IN RE: Martel HOBBINS (2026)

DECISION & ORDER

In a proceeding pursuant to SCPA 1001 to obtain letters of administration for the estate of Martel Hobbins, the petitioner appeals from an order of the Surrogate's Court, Kings County (Bernard J. Graham, S.), dated August 22, 2023.  The order, insofar as appealed from, denied the petitioner's motion for summary judgment dismissing the cross-petition of Carol Hobbins to obtain letters of administration for the same estate.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

In September 2022, the petitioner commenced this proceeding to obtain letters of administration for the estate of Martel Hobbins (hereinafter the decedent).  Carol Hobbins objected and cross-petitioned the Surrogate's Court for letters of administration for the same estate on the ground that she is the decedent's surviving spouse.  The petitioner thereafter moved for summary judgment dismissing Carol Hobbins's cross-petition.  Carol Hobbins opposed.  In an order dated August 22, 2023, the Surrogate's Court, inter alia, denied the petitioner's motion.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any triable issues of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).  Failure to make this prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Center, 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

Here, the petitioner failed to submit sufficient evidence to eliminate triable issues of fact warranting summary judgment dismissing the cross-petition of Carol Hobbins (see Owens v. City of New York, 183 A.D.3d 903, 906, 124 N.Y.S.3d 695).  Specifically, issues of fact exist as to whether Carol Hobbins and the decedent were divorced at the time of the decedent's death, whether the matrimonial action was abated, and whether the ministerial act exception to abatement by death applies (see Flaherty v. Lynch, 292 A.D.2d 340, 341, 738 N.Y.S.2d 78).

The petitioner's remaining contentions are not properly before this Court.

Accordingly, the Surrogate's Court properly denied the petitioner's motion for summary judgment dismissing the cross-petition of Carol Hobbins to obtain letters of administration for the estate.

DUFFY, J.P., CONNOLLY, LOVE and QUIRK, JJ., concur.