Opinion
599 CA 14-01308
05-08-2015
In the Matter of Probate of the Last WILL and Testament OF Robert BODKIN, also known as Robert C. Bodkin, Deceased Robin P. Graham, Preliminary Executor of the Estate of Robert Bodkin, also known as Robert C. Bodkin, Deceased, Petitioner–Respondent. Dawn Guetti and William J. Bodkin, Objectants–Appellants. New York State Attorney General's Office, Respondent. (Appeal No. 3.).
Gross, Shuman, Brizdle & Gilfillan, P.C., Buffalo (Leslie Mark Greenbaum of Counsel), for Objectants–Appellants. Phillips Lytle LLP, Buffalo (Alan J. Bozer of Counsel), for Petitioner–Respondent.
Gross, Shuman, Brizdle & Gilfillan, P.C., Buffalo (Leslie Mark Greenbaum of Counsel), for Objectants–Appellants.
Phillips Lytle LLP, Buffalo (Alan J. Bozer of Counsel), for Petitioner–Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, and VALENTINO, JJ.
Opinion
MEMORANDUM:Following the death of Robert Bodkin (decedent), petitioner filed a petition to probate decedent's will dated November 3, 2011. Objectants, a niece and nephew of decedent, filed objections contending, inter alia, that decedent lacked testamentary capacity at the time the will was executed and that the will was procured by undue influence. In appeal No. 1, objectants appeal from an order denying their motion to disqualify Phillips Lytle LLP (Phillips Lytle) from representing petitioner. In appeal No. 2, objectants appeal from an order denying their motion and supplemental motion to compel disclosure and, in appeal No. 3, objectants appeal from an order granting petitioner's motion for summary judgment dismissing their objections to probate.
We conclude in appeal No. 1 that Surrogate's Court properly denied objectants' motion to disqualify Phillips Lytle. The sole basis for the motion was the advocate-witness rule found in rule 3.7(b)(1) of the Rules of Professional Conduct (22 NYCRR 1200.0 ) (former Code of Professional Responsibility DR 5–102[b] [22 NYCRR 1200.21(b) ] ), which provides in relevant part that “[a] lawyer may not act as advocate before a tribunal in a matter if: ... another lawyer in the lawyer's firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client” (see generally S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 445–446, 515 N.Y.S.2d 735, 508 N.E.2d 647 ). Here, attorneys from Phillips Lytle drafted the will and witnessed its execution. A different attorney from Phillips Lytle is representing petitioner in this proceeding. It is well settled that the party seeking disqualification under the advocate-witness rule is “required to identify the projected testimony of the witness and show that it would be so adverse to the factual assertions or account of events offered on behalf of the client as to warrant his [or her] disqualification” (Martinez v. Suozzi, 186 A.D.2d 378, 379, 588 N.Y.S.2d 175 ). Upon our review of the papers submitted in support of the motion, we conclude that objectants failed to establish that any testimony from an attorney at Phillips Lytle would be prejudicial to petitioner (see Vecchiarelli v. Continental Ins. Co., 216 A.D.2d 909, 910, 628 N.Y.S.2d 892 ; Transcontinental Constr. Servs. v. McDonough, Marcus, Cohn & Tretter, 216 A.D.2d 19, 19, 627 N.Y.S.2d 636 ; cf. Cooley v. Brooks, 210 A.D.2d 951, 952, 621 N.Y.S.2d 975 ). To the extent that objectants raise additional grounds for disqualification for the first time on appeal, we conclude that those grounds are not preserved for our review (see Smothers v. County of Erie, 272 A.D.2d 906, 906, 707 N.Y.S.2d 577 ; Nemia v. Nemia, 124 A.D.2d 407, 408, 507 N.Y.S.2d 768, lv. denied 69 N.Y.2d 611, 517 N.Y.S.2d 1025, 511 N.E.2d 84 ).
Contrary to the contentions of objectants in appeal No. 2, the Surrogate did not abuse her discretion in denying the motion and supplemental motion to compel disclosure inasmuch as objectants failed to comply with the requirements of 22 NYCRR 202.7(a)(2) and (c) (see
Yargeau v. Lasertron, 74 A.D.3d 1805, 1805–1806, 904 N.Y.S.2d 840 ; Amherst Synagogue v. Schuele Paint Co., Inc., 30 A.D.3d 1055, 1056–1057, 816 N.Y.S.2d 782 ).
Finally, we agree with petitioner in appeal No. 3 that the Surrogate properly granted her motion for summary judgment dismissing the objections and admitted the will to probate. As objectants correctly concede, petitioner met her initial burden on the motion with respect to the two grounds raised by objectants. First, petitioner established that, at the time he executed the will, decedent was not suffering from any cognitive issues that would have affected his ability to understand “ ‘the nature and consequences of executing a will; ... the nature and extent of the property [he] was disposing of; and ... those who would be considered the natural objects of [his] bounty and [his] relations with them’ ” (Matter of Kumstar, 66 N.Y.2d 691, 692, 496 N.Y.S.2d 414, 487 N.E.2d 271, rearg. denied 67 N.Y.2d 647, 499 N.Y.S.2d 1031, 490 N.E.2d 558 ). Second, petitioner established that the will was not procured by undue influence (see generally Matter of Walther, 6 N.Y.2d 49, 53–54, 188 N.Y.S.2d 168, 159 N.E.2d 665 ; Matter of Panek, 237 A.D.2d 82, 84, 667 N.Y.S.2d 177 ).
Contrary to objectants' contention, they failed to raise a triable issue of fact on either ground. Although decedent was suffering from numerous health issues that would prove fatal and had been administered morphine over six hours before executing the will, objectants' speculation about the effects that the illnesses or prescribed medication may have had on decedent's testamentary capacity is insufficient to raise a triable issue of fact and prevent probate (see Matter of Eshaghian, 54 A.D.3d 860, 861, 863 N.Y.S.2d 781 ; Matter of Van Patten, 215 A.D.2d 947, 950–951, 627 N.Y.S.2d 141, lv. denied 87 N.Y.2d 802, 638 N.Y.S.2d 425, 661 N.E.2d 999 ; see generally Kumstar, 66 N.Y.2d at 692, 496 N.Y.S.2d 414, 487 N.E.2d 271 ). Here, the only evidence before the Surrogate was that decedent was lucid and alert at the time he executed the will.
With respect to undue influence, objectants submitted nothing more than speculation to support their allegations of undue influence, and it is well settled that “ ‘[m]ere speculation and conclusory allegations ... are insufficient to raise an issue of fact’ ” (Matter of Lee, 107 A.D.3d 1382, 1383, 966 N.Y.S.2d 629 ; see Matter of Rottkamp, 95 A.D.3d 1338, 1340, 945 N.Y.S.2d 394 ; see generally Walther, 6 N.Y.2d at 55–56, 188 N.Y.S.2d 168, 159 N.E.2d 665 ).
Finally, although objectants raised several other grounds for their objections before the Surrogate, they have failed to brief any issue concerning those grounds on appeal, and we therefore deem those issues abandoned (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.