrument, Bernadette filed the instant probate petition on January 25, 2017. In response, Russell, Cuthbert and Michael filed objections, which do not allege the lack of due execution or that the propounded instrument is the product of fraud or undue influence, but rather only raise the issue of Bernadette’s fitness to serve as the estate’s fiduciary. As best as can be surmised by the objections filed, it is implied that Bernadette is responsible for the dissipation of the decedent’s assets. For instance, Russell alleges that his parents real property located at 1316 St. Johns Place, Brooklyn New York was sold in 1998, but he does not know where the proceeds went. He further alleges that the decedent transferred a 50 percent interest in the real property to Bernadette for asset protection purposes rather than to “actually give her half-ownership.” He also alleges that Bernadette has failed to marshal “all assets” of the decedent’s estate.2Summary Judgment MotionBernadette avers that summary judgment is warranted, because her brothers raise the same allegations of misconduct complained of during the guardianship proceeding, which were already determined to be unfounded. Moreover, she avers that as her mother’s guardian, she filed an annual account and a final account with the Supreme Court, which were both approved despite her brothers’ opposition to those filings, and is thus the best person to serve as a fiduciary.In opposition to Bernadette’s motion, Russell argues that he was unsuccessful in proving Bernadette’s unfitness in the guardianship proceeding because his attorney, who is now disbarred, mishandled the case. For instance, Russell avers that his attorney’s cross-examination of Bernadette was incompetent. He avers that his attorney failed to subpoena documents that would have proven Bernadette’s unfitness. He avers that Bernadette’s unfitness is demonstrated by the court evaluator’s recommendation during the guardianship proceeding that the power of attorney be revoked and that management of the decedent’s property be subject to court oversight. Moreover, he continues to dispute the veracity of Bernadette’s reimbursements request for expenses she personally paid on behalf of the decedent, despite the fact the Supreme Court approved her right to be reimbursed.The Court’s function on a motion for summary judgment is issue-finding, rather than issue-determination. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 404 (1950) Although the general proposition is that summary judgment is a drastic remedy and is to be granted sparingly (Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]), “[courts] have of late been more liberal in granting such motions where a prima facie case has been established and the objectant has failed to raise any triable issue of fact.” Estate of Zimmerman, N.Y.L.J., May 28, 1998, at 29, col. 4 (Sur. Ct. Westchester County), aff’d, 264 A.D. 2d 850 (2d Dep’t 1999). Accord Phillips v. Kantor & Co., 31 N.Y.2d 307 (1972); Matter of Rudolph, 60 A.D.3d 685 (2d Dep’t 2009).If the moving party meets her burden of establishing a prima facie showing, the party opposing the motion must produce evidence in admissible form sufficient to establish the existence of a material issue of fact that would require a trial. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). In doing so, the party opposing the motion must lay bare her proof. Towner v. Towner, 225 A.D.2d 614, 615 (2d Dep’t 1996). Further, the opposing party must produce something other than mere conclusions or unsubstantiated allegations to warrant a denial of the summary judgment motion. Id.SCPA 707(1)(e) prohibits a person from receiving letters “who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office.” The proffered allegations that petitioner misappropriated the decedent’s assets are not only speculative, but they have already been adjudicated in the context of the guardianship proceeding, and were found to be unsubstantiated. In order to merit disqualification, the objectants would have to clearly demonstrate that the petitioner is unworthy. Matter of Gottlieb, 75 A.D.3d 99 (1st Dep’t 2010). Here, aside from the allegations raised in the guardianship proceeding, which have already been deemed unfounded, there is no new evidence of unfitness. Accordingly, the objectants have failed to demonstrate the existence of a triable issue with respect to the eligibility of the petitioner to serve as the estate’s fiduciary, and therefore, the petitioner’s motion to dismiss the objections is granted.ConclusionFor all the foregoing reasons, the petitioner’s motion for summary judgment dismissing each of the objections to probate is granted. The Court is satisfied that the propounded instrument, dated April 1, 2003, is genuine and duly executed, and at the time of its execution, the decedent was competent to make a will and was not under any restraint. EPTL 3-2.1.Accordingly, the propounded instrument will be admitted to probate as the decedent’s Last Will and Testament, and letters of administration, c.t.a. shall issue to Bernadette Cox, upon her duly qualifying according to law. SCPA 1408.Settle decree.Dated: May 1, 2019Brooklyn, New York
