In re the Estate of Allen

Dec 29, 1994
Versions:210 A.D.2d 856
621 N.Y.S.2d 138
1994 N.Y. App. Div. LEXIS 13239
Mercure, J.

Appeal from an order of the Surrogate’s Court of Tompkins County (Sherman, S.), entered May 31, 1994, which denied petitioner’s motion for summary judgment striking the objections to probate of decedent’s last will and testament.

Petitioner is the executor designated in an April 29, 1992 will of Edith B. Allen (hereinafter the decedent), who died a resident of Tompkins County on March 14, 1993. Petitioner filed a petition for probate of the will and respondent, a distributee, filed objections to probate, alleging, as limited by her bill of particulars, that the will was procured by undue influence practiced upon the decedent by petitioner. Following the examination under oath of the attesting witnesses to the will, petitioner moved for summary judgment striking the objections to probate and directing the entry of a decree admitting the will to probate. Surrogate’s Court denied the motion and petitioner appeals.

We reverse. Petitioner supported the motion with his affidavit and the transcript of testimony of the attesting witnesses, establishing prima facie that petitioner practiced no undue influence upon the decedent. The only paper submitted in opposition to the motion was respondent’s bill of particulars, verified by her attorney, a person with no personal knowledge of the particulars stated therein (see, Zuckerman v City of New York, 49 NY2d 557, 563). In addition, the particulars are so conclusory and devoid of detail that they would not have satisfied respondent’s burden even if verified by a person with actual knowledge of the underlying facts (see, Matter of Cioffi, 117 AD2d 860). Under the circumstances, Surrogate’s Court erred in denying petitioner’s motion.

Cardona, P. J., White, Casey and Peters, JJ., concur. Ordered that the order is reversed, on the law, with costs, motion granted, objections stricken and matter remitted to the Surrogate’s Court of Tompkins County for further proceedings not inconsistent with this Court’s decision.