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In the Matter of James

Appellate Division of the Supreme Court of New York, Second Department
Mar 8, 2004
772 N.Y.S.2d 558 (N.Y. App. Div. 2004)

Opinion

2003-02213.

Decided March 8, 2004.

In a contested proceeding to probate the last will and testament of John James, a/k/a Anthony John James, the objectants appeal, as limited by their brief, from so much of an order of the Surrogate's Court, Kings County (Harkavy, S.), dated December 19, 2002, as, upon a decision of the same court (Feinberg, S.), dated October 18, 2002, (a) granted those branches of the proponent's motion which were for summary judgment dismissing the objections alleging lack of testamentary capacity, undue influence, and fraud, (b), in effect, denied that branch of their cross motion which was to compel disclosure, (c) failed to determine that branch of their cross motion which was to compel production of a handwriting exemplar of the testator, and (d), in effect, directed a separate proceeding to aid in the disposition of that branch of the cross motion of the objectant Beryl James which was to permit her to exercise her alleged right of election.

G. Wesley Simpson, P.C., Brooklyn, N.Y., for appellants.

Harvey L. Greenberg, New York, N.Y. (Matthew S. Neugeboren of counsel), for respondent.

Before: NANCY E. SMITH, J.P. DANIEL F. LUCIANO, HOWARD MILLER, SANDRA L. TOWNES, JJ.


DECISION ORDER

ORDERED that the appeal from so much of the order as failed to determine that branch of the objectants' cross motion which was to compel production of a handwriting exemplar of the testator is dismissed; and it is further,

ORDERED that the appeal by the objectant Beryl James from so much of the order as, in effect, directed a separate proceeding to aid in the disposition of that branch of her cross motion which was to permit her to exercise her alleged right of election is dismissed; and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law, the branches of the proponent's motion which were for summary judgment dismissing the objections alleging lack of testamentary capacity, undue influence, and fraud are denied, the branch of the objectants' cross motion which was to compel disclosure is granted, and the respondent's time to comply is extended until 30 days after service upon her of a copy of this decision and order; and it is further,

ORDERED that one bill of costs is awarded to the objectants, payable by the respondent.

The portion of the appeal which is from so much of the order as failed to determine that branch of the objectants' cross motion which was to compel production of a handwriting exemplar of the testator must be dismissed, as it remains pending and undecided ( see Katz v. Katz, 68 A.D.2d 536; see also Narducci v. Tishman Constr. Corp. of N.Y., 308 A.D.2d 436; Dembitzer v. Chera, 305 A.D.2d 531).

The appeal by the objectant Beryl James from so much of the order as, in effect, directed a separate proceeding to aid in the disposition of that branch of her cross motion which was to permit her to exercise her alleged right of election ( see EPTL 5-1.1a[c][4]; SCPA 1421) must be dismissed. That portion of the order is not appealable as of right because it does not decide that branch of the cross motion and does not affect a substantial right ( see CPLR 5701[a][2][v]; cf. Pinto v. Pinto, 308 A.D.2d 571; D'Agnese v. Spinelli, 308 A.D.2d 561), and leave to appeal has not been granted. Any party aggrieved by a decree entered in the relevant proceeding may take an appeal therefrom ( cf. Berliner v. Berliner, 294 A.D.2d 524).

We agree with the objectants that the Surrogate's Court erred in granting those branches of the proponent's motion which were for summary judgment dismissing the objections alleging lack of testamentary capacity, undue influence, and fraud. Due to the lack of certain disclosure, particularly the depositions of the beneficiaries under the will, it was premature to grant summary judgment at this stage of the proceeding ( see Rajan v. Insler, 300 A.D.2d 463).

SMITH, J.P., LUCIANO, H. MILLER and TOWNES, JJ., concur.


Summaries of

In the Matter of James

Appellate Division of the Supreme Court of New York, Second Department
Mar 8, 2004
772 N.Y.S.2d 558 (N.Y. App. Div. 2004)
Case details for

In the Matter of James

Case Details

Full title:IN THE MATTER OF JOHN JAMES, A/K/A ANTHONY JOHN JAMES, Deceased. LORDLIN…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 8, 2004

Citations

772 N.Y.S.2d 558 (N.Y. App. Div. 2004)
772 N.Y.S.2d 558

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