IN RE: Eshagh ESHAGHIAN (2012)

In a probate proceeding in which Mahrokh Eshaghian and Tanaz Eshaghian, as preliminary co-executors of the estate of Eshagh Eshaghian, also known as E. Ike Eshaghian, petitioned pursuant to SCPA 1809 to determine the validity and enforceability of a claim against the estate, the petitioners appeal from an order of the Surrogate's Court, Queens County (Kelly, S.), dated June 17, 2011, which denied their motion for summary judgment on the petition.

ORDERED that the order is affirmed, with costs payable by the estate.

As the parties seeking summary judgment, the petitioners bore the burden of establishing, by proof in admissible form, their prima facie entitlement to judgment as a matter of law (see CPLR 3212[b]; Zuckerman v. City of New York, 49 N.Y.2d 557; Shafi v. Motta, 73 AD3d 729, 730; Doe v. Orange–Ulster Bd. of Coop. Educ. Servs., 4 AD3d 387, 388). The petitioners allege that a certain written agreement forming the basis of the claim of the respondent, David Eshaghian, against the estate is not genuine or was procured through improper means and is void and/or legally unenforceable.

Here, the petitioners impermissibly attempted to establish their prima facie entitlement to judgment as a matter of law largely by pointing to alleged gaps in the respondent's proof (see Phillips v.. Kantor & Co., 31 N.Y.2d 307, 310; Shafi v. Motta, 73 AD3d at 730; Doe v. Orange–Ulster Bd. of Coop. Educ. Servs., 4 AD3d at 388–389; Silvestri v. Iannone, 261 A.D.2d 387, 388; Tancredi v. Mannino, 75 A.D.2d 579, 578; see also Lauriello v. Gallotta, 59 AD3d 497, 498; McEvoy v. Garcia, 114 A.D.2d 401, 402; cf. Mantella v. Mantella, 268 A.D.2d 852, 853; Matter of Barr, 252 A.D.2d 875, 877; Matter of Lockwood, 234 A.D.2d 782, 782; Fischer v. Fischer, 202 A.D.2d 331, 332). Further, the petitioners failed to establish, as a matter of law, that a copy of the subject agreement would be inadmissible at trial under the best evidence rule (see Schozer v. William Penn Life Ins. Co. of NY, 84 N.Y.2d 639, 644; Kliamovich v. Kliamovich, 85 AD3d 867, 869; Matter of William M. Kline Revocable Trust, 196 Misc.2d 66, 70–71; cf. Glatter v. Borten, 233 A.D.2d 166, 168). Finally, none of the additional evidence submitted by the petitioners in support of their motion for summary judgment established, prima facie, that the subject agreement is not genuine or was procured through improper means and is void and/or legally unenforceable. Accordingly, the Surrogate's Court correctly determined that the petitioners failed to establish their prima facie entitlement to judgment on the petition and, thus, properly denied their motion, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Doe v. Orange–Ulster Bd. of Coop. Educ. Servs., 4 AD3d at 388).