

Matter of Neller (2015 NY Slip Op 05480)





Matter of Neller


2015 NY Slip Op 05480


Decided on June 24, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 24, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
L. PRISCILLA HALL
LEONARD B. AUSTIN
SANDRA L. SGROI, JJ.


2013-10584

[*1]In the Matter of Mary Neller, deceased. Georgianna E. Neller, appellant; Paul P. Neller, et al., respondents. (File No. 733/11)


John Newman, Huntington, N.Y., for appellant.
John Z. Marangos, Staten Island, N.Y., for respondents.

DECISION & ORDER
In a probate proceeding, the petitioner appeals, as limited by her brief, from so much of an order and decree (one paper) of the Surrogate's Court, Richmond County (Gigante, S.), dated August 13, 2013, as, in effect, searched the record and awarded summary judgment to the objectants denying the petition to admit the document alleged to be the decedent's will to probate.
ORDERED that the order and decree is reversed insofar as appealed from, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Surrogate's Court, Richmond County, for further proceedings on the petition.
Georgianna E. Neller, a daughter of Mary Neller, deceased (hereinafter the decedent), petitioned to admit a document alleged to be the decedent's will to probate. Paul P. Neller, the decedent's son, and Frances Valek, another daughter of the decedent (hereafter together the objectants) filed objections to probate and moved for temporary limited letters of administration. Although the objectants had not moved for summary judgment dismissing the petition, the Surrogate's Court, in effect, searched the record and awarded them summary judgment denying the petition on the ground that the petitioner would be unable to prove that the formal requirements for execution and attestation had been satisfied (see EPTL 3-2.1).
The Surrogate's Court erred in, in effect, awarding summary judgment to the objectants denying the petition to admit the will to probate. The will was not invalid on its face (see EPTL 3-2.1; Matter of Dujenski, 147 AD2d 958, 958-959), and the Surrogate's Court had not afforded the petitioner an opportunity to meet her burden of establishing that the will had been duly executed (see SCPA 1405[4], 1408; Matter of Falk, 47 AD3d 21, 25-26; cf. Matter of Yen, 127 AD3d 1466; Matter of Levy, 169 AD2d 923, 924).
BALKIN, J.P., HALL, AUSTIN and SGROI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


