Opinion
631 CA 22-01790
09-29-2023
In the MATTER OF the ESTATE OF Joan K. ALMENDINGER, Deceased. Sandra Flanders, Petitioner-Respondent; v. Charles Nilsson, Objectant-Appellant.
BRENNA BOYCE, PLLC, HONEOYE FALLS (DAVID C. SIELING OF COUNSEL), FOR OBJECTANT-APPELLANT. STAMM LAW FIRM, WILLIAMSVILLE (BRADLEY J. STAMM OF COUNSEL), FOR PETITIONER-RESPONDENT.
BRENNA BOYCE, PLLC, HONEOYE FALLS (DAVID C. SIELING OF COUNSEL), FOR OBJECTANT-APPELLANT.
STAMM LAW FIRM, WILLIAMSVILLE (BRADLEY J. STAMM OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: LINDLEY, J.P., CURRAN, MONTOUR, GREENWOOD, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: Objectant appeals from an order that granted petitioner's motion for summary judgment dismissing his objections to the probate of decedent's will based on, inter alia, allegations of undue influence, and admitted decedent's will to probate. We conclude that Surrogate's Court properly granted the motion inasmuch as petitioner met her initial burden and objectant failed to raise a triable issue of fact in opposition (see Matter of Bodkin [appeal No. 3], 128 A.D.3d 1526, 1528, 9 N.Y.S.3d 510 [4th Dept. 2015] ; Matter of Alibrandi , 104 A.D.3d 1175, 1177-1178, 960 N.Y.S.2d 760 [4th Dept. 2013] ; see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Objectant's contention that petitioner's motion was premature is raised for the first time on appeal and is therefore not properly before us (see Dunn v. Covanta Niagara I , LLC [appeal No. 1], 181 A.D.3d 1340, 1340, 119 N.Y.S.3d 920 [4th Dept. 2020] ; see generally Ciesinski v. Town of Aurora , 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ). In any event, objectant "failed to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of" another party ( Nationwide Affinity Ins. Co. of Am. v. Beacon Acupuncture , P.C. , 175 A.D.3d 1836, 1837, 109 N.Y.S.3d 812 [4th Dept. 2019] [internal quotation marks omitted]). Objectant's remaining contentions are raised for the first time on appeal and are therefore not properly before us (see generally Ciesinski , 202 A.D.2d at 985, 609 N.Y.S.2d 745 ).