Opinion
August 5, 1991
Appeal from the Surrogate's Court, Nassau County (Radigan, S.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs payable by the objectant personally, the objectant's motion is denied, and the proponent's cross motion is granted in its entirety.
Summary judgment was improperly denied since the objectant failed to raise a triable issue of fact as to whether undue influence was exercised by the proponent, who was the decedent's long-time attorney, by the proponent's law partner, or by the attorney who drafted the will. Nor was a triable issue of fact sufficiently raised as to the existence of fraud. Unsupported conclusions and unsubstantiated allegations are insufficient to raise a triable issue of fact (see, Coleman v Village of Head of the Harbor, 163 A.D.2d 456). A mere showing of opportunity and motive to exercise undue influence is likewise insufficient to present a triable issue of fact, without evidence that such influence was actually exercised (see, Matter of Walther, 6 N.Y.2d 49, 55; see also, Matter of Philip, 173 A.D.2d 543). We have considered the proponent's contention that Matter of Putnam ( 257 N.Y. 140) applies in this case so as to create an inference of undue influence. We find that the facts in this case are distinguishable from those in Putnam (supra) which holds that a lawyer who drafts a will making himself or herself, or a member of his or her family a bequest, is required to explain the circumstances and show that the gift was made freely and willingly. The attorney who drafted the decedent's will was not a beneficiary thereunder; therefore, Matter of Putnam (supra) does not apply here.
Further, the Surrogate's Court incorrectly concluded that disqualification of the proponent's attorney was required (see, People v Paperno, 54 N.Y.2d 294; see also, Matter of Bartoli, 143 A.D.2d 830). Thompson, J.P., Bracken, Harwood and Balletta, JJ., concur.