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

IN RE: Lillian ZIMMERMAN, deceased. Donald Zimmerman, respondent; Gordon Zimmerman, appellant.

Decided: September 27, 1999

LAWRENCE J. BRACKEN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN and LEO F. McGINITY, JJ. Penelope W. Morgan, Ossining, N.Y., for appellant, and appellant pro se. Theodore J. Greene, P.C., New York, N.Y., for respondent.

In a probate proceeding, the appeal is from a decree of the Surrogate's Court, Westchester County (Emmanuelli, S.), dated June 26, 1998, which, upon granting the motion of the proponent, Donald Zimmerman, for summary judgment dismissing the appellant's objections, admitted to probate the last will and testament of the decedent, Lillian Zimmerman.

ORDERED that the decree is affirmed, with costs payable by the appellant personally.

 Contrary to the appellant's contentions, the Surrogate's Court did not err in granting the proponent's motion for summary judgment dismissing the appellant's objections that the will had not been properly executed, that the decedent was mentally and physically incapacitated at the time the will was executed, or that the proponent of the will had exerted undue influence over the decedent (see, EPTL 3-2.1;  Matter of Collins, 60 N.Y.2d 466, 468, 470 N.Y.S.2d 338, 458 N.E.2d 797;  Matter of Fiumara, 47 N.Y.2d 845, 418 N.Y.S.2d 579, 392 N.E.2d 565;  Matter of Tully, 227 A.D.2d 288, 642 N.Y.S.2d 878;  Matter of Philbrook, 185 A.D.2d 550, 552, 586 N.Y.S.2d 394;  Matter of Posner, 160 A.D.2d 943, 945, 554 N.Y.S.2d 666).  In opposition to the proponent's prima facie showing, the appellant failed to present any admissible evidence which would raise a triable issue of fact regarding whether such circumstances existed (see, CPLR 3212[b];  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).


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