Opinion
July 6, 1993
Appeal from the Surrogate's Court, Westchester County (Brewster, S.).
Motion by the respondents William T. Tracy, Marilyn N. Tracy, Ronald M. Blau, Anne Tracy Bricker, and William Crandall to dismiss the appeal on the ground that prior appeals from intermediate decrees were dismissed for lack of prosecution.
Ordered that the motion is granted, and the appeals by all appellants except Lighthouse, Inc., are dismissed; and it is further,
Ordered that on the appeal by Lighthouse, Inc., the decree is reversed insofar as appealed from, on the law, and the matter is remitted to the Surrogate's Court, Westchester County, for further proceedings consistent herewith, and it is further,
Ordered that the appellant Lighthouse, Inc., is awarded one bill of costs, payable by the respondents.
We note at the outset that all of the appellants herein except the Lighthouse, Inc., were parties to prior appeals from intermediate decrees in this proceeding. Those appeals were dismissed by this Court for lack of prosecution by decision and order on motion dated September 12, 1989. Since the same issues raised on these appeals from the final decree could have been raised on appeal from the intermediate decrees, the parties to those prior appeals are precluded from seeking relief on this appeal (see, Bray v. Cox, 38 N.Y.2d 350, 355; Matter of Smith v McManus Sons, 101 A.D.2d 890). Disposition of the appeal by Lighthouse, Inc., however, requires that all of the appellants reap the benefits of our decision (see, Hecht v. City of New York, 60 N.Y.2d 57, 62).
The Surrogate improperly denied the motion by the petitioner Shirley C. Sigler and the appellant charities for a directed verdict on the issue of undue influence, since the evidence was insufficient to establish that Dorothy Ennis Tracy's exercise of the testamentary appointment was the result of undue influence (see, CPLR 4401). It is insufficient to raise a question of fact as to undue influence to demonstrate motive and opportunity without a showing that such influence was actually exercised (see, Matter of Fiumara, 47 N.Y.2d 845, 846; Matter of Walther, 6 N.Y.2d 49, 55; see also, Matter of Bianco, 195 A.D.2d 457 [decided herewith]). The inference of undue influence which could have been drawn from the fact that the petitioner, who was the drafter of Dorothy Tracy's will, was also a legatee of the will (see, Matter of Putnam, 257 N.Y. 140; Matter of Delorey, 141 A.D.2d 540), was rebutted by evidence that the petitioner had been a legatee under prior wills which were not drafted by the petitioner (see, Matter of Kemble, 149 A.D.2d 899). The remaining evidence was insufficient to prove that the petitioner exercised undue influence over Dorothy Tracy.
In light of our decision, we need not address the appellant's remaining contentions. Bracken, J.P., Ritter, Copertino and Santucci, JJ., concur.