Probate Proceeding, Will of Rosa Delligatti, Deceased. v. << (2026)

In this contested probate proceeding, Rosetta Delligatti and Anthony Delligatti ("Petitioners"), seek summary judgment dismissing objections to probate filed by Michael Delligatti, Susan Curatolo Nuccio, and Christina Ryan ("Objectants") and admitting to probate an instrument dated June 10, 2021 as decedent's Last Will and Testament.

As background, Rosa Delligatti ("Decedent") died on December 2, 2023, at the age of 84, leaving three (3) children, Rosetta Delligatti, Anthony Delligatti, and Michael Delligatti, and two (2) grandchildren, Susan Curatolo and Christina Ryan as her distributees and heirs at law. The Decedent's probate estate is valued at approximately one million dollars.

The offered instrument, which is attorney drawn and supervised, devises the Decedent's real property located in Corona, NY to the Petitioners in equal shares and includes a pre-residuary bequest of $1,000.00 to the Decedent's grandchildren, Susan Curatolo, Christina Ryan, and Michael Delligatti. The balance of the Decedent's estate is distributed equally between the Petitioners.

Notably, and in contrast to prior testamentary instruments, the offered instrument expressly disinherits the Decedent's son, Michael Delligatti, pursuant to the following articles:

Second: In no event shall my son, Michael Delligatti, share any interest in my real property located at 104-55 47 Avenue, Corona, New York 11368[;]

Third: In no event shall my son, Michael Delligatti, share any interest in my furniture and furnishings located in or on the real property located at 104-55 47 Avenue, Corona, New York 11368[;]

Eighth: In no event shall my son, Michael Delligatti, share in any interest in my residuary estate[; and]

Tenth: I have consciously made no provision for my son, Michael Delligatti.

The Objectants assert that the offered instrument is invalid in that it was not duly executed; the Decedent lacked testamentary capacity; and that the instrument was procured through undue influence and fraud. As of the filing of this motion, the Objectants have withdrawn, with prejudice, the objections alleging lack of testamentary capacity and fraud.

As the movants seeking summary judgment, the Petitioners "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, 324 [1986]).

More specifically, "[t]he proponent of a will has the burden of proving that the propounded instrument was duly executed in conformance with the statutory requirements" (Matter of Biondo, 215 AD3d 675, 676 [2d Dept 2023], quoting Matter of Christie, 170 AD3d 718, 719 [2d Dept 2019]; EPTL 3-2.1[a]) and that the decedent possessed testamentary capacity at the time the instrument was executed (see Matter of Moskowitz, 116 AD3d 958 [2d Dept 2014]).

Once the party seeking summary judgment has made a prima facie showing of entitlement to judgment as a matter of law, the burden shifts to the party opposing the motion to establish through proof in evidentiary form that triable issues of fact exist (see Zuckerman v New York, 49 NY2d 557 [1980]). The court must view the evidence in a light most favorable to the party opposing the motion and must give the non-moving party the benefit of every inference which can be drawn from the evidence (see Negri v Stop & Shop, Inc., 65 NY2d 625 [1985]). The court is constrained to deny the motion if there is any doubt as to the existence of a triable issue (see e.g., Barker v Briarcliff School Dist., 205 AD2d 652, 653 [2d Dept 1994]).

In support of their motion, Petitioners submit, inter alia, the SCPA 1406 affidavits of the attesting witnesses, Richard Piccola ("Piccola") and Anne Badillo ("Badillo"), the transcript of Piccola's SCPA 1404 examination, and the translator affidavit of Josephine Delligatti ("Josephine"), the Decedent's sister-in-law. Petitioners also submitted the affirmation of the attorney drafter in support of the motion.

With respect to the objections regarding due execution, the offered instrument includes an attestation clause and a contemporaneous self-proving affidavit. This affords the instrument a presumption of compliance with the statutory formalities of EPTL 3-2.1 (see Matter of Sabatelli, 161 AD3d 872 [2d Dept 2018]; Matter of Mele, 113 AD3d 858 [2d Dept 2014]).

Similarly, the execution of the instrument was attorney-supervised and therefore commands the application of a presumption of regularity and compliance (see Matter of Templeton, 116 AD3d 781 [2d Dept 2014]; Matter of Tuccio, 38 AD3d 791 [2d Dept 2007]).

Lastly, both attesting witnesses  ¹ testified to the attorney drafter's general practices for will executions which was corroborative of due execution.

Based on the foregoing, Petitioners have met their burden of establishing that the purported will was duly executed.

In opposition, Objectants initially argue that the SCPA 1406 affidavits are inadmissible as objections to probate were already filed against the offered will. SCPA 1406 (1) (a) provides that the Court may rely on such affidavits to establish the genuineness of a will where same has not been contested. When an objection has been raised, however, an affidavit pursuant to SCPA 1406 cannot serve as a substitute for the in-court testimony of the witnesses (see Matter of Gehr, 117 AD3d 1405 [4th Dept 2014]).

Here, reliance upon the SCPA 1406 affidavits was not required. The attesting witnesses were produced and examined pursuant to SCPA 1404 and their testimony, in toto, demonstrated compliance with EPTL 3-2.1.

Next, Objectants cited both attesting witnesses' inability to recall certain details about the will execution. Specifically, the witnesses differed in their recollection about the presence of an Italian translator. In this regard, Piccola testified that he doesn't "even know whether or not a translator was there" at the will execution. Badillo testified that she had never served as a witness to a will where the was an Italian translator present.

It has long been held that "even where the memory of both attesting witnesses is failed or imperfect, a will nevertheless may be admitted to probate" (Matter of Christie, 170 AD3d 718, 720 [2d Dept 2019]). Here, the witnesses' inability to recall with exacting certitude the details of this particular will execution ceremony is insufficient to demonstrate a triable issue of fact with respect to due execution.

Objectants further argue that Badillo lacks credibility based on her failure to recall whether she was a W-2 employee or a 1099 consultant. Badillo's inability to remember her compensation arrangement does not raise an issue of credibility warranting denial of the motion (see Walker v Ryder Truck Rental & Leasing, 206 AD3d 1036 [2d Dept 2022]). In reviewing Badillo's testimony in its entirety, as opposed to the Objectants' cherry-picked questions and answers, Badillo's testimony evidenced that statutory formalities of EPTL 3-2.1 were observed.

Thus, Objectants have failed to raise any triable issues of fact warranting a trial on the issues of due execution. The branch of the motion dismissing the objection based on lack of due execution is granted.

With respect to testamentary capacity  ² , the proponent has the burden of proving that the testator possessed testamentary capacity, and "the court must look to the following factors: (1) whether she understood the nature and consequences of executing a will; (2) whether she knew the nature and extent of the property she was disposing of; and (3) whether she knew those who would be considered the natural objects of her bounty and her relations with them" (In re Estate of Kumstar, 66 NY2d 691, 692 [1985] [citations omitted]).

The mental capacity needed to execute a will is less than that required of other legal documents, necessitating but a lucent moment at the time of the instrument's execution (see e.g. Matter of Rottkamp, 95 AD3d 1338 [2d Dept 2012]). Until the contrary is established, a testator is presumed to be sane and to possess mental capacity (see e.g. In re Beneway's Will, 272 AD 463 [3d Dept 1947]).

Petitioners' submission of the offered instrument, which includes an attestation clause and a self-proving affidavit, together with the testimony adduced at the 1404 examinations, establishes that Decedent was mentally competent on the day of the execution.

Accordingly, Petitioners met their burden of establishing that Decedent possessed testamentary capacity at the time the instrument was executed (see Matter of Rottkamp, 95 AD3d 1338, 1339 [2d Dept 2012]).

The Court now turns to the branch of the motion to dismiss the factually driven objection of undue influence. Petitioners, as the movants, must establish, prima facie, the absence of undue influence in the instrument's creation.

Here, Petitioners' submissions, including the self-proving affidavit which stated, inter alia, that the Decedent was "not under any restraint" in the making of said will and the testimony of the attorney drafter that decedent knowingly and voluntarily expressed her testamentary wishes, satisfies the Petitioners' burden in this regard.

In order for Objectants to survive summary dismissal of their objection grounded upon undue influence, it is incumbent upon them to demonstrate that influence was actually exercised on the Decedent and that the influence "amounted to moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist" (Matter of Mele, 113 AD3d 858, 860 [2d Dept 2014] [citations omitted]).

"Undue influence can be shown by all the facts and circumstances surrounding the testator, the nature of the will, [her] family relations, the condition of [her] health and mind, [her] dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such person" (In re Henig, 11 AD3d 614, 615 [2d Dept 2004]).

In opposition, Objectants submit, inter alia, Anthony Delligatti's and Rosetta Delligatti's deposition testimony and assert that the same establishes that Anthony and Rosetta were actively involved in the Decedent's personal affairs and in the procurement of the Decedent's will. Objectants aver that Decedent was so hopelessly reliant upon Anthony and Rosetta, that she was restrained from independent action.

Specifically, after the Decedent lost her husband, the Decedent relied on Anthony to manage her finances, to pay bills, and to manage a joint bank account. Rosetta, who was the Decedent's attorney-in-fact, managed all of the Decedent's daily activities, including cooking, cleaning, household chores, shopping, and everyday tasks.

Notably, Rosetta accompanied the Decedent to every meeting with the attorney drafter and was present in the room during the attorney drafter's consultations and the instrument's execution ceremony.

The undisputed record establishes that Rosetta's presence was not that of a silent or passive observer. Rosetta's name and contact number appear on the drafter's intake notes. Additionally, the drafter's intake notes often refer to the Decedent as "Mom," indicating the drafter was communicating with someone other than the Decedent, likely Rosetta, about her testamentary plan.

In fact, Rosetta admitted that it was she who insisted that Decedent include the nominal pre-residuary bequests to the testator's grandchildren. The Decedent was initially opposed to doing so, until Rosetta, admittedly, screamed at her to make the bequests, thereby demonstrating Rosetta's ability to successfully wield influence over the Decedent.

Further exacerbating the Decedent's reliance upon others is her limited grasp of the English language. The Decedent never learned to read or write in English and did not speak or understand English well. Decedent's grasp on reading and writing Italian was similarly limited.

Both Anthony and Rosetta testified that they opened, reviewed, and translated mail and other documents for the Decedent. In fact, as a result of the Decedent's limitations in this regard, the Decedent's sister-in-law, Josephine, also acted as an intermediary between the Decedent and the attorney drafter and was present at the intake meetings and at the instrument's execution to act as a translator.

Objectants claim that Josephine was far from a neutral translator as she was partial to the Petitioners and hostile to the Objectants, and thus likely influenced the Decedent to act in Petitioners' favor.

While the above claim is speculative in nature, the Court cannot ignore the fact that coupled with Rosetta's admitted involvement with the instrument's creation is the fact that the offered instrument represents a deviation from a long-standing testamentary scheme.

The Decedent executed two (2) prior testamentary instruments, one in 1997 and the other in 2016. In both instruments, the Decedent's son, Michael Delligati, was included as a beneficiary.

Although the drafter's notes very briefly reference the purported basis for Michael's sudden exclusion, it is unclear whether the notes reflect communications that were made by the Decedent concerning the Decedent's intent, or by others, purporting to communicate the Decedent's intentions on her behalf.

Under the particular facts of this case and viewing the evidence in the light most favorable to the Objectants as the non-moving party, the Court concludes that the Objectants have raised issues of fact with respect to undue influence requiring resolution by the trier of fact (see Matter of Gobes, 189 AD3d 1402 [2d Dept 2020]).

Accordingly, the branch of Petitioners' motion to dismiss the objection based on undue influence is denied.

The parties and their counsel are directed to appear for a final pre-trial conference on November 17, 2026, at 9:30am, Courtroom 62.

This is the decision and order of the Court.

Dated: October 7, 2026

SURROGATE

FOOTNOTES

1.   The petitioners did not attach the transcript of the 1404 examination of attesting witness Anne Badillo. However, upon searching the record, the transcript was provided in opposition to the motion and the Court therefore considered same (CPLR 3212[b]; Veras v Medina, 2020 NY Misc. LEXIS 32075, at *5 [Sup Ct, Bronx County Nov. 10, 2020, No. 22224/2018E])

2.   The Objectants have withdrawn the objection grounded on lack of testamentary capacity, and the objection grounded on fraud.

Cassandra A. Johnson, S.