In this pending proceeding, Rosemary Mooney died a resident of Richmond County on December 29, 2005 at Staten Island University Hospital. Based on the waivers and consents of all the distributees, including decedent's son, George Mooney, the Court admitted to probate on April 28, 2006, her Last Will and Testament dated December 20, 2005, and Letters Testamentary issued to the executrix nominated therein, Theresa McIntyre, the decedent's sister. Six months after probate, the Court allowed George Mooney to withdraw his consent to probate, after he satisfied the Court that he may have been misled into signing the waiver and consent. He was further allowed to interpose objections to probate and the matter proceeded through discovery as a contested probate.

Following discovery, counsel for the executrix moved for summary judgment, seeking an order dismissing the objections filed by George Mooney, and seeking to restore the decree admitting to probate the Will dated December 20, 2005. Respondent submitted his cross-motion and opposition to the summary judgment motion, and additional papers were submitted by both sides in support of their respective positions. Indeed, both sides were given until February 11, 2009, by which time all papers were to be filed with the Court and, at which time, the matter was to be marked "submitted". At the call of the calender on February 11, 2009, only George Mooney appeared and asked the Court if any other papers had been submitted by the movant in support of his motion. The Court advised Mr. Mooney that no further papers had been received. However, additional papers in support of the motion, in fact, were received by the Court in that day's mail. Mr. Mooney wrongfully believing those papers were received by the Court a day later on February 12th, asks that the Court reject said papers and not consider them in its decision on the motion. Said papers, however, having been timely filed with the Court, were reviewed and considered before determining the motion, along with all of the papers heretofore submitted herein, both in support of and in opposition to both the motion for summary judgment, and the cross-motion.

It is well settled that the remedy of summary judgment is available in a probate contest where objectant fails to offer any proof sufficient to raise a genuine and material issue of fact (Matter of Bartel, 214 AD2d 476; Matter of Parravani, 211 AD2d 965). In an appropriate case, [*2]summary judgment should not be withheld even where the issues concern fraud and undue influence (Matter of Goldberg, 180 AD2d 528) for which the contestant bears the burden of proof .

To defeat a motion for summary judgment, objectant must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact (Stainless, Inc. v. Employers Fire Ins. Co., 69 AD2d 27, affd 49 NY2d 924). Allegations must be specific and detailed, substantiated by evidence in the record; mere conclusory assertions will not suffice (Iselin & Co. v. Mann Judd Landau, 71 NY2d 420; Matter of O'Hara, 85 AD2d 669). A motion for summary judgment may not be defeated merely by surmise, conjecture or suspicion (Shaw v. Time Life Records, 38 NY2d 201), particularly where the motion was made after discovery is complete, as in the case at bar (Corcoran Group Inc. v. Morris, 107 AD2d 622, affd 64 NY2d 1034).

With respect to undue influence and fraud, the objectant has the burden of proving that the propounded instrument is the result of the exercise of undue influence or fraud (Matter of Schillinger, 258 NY186). To invalidate a Will on the ground of fraud, there must be proof of deception, and that deception must have induced the testator to make a disposition of his property which he would not have otherwise made, and the testator must have actually been deceived (Matter of Evanchuck, 145 AD2d, 559). In the present case, objectant has produced absolutely no proof of deception.

Undue influence, meanwhile, requires proof of a moral coercion, which restrained independent action and destroyed the free agency, or which, by importunity 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 Walther, 6 NY2d 49). There is, likewise, no proof that any person made any efforts at all to influence the decedent's wishes.

Indeed, objectant has failed to produce any evidence of fraud, duress or undue influence. Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient for the purpose of raising issues that would require a trial (Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966).

Unlike that of fraud and undue influence, the burden of proving that the decedent possessed the requisite testamentary capacity rests on the proponent of the Will (Matter of Williams, 13 AD3d 954). The proponent must establish, (1) that the decedent understood the nature and consequences of executing a Will; (2) that the decedent knew the nature and extent of the property that he was disposing of; and (3) that the decedent knew the natural objects of his bounty (Matter of Kumstar, 66 NY2d 691). Notwithstanding this burden, until the contrary is established, a testator is presumed to be sane and have sufficient mental capacity to make a valid Will (Matter of Betz, 63 AD2d 769).

Proponent presented overwhelming evidence of the testamentary capacity of the testator. There is the self-proving affidavit of the attesting witnesses opining that decedent appeared to be of sound mind and memory, which creates a presumption of testamentary capacity (Matter of Friedman, 26 AD3d 723). There is the opinion testimony of the attorney-draftsman and the attesting witnesses in their depositions that decedent was of sound mind (see, Matter of Vickery, 167 AD2d 828). Finally, there is the affidavit of Dr. Jonathan M. Rosen, who reviewed the hospital records of the decedent while she was in Staten Island University Hospital from [*3]December 18, 2005 until her death, with special focus on her status on December 20, 2005, the day the Will was executed. Dr. Rosen's conclusion that the decedent certainly possessed testamentary capacity at that time is based on the information clearly presented in the medical records.

Dr. Rosen, the attorney-draftsman, and the attesting witnesses all attest to the testatrix being alert, fully aware and competent at the time the Will was executed. As proponent has met her prima facie burden of showing decedent was competent to make the will, objectant has the burden of going forward with evidence indicating lack of testamentary capacity.

The objectant has produced no testimony or credible medical evidence that Rosemary Mooney lacked testamentary capacity. His medical expert, Dr. Joe B. Alexander, after reviewing the same hospital record, reports that based on the entries in the Critical Care Flow Sheet, Rosemary Mooney could not have signed a Will on December 20, 2005. He bases his opinion on the entries indicating that at that time, the patient was in a state of obtundation, which is a level of consciousness just one step above being in a coma. If this were so, testamentary capacity would certainly be an issue.

Apparently, however, Dr. Alexander, has misread the coding of the medical records. A careful review of the hospital record discloses that Rosemary Mooney was not in a near coma at the time the Will was executed. In fact, the hospital record clearly states that the patient was awake, alert and oriented at that time. Accordingly, Dr. Alexander's dubious reading of the hospital record and his incredible report are given little weight by the Court.

Having established prima facie proof of competence, the burden of rebutting the presumption that Rosemary Mooney was competent when she signed the Will falls on the objectant (Matter of Fiumara, 47 NY2d 845). Objectant has failed to produce any credible evidence which would raise a triable issue that Rosemary Mooney lacked testamentary capacity at the time that she signed her Will.

With regard to due execution, inasmuch as an attorney supervised the Will's execution, a presumption of regularity is raised that it was properly executed in all respects (Matter of Spinello, 291 AD2d 406). Moreover, the self-proving affidavit signed by the two witnesses to the Will and their deposition testimony, along with that of the attorney-draftsman, also creates a presumption that the Will was duly executed and constitutes prima facie evidence of due execution (Matter of Paige, 53 AD3d 836). Proponent having established, prima facie, due execution of the Will, the burden shifts to the objectant to demonstrate a triable issue of fact.

The objectant gives much weight to the representation in the self proving affidavit of the witnesses, that the Will was executed at the home of the testatrix when, in fact, it was executed at the hospital. The objectant believes such misrepresentation in the affidavit, raises a triable issue of fact. That argument is specious, at best, and without merit. The misrepresentation regarding where the Will was executed has been reasonably explained by the attorney-draftsman who testified that he prepared the Will for execution at Rosemary Mooney's home, but instead he was summoned to the hospital where the Will was executed without change.

The objectant further contends that the signature on the Will is not that of Rosemary Mooney. In support of this position he submits a letter from Robert Baier, a forensic document examiner. Mr. Baier, however, in his Letter of Opinion gives no basis for his conclusion that the signature on the Will is not that of Rosemary Mooney. He further gives no explanation for why [*4]he failed to consider recent exemplars in his comparison of the signature on the Will. Additionally, no consideration is given in the report to the fact that the Will was signed by the testatrix while she was lying in a hospital bed with IV tubes in her arm. While the report states that the Will was not signed by the testatrix, the report fails to cite any facts to substantiate that opinion, nor does it provide any analysis on how the signature on the Will differs from the other signatures. Indeed, there is no basis for giving any weight to Robert Baier's unsupported opinion, and objectant has therefor failed to demonstrate any material issue of fact regarding the Will's execution and compliance with EPTL 3-2.1.

Accordingly, for all of the reasons heretofore stated herein, proponent's motion for summary judgment is hereby granted. The objections are dismissed and the probate decree which had previously been vacated, is hereby restored and Letters Testamentary previously issued to Theresa McIntyre, a/k/a Theresa McIntire, are hereby reinstated.

The cross-motion of the objectant for summary judgment is hereby denied for the same reasons set forth above. That branch of objectant's cross-motion which appears to make a claim against the Estate in the amount of $1,000,000.00 is denied as being premature, without prejudice to his claim being renewed and adjudicated at the accounting stage of this Estate.

This decision shall constitute the Order of the Court.

Dated:March 6, 2009

ROBERT J. GIGANTE, Surrogate