Opinion
Decided May 2, 1985
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Marie Lambert, S.
Godfrey P. Schmidt, appellant pro se, and Kalman I. Nulman for Godfrey P. Schmidt, appellant.
Milton M. Rosenbloom for George J. Henke, respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.
Appellant, a lawyer, during 1977 prepared a will and codicil for decedent, then approximately 85 years old, in which appellant was named executor, his son substitute executor, and his stepdaughter — who had served as decedent's companion and housekeeper for some two years — the residual beneficiary of two thirds of the estate. Respondent, executor under decedent's 1973 will naming her nephew the principal beneficiary, filed objections, challenging decedent's competence to make the 1977 will and codicil, and alleging that they were procured by fraud and undue influence. Appellant's motion for summary judgment dismissing respondent's objections and recognizing appellant's status as executor was denied by the Surrogate, who found that there were questions of fact requiring trial. This order was affirmed by the Appellate Division which then, without any writing giving the benefit of the court's views on a presumably significant issue, simply certified to us the question, "Was the order of the Surrogate's Court, as affirmed by this Court, properly made?"
While summary judgment may be available in probate proceedings ( Matter of Pascal, 309 N.Y. 108), that remedy is inappropriate in any case where there are material issues of fact ( see, CPLR 3212 [b]). Here, in light of the disputed affidavits and testimony regarding decedent's condition and the circumstances surrounding the will and codicil, we cannot say that the Surrogate erred in the conclusion that there were triable issues relating to the matters raised by respondent's objections. While appellant also seeks to challenge the Surrogate's earlier order permitting respondent to file objections, that order is not before us. Where the jurisdictional predicate for an appeal to this court is a certified question, the appeal brings up for review "only the question or questions so certified". (NY Const, art VI, § 3 [b] [4].)
Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS and KAYE concur in memorandum; Judge ALEXANDER taking no part.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), on the appeal by Godfrey P. Schmidt, order affirmed, with costs, and question certified answered in the affirmative. Appeal by Lucille Genovese dismissed, without costs, upon the ground that no appeal lies as of right from the nonfinal order of the Appellate Division.