        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

599
CA 14-01308
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, AND VALENTINO, JJ.


IN THE MATTER OF PROBATE OF THE LAST WILL
AND TESTAMENT OF ROBERT BODKIN, ALSO KNOWN AS
ROBERT C. BODKIN, DECEASED.
------------------------------------------------   MEMORANDUM AND ORDER
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.


     Appeal from an order of the Surrogate’s Court, Erie County
(Barbara Howe, S.), entered March 28, 2014. The order granted the
motion of petitioner for summary judgment dismissing the objections to
probate.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     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
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                                                         CA 14-01308

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 NY2d 437, 445-446).
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 AD2d 378, 379). 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 AD2d 909, 910;
Transcontinental Constr. Servs. v McDonough, Marcus, Cohn & Tretter,
216 AD2d 19, 19; cf. Cooley v Brooks, 210 AD2d 951, 952). 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 AD2d 906,
906; Nemia v Nemia, 124 AD2d 407, 408, lv denied 69 NY2d 611).

     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 AD3d 1805, 1805-1806; Amherst Synagogue v
Schuele Paint Co., Inc., 30 AD3d 1055, 1056-1057).

     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 NY2d 691, 692, rearg denied 67 NY2d 647). Second,
petitioner established that the will was not procured by undue
influence (see generally Matter of Walther, 6 NY2d 49, 53-54; Matter
of Panek, 237 AD2d 82, 84).

     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
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                                                         CA 14-01308

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 AD3d 860, 861; Matter of Van Patten, 215
AD2d 947, 950-951, lv denied 87 NY2d 802; see generally Kumstar, 66
NY2d at 692). 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 AD3d 1382, 1383; see Matter of Rottkamp, 95 AD3d
1338, 1340; see generally Walther, 6 NY2d at 55-56).

     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 AD2d 984, 984).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
