ELLIOT M. LEWIS et al., Appellants- Respondents,
VIOLET DiMAGGIO, Also Known as ANN VIOLET DiMAGGIO, Individually and as Executor of the Estate of NANCY M. CHRISTOFARO, Deceased, Respondent- Appellant, and MARGARET MURPHY PETERSON, as Executor of the Estate of MARY IOCOVOZZI, Deceased, Respondent.
Calendar Date: April 24, 2017
& Lambiase, Goshen (George A. Smith of counsel), for
Barclay & Damon, LLP, Elmira (Brian J. Maggs of counsel),
Sovik, Kendrick & Sugnet, PC, Syracuse (Brady J.
O'Malley of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Rose and Clark, JJ.
MEMORANDUM AND ORDER
appeal from an order of the Supreme Court (O'Shea, J.),
entered May 12, 2015 in Chemung County, which, among other
things, granted motions by defendant Violet DiMaggio and Mary
Iocovozzi for summary judgment dismissing the amended
M. Christofaro (hereinafter decedent) executed a will in 1992
directing that, as relevant here, the majority of her estate
was to be distributed equally between her two adopted adult
children, Mary Lewis and Joseph O. Christofaro (hereinafter
Christofaro) . The 1992 will was drafted by
Lewis' husband, an attorney, and listed her as the
executor of decedent's estate. Two years prior to her
death, however, after decedent's relationship with Lewis
had become strained, decedent contacted her niece, Mary
Iocovozzi,  who was also an attorney, to assist
her in drafting a new will and revising her estate plan. As
part of her new estate plan, decedent executed a second will
in August 2007 and a third will in October 2007. Both of
these wills, which, among other things, explicitly
disinherited Lewis, made bequests to decedent's sisters,
defendant Violet DiMaggio and Rose Seppi, designated DiMaggio
as the executor of her estate and provided that her residuary
estate was to be split equally between plaintiffs, who are
the now-deceased Christofaro and five of her six
grandchildren. Decedent also established a testamentary trust
for the benefit of her sixth grandchild, who was not named in
the will, but to whom she felt a strong attachment, and she
funded that trust with the entire proceeds of an annuity that
had originally designated Lewis and Christofaro as the
decedent died in 2009, Lewis filed a petition to admit the
1992 will to probate. After letters testamentary were issued
to Lewis, DiMaggio filed a petition to, among other things,
admit decedent's October 2007 will to probate.
Ultimately, Surrogate's Court (Buckley, S.) revoked the
letters testamentary issued to Lewis and granted
DiMaggio's petition, finding that, at the time the
October 2007 will was executed, decedent was "in all
respects competent to make a will and not under
restraint." Plaintiffs then commenced this action in
2012 alleging that, prior to her death, decedent was
"vulnerable to overreaching" and that defendants
had seized upon this vulnerability and wrongfully diverted
assets that would have been a part of decedent's estate
by the use of fraud and undue influence. Plaintiffs also
alleged a separate claim against DiMaggio for breach of her
fiduciary duty as executor for failing to take action to
recover such assets.
to joinder of issue, defendants each moved to dismiss the
amended complaint. Supreme Court denied defendants'
motions and, on appeal, this Court affirmed (115 A.D.3d 1042,
1044-1045 ). After defendants answered and extensive
discovery was had, they each moved for summary judgment.
DiMaggio, in her motion, also sought costs and sanctions
against plaintiffs. Plaintiffs then cross-moved for partial
summary judgment, requesting that Supreme Court deem as
admitted the facts set forth in their notice to admit.
DiMaggio thereafter moved to, among other things, hold
plaintiffs in contempt for failing to file a note of issue
and compel plaintiffs to produce certain audio recordings
they had made of decedent. Ultimately, Supreme Court granted
defendants' motions for summary judgment, denied
plaintiffs' cross motion and that part of DiMaggio's
motion that sought costs and sanctions, and dismissed the
amended complaint. Additionally, the court determined that
DiMaggio's other motions were moot. Plaintiffs now appeal
and DiMaggio cross-appeals.
we find that Supreme Court properly denied plaintiffs'
cross motion for partial summary judgment seeking to deem as
admitted the facts set forth in their notice to admit. The
notice to admit improperly sought admission of obviously
disputed matters that go to the heart of the controversy
(see CPLR 3123 [a]; Nationstar Mtge., LLC v
Davidson, 116 A.D.3d 1294, 1296 , lv
denied 24 N.Y.3d 905');">24 N.Y.3d 905 ; Eddyville Corp. v
Relyea, 35 A.D.3d 1063, 1066 ).
to defendants' motions for summary judgment, plaintiffs
do not take issue with Supreme Court's determination that
defendants met their initial summary judgment burdens.
Rather, plaintiffs contend that, in opposition to
defendants' motions, they raised triable issues of fact
regarding undue influence and fraud, as well as their
standing to maintain this action, by tendering, among other
proof, an affidavit and deposition testimony of Lewis
describing decedent's alleged confusion during the two
years prior to her death, decedent's changes to her
estate plan during that period and alleged conversations with
decedent regarding the latter's intentions concerning
certain assets. Plaintiffs also offered an affidavit by a
forensic document examiner who opined that certain of
decedent's signatures were not authentic.
affidavit, the forensic document examiner averred that he had
conducted an examination of three documents purportedly
signed by decedent - specifically, a savings account
agreement that transferred funds previously held jointly by
decedent and Lewis into decedent's individual account, a
joint savings account agreement that transformed the
individual account back into a joint account and added
DiMaggio as a joint holder with the right of survivorship,
and a funeral home contract. The examiner also reviewed
documents that were known to contain the authentic signatures
of decedent and DiMaggio. Based upon his review, the examiner
opined that the signatures on the three documents at issue
were not written by decedent and, more specifically, that the
signatures on the joint and individual savings account
agreements were actually written by DiMaggio. Although
Supreme Court disregarded the examiner's affidavit, we
note that, where an expert affidavit is offered to show that
a signature was forged, "the expert opinion must be in
admissible form and state with reasonable professional
certainty that the signature at issue is not authentic"
(Banco Popular N. Am. v Victory Taxi Mgt., 1 N.Y.3d
381, 384 ). In our view, the examiner's affidavit
meets this minimal standard.
light of the examiner's affidavit, we initially find that
plaintiffs raised triable issues of fact as to whether
extraordinary circumstances exist to permit them to maintain
this action (see Matter of Van Patten, 190 A.D.2d
322, 326 ; Inman v Inman, 97 A.D.2d 864, 865
; compare Castor v Pulaski, 117 A.D.3d 1552,
1554 ). We also find that the examiner's affidavit
raised triable issues of fraud as to DiMaggio (see
generally Matter of Colverd, 52 A.D.3d 971, 973-974
), as well as breach of her fiduciary duty (see
generally Matter of Carbone, 101 A.D.3d 866, 868
), notwithstanding the competing affidavits submitted
by bank employees averring that they personally witnessed
decedent sign her own name on the bank documents. As to
Iocovozzi, however, neither the examiner's affidavit nor
the other evidence in the record, including Lewis'
affidavit, adequately raises any issue of fraud committed ...