Opinion
540P2003.
Decided October 4, 2004.
Greenfield Stein Senior, LLP, New York, NY, Attorneys for Petitioners.
William J. Eppig, Esq., West Islip, NY, Attorney for Respondents.
Michael K. Feigenbaum, Esq., Uniondale, NY, Guardian ad Litem.
In the context of the captioned contested proceeding, petitioners, as preliminary executors for the estate of Julie-Ann Low ("decedent"), have moved, by order to show cause, for summary judgment dismissing objections to probate. Petitioners previously moved to probate a document dated January 13, 1997 which purports to be decedent's last will and testament. That petition included a request to disqualify a beneficiary under the terms of the document, on the ground that said beneficiary was responsible for decedent's death. Respondents, as administrators of the estate of the beneficiary petitioners seek to disqualify, have submitted an affidavit in opposition and petitioners have replied. Both parties have supplied the court with memoranda of law. After the return date of the motion certain additional "exhibits" were submitted by counsel for respondents over petitioners' objections.
Decedent died as a result of stab wounds to her neck and chest. Her body was discovered on February 2, 2003, the date listed on the death certificate, although severe decomposition was evident. The body of a person known to decedent, Giulio Romano ("Romano"), was also discovered, at the same location. His death was later determined to have been caused by a self-inflicted knife wound to his neck. Romano was a beneficiary under decedent's will. Petitioners allege that the evidence submitted, in support of their motion, demonstrates that Romano killed decedent before committing suicide and, therefore, they seek to disqualify Romano's estate from receiving certain bequests under the terms of decedent's will.
Respondents argue, in part, that because there has been no adjudication by a tribunal of competent jurisdiction that Romano intentionally murdered decedent, there is insufficient evidence to establish same. Specifically, respondents contend that police reports generated during the criminal investigation do not exclude the possibility that a third party may have been responsible for the deaths nor do the reports address certain defenses to murder, including "extreme emotional disturbance." Respondents also contend that, shortly before his death, Romano complained of ill health and, therefore, behavioral changes immediately preceding his death may have been attributable to prescribed medications. The discharge summary from a four day hospital stay in November, 2002, submitted in support of that contention, indicates Romano experienced high blood pressure and was discharged with "present medications". He was again treated, as an emergency room patient, on December 29, 2002. Respondents suggest that this later visit may have been prompted by a reaction to medication which, in turn, may have affected his mental state. However, other than medical records generated in connection with these events, no other support for this assertion has been produced. Questions were also raised by respondents about the presence of blood staining in other locations within the house, the positions of the bodies and the fact that another knife was found on the kitchen counter. Finally, respondents note that it is their belief that a home owned jointly by decedent and Romano was purchased, in part, with funds obtained by Romano from the proceeds of another property.
Petitioners characterize respondents' affidavit as nothing more than speculation and unsubstantiated allegations which do not rise to the level of triable issues of fact, and therefore, are insufficient to defeat a motion for summary judgment.
CPLR 3212(b) instructs, in pertinent part, that a motion for summary judgment is to be granted if "upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing the judgment in favor of any party . . . The motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact."
Here the central issue of whether Romano's estate remains a beneficiary under decedent's will is resolved by the answer to the question: Was he responsible for intentionally causing her death? The Court of Appeals in Riggs v. Palmer 115 NY 506, relied upon by petitioner here, answered in the negative the question: Can one who willfully causes the death of another claim property left to him under his victim's will? Respondents note that, in Riggs, a jury made the determination that the accused was, in fact, guilty. Here such adjudication has been rendered impossible by Romano's alleged suicide. Documents submitted by petitioner, however, chronicle a thorough investigation by homicide detectives which led them to conclude that Romano murdered decedent; the case was closed upon this premise. A piece of paper recovered at the scene appeared to be a note penned by Romano foretelling the acts which were to follow and, in part, articulated a motive. It also appears that, in death, the pair were positioned next to each other. There were no signs of forced entry thus undermining the theory posited here that there may have been a culpable third party. The fifteen stab wounds suffered by decedent were inflicted by the same knife Romano used to kill himself, which was found embedded in his neck. A report by a supervising homicide detective sergeant assigned to the case dated March 1, 2003 concluded: ". . . [I]t is the undersigned detective's opinion that Giulio Romano stabbed Julie-Ann Low to death, then stabbed himself to death." Further, a report to detectives by an assistant medical examiner described at least one of the wounds inflicted on decedent's finger was an apparent "defensive" wound. On the other hand, a report submitted to the court (albeit late) by an investigator for respondents offers a somewhat different hypothesis for the events which preceded the deaths and raises a question about the "self-inflicted" nature of Romano's injuries. Specifically, it was suggested that since Romano was right handed a knife wound to the right side of his neck was "an unusual" manner of committing suicide. Respondents also suggest that certain defenses to the crime of murder may have been proffered had there been a criminal trial including extreme emotional disturbance. In support of that proffer, respondent's point to the temporal proximity of Romano's hospital visits.
The standard here is whether respondents have raised a triable issue of fact. Based upon the submissions before it, the court can only conclude that they have not. Essentially nothing more than conclusory allegations and speculation have been presented (See e.g. Matter of Spangenberg , 248 AD2d 543). Therefore, the motion to dismiss the objections to that portion of the petition which seeks to disqualify Romano's estate is granted.
Jurisdiction with regard to the probate petition is complete. The guardian ad litem appointed to represent the interests of unknown distributees has submitted his report and is not opposed to the admission of the proffered document to probate. Upon review of all papers filed herein, the court finds that the propounded instrument was duly executed and at the time of execution, decedent was in all respects competent to make a will and not under restraint. The genuineness of the will and the validity of its execution having been shown to the satisfaction of the court, it is admitted to probate (SCPA 1408, EPTL 3-2.1).
Accordingly, letters testamentary shall issue to petitioners herein, upon qualification without the posting of a bond, according to law. Further, preliminary letters testamentary issued by decree of this court dated April 10, 2003 are herewith revoked.
Decree signed.