The following papers numbered 1 to 7 were marked fully submitted, November 2, 2022: Paper Numbered Notice of Motion for Summary Judgment by Petitioner Antoinette Russo, with Supporting Papers and Exhibits (dated May 16, 2022, filed August 26, 2022) 1 Affirmation in Opposition to Motion for Summary Judgment by Office of the New York State Attorney General (dated July 20, 2022, filed July 27, 2022) 2 Notice of Cross-Motion for Summary Judgment, by Guardian ad Litem for Unknown Distributees, Jennifer F. Hillman, Esq. with Supporting Papers and Exhibits (dated and filed August 12, 2022) 3 Affirmation in Opposition to Petitioner’s Motion for Summary Judgement, and in Support of Cross-Motion, by the Office of the Richmond County Public Administrator (dated and filed August 16, 2022) 4 Affidavit in Opposition to Motion for Summary Judgment, by Respondent Robert H. Rock, Jr., joined by Respondents Linda Rock Yolland and Susan Rock Gianelli (dated August 16, 2022, filed August 17, 2022) 5 Petitioner’s Reply Affidavit in Support of Motion and in Opposition to Cross-Motion, with Exhibits (dated September 12, 2022, filed September 23, 2022) 6 New York State Attorney General Affirmation in Support of Cross-Motion (dated and filed September 28, 2022) 7 Upon the foregoing papers, petitioner’s motion for summary judgment is denied. In addition, the cross-motion for summary judgment by the guardian ad litem is also denied. In this contested probate proceeding, petitioner and nominated executor, Antoinette Russo, commenced the instant proceeding to probate a written instrument dated April 26, 2008, purporting to be decedent’s Will. It is undisputed that the 2008 instrument offered for probate was executed while the decedent was admitted to a rehabilitation center. The purported April 26, 2008 Will nominates Antoinette Russo, as executor and sole beneficiary of decedent’s estate, and names Asaf Shabat, Carolin A. Alferoff and Stacy Kaplan [Madaio] as subscribing witnesses. It is undisputed that Shabat, Alferoff and Kaplan Madaio were asked by petitioner Antoinette Russo to act as attesting witnesses. It is also undisputed that the written instrument was notarized by petitioner’s uncle, Joseph Russo. After decedent died on November 4, 2008, a petition for probate and letters testamentary was filed by Antoinette Russo on January 29, 2009, by her attorney, Joseph Russo, Esq. The original petition fails to list any of decedent’s distributees. Rather, this petition solely lists petitioner Antoinette Russo as “friend.” On January 15, 2010, the court elected to mark this proceeding “off calendar,” for petitioner’s failure to diligently prosecute. On September 27, 2019, a consent to change attorney was executed by outgoing attorney Joseph Russo, Esq., and incoming attorney, Kevin P. McKernan, Esq. Incoming counsel also filed a petition for preliminary letters testamentary, seeking the authority to sell the estate’s real property located at 230 Charles Avenue, Staten Island, New York, alleging the property had been vandalized and was otherwise in disrepair. On November 20, 2019, preliminary letters testamentary were issued to Antoinette Russo, pursuant to SCPA 1412, without requiring the filing of a fiduciary’s bond. After a diligent search for decedent’s distributees, an amended petition for probate was filed on November 14, 2019, listing five “first cousins once removed” as decedent’s distributees, as well as listing the Richmond County Public Administrator and the Attorney General of the State of New York. A citation was issued to all necessary parties, with a return date of April 29, 2020, including first cousins once removed Robert H. Rock, Jr., Susan Rock Gianelli, Linda Rock Yolland, Terrance Bennett, Nancy Bennett Prassee, the Public Administrator of Richmond County and the New York State Attorney General. A supplemental citation with order for service by publication for unknown distributees was issued, to obtain jurisdiction over all necessary parties, with a return date of December 14, 2020. On the return date of the citation, appearances were made by counsel to petitioner, the Richmond County Public Administrator (hereinafter, “RCPA”), counsel to the RCPA, and incoming counsel to respondents-distributees Linda Rock Yolland, Susan Rock Gianelli, and Robert H. Rock, Jr. A notice of appearance and an authorization to appear were also filed by counsel to Linda Rock Yolland, Susan Rock Gianelli, and Robert H. Rock, Jr. While the court was in the process of appointing a guardian ad litem (hereinafter, “GAL”) Jennifer F. Hillman, Esq., and receiving her consent to act on behalf of decedent’s unknown heirs, settlement discussions ensued and an alleged settlement was reached among petitioner and respondents-distributees Linda Rock Yolland, Susan Rock Gianelli, and Robert H. Rock, Jr. This settlement was based upon petitioner’s representations and her assertion of the validity of the purported 2008 Will. The court also received a notice of appearance on behalf of the Attorney General of the State of New York (hereinafter, “NYSAG”). The NYSAG also filed a request for SCPA 1404 examinations. Thereafter, respondents’ counsel was informed by petitioner’s counsel that petitioner had repeatedly failed to provide necessary information and that she could not verify petitioner’s representations upon which basis the settlement had been reached. Petitioner Antoinette Russo then sent correspondence to the court, on June 16, 2021, that she had terminated legal counsel and was in the process of seeking new counsel. On July 6, 2021, a consent to change attorney and an authorization to appear on behalf of petitioner was filed by Lawrence A. Omansky, Esq. On October 14, 2021 and November 4, 2021, examinations were completed, pursuant to SCPA 1404, of attesting witnesses Asaf Shabat and Stacy Kaplan Madaio. The third witness, Carolin A. Alferoff, was not examined. Thereafter, objections to probate of the purported Will and jury demands were filed on several grounds, including lack of due execution, lack of testamentary capacity and the result of moral coercion and undue influence, by the NYSAG, the RCPA and the GAL. Following the filing of objections to probate, petitioner filed a motion for summary judgment, and the GAL cross-moved for summary judgment, denying probate. Petitioner moves for summary judgment, among other things, dismissing all objections and admitting the purported Will to probate, and awarding legal fees, costs and disbursements. Petitioner alleges, pursuant to the preliminary letters testamentary issued on November 20, 2019, she was authorized to sell decedent’s real property. Petitioner alleges that the property sold under fair market value due the poor condition of the premises. In addition, petitioner contends that her motion should be granted as the purported Will was executed with all requisite formalities. According to petitioner, decedent declared the written instrument to be his Will and that the witnesses watched decedent sign his name. Petitioner alleges that the witnesses then signed at decedent’s request, in the presence of decedent and in the presence of each other. Although decedent was in a wheelchair at the time of execution, petitioner represents that decedent had the requisite mental capacity to execute a Will. Petitioner also represents that, based upon the deposition testimony of attesting witnesses Asaf Shabat and Stacy Kaplan Madaio, decedent was of sound mind. Petitioner contends that the witnesses spoke with decedent prior to Will’s execution, that decedent knew he was signing a Will, and that decedent asked Shabat, Kaplan Madaio and Alferoff to attest to his alleged Will. Petitioner contends that the alleged Will was attorney drafted, but that the attorney is deceased. Further, petitioner contends that her uncle, Joseph Russo, notarized the Will, but he was not the attorney draftsperson. In opposition to petitioner’s motion and in support of the cross-motion for summary judgment, the GAL argues that, as a procedural matter, petitioner’s motion for summary judgment should be denied for failure to attach a copy of all pleadings as well as a signed deposition transcript of one of the attesting witnesses, Asaf Shabat. The GAL also contends that petitioner has not met her burden of establishing that the purported Will was properly executed and cites to deposition testimony. The GAL contends that decedent did not declare the written instrument to be his Will, did not request Asaf Shabat, Carolin A. Alferoff and Stacy Kaplan Madaio to act as witnesses, and that no evidence was presented that it was decedent William Rock that signed the purported Will. In addition, the GAL also represents that the attesting witnesses’ affidavits contradict their deposition testimony. The GAL points to the affidavit of witness Stacy Kaplan Madaio, which states that she was acquainted with decedent prior to the execution of the purported Will, which was later contradicted by her deposition testimony. The affidavits also alleged that the purported Will was executed at Richmond County Hospital on Bard Avenue and Castleton Avenue, Staten Island, New York, which is also inconsistent with their deposition testimony that the Will was executed at Saint Elizabeth Ann’s Rehabilitation Center, located on Tompkins Avenue Staten Island. Moreover, the GAL contends that petitioner’s motion is premature as there has been no discovery regarding decedent’s mental capacity or the alleged undue influence and fraud upon decedent. The GAL also requests that portion of petitioner’s motion asserting breach of contract be denied as the purported agreement failed to include all parties to this proceeding and was executed when jurisdiction was incomplete over all interested parties. The NYSAG also opposes plaintiff’s motion, contending petitioner failed to meet her prima facie burden of entitlement to summary judgment, and objects to the instrument offered for probate. The NYSAG alternatively objects to an extension of preliminary letters testamentary to petitioner. In addition, the Public Administrator of Richmond County, by her counsel, joins and adopts the arguments set forth by counsel to NYSAG and the arguments set forth by court appointed GAL, Jennifer F. Hillman, Esq. Further, distributees Robert H. Rock, Jr., Linda Rock Yolland, and Susan Rock Gianelli (collectively, “Rock Siblings”), oppose petitioner’s motion for summary judgment. However, in their opposition, without a cross-motion, the Rock Siblings request the affirmative relief that this court enforce the parties’ stipulation of settlement dated March 30, 2021, no breach occurred and that they should receive 22 percent of all decedent’s assets. Nonetheless, the Rock Siblings concede that petitioner’s former counsel withdrew legal representations after petitioner failed to provide [her] counsel with “necessary information,” and counsel could not “verify” petitioner’s representations which were the basis of the March 30, 2021 stipulation of settlement. The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). The granting of summary judgment in a contested probate proceeding is rare (Matter of Christie, 170 AD3d 718 [2nd Dept 2019]). Prior to admitting a Will to probate, the court must be satisfied that the execution of the Will was valid, even if no interested party files an objection to its validity (SCPA 1408; see, Matter of Pirozzi, 238 AD2d 833 [3rd Dept 1997]). The burden of demonstrating that the purported Will was duly executed lies squarely with the proponent, who must prove such by a preponderance of the evidence (Matter of Falk, 47 AD3d 21 [1st Dept 2007]). Petitioner Antoinette Russo, as proponent of a will, failed to meet her burden proving that the propounded instrument was duly executed in conformance with all statutory requirements (EPTL 3-2.1[a]; Matter of Collins, 60 NY2d 466 [1983]; Matter of Christie, 170 AD3d 718 [2nd Dept 2019]). Despite the existence of the attestation clause, raising a presumption of validity, the witnesses’ affidavits conflict with their deposition testimony, raising an issue of fact (see Matter of Falk, 47 AD3d 21 [1st Dept 2007]). According to the testimony, decedent did not declare the written instrument to be his Will, did not request the witnesses to attest to the execution, and no evidence was presented that it was decedent William Rock that signed the purported Will. In addition, although petitioner alleges the instrument offered for probate was drafted by an attorney, it fails to indicate who drafted the document. It is undisputed that Joseph Russo was not the attorney draftsperson and solely notarized the instrument. Based upon petitioner’s representation that Russo solely notarized the instrument, he was not called to testify. Moreover, in a will contest, the proponent has the burden of proving that the testator possessed testamentary capacity, and the court must look to the following factors: (1) whether the testator understood the nature and consequences of executing a will; (2) whether the testator knew the nature and extent of the property being disposed of; and (3) whether the testator knew those who would be considered the natural objects of her or his bounty and her or his relations with them (see Matter of Kumstar, 66 NY2d 691 [1985]; see also Matter of Armato, 199 AD3d 999 [2nd Dept 2021]). Here, the deposition testimony fails to sufficiently demonstrate that decedent, at the time the purported Will was executed, possessed testamentary capacity. Further, issues of fact exist as to the validity of the purported Will and the court will not, at this time, summarily enforce an agreement entered into by the parties based on alleged misrepresentations. Accordingly, petitioner’s motion for summary judgment is denied, and respondent’s cross-motion for summary judgment is also denied. This decision shall constitute the order of the court.
