Opinion
No. CA 09-01965.
May 7, 2010.
Appeal from an order of the Surrogate's Court, Ontario County (Frederick G. Reed, S.), entered June 24, 2009. The order, insofar as appealed from, denied in part petitioners' motion for summary judgment.
CROUCHER AND JONES, CANANDAIGUA (WALTER W. JONES, JR., OF COUNSEL), FOR PETITIONERS-APPELLANTS.
PHILLIPS LYTLE LLP, ROCHESTER (CHAD W. FLANSBURG OF COUNSEL), FOR RESPONDENT-RESPONDENT.
Present : Scudder, P.J., Centra, Carni, Sconiers and Pine, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioners appeal from an order denying that part of their motion for summary judgment dismissing respondent's objection to probate of decedent's will based on undue influence. We affirm.
Petitioners met their initial burden by establishing that the will was the product of the personal relationship of petitioner Cindy Bagley with decedent, including his affection for her and gratitude for her having cared for him ( see generally Matter of Branovacki, 278 AD2d 791, 792, lv denied 96 NY2d 708; PJI 7:55). Indeed, Bagley served as the sole caretaker of decedent for approximately two years prior to his death. In opposition to the motion, however, respondent submitted circumstantial evidence of a substantial nature sufficient to raise a triable issue of fact whether Bagley actually wielded undue influence ( see Matter of Johnson, 6 AD3d 859, 861; see generally Branovacki, 278 AD2d at 792).