Duffy v. Simmonds — 215 A.D.2d 382

Majority

p. 382

In the Matter of the Estate of Helen Duffy, Deceased. James J. Duffy, Appellant; Lloyd N. Merrill, Respondent. (Matter No. 1.) James J. Duffy, Appellant, v Walter E. Simmonds et al., Respondents, et al., Defendants. (Matter No. 2.)

[ 625 NYS2d 657 ]

In a proceeding to revoke letters testamentary and a related action pursuant to RPAPL article 15, inter alia, to set aside a deed conveying real property, James Duffy appeals, as limited by his brief, from stated portions of an order and decree (one paper) of the Surrogate’s Court, Westchester County (Emanuelli, S.), dated April 23, 1993, which, upon denying his motion for summary judgment to set aside a deed and upon granting that branch of the cross motion of Walter and Anne Simmonds which was for summary judgment on their second counterclaim and cross claim, is in favor of them and against him declaring that the Simmonds were vested with title in fee to certain real property.

Ordered that the order and decree is affirmed insofar as appealed from, with costs to the respondents appearing separately and filing separate briefs payable by the appellant personally.

p. 383

To obtain summary judgment the movant must make a "prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact” (Alvarez v Prospect Hosp., 68 NY2d 320 , 324). Here, the appellant did not make such a showing (see, Zuckerman v City of New York, 49 NY2d 557 ). Moreover, the Surrogate’s Court properly determined that Walter and Anne Simmonds were vested with title in fee to the real property located at 33-37 Lattin Drive, Yonkers, New York.

We have reviewed the appellant’s remaining contentions and find them to be without merit. Thompson, J. P., Santucci, Joy and Friedmann, JJ., concur.

Cases cited

Alvarez v. Prospect Hospital 68 NY2d 320 N.Y. 1986-11-11 at 324 p. 383
Zuckerman v. City of New York 49 NY2d 557 N.Y. 1980-04-01 p. 383