IN RE: THE ESTATE OF IRA ROBERT RANDALL

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

IN RE: THE ESTATE OF IRA ROBERT RANDALL, DECEASED.

CA 09-01965

Decided: May 07, 2010

PRESENT:  SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND PINE, JJ. CROUCHER AND JONES, CANANDAIGUA (WALTER W. JONES, JR., OF COUNSEL), FOR PETITIONERS-APPELLANTS. PHILLIPS LYTLE LLP, ROCHESTER (CHAD W. FLANSBURG OF COUNSEL), FOR RESPONDENT-RESPONDENT.

MEMORANDUM AND ORDER

PETITIONERS-APPELLANTS;

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

Memorandum:  Petitioners appeal from an order denying that part of their motion for summary judgment dismissing respondent's objection to probate of decedent's will based on undue influence.   We affirm.

Petitioners met their initial burden by establishing that the will was the product of the personal relationship of petitioner Cindy Bagley with decedent, including his affection for her and gratitude for her having cared for him (see generally Matter of Branovacki, 278 A.D.2d 791, 792, lv denied 96 N.Y.2d 708;  PJI 7:55).   Indeed, Bagley served as the sole caretaker of decedent for approximately two years prior to his death.   In opposition to the motion, however, respondent submitted circumstantial evidence of a substantial nature sufficient to raise a triable issue of fact whether Bagley actually wielded undue influence (see Matter of Johnson, 6 AD3d 859, 861;  see generally Branovacki, 278 A.D.2d at 792).

Patricia L. Morgan

Clerk of the Court