Opinion
Argued October 5, 1999
November 8, 1999
The Wirth Law Firm, P.C., White Plains, N.Y. (John C. Wirth, Jr., of counsel), for appellant.
DAVID S. RITTER, J.P., FRED T. SANTUCCI, WILLIAM C. THOMPSON, GLORIA GOLDSTEIN, JJ.
DECISION ORDER
In a contested probate proceeding, the petitioner appeals from a decree of the Surrogate's Court, Westchester County (Emanuelli, S.), dated August 31, 1998, which, upon a jury verdict finding that the will was procured by undue influence, and upon the denial of her motion pursuant to CPLR 4404 to set aside the verdict and for a decree admitting the will to probate, denied the admission of the will to probate.
ORDERED that the decree is affirmed, without costs or disbursements.
The claim of the appellant, the proponent of the contested will, that it was an improvident exercise of discretion for the Surrogate to deny her request to present rebuttal testimony, is unpreserved for appellate review (see, CPLR 5501[a] [3]). In any event, the claim is without merit since the testimony of the appellant's rebuttal witness would have concerned a collateral issue (see, Feldsberg v. Nitschke, 49 N.Y.2d 636 ; Coopersmith v. Gold, 223 A.D.2d 572, affd 89 N.Y.2d 957 ; Baumis v. General Motors Corp., 106 A.D.2d 789, 790, affd 66 N.Y.2d 777 ; Hutchinson v. Shaheen, 55 A.D.2d 833, 834 ).
The appellant's additional claim that the jury verdict was against the weight of the evidence is without merit. It is well settled that a verdict should not be set aside as against the weight of the evidence unless the evidence so predominated in favor of the moving party that the verdict could not have been reached on any fair interpretation of the evidence (see, Lolik v. Big V Supermarkets, 86 N.Y.2d 744 ; Calafiura-Ehrlich v. Spiros Systems, 259 A.D.2d 580 [2d Dept., Mar. 15, 1999]; Nicastro v. Park, 113 A.D.2d 129 ). The determination that the contested will was procured by the exercise of undue influence over the decedent was not against the weight of the evidence (see, Matter of Moran, 261 A.D.2d 936 [4th Dept., May 7, 1999]; Matter of Antoinette, 238 A.D.2d 762 ; Matter of Itta, 225 A.D.2d 548 ; Matter of Bach, 133 A.D.2d 455 ; Matter of Collins, 124 A.D.2d 48, 53 ; Matter of Elmore, 42 A.D.2d 240, 242 ).
The appellant's remaining contentions are unpreserved for appellate review and, in any event, are without merit.
RITTER, J.P., SANTUCCI, THOMPSON, and GOLDSTEIN, JJ., concur.