IN RE: the WILL OF Alejandro RODRIGUEZ (2025)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order and decree so appealed from is unanimously reversed on the law without costs and the motion is denied.

Memorandum: In this probate proceeding, objectants appeal from an order and decree that granted petitioner's motion for summary judgment on the petition and admitted to probate the will of Alejandro Rodriguez (decedent). We reverse.

We agree with objectants that Surrogate's Court erred in granting the motion inasmuch as petitioner failed to meet her initial burden on the motion. “Summary judgment is rare in a contested probate proceeding” (Matter of Linich, 213 A.D.3d 1, 3-4, 183 N.Y.S.3d 187 [3d Dept. 2023] [internal quotation marks omitted]), and “is inappropriate in any case where there are material issues of fact” (Matter of Pollock, 64 N.Y.2d 1156, 1158, 490 N.Y.S.2d 732, 480 N.E.2d 346 [1985]). Here, viewing the evidence in the light most favorable to the non-moving party, as we are required to do (see Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014]), we conclude that the evidence submitted by petitioner in support of her motion raises triable issues of fact with respect to decedent's testamentary capacity, his testamentary intent, and whether the will was the product of fraud or undue influence, without regard to the sufficiency of the opposing papers.

With respect to decedent's testamentary capacity and intent, the Surrogate correctly noted that “[a] will is presumed to have been properly executed where ․ the execution was supervised by the attorney who drafted the will” (Matter of Pilon, 9 A.D.3d 771, 772, 780 N.Y.S.2d 810 [3d Dept. 2004]). Nevertheless, other evidence submitted by petitioner—including sworn testimony and medical records—raised triable issues of fact with respect to both decedent's intent and his testamentary capacity, requiring denial of the motion without regard to the sufficiency of the opposing papers (see generally Matter of Imperato, 149 A.D.3d 1072, 1073, 53 N.Y.S.3d 661 [2d Dept. 2017]). The Surrogate erred in resolving those inconsistencies by crediting the testimony of the attorneys who prepared and supervised the execution of the will (see generally Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 505, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012]).

With respect to whether the will was the product of fraud or undue influence, on this motion, petitioner bore the burden of establishing the absence of any material fact requiring trial (see Matter of Rozof, 219 A.D.3d 1428, 1429, 196 N.Y.S.3d 504 [2d Dept. 2023]; Imperato, 149 A.D.3d at 1073, 53 N.Y.S.3d 661) and, as we have repeatedly stated in other contexts “a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof” (Brady v. City of N. Tonawanda, 161 A.D.3d 1526, 1527, 76 N.Y.S.3d 718 [4th Dept. 2018] [internal quotation marks omitted]; see George Larkin Trucking Co. v. Lisbon Tire Mart, Inc., 185 A.D.2d 614, 615, 585 N.Y.S.2d 894 [4th Dept. 1992]). Inasmuch as petitioner merely pointed to gaps in objectants’ potential proof at trial, petitioner failed to meet her initial burden.

Even assuming, arguendo, that petitioner met her initial burden on the motion, we conclude that objectants’ submissions in opposition to the motion raised triable issues of fact precluding summary judgment.