This matter was previously assigned to the Honorable Michael Mohun due to a conflict of interest with the Honorable Charles Zambito (retired). Judge Mohun issued a Decision and Order dated August 23, 2019, finding that a latent ambiguity existed, and ordered that a hearing be held to resolve the issue. Despite numerous attempts to schedule the hearing by the Court, the parties could never agree upon a date. On January 1, 2022, this Surrogate was sworn into office. As a result, this case was transferred from Judge Mohun to this Court. Upon the consent of the parties, it was determined that a hearing was no longer necessary, and all parties agreed to submit the issue for determination on the papers, which is also outlined in this Court's Schedule Order.

This case has an extensive history dating back to 2011 and spans across multiple judges, numerous motions, voluminous discovery, and a plethora of pre-trial conferences. Most recently, the Estate of David C. Peters electronically filed its Notice of Motion for Summary Judgment Hearing on the Papers along with its other supporting submissions on May 27, 2022. On or about June 10, 2022, the Tonawanda Indian Baptist Church e-filed its Notice of Motion for Summary Judgment and its other filings in support thereof and on July 1, 2022, it filed its Response to the Respondents' Statement of Material Facts along with a Memorandum of Law in Opposition to Respondents' Motion for Summary Judgment/Hearing on Papers. On July 15, 2022, the Estate of David C. Peters e-filed its Response to the Tonawanda Indian Baptist Church's Statement of Material Facts. On August 5, 2022, the Respondents e-filed its Response to the Tonawanda Indian Baptist Church's Additional Material Facts along with Attorney Bird's Affirmation in Reply and Further Support of Respondents' Motion for Summary [*2]Judgment/Hearing on the Papers.

The Decedent, David C. Peters ("the Decedent" or "Mr. Peters"), was a very successful businessman, who established a number of profitable businesses on the Tonawanda Reservation, including The Arrowhawk Smoke and Gas Shop (hereinafter, "the Arrowhawk"). The Arrowhawk's business was governed by the Management Agreement, which was executed on November 3, 2010.

Mr. Peters died on August 10, 2011. His Last Will and Testament ("the Will) was admitted to probate on September 19, 2011.

At the center of the parties' current motions is the Decedent's bequest to Thomas Peters ("Thomas") and Coreen Thompson ("Coreen") regarding the Arrowhawk and its assets. The relevant portion of the Will pertaining to these motions is cached at h ttps://www.nycourts.gov/reporter/webdocs/EstateofPeters-WillProvisions.pdf.

Between September 9 - 10, 2011, Coreen and Thomas signed separate Adherence Agreements, which both contained clauses stating that they "agree[d] to adhere to and be bound by the terms and conditions set forth in the entire Business Management Agreement . . . and agree[d] that they [would] be bound as if an original signatory." See Adherence Agreements. Thereafter, on September 13, 2011, a Confidentiality Agreement was executed by Coreen, Thomas, and the other parties to the Business Management Agreement. On that same date, the first Special Meeting of the Board of Directors was held and attended by Thomas, Coreen and Michele Morabito. The second Special Meeting of the Board of Directors was held on September 26, 2011. On October 4, 2011, Attorney Richard Campbell, the drafter of the Will, sent a letter to the Church, stating in part, "that a Business Management Agreement has been reached, the bequest will be given to the brother of the decedent Thomas W. Peters, and the daughter of the decedent, Coreen N. Thompson, per Article Sixth A and B". See Estate Exhibit J.

Approximately seven years after the Estate had been admitted to probate, the Church filed its Petition for Construction of the Will on July 17, 2018. The Petition centered upon the argument that Coreen and Thomas no longer agreed on the ongoing business management pursuant to the Business Management Agreement (hereinafter, "the Agreement").

Per this Court's scheduling order dated April 18, 2022, a briefing schedule was set and agreed upon by the parties.

It is axiomatic that the drastic remedy of summary judgment cannot be granted where there is any doubt as to the existence of a triable issue of fact or where an "arguable" issue exists. See Rotuba Extruders v. Ceppos, 46 NY2d 223. The focus of the Court's consideration on this motion is issue finding, not issue determination. The affidavits must be scrutinized carefully in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference. See Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395; Esposito v. Wright, 28 AD3d 1142.

It is the movant's burden to establish entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact. See Zuckerman v. City of New York, 49 NY2d 557. The failure to do so requires denial of the motion regardless of the sufficiency of the opponent's papers. See Winegrad v. New York University Medical Center, 64 NY2d 851; Florea v. County of Erie, 123 AD2d 514; Monroe Abstract & Title Corp. v. [*3]Giallombardo, 54 AD2d 1084.

To defeat summary judgment, the opponent must present evidentiary facts sufficient to raise a triable issue of fact, and averments [930] merely stating conclusions of fact or of law are insufficient as a matter of law. See Ehrlich v. American Moninger Greenhouse, 26 NY2d 255.

In reviewing the submissions of the parties, this Court finds there is no genuine issue of material fact precluding the consideration of the pending motions. The parties agree that Coreen and Thomas signed both the Management Agreement and Adherence Agreement as noted supra. The issues boil down to the interpretation of Article Sixth of the Will. This Court is guided by SPCA § 1420 in determining the testator's intent.

It is well settled that, "in a will construction proceeding, the search is for the decedent's intent ... and not for that of the draft[er]." Matter of Cord, 58 NY2d 539. In ascertaining a decedent's intent, "'a sympathetic reading of the will as an entirety' is required." Matter of Carmer, 71 NY2d 781. "[T]he best indicator of the testator's intent is found in the clear and unambiguous language of the will itself and, thus, where no ambiguity exists, [e]xtrinsic evidence is inadmissible to vary the terms of a will." Matter of Scale, 38 AD3d at 985, 830 N.Y.S.2d 618.

"If, on the other hand, a provision of the will is ambiguous, extrinsic evidence is properly considered in discerning the testator's true intent." Matter of McCabe, 269 AD2d 727. "A latent ambiguity arises when the words used are neither ambiguous nor obscure, but ambiguity appears relative to persons or things meant." Matter of Blodgett, 168 Misc. 898, 901, 7 N.Y.S.2d 364.

At issue before this Court is Article Sixth of Decedent's Will, which specifies the bequests set forth on page 3 supra. Both Coreen and Thomas signed on to the Agreement, which is evident from their signatures to the Adherence Agreement and is not disputed.

With respect to the Church's arguments as it relates to the existence of any latent ambiguities, the word "continuing" is defined by Black's Law Dictionary as, "enduring; not terminated by a single act or fact; subsisting for a definite period or intended to cover or apply to successive similar obligations or occurrences." See Black's Law Dictionary, https://thelawdictionary.org/?s=contin uing. As used in the Will, it is clear that the Decedent's intent and wishes were to have Coreen and Thomas enter into the Agreement and continue the operation of that business pursuant to the separate Management Agreement.

Regarding the Church's arguments pertaining to the use of the word "ongoing," again there is no latent ambiguity. The Will provides, in pertinent part, "I have in place a Business Management Agreement which shall refer to the ongoing operation of the business known as Arrowhawk Smoke and Gas Shop". The word "ongoing" is defined as "continuing without termination or interruption." See The Dictionary.com, https://www.dctionary.com/browse/ongoing. The word "ongoing" is referring to the business, which is controlled by the Agreement.

Since the Agreement was entered into by both parties, the Agreement controls per Section C of the Will. This Court is not the proper court for civil business disputes, which is what exists here. This Court's function is to deal solely with the Estate proceeding. In the context of this estate proceeding, "[w]here language is unambiguous and supports a reasonable meaning, it must be accepted as manifesting the grantor's intention; the court is bound, and the canons of construction do not come into play." Matter of Gouraud, 85 AD2d 342. Accordingly, [*4]there is no ambiguity in the attorney-drafted Will of the Decedent.

This Court GRANTS the Estate's relief as it pertains to the following: (a) Dismissing the Petition filed by the Church on July 23, 2018, with prejudice; (b) Declaring Articles Sixth A, B, and C of the Will of David Peters are clear and unambiguous and should not be construed.

The following relief requested by the Estate under (c), (d), (e) and (f) are DENIED.

This Court DENIES, in its entirety, the relief requested by the Church.

This Decision constitutes the Order of this Court.