In this contest over the will of Charles P. Haynes (decedent), objectant moves for summary judgment dismissing the probate proceeding (CPLR 3212). The motion is unopposed.

Decedent died on May 30, 2009 survived by his wife Daisy Haynes (Daisy) and six children, five from a prior marriage; Paulette Haynes (proponent), Gauntlett Haynes, Herbert Haynes, Dawn Haynes Jasmine Haynes, and Patrick Haynes (Patrick) the only child of decedent and Daisy who were married for over 34 years. The propounded will was purportedly executed about one month earlier on April 20, 2009. It appears from records submitted by objectants that decedent was suffering from progressive dementia at the time the propounded instrument was executed.

Under the propounded instrument, decedent gave his wife an amount equal to her elective share and disposed of the balance of his estate equally to his six children. Paulette is the nominated executor. Proponent's counsel, Laurence Bellom, Esq., drafted the propounded instrument and according to a self-proving affidavit attached to the three page instrument, supervised its execution. Preliminary letters testamentary which issued to proponent have expired. The letters were not renewed because proponent failed to comply with this court's orders.

Daisy and Patrick filed objections on August 18, 2010. A discovery order issued on the same date. Thereafter, proponent failed to comply with objectants' demands for discovery and inspection and this court's orders.

The initial discovery order directed the parties to complete discovery by February 2, 2011. Rita Gilbert, Esq., objectants' attorney, served discovery demands on September 16, 2010. Proponent failed to respond to the demand notwithstanding several requests by Ms. Gilbert seeking [*2]compliance. Mr. Bellom then failed to appear before the court on February 2, 2011. Notwithstanding his non-appearance, the court contacted Mr. Bellom and granted proponent a short extension of time to comply with the discovery demand. According to Ms. Gilbert, on the eve of the new discovery due date Mr. Bellom sent, by facsimile, scant responses to her interrogatories. Ms. Gilbert rejected the response because she does not accept service by facsimile. The next return date was March 2, 2011, and Mr. Bellom again failed to appear before the court. Thereafter, another discovery order issued, dated June 22, 2011, directing that proponent respond to the document demand by June 30, 2011. While Ms. Gilbert received a document entitled "Response to Request for Production of Documents", proponent failed to provide her with any authorizations for the release of information related to decedent's health and bank accounts. Thereafter, the motion for summary judgment was marked submit. As noted, proponent has not responded to the motion.

Pursuant to CPLR 3126, a court may command compliance with its orders by making such orders as are just, including dismissal, striking a pleading or entering a default judgment (Kihl v. Pheffer, 94 NY2d 118 [1999]; see, Matter of Kalin, 79 AD3d 1381 [3d Dep't 2010]). Proponent's clear disregard of this court's orders warrants dismissal of the probate proceeding. However, in light of the court's duty to inquire of the facts to determine the genuineness of the propounded instrument (SCPA 1408) the court has reviewed the probate petition and documents submitted in support of the motion to ascertain the validity of the propounded instrument.

It is well settled that summary judgment may only be granted where no triable issues of fact exist (Phillips v Kantor & Co., 31 NY2d 307 [1972]). It is movant's burden to make a prima facie showing of entitlement as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Once such showing has been made, the burden shifts to the opposing party to produce admissible evidence sufficient to establish the existence of material issues of fact requiring a trial (Zuckerman v City of New York, 49 NY2d 557 [1980]). While a court must construe the facts in a light most favorable to the non-moving party (Martin v Briggs, 235 AD2d 192 [1st Dep't 1997], such party must lay bare his proof as unsubstantiated allegations are insufficient to defeat the motion (Zuckerman v City of New York).Proponent has the burden to establish that the propounded will was duly executed in compliance with EPTL 3-2.1 (Matter of Hirschorn, 21 Misc 3d 1113[A][2008]) and that decedent had the requisite capacity to execute the instrument (Matter of Kumstar, 66 NY2d 691 [1985] rearg denied 67 NY2d 647 [1986]). Where proponent presents evidence of testamentary capacity, objectant must rebut such proof with evidence of lack of capacity (Matter of Scheiber, NYLJ, June 8, 1999, at 28, col 3).

The instrument consists of three pages. Each page contains decedent's initials in what appears to be shaky handwriting. The dispositive provisions are set forth on the first page and one-half of the second page. A large gap follows with the "WHEREFORE" clause set forth at the bottom of the second page. The third page contains a signature line for the testator, an attestation clause and the witnesses' signatures. Unlike decedent's initials, his name is signed with a strong signature.

Ordinarily, where a will execution is supervised by an attorney and contains an attestation clause, a rebuttable inference of due execution arises (Matter of Spinello, 291 AD2d 406 [2d Dep't 2002]). Here, the conduct of the proponent and the attorney drafter in this proceeding negates any inference that the instrument was duly executed. The failure of proponent to provide discovery is in effect a refusal to defend the validity of the will. Similarly, under these circumstances, the presumption of testamentary capacity (Matter of Coddington, [*3]281 AD 143 [3d Dep't 1952], aff'd 307 NY 181 [1954]; Matter of Tagliagambe, 30 Misc 3d 1235[A] [2011]) will not be applied here.

Objectant has provided the court with several documents which demonstrate that decedent was suffering from progressive dementia, hypertensive heart disease, and cerebrovascular disease. In late 2008, decedent was seen by Dr. Alexandra E. McBride. In a report transcribed on November 6, 2008, Dr. McBride sets forth her impression of decedent as follows: "Mr. Haynes has cognitive impairment, most suggestive of Alzheimer's-type dementia, but I am concerned about the hallucinations. These may have been related to hypertensive encephalopathy and additionally may have been medication effect." In March, 2009, a nurse practitioner wrote a letter to decedent to inform him that he was to cease operating a car and recommending that he take his medication. On April 15, 2009, Dr. Michael Daniels wrote a letter to certify that decedent is suffering from progressive dementia and that he was no longer able to work. Objectants also submit an application for long term disability for decedent which was signed by Dr. Daniels on May 11, 2009. Decedent's primary diagnosis is identified as a progressive dementia with symptoms of "progressive memory loss." His impairment is described by the doctor as follows: "patient unable to stay on task due to progressive memory loss and inability to responsibly undertake any responsibility." The doctor checked a box to indicate that decedent was not competent to endorse checks and another box to indicate that decedent suffered from major psychiatric impairment.

The records submitted by objectant demonstrate that at the time the propounded instrument was executed decedent lacked mental capacity. Proponent has failed to rebut the proof of decedent's mental incapacity with even a scintilla of evidence that decedent was capable of making a will on April 20, 2009. Based upon the foregoing, the court finds that decedent lacked testamentary capacity to execute the propounded instrument. Accordingly, the instrument dated April 20, 2009 is denied probate.

Settle decree within 60 days from the date hereof (22 NYCRR 207.37 [a]).

Dated: White Plains, NY

August, 2011

________________________________HON. ANTHONY A. SCARPINO, JR.

Westchester County Surrogate