Opinion
April 25, 1988
Appeal from the Surrogate's Court, Suffolk County (Copertino, S.).
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
Although an objectant in a proceeding in the Surrogate's Court may invoke the provisions for summary judgment (Matter of Pascal, 309 N.Y. 108), the granting of such relief is rare (Matter of Rounds, 47 Misc.2d 877). We find that a question of fact exists in this case as to whether the attorney draftsman merely guided the physically infirm testatrix's hand when she executed her will or whether he actually signed the will in her stead. The resolution of this issue is necessary before a determination can be made as to whether the document may be admitted to probate (see, EPTL 3-2.1; Rohan, Practice Commentary, McKinney's Cons Laws of N.Y., Book 17B, EPTL 3-2.1, at 327; Matter of Kearney, 69 App. Div. 481; Matter of Bitzer, 124 Misc. 432; cf., Matter of Helgesen, 80 Misc.2d 726). Kunzeman, J.P., Rubin, Eiber and Sullivan, JJ., concur.