Cutting It Short: Motions For Summary Judgment

April 20, 2020

Motions for summary judgment are often utilized in the Surrogate’s Court to crystallize issues and reach a quick result in a litigation. While generally invoked in contested probate proceedings, summary relief has also been the subject of contested construction proceedings, and proceedings to fix and determine a claim against an estate. Consider the following:

Order Denying Summary Judgment Affirmed

In Matter of Penick, N.Y.L.J., Feb. 10, 2020 (1st Dept.), the Appellate Division, First Department, affirmed an Order of the Surrogate’s Court, New York County (Mella, S.), which denied petitioner’s motion for summary judgment dismissing objections to probate of a will purportedly executed by his spouse.

The court held that the Surrogate’s Court had properly denied petitioner’s motion since the record presented disputed issues of fact as to whether the document offered for probate was duly executed by the decedent in accordance with the provisions of EPTL 3-2.1. Although the petitioner submitted affidavits and testimony of the witnesses to the execution of the one-page instrument purporting to be the decedent’s will, the court found their accounts to be inconsistent as to where and when they signed the document.

Ilene Sherwyn Cooper is a partner with Farrell Fritz, P.C. in Uniondale, where she concentrates in the area of trusts and estates. She is the past-chair of the New York State Bar Association’s Trusts and Estates Law Section.

Reprinted with permission from New York Law Journal, Monday, April 6, 2020, Vol 263 – No. 65

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