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In re Imperato

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


November 17, 2009

IN THE MATTER OF THOMAS IMPERATO, DECEASED. AND ANGELA AMENGUAL, RESPONDENT;
v.
ALFRED ZUCARO, JR., APPELLANT; MARIA ZUCARO, NONPARTY-APPELLANT. (FILE NO. 61/05)

In a probate proceeding, the objectant, Alfred Zucaro, Jr., appeals from an order of the Surrogate's Court, Rockland County (Berliner, S.), dated September 10, 2007, which granted the petitioner's motion, in effect, for summary judgment dismissing his objections to probate and admitting the will to probate, and nonparty Maria Zucaro appeals from the same order.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

MARK C. DILLON, J.P., HOWARD MILLER, DANIEL D. ANGIOLILLO THOMAS A. DICKERSON, JJ.

DECISION & ORDER

ORDERED that on the Court's own motion, the appeal by nonparty Maria Zucaro is dismissed, as she is not aggrieved by the order (see CPLR 5511); and it is further,

ORDERED that the order is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the respondent.

The petitioner made a prima facie showing that, at the time the testator executed the subject will, he possessed the requisite testamentary capacity (see Matter of Kumstar, 66 NY2d 691, 692; Matter of Malan, 56 AD3d 479, 480; Matter of DiCorcia, 35 AD3d 463, 464). Furthermore, the petitioner made a prima facie showing that the will was not procured through undue influence (see Matter of DiCorcia, 35 AD3d at 464). In opposition to the petitioner's prima facie showing, the objectant, Alfred Zucaro, Jr., failed to raise a triable issue of fact (see Matter of James, 62 AD3d 707, 707-708; Matter of DiCorcia, 35 AD3d at 464; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324). Accordingly, the Surrogate's Court properly granted the petitioner's motion, in effect, for summary judgment dismissing the objections to probate and admitting the will to probate.

The objectant's remaining contentions are without merit.

DILLON, J.P., MILLER, ANGIOLILLO and DICKERSON, JJ., concur.

20091117

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