In this contested probate proceeding, the petitioners, Robert and Paul Noetzel, nominated co-executors and two of decedent's four surviving children, move for an order pursuant to CPLR 3212 granting summary judgment admitting the proffered instrument dated March 31, 2010 to probate and dismissing the objections filed by decedent's other son, John W. Noetzel, Jr. Decedent's spouse John W. Noetzel and her remaining child, daughter Christy A. Kleeman, also survive.

The decedent died on July 17, 2012. She was 83 years old. An instrument purported to be decedent's last will and testament, dated as aforesaid, and naming the petitioners as co- executors, has been submitted for probate. The propounded instrument leaves the decedent's entire residuary estate to a revocable trust of the same date created by decedent and her surviving spouse as co-grantors. To one degree or another, all three sons have a remainder beneficial interest in the trust.

Respondent has filed objections to probate alleging that: (1) the propounded instrument was not freely or voluntarily made or executed by the decedent, but was procured by fraud or undue influence or duress; (2) decedent lacked testamentary capacity; (3) she was unaware of the objects of her bounty; and she did not know the extent or value of her assets.

A threshold issue has been presented on this motion of the applicability of CPLR 3212 (f)

which is the essence of the objectant's opposition. The statute reads in relevant part: Should it [*2]appear . . . that facts to justify opposition may exist but cannot then be stated, the court may

[several alternatives, including disclosure, to immediately ruling on the motion]." Objectant cites to an Appellate Division, Second Department decision, Matter of Fasciglione (73 AD3d 769 [2d Dept 2010]), facially on all fours with the case at bar, for the principle that this motion should be denied as premature. That case cites an earlier opinion by the same court arising from an appeal from a decision of the Surrogate's Court, Nassau County to the same affect and further explaining that the facts regarding the objection before it of due execution ". . . must be explored (citations omitted)" and the concept that each side should have an "equal opportunity" to conduct discovery (Matter of Jacinto,172 AD2d 664 [2d Dept 1991]).^[FN1]

Proponents do not take issue with the foregoing legal principles in concept but argue that before an opponent to a motion for summary judgment may validly rely on CPLR 3212 (f)

she must show what the opposing facts are and the source thereof. There is no mention in Matter of Fasciglione of the necessity of such a showing or what the objectants in that case have demonstrated. The court is satisfied, as regards to testamentary capacity and undue influence, given the content of objectant's affidavit submitted in opposition to the motion, the relationship of the witnesses as aforesaid whose depositions were pending, and the complexity of the use of the will/trust estate plan, that objectant has made the requisite threshold showing to warrant invoking CPLR 3212 (f).

Motion denied with leave to renew following the completion of discovery.

This matter will appear on the court's calendar for conference on March 12, 2014,

at 9:30 a.m., to enter a discovery order.

This is the decision and order of the court.

Dated: February 28, 2014

EDWARD W. McCARTY III

Judge of the

Surrogate's Court