Decedent ("Lorraine") died in September, 2004, without a Will. This is a judicial settlement proceeding, in which the Public Administrator, the fiduciary of this estate, seeks approval of her accounts and a determination as to distribution of the net proceeds of the estate [$150,996.69]. As stated in the accounting, while the Public Administrator believes that "the closest next of kin are the decedent's first cousins", it appears to the Public Administrator that

"[a]t the present time, there is insufficient proof to determine heirship. Consequently, the residuary estate will be distributed to the New York State Comptroller on behalf of the unknown [*2]heirs."

Claimants on both the maternal and paternal side of decedent's family have come forward, all of them alleging that they are decedent's first cousins. Presently pending before this Court are motions for summary judgment by the only maternal first cousin claimant, and by seven paternal first cousin claimants. Claimants seek to establish their status as decedent's heirs, and to close both their class and all prior classes (which would otherwise be entitled to inherit) by virtue of the submissions on the motions.

A guardian ad litem was appointed to represent the interest of unknown heirs in this case, and the Attorney General of the State of New York has also appeared. In essence, all those presently before the Court have taken the position on the motions that status has been established in the papers for each of the claimants and that, on both the maternal and paternal sides, the class of cousins has been closed and any prior classes which would be entitled to take have also been closed.

There are two separate but related legal standards to be considered on these motions. The first deals with the requirements for reviewing a motion for summary judgment, and the second deals with principles for establishing kinship.

As recently explained in Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 314-315 [Smith, G.B., J., concurring]:

" To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented' (Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441; see also Zuckerman v. City of New York, 49 NY2d 557). Summary judgment should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable (Glick & Dolleck v. Tri-Pac, 22 NY2d at 441). On a summary judgment motion, the moving party must set forth evidence that there is no factual issue and that it is entitled to summary judgment (Zuckerman v. City of New York, 49 NY2d at 560-562). If the moving party establishes a basis for a grant of summary judgment, the opposing party must present evidence that there is a triable issue (id.). It is not the court's function on a motion for summary judgment to assess credibility' (Ferrante v. American Lung Assn., 90 NY2d 623, 631). Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions; not those of a judge, whether he [or she] is ruling on a motion for summary judgment, or for a directed verdict' (see Anderson v. Liberty Lobby, Inc., 477 US 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 [1986])." (See also, JMO Holding Corp. v. Congress Financial Corp. 4 NY3d 373, 384-385).

The instant proceeding is somewhat different from the usual summary judgment application in that all parties before this Court appear to be in agreement on how the substantive issues should be decided. This does not, of course, mean that this Court simply endorses the parties' conclusion(s), for the obligation of the Court is to ensure that the assets of the estate are properly distributed. In a case such as this, the Court must be certain not only that the alleged evidentiary material satisfies the required technical level of admissibility but also that the moving parties have actually met their burden of proof:

"While the report of the guardian ad litem appointed to represent the interests of missing or unknown distributees concludes that all reasonable efforts have been made to limit the heirs at law [*3]of George Swan and that the net proceeds of the estate should be distributed to the claimants, the court nevertheless must satisfy itself that there are no other persons who may have an interest in the estate who are not before the courts" (Matter of Swan, NYLJ, December 29, 1993, at 27, col 2, emphasis added [Radigan, J.]).

In this sense, the mere absence of opposition is not enough for the moving parties to prevail: they must actually prove their case. This is somewhat akin to a motion for a default judgment (see, CPLR 3215) where there is no party appearing in opposition. Even there, a plaintiff is required to establish in an evidentiary manner that it has "a viable cause of action (see CPLR 3215[f]; [balance of citations omitted])" (Beaton v. Transit Facility Corp., 14 AD3d 637):

"In support of her motion for default judgment, plaintiff submitted a complaint verified by counsel. We have previously held a complaint verified by counsel amounts to no more than an attorney's affidavit and is insufficient to support entry of judgment pursuant to CPLR 3215 (Joosten v. Gale, 129 AD2d 531, 534). Therefore, plaintiff's entry of default judgment was erroneous and must be deemed a nullity (see, Mullins v. DiLorenzo, 199 AD2d 218, 219-220, citing, inter alia, Joosten v. Gale, supra, at 534). Further, plaintiff submitted no substantiation of the alleged malpractice, except through the complaint verified by her attorney, unsupported by any other form of documentary or testimonial evidence. CPLR 3215 does not contemplate that default judgments are to be rubberstamped once jurisdiction and a failure to appear have been shown. Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action (see, 4 Weinstein-Korn-Miller, NY Civ Prac 3215.22-3215.27). The standard of proof is not stringent, amounting only to some firsthand confirmation of the facts. Here, plaintiff failed to meet even that minimal standard. His complaint, verified as it is by his attorney, is pure hearsay, utterly devoid of evidentiary value' (Joosten v. Gale, supra, at 535)." (Feffer v. Malpeso, 210 AD2d 60, 61).

Thus, on a motion for summary judgment even where all the parties are in agreement, a court must still assess whether the proof is legally sufficient to grant the relief being sought.

Claimants have the burden of proving kinship (see, e.g., Matter of Morris, 277 AD2d 211), and they must establish that they are decedent's closest blood relatives as defined in EPTL 4-1.1 (see, Matter of Dinzey, NYLJ, June 9, 2003, at 33, col 4). For kinship to be established to the satisfaction of the Court, the claimants must make an evidentiary showing (1) how each is related to decedent, and (2) that no other persons of the same or a nearer degree of relationship survived decedent. Upon proof that no heirs other than those before the Court exist, the class of heirs may be "closed" ( see, e.g., Matter of Alao, NYLJ, March 19, 2002, at 18, col 6).

In proving kinship, the Uniform Rules for Surrogate's Court [22 NYCRR §207.1, et. seq.] require that the claimants "must" meet certain proof requirements. 22 NYCRR §207.16(c) provides as follows:

"If the petitioner alleges that the decedent was survived by no distributee or only one distributee, or where the relationship of distributees to the decedent is grandparents, aunts, uncles, first cousins or first cousins once removed, proof must be submitted to establish: [*4]

(1) how each such distributee is related to the decedent; and

(2) that no other persons of the same or a nearer degree of relationship survived the decedent.

Unless otherwise allowed by the court, the proof submitted pursuant to this subdivision must be by an affidavit or testimony of a disinterested person. Unless otherwise allowed by the court, if only one distributee survived the decedent, proof may not be given by the spouse or children of the distributee. The proof shall include as an exhibit a family tree, table or diagram, except no such table or diagram shall be required if the distributee is the spouse or only child of the decedent." (emphasis added)

"In all cases involving pedigree and the distribution of intestate property where there are no distributees, as specifically mentioned in EPTL 4-1.1, it is first necessary to establish the identity of the common ancestor and from that point to construct the family tree to which all claimants must attach themselves to be successful (Matter of Whalen, 146 Misc 176; 38 NY Jur 2d 106). When persons of the nearest degree of relationship establish their standing, those more remote are excluded (Matter of Henesey, 3 Misc 2d 660, affd 3 AD2d 834). One who seeks to establish an interest in a decedent's estate as a collateral relative must show that all lines of descent which would precede his or her claim as a distributee are exhausted" (Matter of Dinzey, supra).

One approach often followed by parties in kinship matters is found in SCPA §2225, which authorizes a Court to find that persons who would be distributees but who have not been heard from for a period of at least three years from the date of a decedent's death are presumed dead (SCPA 2225[a]). The parties may also ask a Court to determine that no distributee or prior class exists other than those whose status is established before the Court, if at least three years have elapsed since decedent's death and the Court is satisfied the parties have diligently and exhaustively searched for other potential distributees or classes (SCPA 2225[b]).

In this case, however, decedent died less than three years before this motion was brought, so that the somewhat relaxed burden of SCPA 2225 is not applicable. It is worth noting, though, that the legislative history of SCPA 2225 reveals that one of its intended effects was to overcome any manifest unfairness where "those who are known to be entitled to some property are barred from receiving any because information is not available about the whole family."^[FN1] Initially, the ameliorating time period set forth in the statute was five years, but that was shortened to three years in 1985. While I recognize the importance of expeditiously distributing intestate estates, SCPA 2225 clearly reflects the intention of the Legislature to protect the rights of those potential distributees not known at the time of a decedent's death, allowing unknown distributees the three year statutory period to come forth and assert their right to share in an estate:

"The bill [S. 978/A. 1450] is intended to shorten the period that known distributees must wait for an inheritance from five to three years. In doing so, the bill would particularly benefit those of advanced age who might otherwise not realize the inheritance in their lifetime. The advantage to such a person, as well as to any other distributee who would not need to wait the extra two years, [*5]would appear to outweigh extinction of the rights of a possible distributee who, three years after the death of the decedent, was not aware of the death and could not be located. This Committee believes that the statute's requirements of notice and diligent search are adequate to protect the interests of such a possible distributee. In addition to expediting distribution, economies might result from shortening the statutory period by making it more feasible for the SCPA Section 2225 issue to be raised in the estate accounting proceeding, thus relieving the parties of the substantial expense of a separate SCPA section 2225 proceeding." (Report on Legislation No. 10, Committee on Trusts, Estates and Surrogates' Court, The Association of the Bar of the City of New York)

In a case, such as this, where less than three years have elapsed, the burden of class closing is, therefore, even more significant.

I will consider each side of decedent Lorraine's family tree, and the claimants who seek to inherit from her in intestacy, separately.

At the onset of this estate's administration, little information was known about any family members on the maternal side of Lorraine's family tree. Indeed, Lorraine herself was unable to identify her maternal grandparents when acting as informant for her mother's, Beulah Conwell Kenny's ("Beulah"), death certificate in 1986.

Maternal claimant, John Owen Fisher ("John"), now seeks to prove his right to inherit one-half of Lorraine's estate through the submission of a potpourri of documents. Public records, such as death certificates, census records, and marriage licenses, as well as pedigree declarations, such as obituary notices, have been offered to meet his burden of proof.

John claims to be Lorraine's sole maternal first cousin. He claims to derive his status in this estate by virtue of being the only child of Leona Conwell Fisher ("Leona"), who, he alleges, is the sister of Lorraine's mother, Beulah. To prove his status, John has submitted a Buffalo News obituary for Beulah, which identifies Leona as her sister. Leona's death notice printed in a newspaper from Tulsa, Oklahoma, where Leona had lived, fails to list any family members. Other documentary submissions, Leona's 1993 death certificate and her 1928 marriage certificate, have inconsistent information with respect to who her mother is: the marriage certificate lists "Mary Travis" (the same mother listed on Beulah's 1930 marriage license), but the death certificate (on which John and his wife are the informants) lists a woman by the name of "Flora Rose", who appears on no other document submitted on this motion. Clearly, a factual issue is now presented with respect to whether Leona and Beulah are, in fact, full sisters, and this issue can only be resolved by the trier of fact before John's status can be determined.

Several legal principles compel this result. First, obituaries fall within the pedigree declaration exception to the hearsay rule. Pedigree declarations are " a well known and recognized exception to the general rule excluding hearsay evidence" (Eisenlord v. Clum, 126 NY 552, 563). While these documents are admissible, the fact-finder must determine the weight it will accord to such information:

"Although hearsay declarations as to pedigree may be open to every suspicion, this is not ground for their rejection. Eisenlord v. Clum, 126 NY 552, 567, 27 NE 1024, 1028. Family pride may have tempted the declarant to allege or deny a relationship contrary to the fact; and although persons may be presumed to know the facts connected with their own family history, yet, as is well known, this presumption is often contrary to the fact.' Jones on Evidence (4th ed), §317. But these [*6]matters affect weight, not admissibility." (Prince, Richardson on Evidence, §8-910 [Farrell 11th ed]).

Second, collateral information in the birth or death certificate may be admitted pursuant to the pedigree hearsay exception for the purpose of proving kinship. Public Health Law §4103 subds 2 and 3, provides:

"2. Any copy of the record of a birth or of a death or any certificate of registration of birth or any certification of birth, when properly certified by the local registrar, shall be prima facie evidence of the facts therein stated in all courts and places and in all actions, proceedings, or applications, judicial, administrative or otherwise, and any such certificate of registration of birth or any such certification of birth shall be accepted with the same force and effect with respect to the facts therein stated as the original certificate of birth or a certified copy thereof. 3. A certified copy of the record of a birth or death, a certification of birth or death, a transcript of a birth or death certificate, a certificate of birth data or a certificate of registration of birth, when properly certified by the commissioner or persons authorized to act for him, shall be prima facie evidence in all courts and places of the facts therein stated."

However, other evidentiary matters may limit the probative value of such documents (see, Schelberger v. Eastern Sav. Bank, 60 NY2d 506, 511).

Finally, any contradictory submissions involve credibility issues, and a choice between competing "facts". Resolution of such choices is, absent extraordinary circumstances, not for a court as a matter of law but rather for a trier of fact (see, e.g., Forrest v. Jewish Guild for the Blind, supra, at 315; but see also, Sexstone v. Amato, 8 AD3d 1116, 1117 [court is not required to "shut its eyes to

. . . patent falsity"]).

Thus, I conclude that there are questions of fact which must be resolved at a hearing and that John has not met his burden on this motion of establishing his status as decedent's first cousin on the maternal side as a matter of law.

John also was required to prove that there are no other persons in the class of maternal cousins or in any prior class who have an equal or greater right to inherit. As to the cousin class, this element involves satisfying the Court that both maternal grandparents are deceased, that all aunts and uncles are identified and have pre-deceased Lorraine, and all of their children, i.e other cousins, are accounted for. Aside from the fact that the previously identified discrepancy in John's proof has the potential for uncovering additional heirs (because of the unresolved questions in the proof), the documents submitted do not rise to the level where the Court can be satisfied that there are no other cousins on this (maternal) side.

For example, the 1910 census records identify Lorraine's maternal grandparents, Robert and Mary Conwell, as living on Seneca Street in Buffalo, New York, with four children: Bernard, Vincent, "Vulia" [sic] and Leona. Six children were reported on the census as having been born to the mother, Mary, and four were listed as "now surviving." John argues that the two "non-surviving" children, who would be Lorraine's aunts or uncles, "obviously" must have died either in infancy or early adolescence. He does not identify them by name, date of birth, or date of death, nor are they listed anywhere on the family tree.

It appears from a study of the documents submitted, that the Conwell's moved to Buffalo prior to 1910 from West Virginia. This conclusion may be drawn, not because of any direct [*7]testimony or documentary evidence provided, but by comparing a 1910 Federal census for the city of Buffalo with information as to dates and places of birth listed on the mother's, aunt's and uncles', death certificates, inasmuch as not one birth certificate was presented for them.

Within the documents filed, however, inconsistencies abound with respect to information critical to the determination of kinship. Leona, for example, is listed as having been born in two different states, Ohio and West Virginia, depending on whether you view her 1993 death certificate, the1910 Buffalo census,

her 1928 marriage certificate to Charles Fisher, or the information reported on claimant John's birth certificate in 1937. The diversity of states listed in these documents, which remains completely unexplained on this record, calls into question whether a diligent and complete search for all maternal heirs has been performed. Significantly, the discrepancies in the documents leaves open fact issues which cannot be resolved by a court as a matter of law. The discrepancies also call into question the reliability of the information in the documents, and there is no way to decide, at least as a matter of law, which document to accept or which to reject.

Similarly, the Court is forced to surmise the date of maternal grandfather Robert Conwell's birth, by comparing a variety of documents, because, again, no birth certificate has been submitted. The 1910 census lists his age as 28, and wife Mary's as 26. That would bring their dates of birth to approximately 1882 and 1884, respectively. In the 1930 census, twenty years later, they are listed as being 52 and 50, respectively, which would make their approximate years of birth 1878 and 1880. Mary's date of birth, as listed on her death certificate, was April 12, 1879, and on their 1897 West Virginia marriage license, they were reported as 20 and 18, respectively, which would make the years that they were born 1877 and 1879.

Most importantly for the present motion, the age discrepancies call into question the accuracy of the information reported on the 1910 census: that is to say, reading the documents as a whole, the 1910 census information has no inherent integrity or reliability because other documents contradict it. In this situation, there can be no conclusive reliability to the 1910 census information that Robert and Mary Conwell had had six children, only four of whom were then alive, absent other, reliable and buttressing information, none of which exists here.

Again, this conclusion is simply an application of the principle that it is for a trier of fact to decide among conflicting evidence and competing inferences (see, e.g., Petrovski v. Fornes, 125 AD2d 972 and Everhardt v. Klozbach, 302 AD2d 880).

A further example of unresolvable inconsistencies is found in the 1930 census records provided for maternal uncle Bernard Conwell ("Bernard"). That census lists two children, "son, Robert" and "daughter, Jane", as residing in the household with Bernard and his wife, who is unidentified by name. But in Bernard's 1973 Buffalo News obituary, he is referred to as the "stepfather" of Robert Herrich and the late Edward Donahue. Claimant somehow now deems this obituary proof sufficient to overcome earlier census date indications that Robert may have status as a maternal cousin. Rather than satisfying John's burden to establish that there are no additional maternal cousins, these inconsistencies leave the question open and unresolved.

Therefore, I conclude that John has not met his burden of proving that he is the only maternal cousin, as a matter of law.

Another aspect of John's class closing burden was to eliminate the existence of any person with a closer degree of kinship. In an attempt to establish that Lorraine died as a single, childless woman, John has referred to the guardian ad litem's report, where the guardian ad litem reviewed [*8]a 1979 divorce decree between Lorraine and Lawrence Flavin (which had been filed with the court in the initial administration proceeding for this estate). Although John relies on the guardian ad litem's assertions that the divorce decree indicated "no children were born or adopted of that marriage", nothing in the decree itself bears that out.

In addition, John adopts the original submission of counsel for the Public Administrator, which was prepared after counsel had gathered information about Lorraine's next of kin for the initial, administration, proceeding here, as proof of the facts stated therein. In his 2004 affidavit, counsel for the Public Administrator reported that Lorraine's ex-husband had four children prior to his marriage to her, but that Lorraine had no children of her own, "either adopted or otherwise." However, counsel's knowledge had been gleaned from outside sources, such as a relative and a neighbor.

By relying on these two items — the guardian ad litem's report about the 1979 divorce decree and the affidavit of counsel for the Public Administrator — John now believes that he has closed the class of "spouse and issue." Clearly, he has not.The affidavit of counsel for the Public Administrator is not based on first-hand personal knowledge; it is grounded in what others told him. As such, it is inadmissible hearsay and entitled to no consideration (see, Bielak v. Plainville Farms, Inc., 299 AD2d 900). As to the conclusion that Lorraine died unmarried and childless, this is based in part on the 1979 divorce decree. Apart from the fact that the decree is silent on the matter of children, it in no way excludes the possibility that Lorraine could have had a child either before, or after, her marriage ended in 1979, and it in no way excludes the possibility that she could have remarried.

Unlike the maternal side, where no initial information existed about Lorraine's next of kin, at least one of the paternal family members appeared to play a role in her life. This was John J. Kenny ("John J"), one of the seven paternal cousin/claimants, who traveled from San Francisco to Buffalo after he learned of Lorraine's death to make funeral arrangements for her. It is reported that he searched her home for a few days looking for a Will, and it was he who ultimately provided much detailed family information on the paternal side to the Public Administrator's office.

To meet the paternal claimants' burden of proof with respect to establishing the kinship rights of the seven alleged first cousins, two types of documents were submitted for each pre-deceased family member on the paternal tree

(grandparents, aunts and uncles): a death certificate, and an obituary notice. For those seven claiming to be the cousins entitled to share in one half of this estate, birth certificates were submitted. Three of the seven birth certificates merely reported the child's name, date and place of birth, without identifying the mother or father.

It is through the consistency of the names and relationships reported as

parents, brothers and sisters on these documents, that the claimants believe they have proven, not only their direct bloodline to Lorraine, but that there are no other cousins on this side.

Indeed, the documents do appear to routinely report and confirm the

names of grandparents Thomas F Kenny ("Thomas") and Josephine Fleming Kenny ("Josephine"), as well as their nine children, Francis, Margaret, James, Mary, Geraldine, Ellen, Catherine, John and Thomas. The seven claimants, who are the children of Lorraine's uncles Francis and Thomas, are also listed in the obituaries of their fathers. The obituaries are the sole documentation being offered to prove the number of children of each uncle. Mere repetition in the reporting of names in obituary [*9]notices, however, does not sustain the claimants' burden of establishing status or class closure, because the weight to be given to an obituary is for a trier of fact.

With respect to the closure of prior classes, paternal claimants have produced no documentation of their own, choosing to rely on the submissions of the maternal claimant in this regard. Those efforts, however, I have found inadequate to close prior classes and that finding necessarily applies with equal force to the paternal side.

At oral argument of these motions, counsel for the maternal claimant suggested a framework for the Court's review of a summary judgment motion in kinship matters:

"We are asking the Court, basically, trust us a bit. We work it hard . . . . We search for the truth in the documents, we try not to rely on people. That is something the Court has to recognize. . . . . I never talk to people."

The issue in kinship matters is not whether a court trusts the efforts of claimants to establish their case. Rather, the issue is whether the burden of proof has been met. However, because counsel has made the methodology employed a focal point, certain comments about kinship matters are necessary.

This Court, in its institutional sense, has seen numerous cases where initial submissions about kinship — who was entitled to inherit — have evolved as the cases went forward into matters far different from what was originally believed. And this Court has seen cases where this has occurred (a) because the initial picture was (for whatever reason) deliberately obscured, (b) because only cursory efforts were expended, or (c) because those involved failed to appreciate the significance of what was before them.

For example, in the estate of Joan E. Syracuse [No.1980-749], it was reported under oath that she was survived by four sisters [Gloria, Antoinette, Mary and Carolyn]. No other siblings were listed, and Joan's estate was distributed accordingly. When Joan's sister Gloria M. Syracuse [#1982-643] subsequently died, it was reported under oath that she, Gloria, was survived by three sisters [Antoinette, Mary and Carolyn]; and Gloria's estate was distributed accordingly. Much later, in 1988, the then-two remaining sisters [Mary and Carolyn] had what can best be described as a crisis of conscience, and they revealed to their attorney that they had "inadvertently omitted" the information that they also had three brothers. The estate attorney then moved to reopen both estates, and the inheritances were recalculated and assets adjusted.

In another case, the still-pending estate of Laszlo Boedoer [#2003-0839], information was initially available that decedent had a son. This information was initially discounted by those involved in the estate, but further confirmation from another source later on in the proceedings made the issue more significant, requiring further investigation.

In the estate of Jaroslaw Pryshlak [#2001-2501], a brother of the decedent filed his verified petition for administration as a sole distributee. He submitted a supporting sole distributee affidavit signed by a woman who claimed to have known the brothers for over twenty years. However, when the file was reviewed by decedent's ex-wife, she alleged that the brother had knowingly failed to inform the court of the existence of other family members. Once the possibility of other distributees became known, a kinship hearing was held, which resulted in the distribution of estate assets not only to the original brother (who had falsely claimed to be a "sole distributee"), but also to three other brothers residing in the Ukraine, as well as to a niece and nephew living in Canada. [*10]

A brief comment is also appropriate about the notion of strict reliance on documents and not talking to people in attempting to establish kinship. The court rules speak about the use of affidavits or testimony (see, 22 NYCRR 207.16[c], supra), and it is difficult to see how either can be avoided when trying to provide a complete, clear picture about a family. See, e.g., Matter of Wilkins, 180 Misc 2d 568. And, where surviving family members are known, or where there are neighbors or friends of a decedent's available, it should be easy enough to obtain relevant affidavit material for submission on a kinship application that would give a clearer picture of a decedent's family than documents, standing alone, might reveal.

It is important to note that affidavits from those with personal knowledge of relevant family facts should be as complete as possible. They should also indicate how the affiant knows the information being recounted so that the Court can be assured it is firsthand knowledge being reported. Details are important, as they lend certitude and veracity to what is being presented.

In the estate of Jonathan Pettway [#2003-2457], for example, this Court could not give conclusive effect to family member affidavits which contained problematic ambiguities and which left much to guesswork and speculation. On the other hand, when the same family members testified later at the kinship hearing, their evidence was replete with family information, anecdotes and facts that left no doubt as to the persuasive nature of their testimony, all of which might easily have been put into affidavit form beforehand and possibly obviated the need for a hearing.

Thus, while documents are certainly important, affidavit material should not be ignored.

The successful use of affidavits to help establish kinship is not unfamiliar to practitioners in this court. In the estate of Mirash Volaj [#2002-3183], a very detailed affidavit from a family friend was essential to explaining family connections that the documents alone could not do, and the estate was distributed based on the evidentiary submissions without a hearing.

My review of the submissions of the claimants in this case makes clear that there are a myriad of unresolved issues of status and class closing on both the maternal and paternal side, and that a kinship hearing will be required. My analysis here is not intended to be exhaustive, only illustrative of the problems in what is before me.

In determining whether the burden of proof has been met, a court on a summary judgment cannot pick and choose among competing inferences and conflicting or inconsistent proof. Although the parties and all counsel may genuinely believe they have — to paraphrase an argument made when these motions were argued — correctly fit all the "pieces of the kinship puzzle" together, it is obvious that they have made choices as to what to accept or reject when inconsistencies or gaps have arisen, and to accept, in all good faith, reported hearsay. These, however, hearsay aside, are functions of a fact-finder, not a court as a matter of law on a summary judgment motion.

Finally, I note that the parties have made repeated references in their papers to other estate files in this court that they believe may contain germane information on the present kinship issues. While they may well be correct, it is not for this Court to sort through one or more files trying to discern what may or may not be relevant. If counsel wishes to tender evidentiary material, it must do so by actually furnishing it, not by alluding to places where it might be located.

Accordingly, I hereby set this matter down for a kinship hearing before Joseph A. Shifflett, Chief Court Attorney, for Thursday, February 15, 2007, commencing at 9:30 a.m.

This decision shall constitute the Order of this Court and no other or further order shall be required.

DATED:BUFFALO, NEW YORK [*11]

January 11, 2007

BARBARA HOWE

Surrogate Judge