IN RE: Mark NEUMAN (2005)

In a contested probate proceeding, the petitioner appeals from an order of the Surrogate's Court, Suffolk County (Braslow, S.), dated October 31, 2003, which denied her motion for summary judgment dismissing the objections to probate of the will of the decedent, to admit the will to probate, and to issue letters testamentary to her, without prejudice to renewal after the completion of discovery.

ORDERED that the order is reversed, on the law, with costs payable by the objectants-respondents to the appellant personally, the motion is granted, the objections are dismissed, the decedent's will is admitted to probate, and the matter is remitted to the Surrogate's Court, Suffolk County, for the purpose of issuing letters testamentary to the petitioner.

 The petitioner, the proponent of the subject will, established her prima facie entitlement to judgment as a matter of law by submitting, inter alia, the instrument itself and the affidavits and testimony of the attesting witnesses demonstrating due execution and lack of undue influence (see EPTL 3-2.1;  see generally Matter of Collins, 60 N.Y.2d 466, 468, 470 N.Y.S.2d 338, 458 N.E.2d 797;  Matter of Coniglio, 242 A.D.2d 901, 663 N.Y.S.2d 456;   Matter of Goldberg, 180 A.D.2d 528, 529, 580 N.Y.S.2d 655).   The objectants' speculative assertions to the contrary were insufficient to raise a triable issue of fact in opposition to the petitioner's motion for summary judgment (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Matter of Zimmerman, 264 A.D.2d 850, 696 N.Y.S.2d 180;   Matter of Spangenberg, 248 A.D.2d 543, 670 N.Y.S.2d 48).   In this regard, the mere fact that the decedent allegedly joked to one of the attesting witnesses that his wife, the petitioner, had been “hounding” him to make a last will and testament, was insufficient to raise a genuine issue of fact as to undue influence (see generally Matter of Kumstar, 66 N.Y.2d 691, 496 N.Y.S.2d 414, 487 N.E.2d 271;  Matter of Fiumara, 47 N.Y.2d 845, 418 N.Y.S.2d 579, 392 N.E.2d 565).   Similarly, the objectants' claim that additional discovery was needed did not warrant the denial of summary judgment in this case (see Keeley v. Tracy, 301 A.D.2d 502, 503, 753 N.Y.S.2d 519;  Kennerly v. Campbell Chain Co., Campbell Chain Div. McGraw-Edison Co., 133 A.D.2d 669, 670, 519 N.Y.S.2d 839).   Accordingly, the petitioner's motion should have been granted.