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67 A.D.3d 909

In re Imperato

Appellate Division of the Supreme Court of the State of New York · decided 2009-11-17

Decided 2009-11-17

¶1In a probate proceeding, the objectant Alfred Zucaro, Jr., appeals *910from 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.

¶2Ordered 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,

¶3Ordered that the order is affirmed; and it is further,

¶4Ordered that one bill of costs is awarded to the respondent.

¶5The 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 [1985]; Matter of Malan, 56 AD3d 479, 480 [2008]; Matter of DiCorcia, 35 AD3d 463, 464 [2006]). 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 [2009]; Matter of DiCorcia, 35 AD3d at 464; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). 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.

¶6The objectant’s remaining contentions are without merit. Dillon, J.P., Miller, Angiolillo and Dickerson, JJ., concur.

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