Matter of Samuel (Oct. 30, 2014)

Case details
Country
United States
Jurisdiction
New York (NY)
Court
New York Court of Appeals
Decided
Oct. 30, 2014
Disposition
Motion Denied
Matter of Samuel2024 NY Slip Op 24014 [82 Misc 3d 616]January 11, 2024Graham, S.Surrogate's Court, Kings CountyPublished by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.As corrected through Wednesday, April 17, 2024[*1]In the Matter of Phylliscita Ismay Samuel, Deceased.Surrogate's Court, Kings County, January 11, 2024APPEARANCES OF COUNSELLaw Office of Lorin O. Lewis, P.C., Brooklyn (Lorin O. Lewis of counsel), for LeopoldOsborne.Johnnie Woluewich, Bronx, for Morgan Samuel.{**82 Misc 3d at 618} OPINION OF THE COURTBernard J. Graham, S.In this contested probate proceeding, Leopold J. Osborne (Osborne) filed a petition to denyprobate of a written instrument dated October 30, 2014, purported to be the last will and testament ofthe decedent. A separate petition was filed by Morgan Samuel (Samuel) seeking probate of theOctober 30, 2014 instrument, and objections to this petition were filed by Osborne. Mr. Osborne nowmoves for summary judgment and to deny probate of the propounded 2014 instrument. For thereasons set forth below, the motion for summary judgment is denied.Procedural HistoryPhylliscita Ismay Samuel (decedent or Phylliscita) died on April 23, 2016. On June [*2]23,2016, a propounded instrument dated October 30, 2014 (the 2014 instrument), was filed with thecourt, along with her death certificate and an affidavit of domicile. On October 26, 2016, a petitionfor the denial of the petition for probate and to grant letters of administration, with supportingdocuments, was filed by Osborne, by his attorney. Thereafter, on January 18, 2017, a notice ofappearance was filed by counsel to Samuel, along with a petition seeking probate of the 2014instrument and letters testamentary issued to Samuel.
kind acts and friendly offices, but a coercion produced by importunity . . . and whichcould not be resisted, so that the motive was tantamount to force or fear." (Matter ofBurke, 82 AD2d at 269.)These criteria are questions of fact which make summary judgment inappropriate under thecircumstances.The Burke Court also cited Matter of Elmore (42 AD2d 240 [3d Dept 1973]), which"held, with respect to the connection between a testamentary beneficiary and the attorneypreparing the will, as [*7]follows: 'Where a will has been prepared by an attorneyassociated with a beneficiary, an explanation is called for (see Matter of Lamerdin, 250App. Div. 133, 135), and it is a question of fact for the jury as to whether the profferedexplanation is adequate.' " (Matter of Burke, 82 AD2d at 274.)Osborne has argued that since Mary Katherine Brown, Esq. was the attorney who draftedPhylliscita's 2014 instrument and was also Samuel's attorney in the guardianship proceeding, shecould not have believed decedent to be of sound mind or knowledgeable of the extent of her bountyor relations. The court agrees with the Burke Court that this too is an issue of fact for considerationby a jury.The court therefore finds that Osborne has failed to establish a prima facie showing ofentitlement to judgment as a matter of law, and that triable issues of material fact exist as to thequestion of undue influence.ConclusionAll other arguments have been considered and found to be moot or without merit. For theforegoing reasons, the motion for summary judgment to dismiss the cross-petition and deny probateis denied in its entirety, and this matter shall proceed to trial. Based on the foregoing, it is herebyordered that the attorney affirmation in response to opposition to summary judgment, dated October11, 2023, is hereby stricken from the record; and it is further ordered that counsel for LeopoldOsborne shall appear before the court on January 30, 2024, at 10:00 a.m., for further proceedingsrelated to the improper submission that relies on what appears to be AI generated research andcitations.
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