TODD A. CURTIS (hereinafter the "Decedent") died a resident of Saratoga County on February 18, 2023 at sixty-one (61) years of age. The decedent had four (4) children: Kristina M. Curtis, Stuart Alan Curtis, Stephanie Lynn Herber, and Todd Alan Michalec who are his distributees. A Petition for Probate dated May 31, 2023 was filed by Kristina M. Curtis (the named Executrix in the Will and hereinafter referred to as "Petitioner") on June 23, 2023, seeking to probate decedent's purported Last Will and Testament dated February 1, 2022. Thereafter, Petitioner filed an Amended Petition for Probate on August 16, 2023.

Stephanie Lynn Herber executed a Waiver of Process and Consent to Probate dated May 23, 2023, which was filed with the Court on June 23, 2023. A citation was issued for Stuart Alan Curtis and Todd Alan Michalec, returnable September 21, 2023. Proofs of service were thereafter filed with the Court. Todd Alan Michalec did not appear on September 21, 2023 and has not appeared at any subsequent date in this action. Stuart Alan Curtis (hereinafter "Objectant") appeared by counsel on September 21, 2023 and objected to the probate of the instrument. On October 20, 2023, Objectant filed Verified Objections dated September 21, 2023 [*2]with a Verification dated October 13, 2023.^[FN1]

A conference was held on November 2, 2023 at which counsel for Petitioner indicated her intention to file the instant motion. By Notice of Motion dated November 27, 2023, Petitioner moves for summary judgment to have the objections dismissed, the purported Last Will and Testament admitted to probate, and that Letters Testamentary be issued to Petitioner. Objectant opposes the relief requested.

The instant motion was originally returnable December 14, 2023; however, counsel for Objectant, on consent of counsel for Petitioner, requested a two (2) week adjournment.^[FN2] This matter was then made returnable on January 24, 2024. On January 23, 2024, the Court received a letter request from counsel for Objectant asking for a "final 2 week adjournment and extension of the return date" (emphasis in original). The Court granted this request, adjourned the return date to February 7, 2024 and further advised that any papers must be "submitted in accordance with the timeliness contained in CPLR §2214."

Thereafter, counsel for Objectant electronically filed opposition papers with the Court. The Court's records reflect filings of: (1) a Memorandum of Law in Opposition at approximately 11:15PM on February 6, 2024; (2) an Attorney Affirmation in Opposition to Motion for Summary Judgment at approximately 11:49PM on February 6, 2024; and (3) an Affidavit in Opposition to Motion for Summary Judgment at approximately 12:15AM on February 7, 2024. All three of these documents are dated February 6, 2024, with the first two (2) signed by Colin D. Dwyer, Esq., and the third document appears to be an unsigned affidavit purportedly made by the Objectant.^[FN3] Oral argument was heard on the motion on February 7, 2024, and the Court reserved its decision.

The Objections contain four (4) vaguely described separate objections, which shall be discussed below.

The first objection is that the decedent lacked testamentary capacity at the time the Will was executed.

The second objection is that the Petitioner subjected the Decedent to undue influence to sign the Will being offered to Probate.

The third objection is that the Petitioner placed unlawful pressure on the Decedent, resulting in a fraudulent transfer of certain assets to the Petitioner.

The fourth objection is that the Decedent was subjected to duress by the Petitioner to divide his property in a way that went against his wishes.

The Objections also allege Decedent's mental and physical condition was deteriorated by brain cancer; that Petitioner, as Decedent's caretaker, prevented other siblings from visiting with Decedent and regularly lied to Decedent about his other children; and that a prior Will was in stark contrast with the current Will being offered; and the current Will severely diminished what [*3]Objectant stood to inherit as opposed to the prior will referenced.

As an initial matter, Petitioner correctly pointed out at oral argument that Objectant's opposition to the motion for summary judgment was untimely. Petitioner is correct that the court cannot consider Objectant's opposition to the motion for summary judgment, because the papers were not timely filed in accordance with the provisions of CPLR §2214. A notice of motion that is served at least 16 days before the return day, as was the case here, may demand that "[a]nswering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before" the return day (CPLR §2214[b]; see generally Siegel, NY Prac §247 [4th ed]).

Courts have routinely rejected unexcused untimely filings. See Nakollofski v. Kingsway Props., LLC, 157 AD3d 960, 70 N.Y.S.3d 230 (2d Dep't 2018) ("The Supreme Court providently exercised its discretion in declining to consider the plaintiff's opposition to [defendant's] motion to vacate the default, despite no showing of prejudice to [defendant], as the plaintiff failed to provide a valid excuse for the late service of its opposition papers."). See also, Vitti v. Macy's Inc., 2018 NY Slip Op 32809(U) (NY Sup. Ct. 2018).

Here, Objectant was granted two (2) extensions of time to file opposition papers, and the Court went so far as to remind Objectant's counsel of his obligation to comply with CPLR §2214. At oral argument, Objectant's counsel proffered the excuse that he mis-calendared the return date and thought it was returnable on February 14, 2024. Counsel was unable to provide any further explanation or details, beyond the admission that "it's my mistake." While the Court is not without compassion, and granted Counsel's January 23, 2024 adjournment request based upon the reasons set forth therein; the Court is also compelled to note that the circumstances giving rise to the adjournment request did not occur until two (2) days after Objectant's opposition papers were due for the prior January 24, 2024 return date.

Under these facts and circumstances, the Court does not consider Counsel's excuse for late filing reasonable or valid. The Court therefore rejects Objectant's opposition papers as a nullity and will proceed to decide Petitioner's Motion for Summary Judgment as unopposed.

Even if the Court were to consider Objectant's submission as timely, the Petitioner has challenged Objectant's standing to challenge the propounded Will. Petitioner primarily relies upon two (2) cases in support of her argument: Wigand v. Murphy, 263 AD2d 724, 693 N.Y.S.2d 309 (App. Div. 3rd Dept. 1999) (Objectant lacked standing because he failed to prove his allegation that he had a greater interest as a legatee under a prior will); and In re Estate of Hall, 12 AD3d 511, 784 N.Y.S.2d 605 (App. Div. 2nd Dept. 2004) (Court found no standing where Objectant's pecuniary interests were not adversely affected by the Will).

Although Objectant's papers fail to address these cases, the Court notes that holding in Wigand dealt with a nondistributee of the decedent and Hall dealt with a Will under which the Objectant would receive the same share as if the decedent had died intestate. Ordinarily, a distributee that is disinherited in a Will would likely have standing under SCPA §1410; however, under the facts of this case, the Court agrees with the Petitioner's analysis.

Objectant's opposition papers state that "Respondent was referring to the Will in which Stuart A. Curtis was named the sole beneficiary of his father's estate", although no copy of such a will was attached to the submissions. At oral argument, counsel elaborated that it was a 2018 Will that was referenced in his opposition papers; however, counsel admitted that he did not [*4]have a copy of this supposed 2018 Will; had never seen this supposed 2018 Will, and did not know if his client even had a copy of the supposed 2018 Will.

In stark contrast, Petitioner's initial November 27, 2023 moving papers included purported copies of decedent's two (2) prior wills dated February 16, 2021 and October 13, 2020; under both of which the Objectant would have received nothing. It is generally true that if a Will is invalidated, any language revoking a prior will is also invalidated (Matter of Wilke, 2019 NY Slip Op 51220[U], 64 Misc 3d 1221[A], 117 N.Y.S.3d 467 [Albany Sur. Ct. 2019]). In the instant matter, to overcome his standing issue, Objectant would need to invalidate not only the decedent's February 1, 2022 Will at issue, but also his prior two (2) wills. Objectant offers no substantive arguments to support his speculative position, and as discussed more fully below, failed to engage in any examination or discovery that could have led to such competent evidence. Accordingly, Objectant's position is too tenuous and unsupported by any evidence aside from self-serving assertions and he has therefore failed to establish standing to object to this proceeding.

It is well settled that summary judgment is a drastic remedy and will not be granted if there is any doubt as to the existence of a triable issue. It is a matter of issue finding, not issue determination. "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment, as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [NY 1986]). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 [1st Dept. 1984]). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v. City of New York, 49NY2d 557, 562 [NY 1980]; In re Saman Estate, NYLJ, March 26, 2004, at 32, col 5 [Sur Ct, Nassau County 2004]).

To defeat a summary judgment motion, the Objectant must come forward and lay bare his proof. It is the Court's responsibility to determine whether there are issues of fact to be determined, which can only be determined after a trial on the issues. In so doing, the Court must construe the facts in a light most favorable to the non-moving party so as not to deprive that person of his day in court (Russell v. A. Barton Hepburn Hospital, 154 AD2d 796 [3rd Dept. 1989]). Although summary judgment is somewhat unusual in a contested probate proceeding, it is appropriate where the proponent has made a prima facie case for probate and the objectant fails to raise a material triable issue of fact (Matter of Colverd, 52 AD3d 971 [3rd Dept 2008]).

Notwithstanding the above analysis, the Court further finds that even if Objectant's filings were timely, and that he had met his legal burden to establish standing, his Opposition to Petitioner's Motion for Summary Judgment must also fail on the merits, as set forth below.

Turning first to the challenge to decedent's testamentary capacity, the burden rests with petitioner, as the moving party, to demonstrate that decedent "understood the consequences of executing the will, knew the nature and extent of the property being disposed of and knew the persons who were the natural objects of his bounty . . . and his relationship to them" (Matter of Giaquinto, 2018 NY Slip Op 06065, ¶ 2, 164 AD3d 1527, 1528, 83 N.Y.S.3d 728, 731 [App. Div. 3rd Dept], citing Matter of Prevratil, 2014 NY Slip Op 05478, 121 AD3d 137, 990 [*5]N.Y.S.2d 697 [App. Div. 3rd Dept]).

Here, petitioner submitted, among other things, the original February 1, 2022 Will, along with the self-executing affidavits of Kelly Kivlehan and Lauren Sheeley, the subscribing witnesses who attested to decedent's sound mind, memory and understanding when he signed the will—which "created a presumption of testamentary capacity and prima facie evidence of the facts attested to" (Matter of Walker, 2011 NY Slip Op 82, 80 AD3d 865, 914 N.Y.S.2d 379 [App. Div. 3rd Dept.] [internal citations omitted]).

The burden of proof now shifts to Objectant to overcome the prima facie testamentary capacity of the decedent. Both Petitioner and Objectant agree that decedent was diagnosed with lung cancer in or about April 2018 and thereafter he had periods of stable treatment until sometime in 2022, when an MRI revealed the cancer had metastasized to his brain.^[FN4] It is this diagnosis that underpins each of the Verified Objections.

In his opposition papers, Objectant bemoans not having "access to the Decedent's medical records leading up to his death or the opportunity to discuss with the medical doctors concerning the Decedent's mental capacity" and urges the court not to grant summary judgment "before even allowing the Respondent to engage in basic discovery". At oral argument, Counsel for Objectant further referenced that he had not been provided any discovery and that no scheduling order had been set.

Objectant's frustration with his lack of evidence and discovery is misplaced. The Court first notes that Objectant made no request under SCPA §1404 to examine the attesting witnesses or the draftsman of decedent's propounded February 1, 2022 Last Will and Testament, either before or after filing his Objections. Presumably this would have allowed Objectant to examine the draftsman and attesting witnesses regarding decedent's state of mind, capacity, and the surrounding circumstances at the time of the drafting and execution of the Will. At oral argument, Petitioner's counsel stated on the record that she received no discovery demands from the Objectant. In fact, the record is wholly devoid of any evidence that Objectant sought any discovery through formal or informal means. Objectant cannot sit idly by and then complain that nothing was given to him; rather the law requires Objectant to avail himself of the discovery and procedural tools available and support his arguments with facts derived therefrom.

Less mental capacity is required to execute a will than is required to execute any other legal instrument (Matter of Coddington, 281 AD 143, 118 N.Y.S.2d 525 [3d Dept 1952], affd 307 NY 181, 120 N.E.2d 777 [1954]). Thus, it has been held that a will executed by one judicially declared insane will be admitted to probate upon proof that it was made during a lucid interval (Estate of Gallagher, No. 4328/01, 2007 NY Misc. LEXIS 7639 [Kings County Sur. Ct. Sep. 26, 2007] [internal citations omitted]). Courts have also found "that the fact that decedent was diagnosed with progressive dementia does not, in and of itself, create a triable issue of fact as to his mental capacity" (Matter of Friedman, 2006 NY Slip Op 1354, 26 AD3d 723, 809 N.Y.S.2d 667 [App. Div. 3rd Dept.]).

In this case, there is simply no competent evidence that the decedent lacked testamentary capacity. The remaining objections likewise lack any actual evidence which would tend to support Objectant's broad-brushed speculation. Objectant's opposition papers are quite telling [*6]and include the word "likely" throughout— Petitioner "likely" exerted undue influence; decedent was "likely" under duress; and Petitioner "likely" committed fraud. Unfortunately for Objectant, "[b]ald assertions, speculation, mere conclusions, expressions of hope or unsubstantiated allegations and assertions are simply insufficient to successfully oppose a motion for summary judgment" (Del Giacco v. Noteworthy Co., 175 AD2d 516 [3rd Dept 1991], citing Zuckerman v. City of New York, supra at 562).

After review of the motion papers and opposing papers, including a careful review of the Court's records, and after hearing oral argument in this matter, this Court finds that Objectant has not set forth any issues of fact sufficient to require a trial. Even assuming arguendo that the contentions of the Objectant are true, and construing all evidence in a light most favorable to him, there simply has been nothing offered but conclusory allegations. Accordingly, the Petitioner's motion for summary judgment is granted, and all objections are dismissed.

It is therefore,

ORDERED, ADJUDGED, AND DECREED based upon all of the foregoing, that the Verified Objections are dismissed in their entirety; and it is further

ORDERED, ADJUDGED, AND DECREED that Decedent's February 1, 2022 Last Will and Testament be admitted to probate; and it is further

ORDERED, ADJUDGED, AND DECREED that a Decree and Letters Testamentary be issued to the Petitioner, duly named as the Executrix in said Will.