In this contested probate proceeding, the petitioner moves for an order granting summary judgment dismissing the objections and admitting the will to probate; the motion is opposed.

The decedent Lydia Voges died on June 3, 2013 at the age of 93 survived by four nieces and two nephews as her only distributees. They are: Robins Shields, the petitioner; Richard Shields; and Lydia Shields, all issue of the decedent's predeceased sister Gladys; Lydia Morton, daughter of decedent's predeceased brother Gordon; and Ingrid and Lyndsay, daughters of decedent's predeceased brother Derek. The decedent was predeceased by her husband, Fred Voges. The objectants are Robert Voges, Fred's son from a prior marriage, and Randall Voges, son of Robert Voges. Although they are not distributees, they are named as beneficiaries in a prior will on file in the court and therefore are necessary parties with standing to object (SCPA 1403[1][d], 1410). The objectants allege that the testator did not have testamentary capacity on the date the will was executed and that its execution was procured as the result of fraud, duress or undue influence on the part of Richard Shields and/or other persons.

"To establish prima facie entitlement to judgment as a matter of law, a movant for summary judgment must come forward with evidentiary proof, in admissible form, demonstrating the absence of any triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). The failure to make such showing requires the denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

Here, the motion is supported by counsel's affirmation and the deposition transcripts of eight witnesses, including the attorney who drafted the will and acted as an attesting witness, the other attesting witness, the three residuary beneficiaries, including the petitioner, both objectants, [*2]and a non-party witness who was a friend of the decedent. None of the deposition transcripts are signed by the deponents and there is no evidence that the transcripts were forwarded to the witnesses for their review pursuant to CPLR 3116 (a). That being so, none of the evidence submitted in support of the motion is in admissible form and the court may not consider it; the movant has therefore failed to establish his right to summary judgment (Marks v Robb, 90 AD3d 863, 864 [2d Dept 2011]; Matter of Delgatto, 82 AD3d 1230, 1231 [2d Dept 2011]; Martinez v 123-16 Liberty Ave. Realty Corp, 47 AD3d 901, 902 [2d Dept 2008]; McDonald v Mauss, 38 AD3d 727 [2007]; Pina v Flik Intl. Corp., 25 AD3d 772, 773 [2006]; Scotto v Marra, 23 AD3d 543, 544 [2005]; Santos v Intown Assoc., 17 AD3d 564, 565 [2005]). Because the movant has failed to establish his right to summary judgment, the court need not consider the adequacy of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Accordingly, the motion is denied. This matter will proceed to trial as scheduled on May 18, 2015.

This decision constitutes the order of the court and no additional order need be submitted.

EDWARD W. McCARTY III

Judge of the Surrogate's Court