The Court retracts the decision dated January 12, 2007 rendered herein and issues the following in its place:

G L E N, S.

Bernard Dellosso ("Delloso"), preliminary executor of the will of Jeffrey A. Katz, has moved for summary judgment dismissing the objections to probate of Beverly Katz, decedent's mother and sole distributee. Decedent apparently committed suicide by hanging; his body was found January 14, 2002. The proffered instrument, dated October 28, 2001, leaves the entire estate, in excess of $1 million, to Dellosso, my "dearest and only true friend" and "trusted accountant" who "has been a great advantage and help in the aquisition [sic est] of my residuary estate." Respondent's objections are based on lack of testamentary capacity and undue influence.^[FN1] A motion for summary judgment may be granted only if the allegations, viewed in a light most favorable to respondent, fail to raise a triable issue of fact (Council of City of New York v Bloomberg, 6 NY3d 380, 401 [2006]).Decedent, who died at age 46, suffered from depression for decades; the period surrounding the will execution, however, was especially troubled. On October 18, 2001, after decedent had threatened violence against members of his brother's family, his brother obtained a mental hygiene warrant seeking decedent's involuntary hospitalization. Some days later the New York City Police served a domestic violence temporary restraining order upon decedent at his mother's Brooklyn home, and charged decedent with possession of two unlicensed handguns. Decedent was arrested and released on bail the following day. On October 25, 2001, three days before the execution of the proffered instrument, decedent met with Alan Manevitz, M.D., his treating psychiatrist, who arranged for his consensual hospitalization, but decedent then reneged. On November 7, 2001, the New York City Police served decedent with the mental hygiene warrant and took him to Coney Island Hospital; thereafter he was transferred to Mt. Sinai Hospital, but on November 21, 2001 after [*2]a doctor from Mt. Sinai Hospital had spoken with Dellosso ^[FN2] decedent was released. On November 23, 2001 decedent's counsel had the gun charges vacated and informed decedent's family that decedent would seek treatment. Decedent, however, did not, and had no further contact with his family.

Proponent in a probate contest bears the burden of establishing, by a fair preponderance of the credible evidence, decedent's testamentary capacity (see PJI2d 7:48 [2006]), that is, whether testator: (1) understood the nature and consequences of executing a will; (2) knew the nature and extent of the property of which he was disposing; and (3) knew those who would be considered the natural objects of his bounty and his relations with them (Matter of Kumstar, 66 NY2d 691, 692 [1985]).

On the one hand, Dellosso appears to have met such burden: decedent, a lawyer, drafted the instrument which lists his assets, including a co-operative apartment and four brokerage accounts, and provides: "it is well known and legally documented situation that exists at the time of the writing this Will, that my mother Beverly Katz, my brother Mitchell Katz, my sister-in-law Rhonda Katz have a domestic violence order of protection against me that could result in my potential arrest, going to jail, and disbarrement [sic est]." The terms of the will suggest decedent knew the extent of his assets, more or less,^[FN3] and had an express reason for disinheriting his family.

On the other hand, a mere two days before the execution of the will, Dr. Manevitz described decedent, in an October 26, 2001 letter, as suffering from:

Major Delusional Depression (at best) and a probable paranoid psychosis with symptoms including withdrawal, isolation, paranoia, suicidal ideation, odd, bizarre thinking, processing and illogical conclusions. . . .

* * * * *

My conclusion is that Jeffrey Katz is deteriorating and is an imminent danger to others (and possibly himself) and requires a structured environment (i.e. psychiatric hospitalization) for evaluation and treatment.

Given the inconsistent oppositional and resistant response, I anticipate that he may require medication against his will, and may be a future candidate for the Kendra law. [*3]

Dr. Manevitz' testimony is critical to a determination of decedent's testamentary capacity.^[FN4] As respondent had yet to depose Dr. Manevitz at the time the motion was submitted, summary judgment on the issue of capacity is denied as premature (see CPLR 3212[f]).

To establish a prima facie case of undue influence, objectant must offer evidence as to motive, opportunity, and actual exercise of influence (Matter of Walther, 6 NY2d 49, 55 [1959]). To prevail, objectant must establish undue influence by a preponderance of the credible evidence (see PJI2d 7:55 [2006]). The Court of Appeals has stated:

It is impossible to define or describe with precision and exactness what is undue influence; what the quality and the extent of the power of one mind over another must be to make it undue [. . .]. [. . .] [T]he influence exercised over a testator . . . must be such as to destroy his free agency; but no matter how little the influence, if the free agency is destroyed [,] it vitiates the act which is the result of it.

* * * * *

The undue influence is not often the subject of direct proof. It can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influences [sic est], the opportunity and disposition of the person to wield it, and the acts and declarations of such person.

If a testator relied exclusively upon a legatee's knowledge and judgment in the conduct of his financial affairs, or was dependent upon and subject to the legatee's control, the relationship between testator and legatee may be deemed one of trust and confidence (see PJI2d 7:56.1 [2006]). The combination of a confidential relationship plus evidence of its exploitation, such as: the legatee's assumption of an active role in obtaining execution of the will, testator's failure to obtain independent advice, testator's mental and emotional condition, and the magnitude of the bequest, permits an inference of undue influence, which obligates proponent to explain the bequest (see Matter of Smith, 95 NY 516, 523 [1884]; Matter of Bartel, 161 Misc 2d 455, 458 [Sur Ct, New York County, 1994], affd sub nom. Cordovi v Karnbad, 214 AD2d 476 [1st Dept 1995]; PJI2d 7:56.1 [2006]; 2 NY PJI2d 1284-1285, and 1286-1287 [2006]).

Dellosso denies the existence of a confidential relationship. In any case, he contends, his [*4]lack of involvement in drafting the will absolves him of any inference of undue influence.^[FN5] His argument is inapposite.

The relationship between decedent and Dellosso, his accountant and financial advisor, limned by facts viewed in a light most favorable to objectant, was one of trust and confidence. Furthermore, Dellosso orchestrated the execution of the will (cf. Cordovi v Karnbad, 214 AD2d 476, 476 [1st Dept 1995], supra). Dellosso, familiar with the terms of the will, had decedent execute the will in Dellosso's apartment, in Dellosso's presence. The attesting witnesses were Mary Jo Greenberg and Marilyn Pascarelli, Dellosso's girlfriend and former girlfriend, respectively, and co-business venturers. Moreover, decedent lacked the benefit of independent counseling from an attorney (see Matter of Henderson, 80 NY2d 388, 394 [1992]).

Not only did Dellosso procure the execution of decedent's will, but decedent was debilitated by mental illness. Mary Jo Greenberg's testimony underscores decedent's need for professional counseling, a need Dellosso purported to fill:

A.. . . You know, Jeff was this whole thing was very upsetting, the restraining order and everything. Bernie was counselling him.

Q.Was anyone else counselling Jeffrey, as far as you know?

A.As far as I know, his doctor wasn't helping him.

Q.Was Bernie getting him another doctor?

A.Bernie tried to, but Jeff said his mother was not going to pay for anybody

else . . ..

Q.And Bernie was of the impression that Jeffrey needed his mother to pay for a doctor in order —

A.I don't know. I didn't ask him that. I just said, you know a lot of Jeff's money was tied up in his securities accounts, I think.

Q.It couldn't be liquidated, as far as you know?

A.I don't know. I don't know that he would have wanted to liquidate his securities account.

Q.To pay for a doctor? [*5]

A.Yeah. A person who is really depressed can't make decisions like that.

Q.I see.

And Bernie wasn't making those decisions for him?

A.Bernie was trying to help him. He was just trying to give him therapy himself. He was spending hours talking to him and trying to get him undepressed . . ..

Decedent's compromised state ^[FN6] and exclusive reliance on Dellosso created an opportunity for Dellosso to exert undue influence. Whether Dellosso did so can be determined only after a full trial. Accordingly, the motion for summary judgment on undue influence is denied.

This decision constitutes the order of the Court.

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S U R R O G A T E

Dated:March 6, 2007