Matter of Gornicki

Surrogate's Court, Erie County

Decided on July 24, 2025

File No. 2024-2562

Acea M. Mosey, S.

Peter M. Gornicki [hereafter, decedent or Peter] died testate at age 83 on October 6, 2023. Decedent was survived by his wife, Charlene Gornicki^FN1 [hereafter, Charlene], and two (2) marital children: Victoria Gornicki-Sawma [hereafter, Victoria or proponent] and Michele (Gornicki) Threlkeld [hereafter, Michele]. Decedent's Will, dated May 18, 1992, nominated Victoria as executor and bequeathed his entire estate to Victoria and Michele equally. John K. Jordan, Esq. [hereafter, Jordan] drafted and was a witness to the execution of decedent's Will.

On June 13, 2024, Victoria filed a petition for probate of the Will and filed an application for Preliminary Letters Testamentary. An Amendment to the Petition for Probate was filed on February 5, 2025, clarifying that Victoria sought to probate a copy of the Will. The affidavit of attesting witnesses, also a copy, was signed and sworn to by Jordan and Julie Miller. The original Will and affidavit of attesting witnesses allegedly were destroyed when a roof collapsed at Jordan's storage facility.

This Court granted Preliminary Letters Testamentary with Limitations to Victoria on March 11, 2025. Though all interested parties have consented to the admission of the photocopy of the Will, this Court set the matter down for an evidentiary hearing pursuant to SCPA 1407 before a Court Attorney on a hear and report basis. That hearing having been held, and the matter having been finally submitted, I now find and decide as follows.

(A)

SCPA 1407 provides that, where a decedent's original will cannot be located following his or her death, a copy of that Will may be admitted to probate. The proponent of the copy must establish that the Will was not revoked, that it had been duly executed, and that all provisions in the copy are clearly proved by at least two witnesses or by a copy or draft of the Will proved to be true and complete. See e.g., Matter of McKenna, 213 AD3d 765, 766 [2023].

As the Appellate Division, Second Department, said in Matter of Massimo, 177 AD3d 640, 641 [2019]:

"When a will, although once possessed by a testator, cannot be found after the death of the testator, a strong presumption arises that the testator revoked the will by destruction (see Matter of Lewis, 25 NY3d 456, 462 [2015]). The presumption may be overcome, and the lost will admitted to probate, if the proponent establishes that the Will was not revoked by the testator during his or her lifetime (see Matter of Marotta, 137 AD3d 787, 788 [2016]). 'The burden of proof is on the will proponent to show, by facts and circumstances, that the testator did not destroy the will with the intent to revoke it; mere speculation or suspicion is insufficient' (Matter of DiSiena, 103 AD3d 1077, 1078-1079 [2023]; see Matter of Fox, 9 NY2d 400, 407-408 [1961]; Matter of Staiger, 243 NY 468, 472 [1926])" (emphasis added).

If it is established that the Will was not in the testator's possession, the revocation presumption does not arise (see Matter of Monserrat, NYLJ, July 6, 2010, at 28, col 1; Matter of Yannaco, NYLJ, June 1, 2011, at 26, col 3; Matter of Quaranto, NYLJ, July 13, 2000, at 31, col 3 [presumption of revocation did not arise because credible evidence showed that the testator never had the original Will]). "A will that is lost or destroyed while the decedent does not have possession of it is presumed destroyed without the decedent's knowledge or consent, and the result is the same as if the will was in existence at the time of decedent's death" (Matter of Barkley, 34 Misc 3d 1210 [A] [2012], citing Matter of Levinsohn, 5 Misc 2d 605 [1957]).

The nature of the proof needed to determine the last possession of the Will is stringent. See Matter of Deangelis, NYLJ, Feb. 3 2025, at 17, col 3, where the Court declined to admit a copy of the Will to probate due to insufficient proof that the testator was not the last known possessor of the original Will, thereby invoking the presumption of revocation. When "it is unclear as to whether the testator was in possession of the original will prior to his death or whether it remained in the custody of the attorney-draftsman following its execution . . . the proponent[] [has] failed to establish the critical fact of nonrevocation of the will, and accordingly the Surrogate [may] properly den[y] its admission to probate" (Matter of Gray, 143 AD2d 751, 752 [1988]).

(B)

The only witness to testify at the hearing was Judge Andrew LoTempio [hereafter, Judge LoTempio], who, before taking the bench, shared a law office with Jordan for twelve years. Judge LoTempio testified that he had been a close colleague, albeit not a partner, of Jordan's until Jordan's death on January 8, 2019. Judge LoTempio testified that, while they shared an office, he regularly referred cases for Will drafting to Jordan. Judge LoTempio also outlined Jordan's common practice with respect to original Wills:

"Q: Can you tell us what Mr. Jordan's practice was regarding original wills?

A: I know that he usually would have them filed here in the Surrogate's Court, not all the time, but often would have them filed here in the Surrogate's Court, but would give copies or originals to his client and then keep copies or originals in the office in files" (emphasis added).

Counsel then requested that Judge LoTempio review an affidavit he, Judge LoTempio, had provided in this matter:

"Q: Okay, and in this document you sort of set forth Mr. Jordan's practice regarding the [*2]storage of original last Wills and Testaments on behalf of clients, is that correct?

A: Yes.

Q: All right. And in this affidavit you indicated that it was Mr. Jordan's practice to store original wills on behalf of clients?

A: Yes.

Q: All right. And it's my understanding that the facility where Mr. Jordan and you had stored documents came to be destroyed at some point. Is that right?

A: Right. So as I previously stated, Mr. Jordan and I had practiced law separately for a number of years, but then when we joined our practices under the same roof, I had come to learn that he kept all his older files at a storage facility in the First Ward of Buffalo, the Old First Ward on — I believe it was Louisiana Street in what used to be the BarcaLounger factory. So all of his files were stored there. I would help him bring files there and saw all of his older files in cabinets and boxes there and I, as they got too voluminous to keep in the office, would also store my own files there.

Q: And that was at 225 Louisiana Street?

A: Yes.

Q: Okay. And was 225 Louisiana Street at some point destroyed due to a roof collapse?

A: Yes. . . . Sometime during 2017/2018 shortly after or right around the time that Mr. Jordan passed away, the roof collapsed on the building and all of our files, both his and mine, were destroyed by either water or construction debris . . . .

Q: And you indicated in your affidavit that you reasonably believed that the original will of Peter M. Gornicki dated May 18, 1992 was destroyed in that roof collapse, is that correct?

A: That would be my recollection because he did have all his boxes marked and in stacks according to years and I do know that the years went all the way back to 1991 on his files and for me they went back to 2004" (emphasis added).

With respect to whether Jordan had actual records of what files were kept in the storage facility, Judge LoTempio testified as follows:

"THE COURT: I actually have a question for you, Mr. LoTempio. Do you know, was there a record of what files were in those boxes that were stored at the Louisiana Street facility?

WITNESS: Whether there was a log kept by Mr. Jordan or not?

THE COURT: Yes.

WITNESS: I don't know the answer to that because as I said, we were not — we were not partners. We shared an office and were very close friends, so although I helped him take the boxes over there, I don't know if he kept a journal of what was over there.

THE COURT: Do you have any idea as to who, if anyone else, might know?

WITNESS: No, I don't" (emphasis added).

(C)

When a decedent's original Will cannot be located following his death, a copy of that Will may, under certain circumstances, be admitted to probate. Here, there is no proof whatsoever that decedent never had the original Will in his possession and did not revoke the original Will. As Judge LoTempio testified, Jordan "often would have [Wills] filed here in the Surrogate's Court, but would give copies or originals to his client and then keep copies or originals in the office in files" (emphasis added). No log or record of the files kept at the storage facility was available to corroborate the allegation that decedent's Will was in the facility when it was destroyed. Proponent's assertion that the original Will was destroyed while in the storage facility on 225 Louisiana Street is based upon "mere speculation or suspicion" (Matter of DiSiena, 103 AD3d 1077, 1078-1079 [2023]).

Based on the facts and circumstances presented to this Court, the copy of decedent's Will cannot be admitted to probate pursuant to SCPA 1407, and probate of that propounded instrument is hereby denied. The preliminary letters previously issued must be and they hereby are, revoked.

Finally, I direct that all parties and counsel appear before the undersigned on Tuesday, August 5, 2025, at 9:30 a.m., to determine what steps need to be taken next to bring this estate to conclusion.

This decision shall constitute the Order and Decree of this Court and no further decree or order shall be required.

DATED: July 24, 2025

Buffalo, New York

HON. ACEA M. MOSEY

Erie County Surrogate Judge