IN RE: the Last WILL and Testament OF Bradley H. RICHARDSON

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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: the Last WILL and Testament OF Bradley H. RICHARDSON, Deceased. Ronald J. Schiller, Petitioner-Respondent; Shirley H. Richardson, Objectant-Appellant.

Decided: September 28, 2007

PRESENT:  HURLBUTT, J.P., MARTOCHE, SMITH, LUNN, AND PERADOTTO, JJ. Jeanne M. Colombo, Rochester (Michael Steinberg of Counsel), for Objectant-Appellant. Edward J. Degnan, Canisteo, for Petitioner-Respondent.

 Surrogate's Court properly granted petitioner's motion for summary judgment dismissing the objections filed by decedent's mother and admitted decedent's will to probate.  “Summary judgment in contested probate proceedings, while rare, should not be withheld where, as here, [the] proponent makes out a prima facie case for probate and [the] objectant[ ] fail[s] to raise a material issue of fact” (Matter of Coniglio, 242 A.D.2d 901, 901-902, 663 N.Y.S.2d 456).   The Surrogate properly concluded that the will was executed in conformance with EPTL 3-2.1 and that objectant failed to provide any evidence of fraud, duress, or undue influence (see Matter of Scalone, 170 A.D.2d 507, 566 N.Y.S.2d 75;  see generally Matter of Collins, 124 A.D.2d 48, 53-54, 510 N.Y.S.2d 940).   Finally, the Surrogate did not abuse his discretion in denying objectant's request to disqualify petitioner's attorney based on an alleged conflict of interest (see generally S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 443-445, 515 N.Y.S.2d 735, 508 N.E.2d 647).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: