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Decided on March 21, 2007
Sur Ct, Suffolk County

1519 P 2001
Platzer, Swergold, Karlin, Levine, Goldberg & Jaslow LLP Attn: Ralph Hochberg, Esq. Attorney for Petitioner 1065 Avenue of the Americas, 18th Floor New York, NY 10018 Estate of Jerry M. Kubecka, deceased. Rosenberg Calica & Birney LLP Attn: Edward M. Ross, Esq.
Attorney for Objectant, Carol DePew
100 Garden City Plaza, Suite 408
Garden City, NY 11530
John M. Czygier, J.
In the context of captioned contested probate proceeding, petitioner in the underlying proceeding has moved, pursuant to CPLR 3212, for summary judgment, and respondent, objectant in the underlying proceeding, has submitted an affirmation in opposition to the relief sought and has cross-moved for an order granting leave to conduct additional discovery. Each party has replied to the respective motions.
For the reason stated herein the motion for summary judgment is denied in part and granted in part and the motion for additional discovery is denied.
Background
Petitioner, decedent's second wife, is the nominated executor in a document offered for probate dated November 8, 2000. She is presently serving as preliminary executor pursuant to an order of this court dated March 31, 2005. Objections to the proffered document were initially filed by decedent's two children and two grandchildren, children of a predeceased son. Respondent, decedent's daughter, is the only remaining objectant.
Decedent and petitioner were civilly married on April 17, 2000. That ceremony was followed two months later by a religious service. Decedent died on May 23, 2001. During the year prior to [*2]his death decedent executed three wills, each supervised by his long-time attorney. A will executed in January, 2000 left a relatively modest monetary bequest to petitioner and the balance of decedent's estate to his daughters and his grandchildren. In July of 2000 decedent gave petitioner a power of attorney, and in August, 2000, he executed a will which granted petitioner his residuary estate after bequests to his grandchildren and petitioner's mother and daughter and son-in-law. Finally, in November, 2000, decedent executed the document at issue which again named petitioner as residuary bene DecisionPage
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ficiary after bequests to his brother, nephew and petitioner's relatives. It did not name his grandchildren or his children.
Decedent was seventy-eight years old when he died, apparently of a heart attack. He had been in the carting business and, in a widely reported crime in 1989, his son and son-in-law, who were in business with him, were[*3] murdered while cooperating with federal authorities in an ongoing investigation involving the carting industry. Ultimately, several individuals related to the victims, including decedent, received significant awards in connection with a wrongful death action brought against the government.
Respondent initially claimed that decedent lacked testamentary capacity at the time he executed the will, that it was not properly executed and that it was the product of both undue influence and fraud. The objection as to lack of capacity has been withdrawn. Petitioner's request for summary judgment as to that objection, therefore, has been rendered moot.
In support of the remaining objections, respondent points to several factors which, she contends, contributed to decedent's vulnerability to the undue influence allegedly practiced upon him by petitioner. Those factors include, inter alia, decedent's declining health in the years following the murders of his son and son-in-law and the profound grief he suffered after the death of his spouse of many years in 1990. She also contends that petitioner was in a confidential relationship with decedent evidenced in part by certain property transfers made to her by him.
Decedent apparently met petitioner in 1997 and they married approximately three years later. There were, apparently two marriage ceremonies. The first, according to respondent, was a "secret" ceremony attended only by decedent's attorney and petitioner's mother. Respondent alleges that it was petitioner's [*4]intention to keep decedent's family uninformed as to petitioner's intentions, including, one month after the wedding, the addition of petitioner's name to the deed to decedent's home. Shortly thereafter, the pair married in a religious ceremony attended by various family members including respondent. At around the same time several transactions involving decedent and DecisionPage
Estate of Jerry M. Kubecka, deceased.
petitioner took place including the transfer of some of decedent's property to petitioner and the purchase by decedent of several annuities naming petitioner as beneficiary. It is claimed that petitioner isolated decedent from his family but that despite those efforts, respondent made repeated attempts to contact and visit with decedent during the time he was married to petitioner.
In an effort to further substantiate her allegations, respondent seeks to conduct further depositions of petitioner, the attorney/draftsman of the will and petitioner's daughter. An earlier application to reopen document discovery was granted by this court. That relief was granted without prejudice to permit further application in the[*5] event further deposition discovery was warranted. That additional discovery is now sought. Specifically, as to petitioner, respondent wishes to inquire as to why the engagement and civil wedding were not disclosed to decedent's family. Respondent also wishes to inquire about the nature and extent of communications between decedent and his children and grandchildren after his marriage; whether petitioner ever utilized the power of attorney; the circumstances surrounding the determination to name petitioner's daughter as contingent beneficiary of decedent's estate; and petitioner's knowledge of the changes contained in the November 2000, particularly the clause disinheriting decedent's children and grandchildren.
Petitioner, in her affidavit in support of her motion for summary judgment, describes her relationship with decedent, who died approximately one year after their marriage. Petitioner professes ignorance about decedent's finances and alleges that he managed his business affairs in consultation with his long-time attorney, who also served as the draftsman of his wills. She states that decedent took various steps to ensure her financial security including placing her on his bank accounts and establishing annuities for her. He also transferred real property to her. She alleges that she learned the contents of the August, 2000 will the day it was executed. She also notes that she was present with decedent at his attorney's office on the day the November, 2000 will was executed. She claims that she was not [*6]initially aware of decedent's health issues until a year after they met and that she believed him to be strong both physically, intellectually and emotionally despite those concerns.
As to the claim of undue influence, petitioner contends that the only evidence proffered in support of that claim are conclusory allegations which are insufficient.

Discussion
Petitioner essentially claims that respondent has failed to articulate triable issues of fact in support of her claim of undue influence but relies solely on circumstantial evidence and conclusory assertions. Those claims include an alleged secret marriage between decedent and petitioner, petitioner's control over decedent's medical issues, decedent's poor health, the contents of a prior will and correspondence which, respondent argues, would tend to belie petitioner's assertions concerning the level of communication between petitioner and decedent with respondent. Further, petitioner argues that the additional discovery sought by respondent is abusive inasmuch as extensive depositions have previously been conducted and that this Court has already permitted additional document discovery despite the fact that the matter had been certified for trial by prior counsel.
Respondent asserts, iter alia, that it is generally difficult to establish undue influence without [*7]the use of circumstantial evidence. She cites various factors which, she claims, demonstrate that a confidential relationship existed between decedent and petitioner. According to respondent those factors include her assertion that she and her immediate family were not, despite petitioner's protestations to the contrary, estranged from decedent, and that petitioner, who was significantly younger than decedent and "twice divorced" with few financial resources, began, shortly after meeting decedent, to "control" virtually all aspects of his life including his medical care and his social activities. Respondent also points to petitioner's testimony, given in an examination before trial, in which she indicated that she had been advised that decedent "had . . . a year" to live in October, 1998
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and notes that shortly thereafter, petitioner and decedent became engaged to be married. Respondent also implicates decedent's attorney in an ongoing effort to unduly influence decedent during the year preceding his death. The actions of the attorney are alleged to have been, in concert with petitioner, the transfer of [*8]various pieces of property to petitioner as well as the execution of a power of attorney. It remains unclear as to what extent, if any, that power of attorney was exercised or what motives the attorney may have had to participate in a scheme to unduly influence the decedent. The attorney, during his pretrial deposition, denied preparing it. Respondent through counsel acknowledged that the newly obtained medical records do not support a finding that decedent lacked capacity at the time the document was executed but does argue that his weakened state rendered him vulnerable to the undue influence of his wife and his attorney.
At the outset it should be noted that there appears to be no supportable claim that decedent was deceived into executing the will or that it was not properly executed. Indeed, the request for additional discovery is predicated upon the alleged need to obtain additional discovery to support the claim of undue influence. Accordingly, the request to dismiss the objections to probate as to the claims of due execution and fraud is granted. However, both petitioner's request for summary judgment as to the claim of undue influence, and respondent's request for additional discovery are denied for the reasons set forth below.
As has been noted by commentators, over the past decade the pendulum has swung from courts rarely granting summary judgment motions by petitioners in probate proceedings to a fairly frequent grant of such relief (Gibbs and Carew, On the Increased Granting of Summary Judgments in Will Contests, NYLJ, August 17, 2001, at 3, col 1). CPLR 3212 instructs that a motion for summary judgment is to be granted if "upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing the judgment in favor of any party . . . the motion shall be denied if[*9] any party shall show facts sufficient to require a trial of any issue of fact." Summary judgment has been shown to be
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appropriate when a proponent has set forth a prima facie case and an objectant, after having had the opportunity for full disclosure, asserts only bald, conclusory allegations (see Matter of Estate of Parravani, 211 AD2d 965). Despite the increased willingness of Surrogate's Courts to grant summary judgment in contested probate proceedings, allegations of undue influence are more apt to require an evidentiary hearing (see e.g. Matter of Crissy, NYLJ, October 26, 2005, at 31, col 6).
The burden of establishing undue influence is always upon the [*10]party seeking to establish it (Matter of Walther, 6 NY2d 49). It has been eloquently expressed that "[i]t is impossible to define or describe with precision and exactness what is undue influence; what the quality and extent of the power of one mind over another must be to make it undue, in the sense of the law, when exerted in making a will." (Rollwagen v Rollwagen, 63 NY 504, 519). Factors which will be examined when determining whether a testator was subjected to undue influence include his physical and mental condition (see Matter of O'Brien, 182 AD2d 1135). Conversely, one who is capable of acting independently is unlikely to be susceptible to the exercise of undue influence (see Matter of Mahnken, 92 AD2d 949). Also relevant to a finding of undue influence is a change in one's testamentary plan from a prior will (see Matter of O'Donnell, 91 AD2d 698).
The pictures of decedent presented by the respective parties are vastly different. Petitioner describes a man who, despite various physical issues primarily related to a cardiac condition, was an independent, successful businessman, who knew his own mind. She also alleges that decedent became estranged from members of his family, stating that there was limited contact with them after the marriage. Respondent, as noted above, maintains that her father was highly susceptible to the designs of petitioner both before and[*11]
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during her marriage to him.
It is indisputable that decedent executed three wills in very short order during the period just prior to and during his marriage of thirteen months. Those documents progressively diminished his children's interest in his estate while increasing petitioner's interest. Decedent, according to the documentation supplied by respondent, suffered from acute cardiac difficulties. Indeed, petitioner acknowledged in her affidavit in support of her motion to dismiss the objections to probate that during their relationship, decedent "sought treatment at various hospitals relating to an abscess that would not heal and problems with his pacemaker." In her affidavit in support of this motion, Petitioner states that she drove decedent to his attorney's office to execute the November 2000 will. However, petitioner counters respondent's assertion that the "secret" wedding evinced an effort to isolate decedent from his family with the observation that the religious ceremony which took place shortly thereafter was attended by respondent and other members of decedent's family, thus undermining any claim that it was in furtherance of a campaign to unduly influence decedent. Respondent notes that in several instances [*12]petitioner's statements in her affidavit in support of her motion for summary judgment are at odds with her deposition testimony and therefore, the former should not be considered by the Court. When, as in this instance, a case may turn on the credibility of witnesses, summary judgment is not appropriate (see Matter of McLaughlin, NYLS, January 18, 2001, at 32, col 6).

Conclusion
As noted above, undue influence is a subtle concept. It is as variable as the cases in which it is alleged to exist. Here, although sufficient evidence has been presented to establish that decedent was capable of executing a will, the question remains as to whether that document was the result of the exercise of undue influence and hinges both on the credibility of various witnesses and evidence of a circumstantial nature. Accordingly, the motion to dismiss the objection as to undue influence must be denied.
Finally, the request to conduct further, limited depositions of petitioner, the attorney-draftsman and petitioner's daughter is denied. The Court is mindful of its duty to strike a balance between the potential for harassment[*13] with the requirement of permitting liberal disclosure (see Matter of Halpin, NYLJ, January 30 1991, at 23, col 4). It is incumbent upon the party seeking reexamination to establish that the information which he seeks to elicit was either heretofore unavailable or that new facts have come to light which necessitate further examination (see Petraglia v. Laiacona, 86 AD2d 747). It bears noting that such reexamination may not be justified to clarify discrepancies in a witness's testimony(see Matter of Perrell, NYLJ, May 2, 1989, at 30
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col 6). Petitioner was extensively examined during her deposition about all aspects of her marriage to decedent, any financial transaction which she had with decedent, and the nature of her relationship with decedent's children. The attorney-draftsman specifically answered questions posed to him which respondent now wishes to have him amplify. It is clear, however, from a review of his deposition testimony, that the attorney, who was admitted to practice in January 1936, has little, if any, recollection of the preparation and execution having to do with the documents he prepared for decedent. Finally, there does not appear to any basis to examine petitioner's daughter. The matter is set down for conference on April 12, 2007, at 9:30 a.m.
The foregoing constitutes the decision and order of the court. [*14]
March 21, 2007

JOHN M. CZYGIER, JR., Surrogate

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