Opposition Brief — In Re Richard J. Fields, Petitioner
Supreme Court briefOct 28, 2019
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No. 19-410
IN THE
Supreme Court of the United States
>>>>
RICHARD J. FIELDS,
Petitioner,
v.
DIANA PALMERI,
Respondent.
On Petition for an Extraordinary Writ of Mandamus
to the New York Court of Appeals and
the New York County Surrogate’s Court
OPPOSITION TO PETITION
FOR WRIT OF MANDAMUS
JULES MARTIN HAAS, ESQ.
Counsel of Record
845 Third Avenue, Suite 1400
New York, New York 10022
212-355-2575
attorney.haas845@gmail.com
and
NOVICK & ASSOCIATES P.C.
202 East Main St. Suite 208
Huntington, New York 11743
631-547-0300
amessina@novicklawgroup.com
October 28, 2019
Attorneys for Respondent
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ..........................
x
PRELIMINARY STATEMENT .....................
1
STATEMENT OF FACTS .............................
2
Family History Leading Up to
the Will ..............................................
3
PROCEDURAL HISTORY ............................
7
ARGUMENT .................................................
10
POINT I
THIS MATTER IS NOT SUBJECT TO
FEDERAL JURISDICTION ..............
10
A. The Petition should be denied
because it is precluded by the
Probate Exception .......................
10
B. There is No Federal Question
or other basis for Subject
Matter Jurisdiction .....................
12
C. A Writ of Mandamus Is not a
Method for a Backdoor Appeal ...
15
ii
Page
POINT II
THE COURTS TO WHOM THE
ORDERS OF MANDAMUS
WOULD BE DIRECTED ARE
NECESSARY PARTIES ....................
17
POINT III
PETITIONER DID NOT EVEN
ENUNCIATE A BASIS FOR
FEDERAL JURISDICTION ..............
19
POINT IV
USE OF EXTRAORDIANRY WRITS
IS RARE ............................................
20
POINT V
MANDAMUS DOES NOT LIE WHEN
PETITIONER HAS ALREADY
HAD HIS CASE HEARD
APPROPRIATELY. IT IS NOT A
SUBSTITUTE FOR APPELLATE
REVIEW ............................................
22
POINT VI
THE CASE WAS CORRECTLY
DECIDED AT EVERY STAGE
BELOW ..............................................
25
CONCLUSION ..............................................
29
iii
Page(s)
APPENDIX
Table of Documents Which Were
Either Improperly Injected Into
the Petitioner’s Appendix or
are Otherwise Altered From the
Original Document Submitted to
the Trial Court ..................................
1a
Exhibit 1: Exhibit List Annexed to the
Affirmation of Jules M. Haas, Esq.,
in Support of the Motion for Summary
Judgment with Notice of Motion
Filed on November 30, 2018..............
6a
Exhibit 2: Affirmation of Richard A.
Chen, Esq., Submitted in
Opposition to Motion for Summary
Judgment with Exhibit List ..............
13a
Exhibit 3: Reply Affirmation of
Jules M. Haas, Esq., Submitted in
Further Support of the Motion
for Summary Judgment and
Exhibit List........................................
39a
Exhibit 4: Transcript of Proceedings
dated March 20, 2018 with Bench
Decision of the New York State
Surrogate’s Court, County of
New York, Granting the Motion
for Summary Judgment and
Stating that a Written Decision
Will Follow.........................................
109a
iv
Page(s)
Exhibit 5: Order of the New York State
Surrogate’s Court, County of
New York, dated March 26, 2018,
Granting the Motion for Summary
Judgment and Directing the
Settlement Of a Probate Decree........
140a
Exhibit 6: Notice of Settlement of
Probate Decree dated April 10, 2018
with Affidavit Of Service...................
150a
Exhibit 7: Notice of Motion of
Richard Fields, Pro Se, dated
April, 2018, to the New York State
Supreme Court, Appellate Division,
First Department, to Reopen Case
and to Proceed as a Poor Person .......
156a
Exhibit 8: Civil Appeal of
Richard Fields dated May 9, 2018
to the New York State
Supreme Court, Appellate Division,
First Department ..............................
163a
Exhibit 9: Note of Issue filed dated
July 5, 2018 by Richard Fields
filed in the New York State
Supreme Court, Appellate Division,
First Department, with Cover of
Appellant’s Brief................................
168a
v
Page(s)
Exhibit 10: Notice of Entry of Probate
Decree dated July 31, 2018
with Cover Letter and Affidavit
of Service ...........................................
173a
Exhibit 11: Probate Decree dated
July 20, 2018 of the New York
State Surrogate’s Court,
County of New York ..........................
181a
Exhibit 12: Notice of Motion of
Diana Palmeri to Dismiss Appeal
or Alternatively Strike Portions
of the Appellant’s Brief and Record
as Matters are dehors the Record
And to Adjourn With Summary
Statement on Application for
Expedited Relief and Affirmation
of Albert V. Messina Jr. Esq.,
dated August 3, 2018 in Support
of Motion............................................
186a
Affidavit of Richard Fields
dated August 21, 2018.......................
228a
Affidavit of Richard Fields
dated August 11, 2018.......................
240a
vi
Page(s)
Exhibit 13: Notice of Motion of
Richard Fields dated August 10,
2018 to the New York State
Supreme Court, Appellate Division,
First Department to Stay
Enforcement of the July 20, 2018
Probate Decree ..................................
253a
Exhibit 14: Summary Statement of
Richard Fields to the New York
State Supreme Court,
Appellate Division,
First Department and Denial of
Stay dated August 17, 2018 ..............
256a
Exhibit 15: Summons and Complaint of
Richard Fields dated September 4,
2018 Filed in the New York
State Supreme Court,
County of New York Seeking to
Stay Enforcement of the Probate
Decree ................................................
259a
Exhibit 16: Order to Show Cause
Filed by Richard Fields in the
New York State Supreme Court,
County of New York with Affidavit
in Support dated August 31, 2018,
The New York State Supreme Court,
County of New York Declined to
Sign the Order to Show Cause on
September 5, 2018 .............................
273a
vii
Page(s)
Exhibit 17: Notice of Entry dated
September 25, 2018 of an
Order of the New York State
Supreme Court, Appellate Division,
First Department dated
September 25, 2018, Dismissing
the Appeal and Denying the
Application to Stay ............................
278a
Exhibit 18: Motion by Richard Fields
to Reopen Case and For Poor Person
Relief dated October 28, 2018 and
Filed in the New York State
Supreme Court, Appellate Division,
First Department ..............................
285a
Exhibit 19: Order of the New York State
Supreme Court, Appellate Division,
First Department dated
December 27, 2018 Denying
Richard Fields’ Motion to Restore
Appeal................................................
293a
Exhibit 20: Notice of Entry of
December 27, 2018 Order dated
January 2, 2019 with Affidavit
of Service ...........................................
296a
Exhibit 21: Notice of Appeal of
Richard Fields dated January 21,
2019 to the New York State
Court of Appeals ................................
301a
viii
Page(s)
Exhibit 22: Letter from John P. Asiello,
Chief Clerk of the New York State
Court of Appeals to Richard Fields
dated January 28, 2019, directing
comments on Subject Matter
Jurisdiction and Designating
February 11, 2019 as the Return
Date of the Motion for Leave to
Appeal................................................
304a
Exhibit 23: Order of the New York State
Supreme Court, County of New York
dated January 30, 2019 Dismissing
the Complaint ....................................
307a
Notice of Motion of Richard Fields
dated August 10, 2018.......................
309a
Probate Decree dated July 20, 2018 ...
312a
Letter from Richard Fields to
Albert V. Messina Jr., Esq. ...............
316a
Letter from the New York State
Office of the Attorney General to
the Parties dated July 26, 2019 ........
317a
Exhibit 24: Opposition to Motion
for Leave to Appeal of
Jules M. Haas, Esq. with Cover
Letter and Affidavit of Service..........
318a
ix
Page(s)
Exhibit 25: Order of the New York
State Court of Appeals dated
April 2, 2019 Dismissing Appeal.......
332a
Exhibit 26: Notice of Entry of
April 2, 2019 Order with Affidavit
of Service ...........................................
335a
Exhibit 27: Motion to Reargue of
Richard Fields to the New York
State Court of Appeals dated
April 20, 2019 ....................................
340a
Exhibit 28: Affirmation of
Jules M. Haas, Esq. in Opposition
to Motion to Reargue To the
New York State Court of Appeals
with Cover Letter and Affidavit
of Service ..........................................
359a
Exhibit 29: Order of the New York
State Court of Appeals dated
June 27, 2019 Denying Motion
to Reargue ........................................
369a
Exhibit 30: Notice of Entry of the
June 27, 2019 Order of the
New York State Court of Appeals
with Notice of Entry dated
July 1, 2019 and Affidavit of
Service ...............................................
371a
x
TABLE OF AUTHORITIES
Page(s)
Cases
Allied Chem. Corp. v. Daiflon, Inc.,
446 US 33 (1980)......................................
16
American Fidelity Ins. Co. v. U.S. Dist.
Court for No. Dist. Of Cal.,
538 F.2d 1371 (1976)................................
20
Baker Perkins, Inc v. Werner and
Peleiderer Corp.,
(710 F.2d 1561 (1983) ..............................
13
Bankers Life & Casualty Co. v. Holland,
346 U.S. 379 (1953) .............................20, 22, 23
Carson v. Office of Special Counsel,
534 F. Supp.2d 103 (D.D.C. 2008) ...........
14
Cheney v. U.S. Dist. Court for Dist. Of
Columbia,
452 U.S. 367 (2004) on remand
406 F.3d 723 ........................................20, 21, 22
Clark v. Allen,
331 U.S. 503 (1947) ..................................
10
College Sports Council v. Government
Accountability Office,
421 F. Supp. 59 (D.D.C. 2006) .................
14
Conner v. Texas Court of Crim. Appeals,
481 Fed. Appx. 952 (5th Cir. 2012)..........
15
xi
Page(s)
Curtis v. Brunsting,
704 F.3d 406 (5th Cir. 2013) ....................
10
Ex Parte Fahey,
332 U.S. 258(1947) ...................................
15
Firestone Rubber v. General Rubber
and Firestone Rubber v.
Hon. Frank Battisti,
431 F.2d 1199 (6th Cir. 1970),
cert. den. 401 U.S. 975 ........................13, 16, 18
Henson v. Ciba-Geigy Corp,
261 F.3d 1065 (2001) cert. granted
534 U.S. 1126, cert. denied 534 U.S. 1134,
affirmed 537 U.S. 28 ................................
15
In re Attorney General of the U.S.,
596 F.2d 58, cert. denied
444 U.S. 903 (1976) ..................................
20
In re Grand Jury Subpoenas,
581 F2d 1103 (4th Cir. 1978)
cert. den. 440 U.S. 971.............................
20
In re Special March Grand Jury,
Ingram Corp. v. Hon. James B. Parsons,
United States District Court,
541 F.2d 166 (7th Cir. 1976) .................... 18, 21
In re: Campbell,
264 F.3d 730 (7th Cir. 2001) ....................
15
Luellen v. Luellen,
972 F. Supp.2d 722 ..................................
12
xii
Page(s)
Markam v. Allen,
326 U.S. 490. (1946) .................................
10
Marshall v. Marshall,
547 U.S. 293 (2006), 392 F.3d 1118
(2004) ...................................................10, 11, 12
Matter of Aho,
29 N.Y.2d 241 (1976)................................
24
Pennhurst State Sch. & Hosp. v.
Halderman,
465 U.S. 89 (1984)....................................
14
Peters v. Noonan Surrogate’s Court Judge,
871 F. Supp.2d 218 (W.D.N.Y. 2012) .......
18
Rodriquez v. Chapman-Perry,
63 A.D.3d 645 (1st Dept. 2009) ................
23
Schlagenhauf v. Holder,
379 US 104 (1964) ....................................
15
Skaggs v. Brunner,
588 F. Supp. 2d 828. (S.D. Ohio 2008)
vacated on other grounds 549 F.3d 468
(6thCir. 2008) ...........................................
14
Sporck v. Peil,
759 F.2d 312 (1985) cert. den.
474 US 903 ...............................................
16
Stein v. KPMG, LLP,
486 F.3d 753 (2nd Cir 2007) ....................
21
xiii
Page(s)
Telecommunications Research and
Action Center v. F.C.C,
750 F2d 70 (1984) ....................................
13
Three Keys Realty v. SR Util. Holding Co.,
540 F.3d 220 (3rd Cir. 2008) ....................
11
U.S. v. Denedo,
556 U.S. 904 (2009) ..................................
13
Weiser LLP v. Coopersmith,
74 A.D.3d 465 (1st Dept. 2010) ................
23
Will v. U.S.,
389 U.S. 90 (1967).................................... 16, 20
Zheng v. City of New York,
92 A.D.3d 412 (1st Dept. 2012) ................
24
Statutes
28 U.S.C. § 1651 ............................................ 12, 19
28 U.S.C. § 1651(a) ........................................
10
28 U.S.C. § 1652(a) ........................................
20
N.J.S.A. 9:2-7.1 .............................................
5
Rules
CPLR § 5512(a)..............................................
23
CPLR § 5513(a).............................................. 24, 25
CPLR § 5513[b]..............................................
25
Sup. Ct. R. 20.4(a).........................................
19
xiv
Page(s)
Other Authorities
Eleanor Swift
One Hundred Years of Evidence
Law Reform: Thayer’s Triumph,
88 Cal. L. R. 2437 et seq. (2000) ..............
27
PRELIMINARY STATEMENT
Sydney Field’s Will dated October 6, 2014, was
admitted to probate by a final decree of the New
York County Surrogate’s Court dated July 20,
2018. The Decree dismissed the objections interposed by Sydney’s son, Richard, who was represented by counsel in the Surrogate’s Court
proceedings. Richard had been estranged from his
father for nineteen (19) years prior to his father’s
death and had engaged in a campaign of terror
directed at his father, Sydney’s wife, Teresa, as
well as Sydney’s other son, Kenneth and Kenneth’s
children.
Richard’s numerous appellate filings with the
New York Appellate Division and New York Court
of Appeals were all denied based upon clear procedural and substantive grounds. The underlying
basis of Richard’s objections which included lack of
due execution, undue influence, and fraud, were
found by the trial Court to be meritless. The Will
itself, as well as the prior Will, specifically disinherited Richard pursuant to Article FIFTH (b)
which stated: “Because my Son Richard Fields
hired a lawyer to sue me for money and because I
had to have him arrested and brought to court for
harassment of me and my wife Teresa, I deliberately make no provision for him in the Will and it is
my intention that he receive no part of my estate.”
Richard’s Petition to this Court seeks a Writ of
Mandamus directed to the New York Court of
Appeals to re-open his appeal in that Court and to
2
the New York County Surrogate’s Court to vacate
the probate of the Will. Such relief should be
denied on the ground that it is meritless.1
In sum, the probate exception to federal jurisdiction precludes a federal court from reviewing a
purely local issue regarding the validity of the Will
and the administration of Sydney’s estate at the
most basic level.
Moreover, the Petition itself fails to present any
underlying basis for federal subject matter jurisdiction by this Court. Mandamus is an extraordinary remedy which is to be rarely granted and does
not confer subject matter jurisdiction by itself.
Petitioner has not presented evidence of extraordinary circumstances surrounding a local probate
dispute over the validity of a New York Will to support this Court’s intervention. The petition should
be dismissed.
STATEMENT OF FACTS
This Petition for Extraordinary Writ concerns
the Last Will and Testament of Sydney Fields
dated October 6, 2014 (the “Will”). Sydney Fields
died on November 10, 2015. Supp. Appx. 16a. The
1
The Appendix submitted by Richard with his Petition
and Brief contains material not used in any of the courts
below. He has also altered transcripts of testimony. At the
beginning of Respondent’s Supplemental Appendix, we have
included a chart indicating which items are dehors the
record. He has also included respondents who were not parties in any of the courts below. Supp. Appx. 1a-5a. Only Diana
Palmeri is a correctly named party.
3
Will left the bulk of Sydney’s estate to the family of
Sydney’s third and last wife, Teresa. Diana
Palmeri, Teresa’s niece, was nominated in the Will
to be the Executor and appears on the petition in
the Surrogate’s Court proceeding propounding the
Will. Richard Fields, the petitioner herein, is the
son of Sydney’s marriage to his second wife Gladys.
Family History Leading Up to the Will
Sydney was born on December 30, 1918. Appx.
187a. In 1943, he married his first wife, Sarah.
Appx. 173a. In or about 1946, Sarah and Sydney
had a child, Kenneth. Appx. 187a. In 1949, Sarah
became mentally ill and Sydney and his mother
raised Kenneth without her. In 1957, Sydney had
his marriage to Sarah annulled.
In 1960, Sydney married his second wife, Gladys.
They had a son, Richard, the petitioner herein, in
1963. Appx. 187a. Also, in 1963, Kenneth left home
to go to MIT and never returned to his family
home. Appx. 187a. Gladys was cruel to Kenneth.
Appx. 187a. In 1969, Sydney divorced Gladys, but
she maintained custody of Richard. Appx. 173a,
Pet. Brief at 28-29.
In 1975, Sydney married his third wife, Teresa.
Appx. 173a. In 1977, Kenneth returned from living
in the West and resumed a familial relationship
with Sydney. Appx. 173a. In 1980, Sydney loaned
$83,000 at below market rate to Kenneth and his
wife, Alice, to buy a home. App 174a.
4
In 1982, Alice gave birth to Elizabeth, Kenneth's
first child. App 174a. A second child, Alexander,
was born thereafter. Appx. 174a. Sydney described
the period from 1982 to 1992 as “best of relations
with Ken, his wife and especially the grandchildren”. Appx. 187a.
Beginning in February 1989, Richard began a
campaign of threats and harassment against Sydney, Kenneth, Sydney’s uncle Sol, and Kenneth's
minor children Elizabeth and Alexander. In 1989
Sydney forwarded a packet of threatening letters
that Richard wrote to Sydney and Sol to Kenneth.
More correspondence followed. Appx. 175a-178a. In
1991, Richard began writing threatening letters to
Kenneth. Appx. 179a. Sydney finally agreed to
have Richard examined by two psychiatrists who
diagnosed Richard as suffering from schizophrenia.
Sydney did not consent to Richard’s institutionalization. Appx.178a.
In May 1991, Kenneth concluded that he should
sever ties with Sydney in the hope that it would
lessen Richard’s animosity toward Kenneth and his
family. Kenneth was afraid that Richard was a
danger to Kenneth’s family. After the break,
Richard’s threats ceased. Appx. 179a. In 1992, Kenneth and Alice repaid the mortgage debt to Sydney
and cut off contact with Sydney. Appx. 174a. By
1995, Sydney had Richard arrested on a complaint
of domestic violence. Appx. 179a.
On May 2, 1997, Sydney made his first Will.
Richard received a small ($35,000) bequest and
5
money was to be left in trust for the minor grandchildren Elizabeth, Alexander, and Richard’s son
Lewis. Sol Rosen was also to receive a small
bequest. The Will expressly disinherited Kenneth
with no explanation. Appx. 130a-136a. In 1998,
Sydney sued Kenneth and Allison in New Jersey
under that state’s Grandparent Visitation Statute,
N.J.S.A. 9:2-7.1 in an effort to maintain contact
with Kenneth’s children (Sydney’s grandchildren).
Appx. 173a. After an evidentiary hearing, the New
Jersey Court concluded that “Kenneth’s fears,
although they have not been realized, are indeed
very real. Richard’s threats cannot be ignored.” The
Court entered an order denying Sydney’s application for visitation. Appx. 184a-185a.
Some years later, Sydney Fields prepared and
sent a handwritten draft of the bequest provisions
for a new Will to Edward Curtin, the attorney who
had drafted the 1997 Will. Appx. 144a-146a. Mr.
Curtin drafted a new Will including in it the
changes set forth in Sydney’s handwritten instructions. On July 27, 2006, Sydney executed his second Will. Teresa was the primary beneficiary and
there are bequests to some members of Teresa’s
family, a small bequest to Richard’s son Lewis and
to Solomon Rosen. Appx. 137a-143a.
Paragraph FIFTH (a) of the 2006 Will disinherits
Kenneth: “Because my son Kenneth L. Fields
refused to let me visit my grandchildren, Elizabeth
and Alex P. Fields and refused to have a relationship with me even after a lawsuit where I sought
visitation rights, I deliberately make no provision
6
in this Will and it is my intention that he receive
no part of my estate. Paragraph FIFTH(b) of the
2006 Will also disinherits Richard: “Because my
Son Richard Fields hired a lawyer to sue me for
money and because I had to have him arrested and
brought to court for harassment of me and my wife,
Teresa[,] I deliberately make no provision for him
in the Will and it is my intention that he receive no
part of my estate.” App 137a-143a.
Subsequent to the execution of the 2006 Will, Sol
died. Teresa died on September 5, 2014. Supp.
Appx. 19a. Because Teresa was the major beneficiary of Sydney’s 2006 Will, Sydney contacted Attorney Curtin to draft an updated will. Sydney hand
wrote out a list of beneficiaries and the percentages
of his estate that they were to receive. Supp. Appx.
32a. On October 6, 2014, Sydney executed his third
and final Will. This Will was the subject of the probate proceeding in the Surrogate’s Court. Paragraph FIFTH (a) and (b) carried over from the 2006
Will and specifically disinherits Kenneth and
Richard. Paragraph FIFTH(c) disinherits all three
(3) grandchildren “[b]ecause [they] refused to have
a relationship with me after reaching adulthood.”.
Appx.147a-152a.
The October 6, 2014 Will signing was supervised
by Edward Curtin, Esq. who also notarized the signatures of the attesting witnesses to the Will, Jill
Curtin and Susan Lehman. Appx. 151a-156a.
7
PROCEDURAL HISTORY
In the New York County Surrogate’s Court probate proceeding, Richard filed objections to the
Will. Supp. Appx. 7a. Following joinder of issue and
discovery, in November 2017, Diana Palmeri, the
proponent of the Will, filed a Notice of Motion for
Summary Judgment with Exhibits. Supp. Appx.
10a-12a. The motion sought a decree dismissing
Richard’s objections to the Will and admission of
the Will to probate. In January 2018, Richard
Chen, the attorney for Richard, filed an Opposition
to Motion for Summary Judgment with Exhibits.
Supp. Appx. 16a-38a. A Reply Affirmation with
Exhibits was filed in February 2018. Supp. Appx.
40a-108a.
Oral argument was held on March 20, 2018
(Supp. Appx. 110a-139a) and the Surrogate’s Court
issued a bench decision followed by a written Order
on March 26, 2018 which provided that the March
20th transcript plus the March 26th Order together
constituted the decision on the Summary Judgment
motion and directed “Settle Probate Decree”. Supp.
Appx. 141a-149a. The decision dismissed Richard’s
objections and admitted the Will to probate. The
March decision determined the Motion for Summary Judgment but was not the final Judgment in the
case. On April 10, 2018, a Notice of Settlement of
Decree was served on Richard. Supp. Appx. 151a155a.
On May 9, 2018, Richard filed a Civil Appeal
with the Appellate Division, First Department.
8
Supp. Appx. 164a-167a. On July 5, 2018, Richard
filed a paper entitled Note of Issue with the Appellate Division, First Department with Appellate
Brief and Appendix. Supp. Appx. 169a-171a.
On July 20, 2018, the Decree of Probate was
signed by the New York County Surrogate. Appx.
8a-11a. On July 31, 2018, a Notice of Entry of Probate Decree was served. Supp. Appx. 174a-180a.
Entry of the Decree of Probate terminated the right
to appeal from the March 26th interlocutory Order.
A Notice of Appeal from the Decree of Probate was
never served.
In August 2018 Diana’s Notice of Motion to Dismiss Appeal or to Strike Portions of Brief and
Record with supporting affirmation detailing
Richard’s improper attempt to inject new evidence
in the record that was not presented to the trial
Court was filed with the Appellate Division First
Department. Supp. Appx. 187a-227a.
In August 2018, Richard filed a motion for a stay
with the Appellate Division, First Department.
Supp. Appx. 253a-258a. His motion was denied on
August 17, 2018.
In September 2018, Richard filed a Summons
and Complaint in the New York County Supreme
Court to enjoin the administration of the Estate of
Sydney Fields. Supp. Appx. 260a-272a. The Supreme
Court, New York County declined to sign the Order
to Show Cause with Temporary Restraining Order
that same day. Supp. Appx. 274a-277a.
9
On September 25, 2018, the Appellate Division,
First Department dismissed Richard’s appeal and
denied his application for a stay. Appx. 6a-7a.
Notice of Entry was served on Richard on September 25, 2018. Supp. Appx. 279a-284a.
In October 2018, Richard filed a motion to
restore his appeal to the Appellate Division calendar and to proceed as a poor person. Supp. Appx.
286a-292a. That motion was denied on December
27, 2018. Appx. 4a-5a. On January 2, 2019, a
Notice of Entry of the Appellate Division, First
Department’s December 27, 2018 Order was
served. Supp. Appx. 277a-300a.
On January 22, 2019, Richard filed a Notice of
Appeal to the New York State Court of Appeals.
Supp. Appx. 302a-303a. On January 28, 2019, the
Clerk of the Court of the New York State Court of
Appeals sent a letter directing submissions by February 11, 2019. Supp. Appx. 305a-306a.
On January 30, 2019, Diana’s Motion to Dismiss
Richard’s Complaint was granted by the New York
State Supreme Court, New York County. Appx. 3a.
In February 2019, Opposition to Richard’s
Motion for Leave to Appeal is filed with the New
York Court of Appeals. Supp. Appx. 319a-331a. On
April 2, 2019, the New York Court of Appeals
issued an order dismissing Richard’s appeal and
denying his Motion for Leave to Appeal. Appx. 1a2a. On April 4, 2019, a Notice of Entry of the April
2, 2019, Order was served on Richard. Supp. Appx.
336a-339a. Subsequently, in April 2019, Richard
10
filed an application with the New York State Court
of Appeals for leave to reopen the Appeal. Supp.
Appx. 341a-358a. In May, Diana opposed the
Motion to Reopen. Supp. Appx. 360a-368a. On June
27, 2019, the Court of Appeals issued an Order
denying Reargument. Appx. 20a. On July 1, 2019, a
Notice of Entry of the June 27th Order was served
on Richard. Supp. Appx. 372a-379a.
ARGUMENT
POINT I
THIS MATTER IS NOT SUBJECT TO
FEDERAL JURISDICTION
A. The Petition should be denied because it
is precluded by the Probate Exception
The Judiciary Act of 1798 (All Writs Act, 28
U.S.C. § 1651(a)) did not confer subject matter
jurisdiction over probate matters to the federal
courts. Instead, jurisdiction over probate matters
was reserved to the state courts. Markam v. Allen,
326 U.S. 490, 494. (1946) reversed on other
grounds Clark v. Allen, 331 U.S. 503 (1947). “[T]he
probate exception reserves to state probate courts
the probate or annulment of a will and the administration of the decedent’s estate; it also precludes
federal courts from disposing of property that is in
the custody of the state probate court.” Marshall v.
Marshall, 547 U.S. 293, 311-312 (2006), Curtis v.
Brunsting, 704 F.3d 406, 409 (5th Cir. 2013). In the
instant petition, petitioner seeks to have this Court
11
issue a Writ of Mandamus, inter alia, to “direct the
New York County Surrogate’s Court to vacate the
order of Probate and enter judgement in favor of
petitioner”. Pet. Brief at 3-4.
This Court’s decision in Marshall established
that the probate exception applies, and denies the
federal courts jurisdiction, in three areas: 1) probating the will, 2) administering the decedent’s
estate, 3) assuming in rem jurisdiction over property already in the custody of the probate court.
Id. at 296, and see, Three Keys Realty v. SR Util.
Holding Co., 540 F.3d 220, 227 (3rd Cir. 2008).
Though the “Questions Presented” in the petition
(Pet. Brief at i) are actually questions of fact rather
than law, they all go to the issue of how the Will
was probated and what evidence the probate court
deemed credible or relevant when deciding to probate the Will. Clearly, this falls squarely within
the remaining contours of the post Marshall probate exception. “[A] claim falls within the probate
exception if it raises ‘questions which would ordinarily be decided by a probate court in determining
the validity of the decedent’s estate planning
instrument,’ whether those questions involve
‘fraud, undue influence [,or] tortious interference
with the testator’s intent’.” Marshall at 304, quoting, the same case in the court below, 392 F.3d
1118, 1133 (2004).
Further, in the Conclusion section of the petitioner’s Brief, petitioner appears to suggest that
this Court take jurisdiction over the property
12
already in the custody of the New York County Probate Court and turn it over to him and his ex-wife.
Pet. Brief at 31-36. At the very least, this goes to
the heart of how the estate is to be administered.
Federal jurisdiction fails under all three prongs
of the Marshall standard for a probate exception.
Luellen v. Luellen, 972 F. Supp.2d 722, 732-733
(W.D.Pa. 2013), generally.
As shown above, the petition should be denied
because it is precluded by the Probate Exception.
The March 26, 2018 Decision and Order on the
motion for summary judgment (sometimes referred
to as the “interlocutory order”) and the July 20,
2018 final Decree of Probate (sometimes referred to
as the “final order”) concern only the probate of the
Will and the limited objections interposed by
Richard as to the Will’s validity.
B. There is No Federal Question or other
basis for Subject Matter Jurisdiction
It is well settled that federal courts are courts of
limited jurisdiction, unlike state courts, and cannot
entertain a matter unless there is federal subject
matter jurisdiction. This petition is not a petition
for certiorari seeking ultimate appellate review, it
is a Petition for Extraordinary Writ under the All
Writs Act.
The All Writs Act allows for issuance of Writs of
Mandamus but does not itself confer jurisdiction
which must be separately established. Title 28
USC § 1651.
13
The All Writs Act does not confer subject matter
jurisdiction. “[T]he All Writs Act and the extraordinary relief the statute authorizes are not a source
of subject matter jurisdiction.” U.S. v. Denedo, 556
U.S. 904, 913 (2009). This Court held that the All
Writs Act should not be construed to grant jurisdiction to hear and determine the underlying cause of
action. Id. at 914. “The authority to issue a writ
under the All Writs Act is not a font of jurisdiction.” Id.
“The All Writs Act is not an independent grant
of jurisdiction; it merely permits courts to issue
writs in aid of jurisdiction acquired to grant some
other form of relief.” Telecommunications Research
and Action Center v. F.C.C., 750 F2d 70, 77 (1984).
“The All Writs Act is not an independent basis of
jurisdiction, and petitioner must initially show
that the action sought to be corrected by mandamus
is within the court’s statutorily defined subject matter jurisdiction. Baker Perkins, Inc v. Werner and
Pfleider Corp. (710 F.2d 1561 (1983).
In Firestone Rubber v. General Rubber and Firestone Rubber v. Hon. Frank Battisti, the appellant
asked the Court of Appeals to issue a Writ of Mandamus directing the District Judge to either
reverse his ruling on the issue of patent misuse or
to certify that the appellant should be allowed an
interlocutory appeal. The Court rejected the first
request as “a transparent attempt to substitute a
writ of mandamus for an appeal and we reject it as
being without merit.” 431 F.2d 1199, 1200 (6th Cir.
1970), cert. den. 401 U.S. 975. The Court also declined
14
“to issue a writ of mandamus directing the District
Judge to certify an interlocutory appeal. Id. The
Court of Appeals did “not consider his refusal to
certify an interlocutory appeal ‘a clear abuse of discretion or usurpation of judicial power warranting
issuance of an extraordinary writ. . .”. Id. internal
citations omitted.
A federal Court has no general jurisdiction to
issue Writs of Mandamus where that is the only
relief sought. “A federal court cannot issue a writ of
mandamus that compels state officials to comply
with state law”. Skaggs v. Brunner, 588 F. Supp. 2d
828, 833. (S.D. Ohio 2008) vacated on other grounds
549 F.3d 468 (6th Cir. 2008), relying on Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89
(1984). “It is well settled that a federal court has no
general jurisdiction to issue writs of mandamus
where that is the only relief sought.” Id.
“[T]he All Writs Act allows a court to order a
remedy only where subject matter jurisdiction
already exists. Carson v. Office of Special Counsel,
534 F. Supp.2d 103, 104 (D.D.C. 2008). “[A]ll Writs
Act, . . . , is not an independent grant of jurisdiction, it merely permits courts to issue writs in aide
of jurisdiction acquired to grant some other form of
relief.” College Sports Council v. Government
Accountability Office, 421 F. Supp. 59, 71 (D.D.C.
2006).
The All Writs Act does not provide an independent basis for federal subject matter jurisdiction and
a plaintiff cannot sue invoking only the Court’s All
15
Writs power. Henson v. Ciba-Geigy Corp, 261 F.3d
1065, 1070 (2001) cert. granted 534 U.S. 1126, cert.
denied 534 U.S. 1134, affirmed 537 U.S. 28.
Richard has failed to assert any independent
jurisdictional basis for his Petition for Extraordinary Writ. Richard’s petition and supporting brief
are a naked request for mandamus without the
necessary jurisdictional underpinning.
C. A Writ of Mandamus Is not a Method for a
Backdoor Appeal.
It is well settled that a Writ of Mandamus is not to
be used as a substitute for an appeal. Ex Parte Fahey,
332 U.S. 258, 259-260 (1947). A Writ of Mandamus
is not to be used when the most that can be said is
that the District Courts erred in ruling on matters
within their jurisdiction. Schlagenhauf v. Holder,
379 US 104, 112 (1964). The Writ of Mandamus is
appropriate when there is a clear abuse of discretion.
Id. at 110.
“Federal courts have no authority to issue writs
of mandamus to direct state courts and their judicial officers in the performance of their duties
where mandamus is the only relief sought.” Conner
v. Texas Court of Crim. Appeals, 481 Fed. Appx.
952 (5th Cir. 2012). Federal Courts “cannot, as a
general rule anyway, . . . , use [its] power to control or interfere with state court litigation, thus
exceeding [its] jurisdiction. In re: Campbell, 264
F.3d 730, 731 (7th Cir. 2001).
16
“It is not disputed that the remedy of mandamus
is a drastic one, to be invoked only in extraordinary
situations.” Allied Chem. Corp. v. Daiflon, Inc. 446
US 33, 34 (1980). “Although a simple showing of
error may suffice to obtain a reversal on direct
appeal, to issue a writ of mandamus under such
circumstances ‘would undermine the settled limitations upon the power of an appellate court to
review interlocutory orders’.” Id. quoting Will v.
U.S. 389 U.S. 90, 98 (1967). “The peremptory writs
are among the most potent weapons in the judicial
arsenal.” Will at 107. As such, they are reserved for
really extraordinary causes. Id.
A Writ of Mandamus directing a federal judge to
certify an interlocutory appeal would not be issued
where the judge’s refusal to certify was not a clear
abuse of discretion. Firestone Tire & Rubber Co. v.
General Tire & Rubber Co., supra 431 F.2d 1200.
“[W]here a matter is committed to discretion, it
cannot be said that a litigant’s right to a particular
result is clear and indisputable, a writ of mandamus will only be granted for clear error of law.”
Sporck v. Peil, 759 F.2d 312, 314 (1985) cert. den.
474 US 903.
Richard has not presented a scintilla of fact or
even an assertion that any extraordinary situation
exists or that there was an abuse of discretion. The
underlying facts of this matter and its procedural
history conclusively establish that the Will was
duly executed under attorney supervision without
any undue influence or fraud. The language of the
Will itself demonstrates that Richard was disinher-
17
ited for the entirely logical reason of his threatening behavior toward Sydney and Teresa and his
decades long estrangement from his father. There
was nothing unusual or abusive in the proceedings
in the state courts and the credibility determinations were well within the normal discretion of a
court of first instance and well supported by competent evidence.
POINT II
THE COURTS TO WHOM THE ORDERS
OF MANDAMUS WOULD BE DIRECTED
ARE NECESSARY PARTIES
The Surrogate’s Court and the Court of Appeals
were not made parties to this petition. The failure
to join them as parties is fatal to the petition.
The Petition states that it seeks a Writ of Mandamus directed at the New York State Court of
Appeals. Pet. Brief at 1. The petition erroneously
claims that the Court of Appeals should be directed
to declare that a final decision exists from which an
appeal can be taken. Id. at 3. Petitioner misreads
the Order of the Court of Appeals.
Petitioner also seeks a Writ of Mandamus
“direct[ing] the New York County Surrogate’s Court
to vacate the [existing July 20, 2018] Order of Probate and enter judgment in favor of Petitioner”.
Pet. Brief at 3-4. The petition does not, however,
name the Surrogate’s Court or the New York Court
18
of Appeals as respondents in the petition.2 See
Peters v. Noonan Surrogate’s Court Judge, 871 F.
Supp.2d 218 (W.D.N.Y. 2012). See also In re Special
March Grand Jury, Ingram Corp. v. Hon. James B.
Parsons, United States District Court, 541 F.2d 166
(7th Cir. 1976). Firestone Rubber v. General Rubber
and Firestone Rubber v. Hon. Frank Battisti, supra.
There was a “final order” of the Surrogate’s
Court on July 20, 2018, its title is Decree of Probate. Appx. 8a-11a. Petitioner did not appeal that
final Order within the deadline for taking such
appeal. Instead, he appealed an interlocutory
Order dated March 26, 2018, the Decision and
Order of the Surrogate’s Court of New York. Appx.
12a-19a. The Appellate Division dismissed that
appeal on September 25, 3018. Appx. 6a-7a. Petitioner then made a motion to restore the appeal of
the non final interlocutory Order, which was
denied on December 27, 2018. Appx. 4a-5a. He then
applied for leave to appeal to the New York State
Court of Appeals. Appx. 1a-2a. The Court of Appeals
denied his application for leave to appeal from the
September 25, 2018 Appellate Division Decision
because it was not appealed in a timely manner.
The Court of Appeals denied the appeal from the
2
The petition names Diana Palmeri, Olga Plameri,
Victor Palmeri, Cynthia Palmeri, and Ana Garzon Yepez.
Only Diana Palmeri, executrix of the estate, was a party to
the proceedings below. There is no explanation in the petition
as to why the other parties, who along with Diana are beneficiaries under the will, were added or what jurisdiction is
obtained over them since they were not parties to the proceedings below.
19
December 27, 2018 Appellate Division decision on
the motion to restore the appeal to the Appellate
Division’s calendar as not an appeal from a final
order. On June 27, 2019, the New York State Court
of Appeals denied a motion for reargument. Appx.
20a.
At no time did Petitioner actually take an appeal
from the final Order of the Surrogate’s Court (the
July 20th Decree of Probate) and his time to do so
has long since expired. Further, as both Orders of
the Surrogate’s Court demonstrate, the correct
decision was reached in that Court. Appx. 12a-19a
and 8a-11a.
POINT III
PETITIONER DID NOT EVEN ENUNCIATE
A BASIS FOR FEDERAL JURISDICTION
On page 2 of the petitioner’s Brief is the following assertion: “This Petition for Extraordinary Writ
of Madamus is filed pursuant to Sup. Ct. R. 20.4 (a).
This Court has jurisdiction under 28 U.S.C. § 1651.
S.C.R 20.4(a) relates to habeas corpus petitions,
not mandamus petitions. Section 1651, as noted
above, does not confer jurisdiction; it allows the
issuance of extraordinary writs in aid of jurisdiction that otherwise already exists. Review of the
remainder of petitioner’s brief does not reveal an
assertion of a basis for jurisdiction. Schnagelhauf,
supra.
20
POINT IV
USE OF EXTRAORDIANRY WRITS IS RARE
The power of federal courts to issue a Writ of
Mandamus comes from the All Writs Act. 28 U.S.C.
§ 1652(a) allows: “[t]he Supreme Court and all
courts established by Act of Congress may issue all
writs necessary or appropriate to their respective
jurisdictions and agreeable to the usages and principles of law.” “Although courts have not confined
themselves to an arbitrary and technical definition
of ‘jurisdiction’,” (Will v. U.S., 389 U.S. 90, 95
(1967).) “only exceptional circumstances amounting to a judicial “usurpation of power”,” (ibid.) or
a “clear abuse of discretion’ (Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383 (1953).) “will
justify the invocation of this extraordinary remedy”
(Will, 389 U.S. at 95.). Cheney v. U.S. District
Court for the District of Columbia, 542 U.S. 367,
380 (2004).
Only the truly exceptional cases warrant a Writ
of Mandamus. In re Attorney General of the U.S.
596 F.2d 58, 63, cert. denied 444 U.S. 903 (1976).
[N]ot every hardship to a litigant warrants
issuance of a writ [of mandamus]. American Fidelity Ins. Co. v. U.S. Dist. Court for No. Dist. Of Cal.,
538 F2d 1371,1376 (1976).
A party who seeks the extraordinary remedy of
mandamus to compel a court to take a certain
action has a heavy burden. In re Grand Jury Subpoenas, 581 F2d 1103, 1107 (4th Cir. 1978) cert.
21
den. 440 U.S. 971. The Court must “be persuaded
that the petitioner has a clear and indisputable
right which the district court by its action has
abridged, . . .”. Id. The instant petition does not
even allege that Richard has a clear and indisputable right to his late father’s estate. It speculates about whether or not his father should have
forgiven Richard’s threats to Sydney, to Teresa, to
Richard’s brother Kenneth and to Richard’s niece
and nephew. The undisputed facts are that
Richard’s threats and the fear for personal safety
that he created destroyed the family bonds and
Richard’s carping that it’s not fair that his father
didn’t forgive him hardly meets this stringent
standard.
Before issuing a Writ of Mandamus the Court
must be satisfied by a three-pronged test. “[F]irst,
the party seeking relief must have ‘no other adequate means to attain the relief he desires,’ second,
the petitioner must show that his right to the writ
is ‘clear and indisputable’, and third, the issuing
court must be satisfied that the writ is appropriate
under the circumstances.” Stein v. KPMG, LLP,
486 F.3d 753, 759-760 (2nd Cir 2007), quoting
Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81
(2004). “The placing of such a heavy burden on the
party seeking mandamus and the requiring of
exceptional circumstance to activate appellate
jurisdiction arise from the same policy that gave
rise to the finality statute.” In re Special March
1974 Grand Jury, Ingraham Corp. v. Hon. James
22
Parsons, United States District Court, 541 F.2d
166, 171-172 (7th Cir. 1976).
This Court has the power to issue Writs of Mandamus against judges, but such remedies are drastic and extraordinary and should be reserved for
cases where appeal is inadequate. Bankers Life and
Cas. Co. v. Holland, 346 U.S. 379, 384-385 (1953).
Mandamus does not lie where a decision, even if
erroneous, does not involve an abuse of judicial
power. Id. 382.
POINT V
MANDAMUS DOES NOT LIE WHEN
PETITIONER HAS ALREADY HAD
HIS CASE HEARD APPROPRIATELY.
IT IS NOT A SUBSTITUTE FOR
APPELLATE REVIEW
The instant petition is not one for certiorari. It
does not seek appellate review by this Court. It is a
Petition for Mandamus and, thus, the Court’s role
is limited to the relief requested by petitioner.
Three conditions must be met before a writ of
mandamus can issue: 1) the party seeking the writ
must have no other adequate means to attain the
relief he desires; 2) petitioner must satisfy the burden of showing that his right to issuance is clear
and undisputable, 3) the issuing Court, in the exercise of it’s own discretion, must be satisfied that
issuance is appropriate under the circumstances.
Cheney v. U.S. Dist. Court for Dist. Of Columbia,
23
452 U.S. 367, 380-381 (2004) on remand 406 F.3d
723. The traditional use of mandamus is to confine
an inferior Court to the lawful exercise of its prescribed jurisdiction or to compel it to exercise
authority when it has a duty to do so. Bankers Life
& Cas. Co. v. Holland, 346 U.S. 379, 382 (1953).
Petitioner had the opportunity to take an appeal
from the Surrogate’s Court’s final order, the July
20, 2019 Decree of Probate. He did not do that. He
was represented by counsel in the Surrogate’s
Court proceedings. At the time petitioner filed his
Notice of Appeal on April 24, 2018, no final judgment had been entered in the Surrogate’s Court.
(the March 26, 2018 Order states “[t]his decision,
together with the transcript of the March 20, 2018
proceedings, constitutes the order of the court.
Settle Probate Decree. Appx. 19a. It is well settled
that ‘[n]o appeal lies from a decision directing settlement of judgment.” Weiser LLP v. Coopersmith,
74 A.D.3d 465, 469 (1st Dept. 2010). See CPLR
§ 5512(a); Rodriquez v. Chapman-Perry, 63 A.D.3d
645, 646 (1st Dept. 2009) (“Since the record does
not contain the settled order that the motion court
directed to implement its decision to dismiss the
complaint as to respondents, the issues regarding
the finding that respondents are entitled to summary judgment are not properly before this court.
No Appeal lies from that decision”).
The petitioner not only improperly appealed from
the Order directing the settlement of the Probate
Decree, he improperly appealed from the interlocutory March 26, 2018, Order alone and not from the
24
two (2) documents that the Surrogate’s Court stated
constitute the Order of the Court, the March Order
plus the transcript of the hearing. Appx. 19a.
On July 20, 2018, the final Decree in this matter
issued Appx. 8a-11a. It is well settled that any
right to appeal from an interlocutory order terminates with the entry of the final judgment. Matter
of Aho, 29 N.Y.2d 241, 248 (1976). See Zheng v. City
of New York, 92 A.D.3d 412, 413 (1st Dept. 2012)
(“This Court is now obligated to dismiss plaintiffs’
appeal since well-established precedent mandates
that, once a final judgment is entered, the right to
directly appeal from an interlocutory order terminates”). Thus, even if Petitioner had a right to prosecute his Appellate Division appeal of the March
26th Decision, and even if he had done so correctly,
the appeal would have terminated by action of law
when the July final Decree was issued. CPLR
§5513(a) states that an appeal as of right must be
taken within 30 days after service by a party upon
the appellant of a copy of the of the judgment or
order appealed from and written notice of its entry.
The Decree of Probate with Notice of Entry was
served on July 31, 2018. Supp. Appx. 151a-155a.
Clearly, the time to take that appeal was long past
by the time the Appellate Division dismissed the
appeal of the March 26th Decision on September
25, 2018. Appx. 6a-7a. The petitioner’s motion to
restore the case to the Appellate Division calendar
was denied as well in December of 2018. Appx.
4a-5a.
25
Instead of taking a timely appeal from the Appellate Division rejections, petitioner filed a new
action in New York County Supreme Court, which
was dismissed for lack of jurisdiction in January
2019. Appx. 3a. Petitioner’s Motion for Leave to the
Court of Appeals was denied. The Appeal from the
September 25, 2018 Appellate Division decision
was untimely under CPLR 5513[a] and CPLR
5513[b]. The appeal from the December 2018
Appellate Division decision regarding restoring the
case to the Appellate Division calendar was dismissed because it was not an order that finally
determines the proceedings, but rather a post
determination procedural decision. Appx. 1a-2a.
Despite the fact that the second Appellate Division decision (December 27, 2018) and the Court of
Appeals decision (April 2, 2019) were made on a
procedural basis, both sides argued the underlying
merits at each juncture. Both the Appellate Division and the Court of Appeals had the underlying
merits available to them and could have chosen to
waive procedural defects if they had any qualms
about an injustice occurring.
POINT VI
THE CASE WAS CORRECTLY DECIDED
AT EVERY STAGE BELOW
Petitioner is the estranged adult child of the
maker of a Will offered for probate in New York
County Surrogate’s Court. Appx. 8a. Objections
were made to the Will by petitioner who was repre-
26
sented by counsel. Appx. 9a. Petitioner admits that
he did not see his father for the last 19 years of the
father’s life (Appx. 12a.) and that he sent harassing
letters and photos to his father and to his half
brother and that Orders of Protection were issued
against him and criminal charges were filed
against him in connection with his behavior
towards the father, the father’s third wife and the
half brother and the half brother’s children. Appx.
12a-13a, footnote 1.
In reality, this “harassment” constituted death
threats (Appx. 1776a-178a) and photos of petitioner with guns and bombs to demonstrate that he
wanted his family to believe that he had the wherewithal to carry out those death threats. Appx.
190a-191a. Because Sydney refused to end his relationship with Richard when Richard began to
threaten the lives of Richard’s niece and nephew,
Sydney lost contact with his other son Kenneth and
Kenneth’s two children. Pet. Brief at 29. Kenneth’s
family was also disinherited in the probated Will.
Appx. 148a-149a.
Both the Will that was probated and the Will
that it replaced contained identical clauses making
it crystal clear that the testator explicitly disinherited his son, the petitioner herein. Appx. 13a. Article Fifth (b) of the Will states: “Because my son
Richard Fields hired a lawyer to sue me for money
and because I had to have him arrested and
brought to court for harassment of me and my wife,
Teresa[,] I deliberately make no provision for him
27
in this Will and it is my intention that he receive
no part of my estate.” Id.
Petitioner raised several objections to the probate of the Will: lack of testamentary capacity;
undue influence; duress, mistake or fraud, and that
it was not duly executed. Appx. 14a. Extensive discovery was taken, excerpts of which were included
in the petitioner’s appendix despite being dehors
the record. See the table appearing at 1a-5a of the
Supp. Appx. It is respectfully requested that the
court take judicial notice of this chart, and use it to
take note of petitioner’s attempts to misrepresent
the record and to inject new allegations that are
dehors the record, as detailed in said table. In the
March 26, 2018, interlocutory Decision and Order
issued on the motion for summary judgment dismissing the objections and directing the probate of
the Will, Judge Mella discussed the various medical records, testimony and contemporaneous
records which she relied on in determining each of
the objections. Appx. 12a -19a. She also made credibility determinations, something well within the
discretion of a Court of original jurisdiction.
Eleanor Swift One Hundred Years of Evidence
Law Reform: Thayer’s Triumph, 88 Cal. L. R. 2437
et seq. (2000).
The final, appealable, decision of the Surrogate’s
Court, the July 20, 2018, Decree of Probate specifically lists the information which the Court relied
upon in reaching the decision to declare the Will
admitted to probate. Appx. 8a-11a.
28
For reasons unknown to the opponents of the
Petition of Extraordinary Writ, petitioner took an
appeal from the interlocutory March motion Decision, not the final July Decree of Probate. Appx. 6a.
It was his failure to appeal the Decree of Probate
that led to the procedural decisions in the New York
appellate Courts, See Point V above. The underlying merits were in the records on appeal and all the
appellate judges had the ability to consider them
and avert a miscarriage of justice if it appeared to
them. Clearly, given the uncontroverted facts, the
validity of the Will was soundly recognized at all
judicial levels.
29
CONCLUSION
In view of the above, Richard’s Petition for mandamus relief should be denied in its entirety. Both
the probate exception and the fundamental lack of
any jurisdictional basis to support mandamus
relief is fatal to the Petition and require its dismissal. Moreover, the underlying factual setting
provides overwhelming evidence that the Surrogate’s Decisions were soundly made and that
Richard’s objections to the probate of the Will were
meritless.
Respectfully submitted,
___________________________
JULES MARTIN HAAS, ESQ.
Counsel of Record
845 Third Avenue, Suite 1400
New York, New York 10022
212-355-2575
attorney.haas845@gmail.com
and
NOVICK & ASSOCIATES P.C.
202 East Main Street, Suite 208
Huntington, New York 11743
631-547-0300
amessina@novicklawgroup.com
Attorneys for Respondent
October 28, 2019
APPENDIX
1a
Appendix
Page Document
No.
Appendix B 34a
Appendix B 53a
Appendix B 59a
Appendix B 64a
1
Note
Subpoena
Records were
Duces Tecum our Exhibit Q
to Dr. Janet but the subpoena
Searle
itself is not part
of the record1
Letter dated This letter is
March 24,
not part of the
2016 from
record
Objectant
forwarding
Vanguard’s
USB to
Petitioner
Vanguard
This is not part
telephone
of the record
transcripts;
phone
conversation
between
Jeffrey Kern
and Sydney
Fields
Letter from This letter is
Sydney
not part of the
Fields to
record
Jeffrey Kern
(no date)
The words “not part of the record” means that the documents were not presented to the trial court by any party on
the motion for summary judgment.
2a
Appendix
Page Document
No.
Appendix C 68a
Appendix C Page
69a
Appendix C Page
70a
Appendix C Page
78a
Appendix C Page
78a
Testimony
of Diana
Palmeri
Note
Excerpts from
this page are not
in the record.
Portions of the
excerpts on this
page are from
page 26 of
Diana Palmeri’s
transcript and
from page 30 of
Edward Curtin’s
transcript.
Testimony
Excerpts from
of Diana
this page are not
Palmeri
in the record
Testimony
Excerpts from
of Diana
this page are not
Palmeri
in the record
Testimony
Excerpts from
of Ed Curtin this page have
been changed
from the original
testimony
Testimony
Excerpts from
of Ed Curtin this page have
been altered
from the original
transcript
3a
Appendix
Page Document
No.
Note
Appendix C Pages Testimony of The testimony
78a Ed Curtin
at the bottom
and
paragraph of
79a
page 78a is from
page 49 of the
deposition transcript until the
sentence beginning with “I know
he was focused
on”, and the words
completing the
same sentence
“the certain boilerplate that he
was quite familiar with” is from
page 52 of the
deposition transcript, ending
with the words
“was there.” The
quoted excerpt is
misrepresented
as a continuous
excerpt when in
fact it was manufactured from
two separate
pages from the
same transcript.
4a
Appendix
Page
No.
Appendix C Page
81a84a
Appendix C 90a
Document
Note
Testimony of Excerpts from
Ed Curtin
this page are not
in the record
Letter from This letter is not
Novick &
part of the
Assoc. to
record
Richard
Chen, Esq.
dated
08.24.18
Appendix D 93a96a
Testimony
This testimony
of Pia Fields is not part of the
record
Appendix D 97a- Pia Fields
Not part of the
105a Provides in record
Deposition
(Exhibit 3)
Appendix G 164a Letter from Not part of the
Jules
record
Haas, Esq.
To Jay C.
Laubscher,
(Court
Referee)
Appendix G 168a Letter from Not part of the
Dr. Mihailescu record
and
Dr. Giove
5a
Appendix
Page Document
Note
No.
Appendix H 171a Letter from Not part of the
Albert V.
record
Messina
Jr., Esq.
To Richard
Chen, Esq.
Dated April
16, 2019
Appendix H 172a Opinion of
Not part of the
Superior
record
Court of
New Jersey,
Chancery
Division
dated May
14, 1998
Appendix H 187a Sydney
Not part of the
Fields Brief record
Autobiography
Appendix H 196a Family Photo Not part of the
record
6a
EXHIBIT 1
7a
Exhibit List
Exhibit A:
Probate Petition dated Dec. 1, 2015
Exhibit B:
Last Will and Testament dated
October 6, 2014
Exhibit C:
Objections to Probate dated Feb. 24,
2016
Exhibit C-1:
Preliminary Letters Testamentary
dated Jul. 19, 2016
Exhibit C-2:
Death Certificate of Sydney H. Fields
Exhibit C-3:
Affidavit of Diana Palmeri sworn to
on Nov. 28, 2017
Exhibit C-4:
Death Certificate of Teresa Fields
Exhibit C-5:
Affirmation of Edward R. Curtin,
Esq. dated Nov. 27, 2017
Exhibit D:
Deposition Transcript Excerpts of
Susan Lehman, Nov. 14, 2016
Exhibit E:
Deposition Transcript Excerpts of
Jill Curtin, Nov. 14, 2016
Exhibit F:
Deposition Transcript Excerpts of
Edward Curtin, Feb. 1, 2017
Exhibit G:
Handwritten Last Will and Testament
Exhibit H:
Last Will and Testament dated
July 27, 2006
Exhibit I:
Demand for a Verified Bill of Particulars
Exhibit J:
Amended Verified Bill of Particulars
8a
Exhibit K:
Deposition Transcript Excerpts of
Richard Fields, Feb. 24, 2017 &
Apr. 20, 2017
Exhibit L:
Deposition Transcript Excerpts of
Pia Fields, Jun. 14, 2017
Exhibit M:
Deposition Transcript Excerpts of
Maxine Neil, Jul. 24, 2017
Exhibit N.
Chase Bank Subpoena Response
Exhibit O:
Vanguard Records
Exhibit P:
Dr. Elizabeth B. Harrington Records
Exhibit Q:
Dr. Janet B. Searle Records
Exhibit R:
Dr. Arthur J. Kennish Records
Exhibit S:
Pre-Trial Stipulation Apr. 20, 2017
Exhibit T:
Handwritten Residuary Percentages
Exhibit U:
Markup Draft
Exhibit V:
Orders of Protection
Exhibit W:
Richard Fields Affidavit sworn to on
May 24, 2016
Exhibit X:
Family and Criminal Court Documents
Exhibit Y:
Photographs and
Richard Fields
Exhibit Z:
Signature Exemplars
Exhibit AA:
William McAllister Affidavit sworn
to on September 30, 2016
Exhibit BB:
Arthur Fishelman Affidavit sworn to
on June 12, 2017
Letters
from
9a
Exhibit CC:
Adrienne Lawler Affidavit sworn to
on September 14, 2016
Exhibit DD:
Stuart Michael Affidavit sworn to on
September 14, 2016
Exhibit EE:
Irving Rothbart Affidavit sworn to
on September 14, 2016
Exhibit FF:
Gloria Madero Affidavit sworn to on
July 12, 2017
10a
SURROGATE’S COURT OF THE
STATE OF NEW YORK
COUNTY OF NEW YORK
File No.: 2016-111
Filed November 30, 2017
Probate Proceeding, Will of
SYDNEY H. FIELDS,
Deceased.
NOTICE OF MOTION
PLEASE TAKE NOTICE that upon the affirmation
of Jules Martin Haas, Esq., dated November 28,
2017, with exhibits annexed thereto, the affirmation of Edward R. Curtin, Esq., dated November 27,
2017, the affidavit of Diana Palmeri, sworn to on
November 28, 2017, the affidavit of Adrienne
Lawler sworn to on September 14, 2016, the affidavit of Stuart Michael sworn to on September 14,
2016, the affidavit of Irving Rothbart sworn to on
September 14, 2016, the affidavit of William
McAllister sworn to on September 30, 2014, the
affidavit of Gloria Madero sworn to on July 12,
2017, and upon all the papers and proceedings
heretofore had herein, the undersigned will move
this Court, at 31 Chambers Street, Room 503,
New York, New York, on January 9, 2018 at 10:00
o’clock in the forenoon of that day, or as soon thereafter as counsel may be heard, for an Order pur-
11a
suant to CPLR § 3212 granting Petitioner Diana
Palmeri’s motion for summary judgment dismissing objections to probate Richard Fields to the Last
Will and Testament of Sydney H. Fields and admitting said instrument to probate, together with such
other and further relief as may be just, proper, and
equitable.
PLEASE TAKE FURTHER NOTICE that pursuant to
CPLR §2214(b), opposing papers, answering affidavits and notices of cross-motion with supporting
papers, if any, must be served upon the undersigned no less than seven (7) days before the return
date of this motion.
Dated: New York, New York
November 28, 2017
/s/ JULES MARTIN HASS
Jules Martin Hass, Esq.
Co-Counsel for Petitioner
845 Third Avenue, Suite 1400
New York, New York 10022
212-355-2575
To:
Richard Alan Chen, Esq.
Attorney for Objectant, Richard Fields
41-60 Main Street, Suite 203
Flushing, New York 11355
(718) 886-8181
12a
Attorney General of the State of New York
Lisa Barbieri, Esq.
Assistant Attorney General
Charities Bureau
120 Broadway
New York, New York 10271
(212) 416-8396
13a
EXHIBIT 2
14a
EXHIBIT LIST
EXHIBIT A:
Affidavit of Richard Fields
EXHIBIT B:
Probate Proceedings of Teresa Fields
EXHIBIT C:
Will of Sydney Fields dated May 20,
1997
EXHIBIT D: Will of Sydney Fields dated July 27,
2006
EXHIBIT E:
Last Will of Sydney Fields dated
October 6, 2014
EXHIBIT F:
Pages of Deposition Transcript of
Edward Curtin, February 1, 2017
EXHIBIT G: Pages of Deposition Transcript of
Jill Curtin, November 14, 2016
EXHIBIT H: Deposition Transcript of Susan
Lehman, November 14, 2016
EXHIBIT I:
Pages of Phone Conversation Between
Jeffrey Kern and Sydney Fields
dated October 1, 2014
EXHIBIT J:
Medical Records subpoenaed by Mount
Sinai Hospital
EXHIBIT K: Letters from Richard Fields to
Sydney Fields
EXHIBIT L:
Handwriting Expert Report by
Curt Baggett dated October 13, 2017
EXHIBIT M: Affidavit of Gloria Madero and
Petitioner’s List of Witnesses
15a
EXHIBIT N: Bates Stamp 1965 Exhibit
EXHIBIT O: Pages of Phone Conversation dated
March 17, 2016 between Jeffrey Kern
and Diana Palmeri
EXHIBIT P:
Deposition Transcripts of Diana
Palmeri and Edward Curtin on the
“Will Reading”
16a
SURROGATE’S COURT OF THE
STATE OF NEW YORK
COUNTY OF NEW YORK
File No.: 2016-111
In the Matter of the Last Will and Testament of
SYDNEY H. FIELDS,
Deceased.
AFFIRMATION WITH LEGAL CITATIONS
IN OPPOSITION TO PETITIONER’S
MOTION FOR SUMMARY JUDGMENT
RICHARD ALAN CHEN, an attorney admitted to practice in the State of New York, hereby affirms under
penalty of perjury:
1.
I am the attorney for the Objectant, Richard
Fields, in this action and, as such, I am familiar with the facts and circumstances of this
case.
2.
I make this Affirmation in opposition to Petitioner’s Motion for Summary Judgment, which
seeks to (1) dismiss all objections filed by
Objectant; and (2) admit the Will to probate.
BACKGROUND
3.
Sydney H. Fields (“Decedent”), a C.P.A., died
on November 10, 2015, at 96 years old, leaving
an estate of approximately $9,729,286.00.
17a
4.
Objectant, Richard Fields, is one of only two
offsprings of the Decedent. The other, Kenneth
Louis Fields, has not filed objections or
appeared in this proceeding.
5.
Decedent was born on December 30, 1918, one
day after his father died due to an influenza
pandemic. Decedent’s religion was Judaism,
and Decedent was forced to work to support his
mother from 16 years old, due to his father’s
death at the early age of 32. Decedent grew up
with strong work and family values, and his
goal in life, according to his son, Objectant
Richard Fields, was to “bring his family up to
the middle class.” See Affidavit of Richard
Fields, attached hereto as Exhibit A.
6.
Decedent married, Sarah Fields in 1943, when
he was 23. Decedent did not serve in the armed
forces during WWII as he had extreme myopia,
which gave him an exemption from the draft.
Decedent and Sarah had one child, Kenneth
Louis Fields, who was born on February 26,
1946. (Again, Kenneth Louis Fields has not
filed any objections to the Will proffered for
probate or otherwise appeared.) Sarah was
institutionalized in 1948 with a mental illness,
and Decedent annulled the marriage on April
8, 1957. See Exhibit A.
7.
Decendent married Gladys Fields, a NYC public school teacher, on December 11, 1960. Their
child, Objectant Richard Fields, (half-brother
to Kenneth Fields), was born on February 6,
18a
1963, in Brooklyn, New York. Decedent separated from Gladys in 1968, and they divorced
in September, 1969. Objectant continued to
live with his mother after the separation.
Gladys suffered from mental illness after the
separation from Decedent. Gladys died in
Queens on July 26, 2010. See Exhibit A.
8.
Objectant Richard Fields has a bachelor’s
degree attained from Hunter College, City
College of New York, in 1992. Objectant has
suffered from mental illness from childhood.
Decedent was very concerned about Objectant’s
health and wellbeing through his young adulthood. Decedent helped Objectant, when Objectant
was 23 years old, to obtain an apartment in
Manhattan, and paid all tuition, fees and books
for Hunter College, and used his connections
to obtain employment for Objectant. See
Exhibit A.
9.
Gladys, still smarting from the separation from
Decedent, drove a wedge between Objectant
and Decedent, causing him to resent his father
for not supporting the family to his mother’s
satisfaction. See Exhibit A.
10. Thus, as pointed out in Petitioner’s Affirmation
in Support, Objectant’s mental illness drove
him to send harassing communications to
Decedent, seeking to get his father to give him
money, and do other improper actions. Objectant
has been diagnosed as a paranoid schizophrenic,
penniless, and lives in a group home. Although
19a
he tried to contact the Decedent by phone over
the last nineteen years, Objectant did not have
any direct contact with Decedent for that period.
See Exhibit A.
11. Decedent married Teresa Fields (maiden name
Garzon) on September 26, 1975. They did not
have any children. Teresa Fields died on
September 4, 2014. Her Will is being probated
in this Court. See Probate Proceeding of Teresa
Fields attached hereto as Exhibit B.
12. The Petitioner, Diana Palmeri, is the niece of
Teresa Fields and all other individual distributees under the Will are related to Teresa
Fields, by blood or marriage. No blood relatives
of Decedent are distributees under the Last
Will of Decedent dated October 6, 2014.
PRIOR WILLS
13. On May 20, 1997, Decedent executed a testamentary instrument, which had been prepared
by Attorney Edward Curtin. Under the instrument, Decedent bequeathed money to Teresa
Fields’ family members, by blood or marriage.
Decedent also bequeathed $35,000 to Objectant
and the same to Objectant’s son, Lewis Fields,
leaving Pia Fields, Objectant’s former wife as
Trustee. Objectant did not leave any money for
his son, Kenneth Louis Fields. See Will of
Sydney Fields dated May 20, 1997, attached
hereto as Exhibit C.
20a
14. On July 27, 2006, Decedent, at the age of 87,
executed a new will, which was also drafted by
Attorney Edward Curtin. Decedent bequeathed
money to grandchildren of Teresa Fields’s
nieces and nephews, by blood or marriage. The
provision for Objectant’s son, Lewis Fields,
remained the same. In this will, however,
Decedent did not leave any money to Objectant
because Objectant hired an attorney to sue
Decedent. See Will of Sydney Fields dated July
27, 2006, attached hereto as Exhibit D.
15. The Decedent executed a new will on October
6, 2014, the subject of this probate proceeding.
In this last will, Decedent bequeathed almost
the entire estate to the Teresa Fields’ family
members, leaving nothing to Objectant and
Objectant’s son, and Kenneth Louis Fields, his
only living blood relatives. See Last Will and
Testament dated October 6, 2014, attached
hereto as Exhibit E.
LEGAL STANDARD
16. Summary judgment is rare in a contested
probated proceeding. Matter of Castiglione,
40 Ad3d 1227 (3rd Dept. 2007), lv denied
9 NY3d 806 (2007).
17. Summary judgment is proper where the proponent established a prima facie case for probate
and the objectant fails to raise a material triable issue of fact. Matter of Leach, 3 Ad3d 763
(3rd Dept. 2004).
21a
18. However, where “there is conflicting evidence
or the possibility of drawing conflicting inferences from undisputed evidence” summary
judgment is inappropriate. Matter of Kumstar,
66 NY2d 691 (1985); Matter of Williams,
13 AD3d 954 (3rd Dept. 2004), lv denied
5 NY3d 705 (2005).
19. Petitioner’s motion for summary judgment is
improper as there clearly exist triable issues
of fact. This Court should not dismiss the
Objections filed by the Objectant Richard
Fields and should not admit the Will to probate.
ISSUES OF FACT PRESENTED
I.
THE ATTORNEY DRAFTSMAN AND
THE ATTESTING WITNESSES ARE
NOT CREDIBLE
A) FAILURE TO IDENTIFY CARETAKER
AT WILL SIGNING
Incredibly, the attorney-draftsman, Edward
Curtin, and the two attesting witnesses, Susan
Lehman (paid witness) and Jill Curtin, all claimed
in deposition testimony that they were unable to
identity, the name, or even race or color, of the caretaker who arrived with Decedent for the Will execution. See their deposition testimony at Exhibits F,
G and H. Despite discovery requests, no further
information about the identity of the caretaker has
been provided by Petitioner, and Objectant has
22a
been unable to obtain any information on that person.
On the Day of the Will Signing, Edward Curtin
saw a caretaker assisting Decedent to his office. He
knew that it was a “she”, but was not able to provide any racial description of the caretaker.
Q: Did Mr. Fields have an assistant or someone, an attendant, with him at the time
the will was executed in your office?
A: Yes.
..........
Q: That aide, can you describe her physical
characteristics?
A: I thought about this and I can’t. I just
have no recollection of what she looked
like.
Q: As you sit here today, do you recall if she
was white or black?
A: I do not.
See Deposition of Edward Curtin, Page 33: 13-20,
attached hereto as Exhibit F.
Jill Curtin was aware that a caretaker accompanied the Decedent to Edward Curtin’s office for the
Will Signing. However, she was unable to provide
any racial description of the caretaker. She testified:
Q: Did he have any anyone with him?
A: Yes.
23a
Q: Who did he have with him?
A: I don’t know this person. It was an aide,
home help, or something. And he said, I
don’t need her (indicating), and he pointed
to her behind him.
Q: Can you describe the person at all?
A: It was a woman and I’m going to guess she
was in her 40s.
Q: I have to ask this: Was she white, black or
Hispanic?
A: You know, I can’t recall. I’m sorry.
See Deposition of Jill Curtin, Page 21: 2-14,
attached hereto as Exhibit G.
Susan Lehman, a paid attesting witness, also
recalled a caretaker with the Decedent as she
entered Edward Curtin’s office for the Will Signing.
However, when asked the description of the caretaker, she had no recollection. She testified:
Q: Now, you said that Mr. Fields had an aide
with him; is that correct?
A: I think he had an aide, but I don’t remember that the aide came into the room
where the signing happened.
Q: As you sit here today, could you please
describe the aide to me; physical attributes, racial characteristics, ethnic–whatever you can pick out–age?
24a
A: Senior person. I think it was a woman. I
think it was an aide.
Q: White or black, if you remember?
A: I don’t think about that. I don’t remember.
Q: But you said “senior,” so you mean over
50?
A: Yeah, I think so. As I remember.
See Deposition of Susan Lehman, Pages 35: 6-24,
attached hereto as Exhibit H.
It is obvious the Petitioner does not want
Objectant, or this Court, to hear from that caretaker, who has important information on the
Decedent’s condition at the time alleged Will signing. See Deposition testimony of Edward Curtin,
Jill Curtin, and Susan Lehman at Exhibits F, G
and H.
B) DECEDENT WAS LEGALLY BLIND,
YET THE ATTESTING WITNESSES
TESTIFIED DECEDENT’S EYESIGHT
WAS NOT A PROBLEM FOR WILL
SIGNING
There is no question that prior to and at the time
of Will execution, Decedent was legally blind. On
October 1, 2014, five days before Will execution,
Decedent spoke to Jeffrey Kern, his Vanguard
Financial Advisor, informing him that he had difficulty filling out forms since Decedent was “legally
blind.”
25a
Kern:
I also understand that you were having some difficulty with the, the forms
that Andrew had sent to you.
Fields: Yes, because I can’t read, know, I’m,
I’m legally blind, although I–that’s
not like being actually blind, but—
Kern;
Right, I know I called you—
Fields: I can’t read, I can’t read, I can’t read
any type, you know, and, and that’s
why I can’t handle those pages, you
know, I, I have, I have the Death Certificate of Theresa Fields and I can
mail you in the Death Certificate, but
I, I can’t fill out those, those papers
that were mailed to me.
Kern:
Okay, can you see them at all to read
them or even if you—
Fields: I, I, I, I, I can’t, I can’t read them, no,
I can’t read.
Kern:
Okay.
Fields: I mean, with my magnifying glass I
can read large print, but I can’t read
anything that’s 00 that’s on, that’s on
the papers.
See Transcript of Phone Conversation between
Decedent and Jeffrey Kern on October 1, 2014,
obtained by subpoena, attached hereto as Exhibit I.
Medical records subpoenaed from Mount Sinai
Hospital dated October 7, 2014, the day after the
26a
Will Execution, confirming the Decedent was
“legally blind.” See Medical records, attached hereto as Exhibit J.
Attesting witnesses Susan Lehman and Jill
Curtin testified that Decedent had no problem at
all with his eyesight at the Will Execution. At deposition hearing, Susan Lehman stated that
Decedent was able to see, and that Decedent did
not have any impairments of sight or hearing.
Q: Was he able to see? Was he able to see
you, as far as–
A: Yes, yes.
Q: Was he able to speak to you?
A: Oh, yes.
See Exhibit H, Pg. 39.
Q: Did he seem to have any impairments of
sight or hearing or anything like that?
A: No.
See Exhibit H, Page 56:24-25; Page 57:1-3
Jill Curtin testified Decedent’s eyesight was not
a problem either, although she contradicted herself
by mentioning she “wasn’t sure” if he used a magnifying glass.
Q: As far as his eyesight, was it clear or did
he appear to need any help or have a problem with that?
A: It appears to be clear. I have this little
memory of maybe a magnifying glass, but
I’m not sure if that was Mr. Fields.
27a
Q: When you say “magnifying glass,” do you
recall if he was using a magnifying glass?
A: He might have used it and then initialed,
and he signed (indicating).
Q: But you’re not sure?
A: I am not sure.
Q: Also, since you testified Mr. Curtin did not
read—or you didn’t hear Mr. Curtin hear
Mr. Curtin read the will out loud—
A: Yes.
Q: —did you see Mr. Fields read the will, with
or without the magnifying glass?
A: Well, I have this little memory of him with
the magnifying glass, but. . .
Q: Sitting here today, do you know any reason
why Mr. Fields would be using a magnifying glass to read his will
A: I don’t know what the reason—I don’t
know of any reason.
Q:· Was there any mention at the table about
that before, during or after the signatures?
A: No. There was no—I don’t recall any mention of it, except that we had—I remember
him saying the he didn’t—he didn’t like the
eyedrops or something. He had to get eyedrops.
Q: So is it correct to state that, as you sit here
today, in your memory, you’re saying it’s
28a
possible that he had a problem with his
eyesight at the time that you signed the
will?
A: Maybe. I don’t know. I don’t know.
See Exhibit G, Pages 54-56.
Yet, once again incredibly, both attesting witnesses swore to an attestation affidavit that
Decedent “. . .was suffering from no defect of
sight. . .” at the time of Will signing. Thus, under
oath, both witnesses have been shown not credible,
by Decedent’s own words, and his diagnosis at
Mount Sinai hospital, as “legally blind.”
Q: Did you see Mr. Curtin put these Xs
there?
A: He may have. II don’t recall.
Q: Did you see Sydney put these Xs there?
A: I don’t recall.
Q: But you do recall Mr. Sydney Fields signing here?
A: Yeah.
See Exhibit G, pages 32: 23-25; 33: 2-13.
Further, the Will does not contain “X’s” where
Decedent supposedly initialed the Will on pages “1”
and “2.” There is an open question how Decedent
was able to initial without “X’s,” but was unable to
sign without “X’s.”
Note also Susan Lehman did not mention the X’s,
and she stated in deposition she “did not
recall watching him (Decedent) sign” the Will.
29a
Ms. Lehman also did not recall who asked her to
sign the Will and attestation Affidavit, or even the
order she signed the Will and Attestation clause.
At her deposition testimony, Ms. Lehman testified:
Q: Did you see Sydney Fields sign this document?
A: I must have.
Q: But sitting here today, do you recall him
sign—
A: I don’t recall.
See Exhibit H, pg. 72: 16-21.
This outside of the requirement of EPTL Section
3-2.1, “Each of the witnesses signed the instrument
as a witness at the testator’s request.” A trial is
necessary to determine if the EPTL requirements
were met for this alleged Will dated October 6,
2014 signing by Decedent.
Note, there were no “X’s” placed on the Will
where Decedent supposedly “initialed” the Will. If
Decedent was not able to sign on page 3, how was
it that he was able to “initial” without the help of
“X’s?” Further, this confirms that Decedent had a
problem with his eyesight and signing the Will,
contrary to the testimony of the two witnesses.
It is obvious, there is a contradiction between the
two attesting witnesses, Jill Curtin and Susan
Lehman, as to whether the Will Execution Procedures of Section 3-2.1 of the EPTL were complied
with, requiring a trial to determine if Decedent did
30a
sign the Will, ask the Witnesses to do same, and
his health and eyesight at the time.
D) THE WILL AND ATTESTATION AFFIDAVIT HAS OTHER IRREGULARITIES
The witness clause of the WILL on page 3 indicates “Testator. . .declared same to be her Last
Will and Testament; We, thereupon at her request
and in her presence. . .”
As stated in response to Petitioner’s last Summary Judgment Motion, there is a question if the Witnesses read the attestation clause and when they
signed it, being the mistake on it is so glaring.
Further, the Attestation Affidavit of the Witnesses
has the wrong date, which Edward Curtin stated he
corrected and initialed, which renders the same
ineffective and a trial is necessary to prove the
proper procedures were followed and Decedent
signed the Will. See SCPA Sec. 1406 (a), as Objectant is raising objection to the Affidavit of the Witnesses. At deposition, Mr. Curtin testified:
Q: If you would, please explain us how those
initials came to pass, who they are and
how that happened?
A: Okay. The–after the two witnesses had
read and signed this affidavit and I had
signed as the notary, Jill, my wife, was
making copies of the will and she pointed
out to me in the process of making copies
that this was–there was a blank in there
and there was the date July 2006 and at
31a
that point I realized it was a carryover
from a prior will, probably the prior will of
Sid Fields off my word processing computer.
And so in the presence of the witnesses
and Mr. Fields, I made the correction on
the–to reflect the actual date that it was,
October 6, 2014, and initialed it.
Q: Did you request the witnesses to initial
that change on their affidavit?
A: No.
Q: Why not?
A: I didn’t think it was necessary.
See also Exhibit F pg. 66:9-25; 67:1-7, Deposition
testimony of Edward Curtin concerning the date
mistake, which Mr. Curtin and his attorney are
alleging was not a “mistake.”
The handwritten document concerning the residuary estate given to Edward Curtin by Decedent at
the October 3 meeting is at question since Edward
Curtin testified that he was not sure if the Decedent wrote this document. At the deposition testimony, Mr. Curtin testified:
Q: Now, Mr. Curtin, you testified that you
recognize this document. Can you tell me
what it is, that’s Exhibit 8?
Mr. Hass: Which document are you referring
to?
A: Eight
32a
Mr. Hass: You testified that you recognized
that before?
A: Yes. Just a short while ago.
Q: Yes.
A: This is a piece of paper with handwritten
names and numbers next to those names
that was given to me when I met with Mr.
Sid Fields the first time for the purpose of
preparing this 2014 will.
Q: Did Mr. Fields make out this sheet in
front of you no?
A: No.
Q: Can you tell me what he said, what you
said, concerning when this was handed to
you?
A: He said this is the way I want to have the
–his estate, his residuary estate distributed.
Q: And, do you know if this document was
made out by Mr. Fields?
A: I don’t know for certain, but he is the only
person that gave it to me, so.
Q: So, all you know is that he gave it to you,
correct?
A: Yes.
See Handwritten Document Bates Stamp 1965,
attached hereto as Exhibit N.
33a
E) SUSPICIOUS CIRCUMSTANCES SURROUNDING TIMING OF WILL EXECUTION
The initials “SHF” of the Decedent are in question surrounding the timing of the Will Execution.
At deposition testimony, Mr. Curtin stated that
Decedent put his initials in a Sharpie marker on
the lower-left hand pages of the Will before Decedent signed the last page. He also testified that it
was his practice to ask the testator to initial the
pages that he was not signing the will. Mr. Curtin
testified:
Q: At the time he signed, did you instruct
Mr. Fields as to where to sign as he was
signing?
A: Well, with respect to the Pages 1 and 2, I
asked him to initial the lower left-hand
corner. And on Page 3 I asked him to sign
above where his name was typed. At that
time he asked me to put Xs there to help
guide him and then he processed to sign.
Q: Is it correct to state that at the title that
this will was executed, it was your practice as the supervising attorney to ask the
testator to initial the pages that he was
not signing on the will?
A: That is my practice.
See Exhibit F, Page 65: 6-20.
However, Curt Baggett, a handwriting expert,
submitted by the Petitioner, analyzed the signatures of the Decedent from various documents
34a
including the same. Mr. Baggett concluded that
someone, besides the Decedent, forged the initials
of the Decedent on the last page of the Will. He
reported in his own words:
“Based upon thorough analysis of these items,
and from an application of accepted forensic
document examination tools, principles and
techniques, it is my professional expert opinion that a different person authored the initials of SHF on the questioned document.
Someone did indeed forge the initials of SHF
on the questioned document, ‘Q2’.
See Handwriting Expert Report Curt Baggett
dated October 13, 2013, attached hereto as
Exhibit L.
Petitioner has not provided a handwriting expert
nor any reports from a handwriting to disqualify
Mr. Baggart’s report. This requires a trial to determine whether the Decedent initialed the pages of
the Will dated October 6, 2014. Thus, Petitioner’s
motion for summary judgment should be denied.
F) FROM THE PREVIOUS WILL, DRASTIC
CHANGES
BENEFIT
THE
“PALMIERI” FAMILY IN THE LAST
WILL, RAISING QUESTIONS OF THE
VERACITY OF THE PRESENT WILL
The proffered 2014 Will contains significant
changes to the bequests as compared to the alleged
2006 Will. Charitable bequests to the United Jewish Appeal of New York, and several CUNY entities
were reduced from large percentages of the Estate
35a
to minute fixed bequests in the nominal amount of
$500 a piece, while the Palmeri family (individuals
who were not named in the alleged 2006 Will and
are also not blood relatives of the Decedent), suddenly became the primary beneficiaries of the
Estate. The Estate presents no evidence from
individuals with knowledge who might be able to
explain the Decedent’s reasoning or the circumstances that lead to such dramatic changes to those
bequests. Without such evidence it appears those
charities received nominal gifts simply because
their complete absence from the Will would
undoubtedly should undue influence on the part of
those beneficiaries who took their place, and they
wanted that undue influence to go unnoticed. Petitioner’s Motion for Summary Judgment must be
denied to these questions of fact.
G) Party Not Listed in Petitioner’s List of
Witnesses Must be Deposed
The affidavit of Gloria Madero should be ignored
as the following: 1) she was not listed as a witness
or otherwise advised by Petitioner’s attorney to
Objectant’s attorney; 2) she was never deposed;
and 3) there was no supporting documentation as
to why her testimony is included in the motion. See
Petitioner’s List of Witnesses, attached hereto as
Exhibit M.
WHEREFORE, Objectant RICHARD FIELDS respectfully
requests that Petitioner’s Motion for Summary
Judgment be denied in total,
36a
TOGETHER WITH costs, disbursements, fees and
such other and further relief as the Court deems
just, fair, and equitable.
Dated: Flushing, New York
January 22, 2017
Law Offices of Richard Alan Chen, Esq.
/s/ RICHARD ALAN CHEN
Richard Alan Chen, Esq.
Attorney for Objectant
41-60 Main Street, Suite 203
Flushing, New York 11355
(718) 886-8181
To: Albert V. Messina, Esq.
Attorney for Petitioner
202 East Main Street
Huntington, New York 11743
(631) 547-0300
Edward R. Curtin, Esq.
Co-Counsel for Petitioner
220 West 71st Street, Suite 31
New York, New York 10023
Jules Martin Haas, Esq.
Co-Counsel for Petitioner
845 Third Avenue, Suite 1400
New York, New York 10022
37a
EXHIBIT LIST
EXHIBIT A:
Affidavit of Richard Fields
EXHIBIT B:
Probate Proceedings of Teresa Fields
EXHIBIT C:
Will of Sydney Fields dated May 20,
1997
EXHIBIT D: Will of Sydney Fields dated July 27,
2006
EXHIBIT E:
Last Will of Sydney Fields dated
October 6, 2014
EXHIBIT F:
Pages of Deposition Transcript of
Edward Curtin, February 1, 2017
EXHIBIT G: Pages of Deposition Transcript of
Jill Curtin, November 14, 2016
EXHIBIT H: Deposition Transcript of Susan
Lehman, November 14, 2016
EXHIBIT I:
Pages of Phone Conversation
Between Jeffrey Kern and Sydney
Fields dated October 1, 2014
EXHIBIT J:
Medical Records subpoenaed
Mount Sinai Hospital
by
EXHIBIT K: Letters from Richard Fields to
Sydney Fields
EXHIBIT L:
Handwriting Expert Report by Curt
Baggett dated October 13, 2017
EXHIBIT M: Affidavit of Gloria Madero and Petitioner’s List of Witnesses
38a
EXHIBIT N: Bates Stamp 1965 Exhibit
EXHIBIT O: Pages of Phone Conversation dated
March 17, 2016 between Jeffrey Kern
and Diana Palmeri
EXHIBIT P:
Deposition Transcripts of Diana
Palmeri and Edward Curtin on the
“Will Reading”
39a
EXHIBIT 3
40a
Exhibit List to Reply Affirmation
Exhibit A Pages 185-186 from the deposition
testimony of Richard Fields
Exhibit B Pages 33-34 from the deposition testimony of Edward Curtin
Exhibit C Pages 153-156 from the deposition
testimony of Edward Curtin
Exhibit D WebMD Article
Exhibit E American Foundation for the Blind
Article
Exhibit F Letter from Jules Martin Haas, Esq. to
Richard Alan Chen, Esq. dated March
20, 2017
Exhibit G Vanguard Subpoena
Exhibit H Letter from Richard Alan Chen Esq., to
Albert V. Messina Jr. Esq. dated March
22, 2017
Exhibit I
Letter from Albert V. Messina Jr. Esq.
to Richard Alan Chen, Esq. dated
March 23, 2017
Exhibit J Page 152 from the deposition testimony
of Edward Curtin
Exhibit K Pages 149-150 from the deposition
testimony of Edward Curtin
Exhibit L Objectant’s Amended Verified Bill of
Particulars
41a
Exhibit M
Petitioner’s Demand for Expert Witnesses
Exhibit N
Pages 79-80 from the deposition testimony of Edward Curtin
Exhibit O
Richard Fields Affidavit sworn to on
May 24, 2016
Exhibit P
Pages 378-379 from the deposition
testimony of Richard Fields
Exhibit Q
Pages 381-382 from the deposition
testimony of Richard Fields
Exhibit R
Pages 383-384 from the deposition
testimony of Richard Fields
Exhibit S
Page 82 from the deposition testimony
of Edward Curtin
Exhibit T
Petitioner’s September
Amended Witness List
22,
2017
42a
SURROGATE’S COURT OF THE
STATE OF NEW YORK
COUNTY OF NEW YORK
File No: 2016-111
PROBATE PROCEEDING
Will of SYDNEY H. FIELDS,
Deceased.
REPLY AFFIRMATION IN
SUPPORT OF MOTION
FOR SUMMARY JUDGMENT
JULES MARTIN HAAS, an attorney admitted to
practice in the State of New York, hereby affirms
under penalty of perjury:
1. I, along with Edward R. Curtin, Esq., and
Novick & Associates, P.C., represent Diana Palmeri
(“Diana”) the petitioner herein and the named
Executor in the instrument offered for probate
herein.
2. This Reply Affirmation is based upon my
review of the evidentiary matter and the prior proceedings in this case. This Reply Affirmation is
submitted in further support for Diana’s Motion for
Summary Judgment: (i) dismissing all of the Objections filed by Richard; and (ii) admitting the Will to
probate as Sydney’s Last Will and Testament and
granting letters testamentary to Diana.
43a
3. The shortened references and abbreviations
referred to in my Affirmation in Support of the
Motion dated November 28, 2017 are sometimes
utilized herein. Additionally, it is respectfully
noted that for purposes of economy this Affirmation
contains references to legal authorities as well as
factual information.
4. As set forth below, Richard has failed “to produce evidentiary proof in admissible form sufficient
to establish the existence of material issues of fact
which require a trial of the action.” Alvarez v.
Prospect Hospital, 68 NY2d 320, 324, 508 NYS2d
923 (1986) (internal citations omitted). “[M]ere conclusions, expressions of hope, or unsubstantiated
allegations or assertions are insufficient” Zuckerman
v. City of New York, 49 NY2d 557, 562, 427 NYS2d
595 (1980) (internal citations omitted). The Will
was executed in conformity with EPTL 3-2.1. There
are no substantive issues regarding the Objections
based on lack of testamentary capacity or the presence of any alleged false statements, forgery,
duress, fraud, mistake or undue influence. In fact,
Objectant has abandoned his fraud, duress, mistake and undue influence objections.
5. In this regard, the Affirmation with Legal
Citations in Opposition to Petitioner’s Motion for
Summary Judgment of Richard Alan Chen dated
January 22, 2017 (the “Chen Affirmation”), along
with its accompanying Exhibits, is entirely insufficient to give rise to any issue of fact.
44a
6. For purposes of efficiency, the Objectant’s
responses to Diana’s motion are discussed in the
order presented in the Chen Affirmation. Reference
is first made to the portion of the Chen Affirmation
at page 3 labeled Background. Mr. Chen wrongly
asserts at ¶ 10 of his affirmation that petitioner
“pointed out” that “Objectant’s mental illness drove
him to send harassing communications to Decedent, seeking to get his father to give him money,
and do other improper actions”. Petitioner never
sought to provide such an excuse for Objectant’s
blatant and offensive conduct. The Objectant’s
attempt to falsely portray himself as a innocent
misguided individual is disingenuous and contrary
to the factual information in this matter. The
Objectant’s sole motivation in threatening and
attempting to intimidate his father was pure greed.
The Objectant’s attempts to pull at the heartstrings of the Court should not be considered. The
Objectant clearly acted with intent in formulating
a scheme to frighten his father and his wife, Teresa.
The Objectant intentionally created photographs of
himself bearing weapons and explosives and sent
them to the decedent. As admitted by Objectant in
his deposition:
A. Oh, I just wanted to add one thing.
Q. Sure.
A. I got motor vehicle records for my father
from these private investigators. Ok, go
ahead.
45a
Q. What was your motivation against for getting all this information about your dad?
A. I wanted to know what his net worth was.
Q. And why is that? Why. Why did you want
to know.
A. A lot of people do that.
Q. But why did you want to know?
A. I wanted to know what my mother could
ask for in a court proceeding. My mother
was going to court all the time suing him
for money and I wanted to know what I
could possibly get when he died as an
inheritance.
Q. And that’s because you were concerned
that Teresa or your brother might interfere
with your inheritance; is that correct?
A. Well, I know that they could get something, but that doesn’t mean I wouldn’t get
more or I wouldn’t get a substantial
amount. I was concerned they would interfere with it, but I wouldn’t—but I would
understand I would get some of it and not
all of it in regards to the inheritance.
Q. But you wanted all of it, correct?
A. Yeah. But I wouldn’t do anything illegal.
It was just a hypothetical or theoretical
situation. Yes, I wanted all of it, but a lot
of people do.
46a
Richard Depo. at p. 185 ln 5 - p.186 ln 20 (Exhibit
A hereto).
A. The reason why I threatened my father is
because I both legally and illegal obtained
records of my father’s assets or finances,
assets, however you want to say it. Any
assets, income and finances which showed
that he had millions of dollars in assets. I
don’t remember the exact number. I didn’t
calculate exactly that number. But it was
a few million dollars and I can’t be more
specific than that. And I wanted him to
either give me something while he’s alive
or leave it to me as an inheritance, and I
thought if he saw pictures like this he
would think that if he doesn’t something
bad could happen. Something violent could
happen with regards to these weapons. I
wasn’t actually going to do anything like
that, but I thought he would think that
and leave me—he would either give it to
me when he was alive or leave it to me as
an inheritance.
Q. So would it be a fair statement to make
that your motivation in doing this was to
instill some type of fear or concern in your
dad with respect to violence so he would
then make you a beneficiary of his estate?
A. Yes, that’s correct.
Richard Depo. at p. 253 ln 5 - p. 254 ln 11 (Haas
Nov. 28, 2017 Aff. Exhibit K).
47a
7. Another misstatement is made at ¶ 14 of the
Chen Affirmation where it is noted that “Decedent
did not leave any money to Objectant because Objectant hired an attorney to sue Decedent”. In fact, as
provided by the decedent in Article FIFTH(b) of the
Will, which the decedent himself wrote, the full
and unabbreviated reason the Objectant was disinherited was:
Because my son Richard Fields hired a lawyer
to sue me for money and because I had to have
him arrested and brought to court for harassment of me and my wife, Teresa I deliberately
make no provision for him in this Will and it
is my intention that he receive no part of my
estate.
8. With regard to Objectant’s substantive
response to petitioner’s motion, the Chen Affirmation at page 5 provides only one main category constituting Objectant’s opposition, that being “1. The
Attorney Draftsman and the Attesting Witnesses
Are Not Credible.” This category regarding credibility is then discussed in Sections A-G of the Chen
Affirmation.
9. Section A is entitled “Failure to Identify Caretaker at Will Signing”. Beginning at page 5, the
Chen Affirmation recounts that neither Mr. Curtin
nor the attesting witnesses, Jill Curtin (“Jill”) and
Suzanne Marie Lehman (‘Suzanne”), could recall
any details regarding the so-called “caretaker” who
accompanied the decedent to Mr. Curtin’s office on
October 6, 2014, which was the day the Will was
48a
executed. Mr. Chen then concludes that “it is obvious the Petitioner does not want Objectant, or this
Court, to hear from that caretaker, who has important information on the Decedent’s condition at the
time alleged Will signing.” (Chen Aff. at p.7).
10. Mr. Chen’s above statement lacks any substantive value and is blatant speculation. Moreover, it is entirely false.
11. Mr. Chen fails to provide any factual support
that any of the witnesses have not testified truthfully. Such a baseless accusation is highly improper.
Moreover, Mr. Chen’s unsubstantiated insinuation
that petitioner in some manner prompted the witnesses to secrete information and alter their testimony is outrageous.
12. A similar factually deficient assertion is
made by Richard in his Affidavit sworn to on January 22, 2018 (the “Richard Affidavit”), which is
annexed as Exhibit A to the Chen Affirmation,
where Richard provides at ¶ 14 “For instance, the
attorney-draftsman and the witnesses all conspiring to not ‘remember’ the identity or race or ethnic
group of the caretaker. . . .”
13. Neither Richard nor Mr. Chen provide any
facts to support their preposterous claim of a conspiracy or coverup.
14. Significantly, the Objectant has been
engaged in discovery in this case for well over a
year. Mr. Chen has demanded and received hundreds of documents from the petitioner and third
parties. Furthermore, nothing prevented Objectant
49a
from issuing subpoenas or utilizing other discovery
devices. If Objectant was of the opinion that any
discoverable information was not forthcoming pursuant to any of the Objectant’s discovery demands,
then an appropriate application should have been
made to this Court. No such application was filed
with this Court because no discovery was withheld.
15. As noted by the Court in Estate of Korn, 25
A.D. 3d 379, 808 NYS2d 48 (1st Dept. 2006), where
the admission of a Will to probate was upheld:
“Insofar as the Objectant insists that summary
judgment was improper without permitting him to
continue discovery, this claim is undermined by his
failure to move for additional discovery or to seek
a continuation so he could procure necessary
affidavits.”
16. Furthermore, Mr. Chen fails to identify the
nature of the so-called “important information on
the Decedent’s condition” that such caretaker may
possess. The “caretaker” did not act as a witness to
the Will. According to all of the uncontroverted and
admissible evidence, the caretaker was not present
at or a participant at the Will signing ceremony. As
a result, the “caretaker’s” identity reasonably
appears to have been a non-factor for Mr. Curtin,
Jill and Susan who were clearly focused on, and
attentive to, their roles regarding the execution of
the Will.
17. While p. 5 of the Chen Affirmation provides a
limited portion of Mr. Curtin’s deposition, Mr.
Curtin’s deposition testimony continues at page 33
50a
1ine 21 through page 34 line 24 (Exhibit B,
hereto), as follows:
Q. On that day what did you observe of her
interaction with Mr. Fields in your office,
I will make it specific?
A. Well, she didn’t come into my office. They
came into the entry of my suite, my apartment, really had no interaction. I believe
that Sid came into my office, we sat down
and reviewed the will and provisions but
sat out in the living room area and I think
with my wife, Jill, but I had no interaction
with her at all.
Q. Was she present in the room when the will
was signed?
A
No.
Q. And the will?
A. No.
Q. Do you happen to know of what agency she
worked for?
A. No idea.
Q. Were you introduced to this person at all
by anyone?
A. Possibly Sid stated that, I don’t know if he
introduced her by name, but that there
was somebody who was there to help him
ambulate.
51a
18. As noted by the Court in In re James, 62
A.D.3d 707, 708, 878 NYS2d 195 (2nd Dept. 2009),
in affirming summary judgment dismissing objections and admitting a Will to probate:
The Objectants have now deposed the executor,
the drafting attorney, the two witnesses to the
execution of the will, and all but one of the
beneficiaries. The whereabouts of the sole beneficiary yet to be deposed are unknown, and
she is not within the control of anyone involved
in the proceedings (see Karras v. County of
Westchester, 71 A.D.2d 878, 419 N.Y.S.2d
653). Moreover, there is no need for additional
discovery. The objectants’ contention that the
missing beneficiary, who was a child when the
will was executed, has information relevant to
this matter is purely speculative (see Matter of
Korn, 25 A.D.3d 379, 380, 808 N.Y.S.2d 48;
Matter of Leach, 3 A.D.3d at 766, 772 N.Y.S.2d
100; Matter of Wilson, 266 A.D.2d 164, 698
N.Y.S.2d 854; Friend v. Regina, 189 A.D.2d
853, 592 N.Y.S.2d 973). Accordingly, the
Surrogate’s Court properly denied the objectants’ cross motion.
19. In view of the above, the non-identification of
the “caretaker” is a non-event having no bearing
factually or otherwise on the validity of the Will.
No issue of fact is created regarding this matter
and no additional discovery is required or permissible.
52a
20. Section B, appearing on page 7 of the Chen
Affirmation, is entitled “Decedent was legally
blind, yet the attesting witnesses testified Decedent’s eyesight was not a problem for Will signing”.
While in Section B the Objectant asserts that the
decedent had diminished eyesight, the Objectant
fails to demonstrate that such physical defect, to
the extent it actually existed at the Will signing,
created an issue of fact regarding the decedent’s
testamentary capacity or the due execution of the
Will. The Objectant’s presentation regarding these
statutory prongs for probate is confined solely to an
attempt to question the credibility of the attesting
witnesses.
21. The law in New York is clear that blindness
or some other physical impairment does not prevent someone from validly executing a Will. The
issue that arises in such cases is whether such disability affected the decedent’s capacity or interfered with the due execution process. As stated by
the Court in In re McCabes Will, 75 Misc 35, 36 134
NYS 682 (Surr. Ct. NY County 1911):
A blind person may make a will. Such a condition as that of testatrix merely casts upon the
proponents the burden of proving, with greater
particularity, that the paper propounded was
the conscious act of a free and capable testatrix, and that no imposition was practiced on
her. It seems to me that the proponents have
discharged this burden resting upon them sufficiently in this cause. That the provisions of
the will were dictated by testatrix herself, and
53a
that the Will was read over to her before execution, is established, and it is not contradicted.
There is an absence of proof of weakness of
mind. The will is sufficiently rational on its
face to furnish no inherent evidence of a disordered intellect.
Here, Mr. Curtin testified that he read the provisions of the 2014 Will to the Decedent “that related
to who was getting what and the two sections dealing with his sons and the executor” on October 6,
2014. (Hass Nov. 28, 2017 Aff. Exhibit F at p.5253).
22. As noted above, the Objectant does not present any factual evidence that the decedent’s testamentary capacity was affected whatsoever by any
alleged physical disability. Additionally, the Objectant does not provide any evidence as to what
extent, if any, the decedent’s eyesight resulted in
the execution of the Will failing to satisfy the dictates of EPTL 3-2.1.
23. The uncontradicted combined testimony of
Mr. Curtin, Jill and Suzanne was that the decedent
made a conscious decision to have his Will re-done
after Teresa died, that he intentionally and with
purpose consulted Mr. Curtin in furtherance of
such re-draft and that his actions and conduct on
the day of the Will execution were competent and
free from restraint and that he participated in the
Will preparation and signing process naturally and
intelligently under the supervision of Mr. Curtin
and in the presence of the witnesses.
54a
24. As recounted by Mr. Curtin in his deposition
testimony, prior to signing the Will, Mr. Curtin and
the decedent sat together and reviewed the Will
contents:
I think my recollection—my recollection is that
we sat side by side and we went over page by
page and there was certain boilerplate that he
was quite familiar with, since this was our
third will, one of which in fact in 2006 he had
written himself, so he was conversed with that
boilerplate part of the will, but that we both
focused on and reading the who was getting
what and who wasn’t getting what, and those
he was particularly interested in. And in those
cases, I think he also used his magnifying
glass to ascertain that what I was saying was
there, was there.
Curtin depo. at p. 51 ln 23-25 and p. 52 ln 1-12.
(Haas Nov. 28, 2017 Aff. Exhibit F). See In re
McCabe’s Will, 75 Misc at p. 36.
25. The Objectant has not offered a scintilla of
evidence, admissible or otherwise, that could possibly present a factual issue on these matters.
26. In this regard, the Objectant’s conclusion at
the end of the Section B on page 9 that the witnesses
are “not credible” because the Witness Affidavit
provides that the decedent “was suffering from no
defect of sight. . . .”, is misleading and meritless.
The actual text of the paragraph in the Witness
Affidavit provides that such “impairment would
affect his capacity to make a valid Will.” Objectant
55a
has not established that any defect of sight affected
the decedent’s testamentary capacity.
27. The Witness Affidavit and deposition testimony are clear that no factor existed that affected
the decedent’s testamentary capacity. Thus, the
witness testimony is totally credible and uncontroverted.
28. The topic regarding the decedent’s eyesight,
as well as the referenced wording in the Witness
Affidavit, was testified to by Mr. Curtin at his deposition, as follows:
Q. Now, if you go back to the affidavit, the
witness affidavit.
A. Right.
Q. That is on Page 4 of the Objectant 6, on
Page 4 of that document. If you just take a
second and read through the paragraphs
there.
A. Okay.
Q. Would you say that the statement in that
affidavit accurately reflects the events that
occurred on October 6, 2014?
A. Yes.
Q. Would you have supervised the execution
of this will if you believed that it was not
done in accordance with the statutory
requirements required for the execution of
a will? Would you have supervised this
Will if you believed that it wasn’t prepared
56a
and executed in accordance with the statutory requirements.
A. No.
Q. Would you have supervised the execution
of this Will if you believed that Sydney
Fields did not have the capacity to sign the
will on that date?
A. I would not have.
Q. Is it your belief that on October 6, 2014
that Sydney Fields appeared to be of
sound mind, memory and understanding?
A. Yes.
Q. Is there any doubt in your mind that he
totally understood that he was signing his
will on that date?
A. No doubt whatsoever.
Q. Now, you testified that Sydney Fields complained about his eyesight?
A. Well, he complained about his eyedrops.
Q. His eyedrops. And that based on your
observation of him he did have some difficulty with his eyesight; would that be correct?
A. That would be correct.
Q. When he came to the will signing on October 6, 2014, you testified that he brought
his own pen, which was called a Sharpie
with him; is that correct?
57a
A. That’s correct.
Q. And he insisted on using that pen to sign
the will?
A. That is correct.
Q. You also said that during the little session
that you had with him before the will was
signed, that you read portions of the will
aloud to him and that he also read portions of the will himself; is that correct?
A. With a magnifying glass, yes.
Q. And, the magnifying glass that he read the
will with, where did that come from?
A. He brought it.
Q. He brought the magnifying glass with
him?
A. That’s correct.
Q. What did that look like?
A. As I recall, it was a rectangular lens with
some kind of stick, I guess.
Q. So, he put that down to the paper and he
looked through it.
A. Yes.
Q. And he used it to read?
A. Yes.
Q. Based on your observation, you saw him
reading that will?
58a
A. Yes.
Q. So, would it be fair to say that whatever
inability or deficit he had with respect to
eyesight, based on his use of the magnifying glass and your reading the will to him,
that his eyesight didn’t affect his ability to
read and understand that will?
A. He knew everything that was in that will.
Q. So, the statement in this affidavit where it
says he was suffering from no defect of
sight, hearing or speech, would be an
accurate statement; am I correct?
A. Well, coupled with what words that are
directly after that, which would affect his
ability to make a valid will.
Q. This is correct.
Curtin Depo. at p. 153-156 ln. 22 (Exhibit C
hereto).
29. Moreover, the assertions set forth by the
Objectant mischaracterize the nature of the decedent’s eyesight. At the outset of Section B, Mr.
Chen states on page 7 of his Affirmation that “there
is no question that prior to and at the time of Will
execution, Decedent was legally blind.” Mr. Chen
does not assert to have any personal knowledge
regarding the extent of the decedent’s eyesight.
Nowhere in Objectant’s opposition is there provid-
59a
ed any credible or authenticated medical diagnosis1
or evidence as to the decedent’s eyesight at the
time the Will was executed.
30. The Chen Affirmation at page 7 refers to
an alleged conversation by the decedent with a
Vanguard Financial Advisor named Jeffrey Kern.
Putting aside the unauthenticated nature and
objectionable use of this paper (see discussion
below), the decedent allegedly states in said communication that “I’m legally blind, although I –
that’s not like being actually blind. . . .” (Chen
Aff. Exhibit I).
31. Not only does the decedent’s alleged statement reflect his cognitive awareness of his physical
abilities, as explained below, it points to the misleading and falsity of the Objectant’s attempt to
portray the decedent as incapable of viewing his
Will. It is also noted that the decedent appears to
be conversing with his financial advisor by himself
and without reference to anyone else and without
any assistance.
32. As to the decedent’s eyesight, a simple
Google search provides that “legal blindness” is
only a government definition used to determine a
person’s eligibility for benefits. It is not a medical
definition regarding a person’s ability to see or
read. The term is not synonymous with complete
blindness and does not mean that a person cannot
1
Objectant’s bald, conclusory allegation that the decedent had “eye cancer” has no support in the record. (Richard
Fields Aff. ¶ 14).
60a
otherwise function. Annexed as Exhibit D hereto
is a printout from WebMD which I obtained from
an on-line search on February 10, 2018. As stated
therein:
What Does It Mean To Be Legally Blind:
You might be surprised to learn that it’s Uncle
Sam, not the doctor, who defines whether
you’re legally blind.
The government uses the term “legal blindness” to decide who can get certain benefits,
like disability or job training. It is not the
same as being totally blind. If you’re completely blind, you can’t see any light or form. Only
about 15% of people can see nothing at all. If
you’re legally blind, you can still see – just not
that clearly.
Normal vision is 20/20. That means you can
clearly see an object 20 feet away. If you’re
legally blind, your vision is 20/200 or less.
That means if an object is 200 feet away, you
have to stand 20 feet from it in order to see
it clearly. But a person with normal vision
can stand 200 feet away and see that object
perfectly.
An estimated 1.1 million Americans are legally
blind. Some conditions, like glaucoma, cataracts,
and diabetes, can affect your sight to the point
that you may be diagnosed ·with the condition.
61a
Tests for Legal Blindness
Your doctor will check your vision during a
standard eye exam.
She’ll measure your eyesight while you’re
wearing glasses or contact lenses. Your vision
might fall below 20/200 without them. It is
improves when you put on your glasses or contacts, you’re not considered legally blind.
What’s It Like to Have the Condition
It varies from person to person. You might be
able to see objects at a distance but not from
the sides of your eyes (peripheral vision). Or,
you might have great peripheral vision but
trouble seeing objects far away.
33. Annexed as Exhibit E hereto is a copy of an
excerpt printed by me from the internet site of the
American Foundation for the Blind on February 10,
2018 which simply states:
Legal blindness is a level of vision loss that
has been legally defined to determine eligibility for benefits. In the United States, this refers
to a medically diagnosed central visual acuity
of 20/200 or less in the better eye with the best
possible correction, and/or a visual field of 20
degrees or less. See the Blue Book Disability
Evaluation Under Social Security. Often, people who are diagnosed with legal blindness
still have some usable vision.
62a
34. Similarly, the alleged medical excerpts from
Mount Sinai Hospital (see discussion below) while
making a reference to “legally blind” at page 1 provides on page 2 of 3 of Dr. Elizabeth B. Harrington’s Vascular Consult dated October 7, 2017 that
the decedent has “No Blurred Vision, No Diminished Vision, No Discharge, No Blindness, No Eye
Pain, No Red Eyes.”
35. As noted above, the information provided by
Vanguard and its use by Objectant herein were
previously objected to by petitioner and such objection is continued herewith with regard to those portions of Chen’s Affirmation which encompass such
information.
36. Annexed hereto as Exhibit F is a letter sent
by me to Mr. Chen dated March 20, 2017 which sets
forth petitioner’s objections to discovery demands
made by Mr. Chen to third parties. In particular,
one of these items related to subpoenas sent by Mr.
Chen to “Jeffrey A. Kern c/o Vanguard Group, Inc.
Attn: Legal Department – M35, 400 Devon Park
Drive, Wayne, Pennsylvania 19087” and to “Vanguard Group, Inc.” at the same address (Exhibit G
hereto).
37. The essence of petitioner’s objection, as set
forth in detail in my letter, related to Mr. Chen’s
failure to provide opposing counsel with proper
notice regarding the service of such subpoenas
[CPLR § 3120(3)] and the issuance of subpoenas to
out-of-state parties.
63a
38. Mr. Chen refused to withdraw his subpoenas.
His responsive letter dated March 22, 2017
(Exhibit H hereto), states, in part:
Vanguard’s response to the Subpoena was
received Monday, March 20, 2017, on an
encrypted USB flash drive. I will forward you
a copy of same after I determine how to duplicate the drive (either another drive or hard
copies of documents).
There is no prejudice to the Estate as to Vanguard production and you haven’t alleged any.
Your objections are reserved anyway until
trial. I will not withdraw the Subpoena—but I
will supply you with the production by Vanguard.
39. The “flashdrive” which was forwarded to
petitioner’s counsel contains alleged unauthenticated recordings which apparently were transcribed
by Objectant (unauthenticated) and utilized in the
Chen Affirmation. In addition, the “flashdrive” was
not accompanied by a business records certification
pursuant to CPLR § 3122-a. The “flashdrive” and
its contents are, therefore, inadmissible.
40. Significantly, the Chen Affirmation does not
contain any authentication reference for the
alleged conversation between Mr. Kern and the
decedent. Moreover, Objectant has submitted no
evidence showing that the transcript of this conversation was sent to one of the alleged participants
for review and signature pursuant to CPLR
§ 3116(a). The transcript does not have a CPLR
64a
§ 3122-a business records certification either. The
purported transcript annexed as Exhibit O to the
Chen Affirmation is dated March 17, 2016, containing an alleged conversation between Mr. Kern and
the decedent, who had died five months earlier on
November 10, 2015. The entire Vanguard production is, therefore, inadmissible.
41. Similarly, the Objectant never forwarded to
petitioner any discovery records Objectant received
from Mt. Sinai Hospital despite the fact that Petitioner demanded the production of any documents
pursuant to any “subpoena to which notice had not
been provided” as well as any documents responsive to “any authorization previously provided by
Petitioner”, which includes the Mt. Sinai Hospital
records. (Exhibit I hereto). The first five (5) pages
of Objectant’s Exhibit J have not previously been
produced. In any event, the entirety of Objectant’s
Exhibit J is not accompanied by a business records
certification pursuant to CPLR § 3122-a and the
documents are therefore inadmissible. Thus, any
use or reference to such documents by Objectant for
the purposes of this motion, albeit without any
merit, is objected to. Additionally, no authentication of such records is produced in the Chen
Affirmation.
42. While Objectant’s use of the Vanguard and
Mt. Sinai materials is improper, there is no dispute
that any deficiencies regarding the decedent’s eyesight had no impact regarding the decedent’s
capacity to execute the Will and to fully comply
with the requirements of EPTL 3-2.1. Therefore,
65a
Section B has not presented any issue of fact that
would prevent the granting of summary judgment
to petitioner.
43. Section C, beginning at page 10 of the Chen
Affirmation, is referred to as “Attorney Draftsman
and Witnesses Did Not Follow Required Will Execution Procedures”. This section contains various
assertions by Objectant none of which raise an
issue of fact that would preclude the granting of
petitioner’s motion.
44. The section begins with a reference to Mr.
Curtin’s deposition testimony regarding the placing of two “X” marks on the signature line of the
Will. Mr. Chen then notes that attesting witness
Jill could not recall who placed the X’s on the Will
although Jill recalls the decedent signing the Will
(Chen Aff. at p. 11). Mr. Chen then notes that the
Will does not contain “X” marks on pages 1 or 2
where the decedent placed his initials. Chen Aff. at
p.11.
45. Based upon the above, Mr. Chen asserts that
“there is open question how Decedent was able to
initial without “X’s”. Chen Aff. at p. 11. Similarly,
Mr. Chen asserts on page 12 of his affirmation that
“If Decedent was not able to sign on page 3, how was
it that he was able to ‘initial without the help of
“X’s?”.
46. Once again, the thrust of Objectant’s assertions completely mischaracterize the events taking
place and fail to create any issue regarding the
decedent’s capacity to execute his Will. The fact
66a
that the decedent placed his initials randomly on
the lower portion of pages 1 and 2 and between two
X marks on the signature line is inconsequential
regarding his capacity and the requirements of due
execution.
47. Mr. Curtin in his deposition testimony
explicitly set forth the procedure that was followed
with regard to the decedent’s initialing and signing
the Will, as follows:
Q. So, is it correct to state that Mr. Fields
brought the Sharpie to the will signing?
A. That’s correct.
Q. In looking at the document, the will, from
the handwritten Page Number 1 and 2,
there are initials there. Can you tell me
how those initials in a Sharpie were
placed there?
A. Yes, after I asked Mr. Fields in the presence of the witnesses whether he had read
this will and that he was declaring it to be
his last will and testament, I asked him to
initial the lower left hand pages of Pages 1
and 2 because 3 he was going to sign.
Q. And he did so?
A. He did. Those are his initials with his
Sharpie, yes.
Curtin Depo. at p. 63 ln 15 - p. 64 ln 8. (Haas Nov.
28, 2017 Aff. Exhibit F).
67a
48. The happenstance that “X’s” were placed on
the signature line of the Will and not on pages 1 or
2 where initials are typically randomly placed in
the lower margin area of the page, is completely
irrelevant to the issues of capacity and statutory
compliance.
49. Contrary to the Objectant’s unsubstantiated
and clearly inaccurate assertion that the “Decedent
was not able to sign on page 3” (Chen. Aff. at p. 12),
the deposition testimony of Mr. Curtin, Jill and
Suzanne and the presence of the attestation clause
and the Witness Affidavit all combine to demonstrate without any doubt that the decedent had full
capacity and that the Will was a result of his intentional actions.
50. There is not a scintilla of evidence, authenticated or otherwise, that the decedent’s eyesight
impacted in any manner on his capacity and ability
to have his Will prepared and duly executed on
October 6, 2014.
51. In Section C, the Objectant also refers to a
small portion of Susan’s deposition testimony in a
misleading manner by pointing to her lapse of
memory regarding the particulars of the Will signing ceremony.
52. The law is clear that while an attesting witness may have a lapse of memory regarding details
of a Will ceremony, such deficiency does not mean
that the formalities required by EPTL 3-2.1 did not
take place. Moreover, a failed memory of a witness
does not diminish the various presumptions of due
68a
execution. As noted by the Court in In re Lambros,
2007 WL 7686326, 2007 N.Y. Misc. LEXIS 8160
(Surr. Ct. NY 2007), where the Court granted judgment admitting a Will to probate:
As to objectant’s other challenge to due execution, namely that the execution ceremony itself
was deficient, he relies primarily on misleading excerpts of Mrs. Zitniak’s testimony. In
any event, her testimony that she had no specific recollection of the execution ceremony is
not, as objectant contends, evidence of lack of
due execution (see e.g. Matter of Collins, 60
NY2d 466; Matter of Finocchio, 270 AD2d 418;
Matter of Ruso, 212 AD2d 846) Instead, when
read in its entirety, Mrs. Zitniak’s testimony
supports a finding of a due execution (see
Matter of Collins, 60 NY2d 466, supra; Matter
of Rosen, 291 AD2d 562).
Id. See also Estate of Ruso, 212 A.D.2d 846, 847 622
NYS2d 137 (3rd Dept.1995):
The failure of the attesting witnesses to recollect the event may be significant in determining whether the formalities of execution were
followed, but it does not preclude the court as
a matter of law from admitting the will to probate (see Matter of Collins,60 N.Y.2d 466, 473,
470 N.Y.S.2d 338, 458 N.E.2d 797).
53. A reading of Suzanne’s entire deposition
transcript (annexed as Exhibit H to the Chen Affirmation) demonstrates without any doubt that the
formalities required by EPTL 3-2.1 were adhered to
69a
and, in fact, participated in by Suzanne. Suzanne’s
testimony recounts that she was a neighbor of Mr.
Curtin and was requested by Mr. Curtin to act as a
witness to the Will on October 6, 2014. On said
date, Suzanne was present in Mr. Curtin’s office
along with Mr. Curtin, the decedent and Jill, and
no one else. Suzanne signed as a witness. Excerpts
from Suzanne’s testimony (annexed as Exhibit H to
Mr. Chen’s affirmation) are as follows:
Q. So is it correct to state that when you witnessed Mr. Sydney Fields’ will, it was
October 6th, 2014; is that correct?
A. That’s correct.
Q. And the document reflects your recollection; is that correct?
A. That’s correct.
Suzanne Depo. at p.14, lns 12-19.
Q. Mr. Curtin, he asked you to be a witness
for the will; is that correct?
A. That’s correct.
Suzanne Dep. at p. 19, lns 21-23.
Q. On October 6th, 2014, what time did you
go to Mr. Curtin’s apartment?
A. Very often, around 1:00. For that day I
think it would have been 1:00-ish.
Suzanne Depo. at p. 29, lns 5-9.
70a
Q. For this particular will—and you did sign
that document? You recognize your signature?
A. Oh, yes.
Q. And you recall signing it; is that correct?
A. Oh, I do.
Suzanne Depo. at p. 41, lns 3-9.
A. I signed after the prior witness, which is
Jill Curtin.
Suzanne Depo. at p. 41, lns 21-22.
A. It’s a process that you sign, you sign, this
is where you sign, which I did as I was
instructed to do so.
Q. Did you see Mr. Fields sign the document?
A.
Yes. Yes.
Suzanne Depo. at p. 42, lns 17-22.
Please forgive me, but I don’t remember
exactly, but it was all of a piece. We all—
we signed, we signed, he signed, and that’s
—and I definitely saw him sign the will.
Q. You did see him sign the will?
A. Absolutely, because I recognize—I recognize the—the name, because I—because—
as I’m seeing this here, he signed basically
over—his own name is down here (indicating), but I can see and I knew it was him.
I—Sidney H. Fields.
71a
Suzanne Depo. at p. 44, lns 8-20.
Q. I presume that Mr. Curtin was involved?
A. It was as if we were being guided—he was
the lawyer—we were guided as to what to
do. Whether it was a—different than—he
signed, I signed, Jill signed, or Jill 2
signed, I signed, he signed, it was all of
the same process that was the will signing
of Mr. Fields’ will.
Suzanne Depo. at p. 48, lns 14-23.
Q. The question is, sitting here today, was
Mr. Fields competent to make his will,
based on what you said in this affidavit?
A. I thought so, absolutely, at the time.
Q. On what did you base your judgment?
A. He spoke only when spoken to. He did
not— as you have indicated, he might have
said—asked me about this stuff—he would
not have done that. It was up to his lawyer
to do that. He was able to discern what
was being said to him.
Suzanne Depo. at p. 55, lns 20-25 and p. 56, lns
2-11.
2
Ultimately, Suzanne testified at her deposition that
she signed the Will after the decedent signed the Will.
Suzanne Depo. at p. 87, ln 16 - p. 88, ln 17. (Chen Aff. Exhibit
H) (“Q. –do you recall if you signed before or after Mr. Fields
signed that document? A. I signed after he did.”).
72a
Q. Now, when you signed this paper, did you
sign this paper in the presence of Sydney
Fields and the other witness, Jill Curtin?
A. Yes.
Q. Did you see the other witness, Jill Curtin,
sign her name on this papers?
A. Yes.
Q. And you were all present at the same time?
A. Yes.
Q. At the time you signed this paper, you also
saw Sydney Fields sign this paper; is that
correct?
A. Yes.
Suzanne Depo. at p. 78, lns 9-23.
Q. Now, would you say that this affidavit
accurately reflects the events that occurred
on October 6th, 2014?
A. Yes.
Q. Would you have signed this affidavit if
any part of it was not true?
A. Would I have signed it if it was not true?
No.
Suzanne Depo. at p. 80 lns 21-25 and p. 81 lns 2-4.
54. Based upon the above Section C has not presented any issue of fact to preclude the granting of
summary judgment.
73a
55. Section D, appearing on page 12 of the Chen
Affirmation, is entitled “The Will and Attestation
Affidavit Has Other Irregularities.” There are no
matters set forth in Section D that raise any issue
of fact precluding summary judgment.
56. On page 12 of the Chen Affirmation the
Objectant asserts that the use of the word “her”
instead of “him” in the attestation clause of the
Will calls into question whether the decedent read
the Will. The Objectant’s contention in this regard
fails to overcome the clear and overwhelming evidence regarding the decedent’s testamentary
capacity and full compliance with EPTL 3-2.1. As
stated by the Court in Probate Proceeding, Will of
Eleanor Martinico, 2014-3403, NYLJ 1202270885618
at 1, 10/28/2016 N.Y.L.J. 41 (Surr. Ct. Kings 2016),
where the Court granted summary judgment
admitting a Will to probate:
Based on the record presented, the proponent
has provided prima facie evidence of due execution of the propounded instrument. In re
Weinberg, 1 A.D.3d 523 (2nd Dept. 2003). The
supporting affidavits of the attorney-drafter
and Caruso, who both witnessed and supervised the propounded instruments execution,
support a finding that the propounded instrument was duly executed in accordance with the
requirements of EPTL § 3-2.1. Further, where,
as here, an attestation clause accompanies the
instrument, there is a presumption that the
statutory requirements have been met (Matter
of Farrell, 84 AD3d 1374 [2nd Dept. 2011]),
74a
thus shifting the burden to the objectants to
proffer evidence in admissible form that the
instrument was not duly executed. The decedent’s so-called lack of objection to being erroneously described as a “he” in the propounded
instrument does not negate the propounded
instrument’s execution in accord with EPTL
§ 3-2.1, nor does it negate the testimony of the
two witnesses, both attorneys, who knew the
decedent for many years, and represented her
on other matters.
57. On page 12 of the Chen Affirmation, it is
similarly wrongfully asserted that Mr. Curtin’s correction of a typographical error regarding the date
of the Will execution on the Witness Affidavit
somehow “renders the same ineffective and a trial
is necessary to prove the proper procedures were
followed and the Decedent signed the Will”
58. In this regard, there is nothing put forward
by Objectant that in any way diminishes the presumptions and direct evidence concerning the Will
being duly executed for all purposes.
59. The Objectant’s bare statement that a trial is
needed to determine if the “Decedent signed the
will”, is totally flawed and is nothing more than an
unsubstantiated fabrication.
60. The attesting witnesses both testified completely as to the above execution of the Will. The
Objectant has failed to provide any indicia of factual evidence to upset the presumptions of compli-
75a
ance with the standards needed for the Will to be
admitted to probate.
61. At page 13 of the Chen Affirmation, reference is made to handwritten notes provided to Mr.
Curtin by the decedent at a meeting during which
the terms of the Will were being discussed. With
regard to this document, a copy of which is annexed
to the Chen Affirmation as Exhibit N, Mr. Curtin
testified that he did not know whether such document “was made out by Mr. Fields”.
62. Based upon this circumstance, the Chen
affirmation at page 13 concludes that “the handwritten document concerning the residuary estate
given to Edward Curtin by Decedent at the October
3 meeting is in question. . . .”
63. Significantly, the precise “question” being
raised is not disclosed by Mr. Chen. More importantly there is no disclosure or identification of any
actual facts or issues that are being raised by this
circumstance that concern the due execution of the
Will or could overcome the uncontrovented evidence presented in support of probate. In fact, Mr.
Curtin testified that the decedent “gave me that
piece of paper, appears to be handwritten. I know it
was handwritten by him because he told me that.”
(Haas Nov. 28, 2017 Aff. Exhibit F at p.13 ln 21-24).
In response to this testimony, Objectant submitted
no proof to show that this document was not written by the decedent.
64. Therefore, Section D does not raise an issue
of fact.
76a
65. Section E of the Chen Affirmation is entitled
“Suspicious Circumstances Surrounding Timing of
Will Execution”. In this Section, which begins on
page 14 of the Chen Affirmation, reference is again
made to the decedent’s initials which appear at the
left hand bottom of pages 1and 2 of the Will. The
Chen Affirmation at page 15 then asserts that “Curt
Baggett, a handwriting expert, submitted by the
Petitioner, analyzed the signatures of the Decedent
from various documents including the same. Mr.
Baggett concluded that someone, besides the decedent, forged the initials of the Decedent on the last
page of the Will.”
66. The Baggett Report is annexed to the Chen
Affirmation as Exhibit L. The Chen Affirmation
then provides: “Petitioner has not provided a handwriting expert nor any reports from a handwriting
to disqualify Mr. Baggett’s report. This requires a
trial to determine whether the Decedent initialed
the pages of the Will dated October 6, 2014. Thus,
Petitioner’s motion for summary judgment should
be denied.” Notably, in assembling, laying bare and
revealing his proofs, as required on this motion
for summary judgment, Rosado v. Kulsakdinun,
32 AD3d 282, 284 (1st Dep’t 2006); Schiraldi v. U.S.
Mineral Prods., 194 AD2d 482, 483 (1st Dep’t
1993), Objectant argues that the “initials” are
forged. Objectant does not argue that the decedent’s signature was forged. He is, therefore, limited by the evidence he submitted on this motion.
77a
67. Objectant’s contention regarding the need for
a trial and his reliance upon the Baggett Report
are misplaced.
68. As a preliminary matter, EPTL 3-2.1 does
not require that the pages of a Will be initialed.
The decedent’s Will was executed by him on page 3.
There is no dispute that such signature is genuine
since Objectant does not challenge the authenticity
of the decedent’s signature on page 3. While the
Chen Affirmation refers to an alleged forgery of the
decedent’s “initials on the last page of the Will”
(Chen Aff. at p. 15), there are no initials on the last
page of the Will which is page 3. Page 3 only contains the full decedent’s signature. The Baggett
Report refers to initials on page “Q2” which are
referred to in the Report as “Initials bottom of Page
1. The Chen Affirmation does not clarify these
inconsistencies. The Chen affirmation also does not
explain why exemplars of the decedent’s signatures
contained in the Baggett report were not written
with a Sharpie pen, unlike the October 6, 2014
Will. Therefore, the Court should not be fooled by
this transparent effort to concoct an issue of fact.
69. The initials that appear on page 2 of the Will
seem virtually the same as the initials on page 1.
Objectant does not challenge the authenticity of
the decedent’s initials that appear on p. 2 of the
Will or the decedent’s signature on page 3.
70. While it seems that Objectant’s contention is
that the page 1 initials were made by someone other
than the decedent, the Objectant is not questioning
78a
the decedent’s capacity or the validity of the execution ceremony that resulted in the unchallenged
signature on page 3.
71. Moreover, the Baggett Report itself fails to
raise any issue of fact regarding the authenticity of
the due execution of the Will. Paragraphs 1 and 2
of the Baggett Report allege that:
I have examined three (3) documents with the
known signatures of Sydney Fields. For the
purpose of this examination I have labeled
these exhibits “Kl’’ through “K3”.
Today I have compared the signatures of Sydney
H. Fields on the ‘K’ documents to the SHF initials on the questioned document, identified
herein as ‘Q2’, to determine if the author of the
Sydney H. Fields signatures on the ‘K’ documents was the same person who authored the
initials on SHF on the questioned document:
Typed Last Will and Testament, Initials bottom
of Page 1.
72. With regard to the above, Baggett does not
claim to have examined any original or authenticated documents. Remarkably, Baggett does not
claim to have even examined the original of the
Will. Baggett merely says that he “compared the
signatures of Sydney H. Fields on the ‘K’ documents to the SHF initials on the questioned document, identified herein as ‘Q2’. . . .”
79a
73. The ‘K’ documents referred to by Baggett,
which are annexed to the Baggett Report, are as
follows:
(a) K1 – partial copy of what appears to be
the front of a check dated 9/24/91.
(b) K2 – partial copy of what appears to be
the front of a check dated September 10,
2014.
(c) K3 – copy of what appears to be a check
dated January 3, 2015.
74. None of the ‘K’ documents are authenticated
in any manner and none of the ‘K’ documents have
any alleged “SHF” initials.
75. The so-called “questioned document”, “Q2”, is
a photocopy of what appears to be page 1 of the Will
upon which there is a check — mark in the margin
at Article THIRD. There is also a handwritten
notation at the bottom of page “Q2” as follows: “Q2
Problem page”. There is no indication as to the
manner by which these extraneous writings were
made on the “Q2” page.
76. CPLR 4536 provides: “Comparison of a disputed writing with any writing proved to the satisfaction of the court to be the handwriting of the
person claimed to have made the disputed writing
shall be permitted.”
77. The McKinney’s Practice Commentaries to
CPLR 4536 (Vincent C. Alexander) (2017), note
that: “[w]hen proof of handwriting is made on the
basis of comparison, CPLR 4536 requires that the
80a
genuineness of the specimen first be established to
the court’s satisfaction.” The Practice Commentaries continue by pointing out that the Court of
Appeals in “People v. Molineux, 1901, 168 N.Y. 264,
329-30. . . . identified several methods by which
the genuineness of the sample may be established;
concession by the adversary either before or during
trial; testimony by the adversary; testimony by a
witness who observed the creation of the sample;
testimony by a witness who is familiar with the
handwriting of the author of the sample; or evidence that the purported author of the sample had
recognized it or acted upon it in his or her business
transactions or other activities. 168 N.Y. at 328.”
78. The Objectant has not demonstrated, or even
attempted to demonstrate, that the alleged specimen handwritings are genuine or authentic. See
Kanterakis v. Minos Realty I, LLC, 151 AD3d 950,
55 NYS3d 452 (2nd Dept. 2017); where the Court
stated:
The plaintiff failed to present evidence authenticating the group of 31 exemplars upon which
the plaintiffs handwriting expert primarily
relied (see CPLR 4536; see also Banco Popular
N. Am. v. Victory Taxi Mgt. 1 N.Y.3d at 384,
774 N.Y.S.2d 480, 806 N.E.2d 488; Matter of
Dane, 32 A.D.3d 1233, 1234, 821 N.Y.S.2d
699; Matter of James, 17 A.D.3d 366, 367, 792
N.Y.S.2d 601).
151 AD3d at 952.
79. Following paragraph 1 and 2 of the Baggett
Report, the Report contains 6 paragraphs which
81a
are only general statements regarding handwriting
document examination. These paragraphs consist
almost entirely of reproduced excerpts from an
alleged professional text. Following the recitation
of this general textual matter, the Baggett Report
provides the following conclusion:
Based upon thorough analysis of these items,
and from an application of accepted forensic
document examination tools, principals and
techniques, it is my professional expect opinion
that a different person authored the initials of
SHF on the questioned document. Someone did
indeed forge the initials of SHF on the questioned document, ‘Q2’
80. Notwithstanding, the above alleged conclusion or opinion, the Baggett Report does not provide any “analysis” or any detail regarding the
“application” of so-called “examination tools, principals and techniques”. Instead, the Baggett Report
is nothing more than: (i) a reference in paragraphs
1 and 2 to unauthenticated non-original papers
allegedly signed by the decedent; (ii) followed by
general references to brief parts of an alleged
handwriting book; and (iii) which then ends with
the conclusion that “someone” forged “the initials
of SHF” on document ‘Q2’. Most significantly, there
is no assertion whatsover that the SHF initials on
page 2 of the Will do not match the the “S”, “H” or
“F” of Sydney H. Fields’ signature on page 3 of the
Will, which has not been challenged.
82a
81. It is submitted that the Baggett Report fails
to provide any reasonable professionally accepted
indication that the so-called ‘Q2’ initials are not
authentic. Clearly, no issues of fact are raised in
light of the completely unsubstantiated and speculative quality of this submission by Objectant. Any
expert opinion that amounts to nothing more than
bare conclusions unsupported by any evidentiary
matter cannot provide a basis to deny summary
judgment. As stated by the Court in Murphy v.
Conner, 84 NY2d 969,622 NYS2d 494 (1994), where
a summary judgment dismissal was upheld:
Plaintiff provided an affidavit of an engineering expert. Ordinarily, the opinion of a qualified expert that a plaintiffs injuries were
caused by a deviation from relevant industry
standards would preclude a grant of summary
judgment in favor of the defendants (see, e.g.,
Trimarco v. Klein, 56 N.Y.2d 98, 106, 451
N.YS.2d 52, 436 N.E.2d 502). Here, however,
there was no indication by plaintiff of exactly
where she fell and the expert’s examination of
a part of the general area is insufficient to preclude summary judgment for defendants.
Moreover, the expert’s affidavit was conclusory, raised no triable issues of fact and, as such,
was properly disregarded by the Appellate
Division.
84 NY2d at 972. See also Rosario v. Trump Management, Inc., 7 A.D. 3d 504, 775 N.Y.S.2d 578
(2nd Dept. 2004) “In opposition, the plaintiff submitted the report and affidavit of an engineering
83a
expert whose conclusions were, among other things,
conclusory and failed to raise a triable issue of fact
(citation omitted).
82. It cannot be overlooked that Mr. Baggett
cannot be certified as a handwriting expert in this
case. His alleged ‘certification’ is from the “American Bureau of Document Examiners.” (Chen Aff.
Exhibit L). However, research has been unable to
uncover the existence of any accredited organization with this name. It appears that Mr. Baggett is
attempting to make it appear as though he is certified with the American Board of Forensic Document Examiners. See Wolf v. Ramsey, 253 F. Supp.
2d 1323, 1342 (N.D. Ga. 2003) (“The only recognized
organization for accrediting forensic document
examiners is the American Board of Forensic Document Examiners (‘ABFDE’)”). While Mr. Baggett
claims to have a “certificate of completion from the
American Institute of Applied Science”, there is no
indication that such a certificate is related in any
way to forensic document examination or that this
institution is certified with the ABFDE. Moreover,
it cannot be overlooked that Mr. Baggett has been
denied certification as a handwriting expert
numerous times in Federal Court, most recently in
January, 2017. See Balimunkwe v. Bank of Am.,
N.A., 2017 U.S. App. LEXIS 19875 at *2-3 (6th Cir
Jan.17, 2017) (excluding Mr. Baggett as an expert
“due to his lack of qualifications as an expert and
because his methodology was not reliable”); U.S. v.
Revels, 2012 U.S. Dist. LEXIS 65069 at *22 (E.D.
Tenn. May 9, 2012) (finding that Mr. Baggett’s tes-
84a
timony cannot pass the “minimum indicia-of-reliability” standard); Dracz v. Am. Gen. Life Ins. Co.,
426 F. Supp.2d 1373, 1378-79 (M.D. Ga 2006) affd
201 F. Supp.2d 1373 (11th Cir. 2006) (noting, inter
alia, Mr. Baggett’s “paltry” qualifications, his lack
of certification “by or of any of the twenty recognized document examiner trade organizations in
the United States” and that his “training in the
field” was from “Dr. Ray Walker, whose own qualifications as a document examiner are suspect”.).
Mr. Baggett’s alleged ‘credentials’ here are nonexistent. The report of Objectant’s “expert” concerning the “Initials on bottom of Page 1” lacks a
reliable foundation.
83. Even putting aside the total lack of evidentiary sufficiency appearing from the face of the
Baggett Report, the Objectant has not provided any
particulars in authenticated form or otherwise,
regarding the events or circumstances by which
such alleged forgery occurred. In In re: Herman,
289 A.D.2d 239, 734 NYS2d 194 (2nd Dept. 2001),
the Court granted summary judgment admitting a
Will to probate, stating:
The petitioners’ motion for summary judgment
dismissing the objections to the probate of the
decedent’s will dated May 18, 1994, and to
admit the will to probate should have been
granted. The petitioners demonstrated, prima
facie, that the will was properly executed pursuant to the formal requirements set forth in
EPTL 3-2.1. “Where, as here, the attorneydraftsman supervised the will’s execution,
85a
there is a presumption of regularity that the
will was properly executed in all respects”
(Matter of Finoccio, 270 A.D.2d 418, 704
N.Y.S.2d 634; see; Matter of Esberg, 215
A.D.2d 655, 627 N.Y.S.2d 716; Matter of
Posner, 160 A.D.2d 943, 554 N.Y.S.2d 666). In
opposition, the objectants failed to raise a triable issue of fact as to whether the decedent’s
signature was a forgery. Where the objectant
intends to offer that the instrument has been
forged by another, the proponent is entitled to
particulars of the forgery, and where known,
the name and addresses of the person or persons who forged the instrument” (Matter of
DiScala, 131 Misc. 2d 532, 534, 500 N.Y.S.2d
976). Here, the objectants failed to provide any
such particulars. Therefore, their claim of forgery did not warrant denial of the motion.
289 AD2d 239-40. See also Matter of Harper,
11/12/2014 N.Y.L.J. 22 (col. 4) (Surr. Ct. Bronx
County) (“The objectant has not provided any specific details as to the alleged act of forgery other
than her conjecture about the different possible
ways the forgery may have occurred. Having failed
to offer evidence in admissible form as to the existence of an issue of fact with respect to the genuineness of the decedenes signature, the proponent
is entitled to have the objection alleging forgery
dismissed.”); In re: James, 17 A.D.3d 366, 792
NYS2d 601 (2nd Dept. 2005) (“[T]he testimony of
the objectants’ expert did not, as a matter of law,
establish that the will was forged.”).
86a
84. The deposition testimony of Mr. Curtin and
the attesting witnesses all unequivocally show that
“Q2” was not and could not have been forged. Mr.
Curtin testified as follows:
Q. At the time you gave the October 6, 2014
will to him, would you say that the will
that you’re looking at here today which is
Exhibit 6, which is a certified copy of that
will, is exactly the same as the will that
you gave him duly executed on October 6,
2014?
A. Yes.
Q. There’s no change in this document, whatsoever, from the time you gave it to him
until the time you’re looking at it presently?
A. Correct.
Curtin Depo. at p. 152, lns 13-25. (Exhibit J hereto).
Q. Now, at the time that the will was signed
and you were together with Sydney Fields
and Jill Curtin and Suzanne Lehman, did
you or do you have any knowledge regarding anyone forging or otherwise tracing
the signature of Sydney Fields that appears
on the October 6, 2014 will?
A. No, I saw Sydney Fields sign the will.
Q. So, you have no knowledge or any information that that document was in any way
forged; is that correct?
87a
A. It could not be; I saw him sign the will
with his own Sharpie.
Curtin Depo. at p. 149, lns 15-25 and p. 150, lns
2-4. (Exhibit K hereto).
85. Both Jill and Suzanne also testified at their
depositions that they did not see any indication of
a forgery:
Q. At the time the will was signed, did you
see anyone that attempted to forge Mr.
Fields’ signature?
A. No.
Q. At the time the will was signed, did you
see anyone that attempted to trace or otherwise fake Mr. Fields’ signature?
A. No.
Suzanne’s Depo. at p. 81, lns 17-24. (Chen Aff.
Exhibit H).
Q. Now, at the time that the will was signed,
did you notice anyone that attempted to
forge Mr. Fields’ name on the will?
A. No.
Q. Or on any document that was signed on
that day?
A. No.
Jill Deposition at p. 51, lns 9-16. (Haas Nov. 28,
2017 Aff. Exhibit E).
88a
86. Annexed as Exhibit J to my Affirmation
dated November 28, 2017 in Support of Petitioner’s
Motion is a copy of the Objectant’s Amended Verified Bill of Particulars dated October 11, 2016.
A copy of such document is annexed hereto as
Exhibit L for convenience.
87. The Objectant’s responses in said Verified
Bill include the following:
(a) Under Answer 1(2):
the persons aforementioned did conspire with
each other, or independently, or both, with
EDWARD CURTIN, as attorney draftsman,
JILL CURTIN and SUSAN LEHMAN, as witnesses, and possibly with third parties yet to
be discovered, to forge and/or trace with black
permanent marker the signature of SYDNEY
H. FIELDS on the will proferred for probate
and pretend same was signed by SYDNEY H.
FIELDS.
(b) Under Answer 2 (2):
SYDNEY H. FIELDS was without the mental
and physical capacity to execute the Will at the
time of alleged execution. All parties above
named, including the beneficiaries of the Will
and attorney draftsman and attesting witnesses,
did cajole, threaten, intimidate, misrepresent
as to contents, or otherwise tricked SYDNEY
H. FIELDS into executing the Will proferred
for probate or forged or traced his signature
with or without his presence.
89a
88. During the course of Richard’s deposition
testimony, Richard was unable to provide any particulars or information regarding any alleged forgery of the Will. The testimony concerning the
Amended Bill of Particulars was as follows:
Q. Mr. Fields, you signed that document, correct? That is your signature at the end of
the document, correct?
A. Yes.
Q. And you verified that everything in this
document is true to your knowledge, correct?
A. Yes.
Q. Okay. So if you take a look then again at
the Amended Verified Bill of Particulars.
A. Yes.
Q. In the little paragraph 2, which is on the
second page—
A. Yes.
Q. —and if you read that little paragraph it
says, the persons aforementioned did conspire with each other or independently or
both, all right, with Edward Curtin, Jill
Curtin and Suzanne Lehman as witnesses
and possibly third-parties yet to be discovered to forge and/or trace with black permanent marker the signature of Sydney
Fields.
90a
Now, again, none of these individuals
that are named here, Edward Curtin, Jill
Curtin, Suzanne Lehman are named in
your objection to probate; is that correct?
A. Yes.
Q. So could you tell me in what manner or
based on what information Edward Curtin,
Jill Curtin and Suzanne Lehman conspired with each other or with anyone else
to either forge or trace the signature of
Sydney Fields?
A. I don’t have any information with regard
to that.
Q. Do you have any information with respect
to any person, all right, to the extent that
they conspired with each other to forge or
trace with black permanent marker the
signature of Sydney Fields?
A. No. I can’t tell you that.
Richard Depo. at p. 369 lns 1-25, p. 370 lns 2-25
and p. 371 lns 2-8. (Haas Nov. 28, 2017 Aff. Exhibit
K).
Q. And if you read further down in paragraph 2 under Answer 2, it says, All
parties above named, including the beneficiaries of the will and attorney draftsman
and attesting witnesses, did cajole, threaten, intimidate, misrepresent as to contents
or otherwise tricked Sydney H. Fields into
executing the will proffered for probate or
91a
forged or traced his signature with or
without his presence.
Do you have information with respect
to any specific acts or facts that any of
those parties engaged in any of those activities?
A. No.
Q. And so you didn’t have any of those facts
at the time that you signed this; is that
correct?
A. Yes.
Q. And do you have any of those facts as we
sit here today?
A. No.
Richard Depo. at p. 372 lines 21-25 and p. 373 lns
2-19. (Haas Nov. 28, 2017 Aff. Exhibit K).
89. As shown herein, the Objectant has not and
could not provide any particulars whatsoever
regarding any alleged forgery as it relates to the
initials on “Q2” or otherwise. All of the parties who
attended the Will signing ceremony provided
uncontroverted testimony that there was no indication of a forgery. Neither the petitioner nor anyone
else who is a beneficiary under the Will were
involved with the preparation or execution of the
Will.
90. Objectant also fails to inform the Court that
the October 13, 2017 report from Mr. Baggett was
not provided to Petitioner’s counsel in discovery.
92a
Petitioner served an expert witness demand on
July 28, 2016. (Exhibit M, hereto). The October
13, 2017 report was not seen in this case until
Objectant filed his opposition to the instant motion
on January 22, 2018. Objectant has shirked his
obligations under CPLR § 3101(h). Objectant knowingly kept this report secret until his opposition to
the instant motion was filed, while complaining
that “Petitioner has not provided a handwriting
expert” to “disqualify Mr. Haggart’s [sic] report.”
(Chen Aff. At p.15). Since the October 13, 2017
report was not disclosed until after Petitioner filed
her motion for summary judgment, it is unclear
how an expert could “disqualify” Mr. Baggett’s
October 13, 2017 report when Objectant filed his
opposition papers on January 30, 2017. The Court
cannot condone Objectant’s ridiculous conduct.
91. Based upon the above, the Objectant’s submission of the Baggett Report, which provides a
purely speculative conclusion coupled with Objectant’s inability to particularize a factual predicate
for a claim of forgery, fails to raise an issue of fact.
The Baggett Report cannot overcome the clear presumptive validity of the Will. Thus, Section E cannot preclude petitioner’s summary judgment
motion.
92. Section F, appearing on page 16 of the Chen
Affirmation, is entitled “From The Previous Will,
Drastic Changes Benefit The ‘Palmeri’ Family in
the Last Will, Raising Questions of the Veracity of
the Present Will.” There are no matters set forth in
93a
Section F that raise any issue of fact precluding
summary judgment.
93. The meritless assertion presented in Section
F is that the changes made to the decedent’s Will
as executed on October 6, 2014 as compared to the
dispositions provided in the decedent’s prior Will
dated July 27, 2006, reflect the presence of undue
influence and, therefore, create issues of fact
regarding the validity of the will.
94. The Objectant’s position is completely flawed
on a number of grounds. While the provisions of a
prior Will that deviate from a Will under consideration is a factor to consider to indicate whether
undue influence is present, In re Zirinsky, 10 Misc.
3d 1052 (A), 809 NYS2d 484 (Surr. Ct. Nassau
2005), “it is also important to remember that in
order to defeat a motion for summary judgment, the
Objectant must demonstrate that there is a genuine
triable issue by allegations which are specific and
detailed, substantiated by evidence in the record
and that mere conclusory assertions will not suffice
(Matter of O’Hara, 85 A.D.2d 669, 671 [1981]).” Id.
95. As fully set forth in petitioner’s papers submitted in support of her motion for summary judgment, the Objectant has not provided any particulars
with regard to undue influence by anyone associated
with the Will whatsoever.
96. Furthermore, the Chen Affirmation does not
provide any indication of undue influence. As discussed above, the only category of opposition to
petitioner’s motion set forth in the Chen Affirma-
94a
tion appears on page 5 and refers only to the
alleged credibility3 of the attorney draftsperson
and the attesting witnesses.
97. Section F contains the words “undue influence” but does not set forth any facts concerning
the basis for such claim.
98. Annexed to the Chen Affirmation as Exhibit
H is a copy of the decedent’s Will dated July 27,
2006. A review of the 2006 Will shows that no radical change to the decedent’s testamentary plan
occurred in the October 6, 2014 Will. First and foremost, both the 2006 Will at Article FIFTH(b) and
the 2014 Will at Article FIFTH (b) contain the
same exact language:
Because my son Richard Fields hired a lawyer
to sue me for money and because I had to have
him arrested and brought to court for harassment of me and my wife, Teresa I deliberately
make no provision for him in this Will and it
is my intention that he receive no part of my
estate.
99. In the 2006 Will the decedent left the vast
majority of his estate to his wife, Teresa. In Article
THIRD the decedent’s condominium apartment
20P at 372 Central Park West, New York, NY was
devised to Teresa, as well as an outright disposi3
Objectant’s claim that Petitioner is not credible concerned events that occurred after the Decedent’s death which
are barred by 22 NYCRR § 207.27 and are, in any, event irrelevant to the execution of the October 6, 2014 Will. (Richard
Fields Aff. ¶ 19; Chen Aff. Exhibit P).
95a
tion of 50% of the decedent’s “remaining gross
estate”. Also, the residue of the estate (Article
SIXTH) was left to Teresa in trust.
100. The 2006 Will also recognizes and makes
provisions for Teresa’s family which includes
Victor Palmeri, Jr., Cynthia Palmeri and Diana
Palmeri Lukac (Article FOURTH). In fact, Victor
Palmeri is named as a Fifty Percent (50%) remainder beneficiary of Teresa’s trust (Article SIXTH)
and also of the estate residue if Teresa was to
pre-decease the decedent (Article SIXTH). Victor
Palmeri, Jr. was named as a Co-Trustee of the
trust and as the alternate executor (Article
EIGHTH).
101. Teresa died on September 5, 2014. The
decedent was then motivated to redraft his Will. As
Mr. Curtin testified in the deposition:
Q. I’m specifically going to read a section that
you wrote concerning the will. And it
would be in the middle of that Section 2.
In the previous superseded will, Mr. Fields
had left the bulk of his estate to his wife,
Teresa Fields, but when she died in
September of 2014, Mr. Fields was compelled to have a new will drafted, wherein
he provided for his residuary estate to be
distributed amongst members of his
deceased family whom he had come . . .
A. Deceased wife’s family.
Q. Deceased wife’s family, whom he had come
to embraces as his own family. Specifically
96a
I’m going to zero in on questioning about
Mr. Fields was compelled to have a new
will drafted. You did write this, right, Mr.
Curtin?
A. Those are my words.
Q. So, could you please just explain what you
meant by Mr. Fields was compelled to
have a new will drafted?
A. What I intended to convey there was that
Mr. Fields on his own initiative determined that he needed to have a new will. It
may have been in-artfully stated by me;
the word compelled was not in any way
intended to indicate that he was under any
kind of duress, but that it was his own initiative to have a new will drafted because
his wife had died.
Q. Did he ever tell you why he wanted to
change his will from the previous will in
effect, which was the 2006 will?
A. Yes, because the 2006 will left substantial
portions of his estate, there was some kind
of life estate, was left to his wife, his then
living wife, Teresa. After she had died, she
was no longer there to be a beneficiary and
Mr. Fields decided to have a new will
drafted.
Curtin Depo. at p. 78 lns 23-25 and p. 79 lns. 2-25
and p. 80 lns. 2-15. (Exhibit N hereto).
97a
102. In view of the above, the decedent created a
new Will dated October 6, 2014. However, the 2014
Will reflected the same testamentary scheme as
the 2006 Will. Teresa and her family were the dominant beneficiaries and Richard, as well as Kenneth and his children, were still explicitly
disinherited.
103. While the charitable bequests in the two
Wills differed, it is clear that the charitable provisions were limited and did not dominate the 2006
Will and were only secondary in nature. In this
regard, Richard was questioned at his deposition
regarding references made concerning the decedent’s charitable bequests in an affidavit Richard
had submitted to this Court sworn to by him on
May 24, 2016 entitled “Affidavit of Richard Fields”
(the “2016 Richard Affidavit”). A copy of the 2016
Richard Affidavit is annexed hereto as Exhibit O.
In paragraph 4 of said Affidavit Richard asserted
as follows:
My father always put a lot of pressure on me
and my brother to pursue education. I know he
valued CUNY, and I not believe he would
revise his will to diminish his gifts to City College and Baruch from a significant percentage
of his estate to only $500 dollars a piece. The
gift to United Jewish Appeal was also diminished significantly. My father was traditional.
He had a strong connection to his Jewish heritage. He was buried in a Jewish Ceremony.
Given how significant the changes are, and the
fact that they went from percentage gifts to
98a
fixed dollar amounts, it looks like someone
said we better put nominal amounts in the will
for those charities, otherwise someone may
question what happened.
104. In this deposition testimony (Exhibit A
hereto) Richard stated that his Affidavit allegations were nothing more than “conjecture”:
Q. Now, when you say, I did not believe —
continued on page 4, front page. See at the
bottom it says, And I do not believe?
A. And I do not believe — it should say it do
not believe.
Q. Okay, it’s typo. I not believe, right, see
that?
A. Yes.
Q. I not believe he would revise his will to
diminish his gifts to City College and
Baruch. Did you see that?
A. Yes.
Q. What is the basis upon which you made
that statement?
A. Conjecture.
Q. You have no basis, correct?
A. Correct.
Q. It’s pure speculation?
A. Correct.
99a
Richard Depo. at p. 378 ln 9- p. 379 ln 5 (Exhibit
P hereto).
Q. Now, you go on to say that a significant
percentage of his—reducing essentially, a
significant percentage of his estate to only
500 a piece. See the rest of that statement?
A. Yes.
Q. And, again, would it be correct to say that
that’s pure speculation?
A. Yes.
Q. You have no facts to base that statement
on, am I correct?
A. You’re correct.
Q. Thank you. Now, with respect to the next
sentence it says, The gift to United Jewish
Appeal was also diminished significantly.
Do you have any information that your
father gave charitably at any point to the
United Jewish Appeal?
A. No.
Richard Depo at p. 381 ln 4- p. 382 ln 3 (Exhibit Q
hereto).
Q. Okay. So if you take a look at the next sentence beginning with the wor
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