Majority
p. 609In the Matter of the Estate of Harry Torczyner, Deceased. Gary B. Freidman, Respondent; Stephen L. Weiner, Appellant, and Denise Wiseman et al., Respondents. [730 NYS2d 227]
Decree, Surrogate’s Court, New York County (Renee Roth, S.), entered on or about February 28, 2000, which denied appellant’s motion for leave to file objections to a codicil revoking his appointment as executor of the decedent’s estate, and to conduct discovery in connection therewith, and admitted the subject codicil to probate, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion granted to the extent of permitting appellant to conduct discovery, and the matter remanded for further proceedings consistent with this order.
On this appeal, appellant asserts that Surrogate’s Court
p. 610
should have permitted him to conduct discovery so as to substantiate his claim that decedent lacked capacity to execute the relevant codicil. While we express no view on the ultimate merit of his claim, on the record presented, appellant set forth a sufficient factual predicate to warrant discovery. Concur— Lerner, J. P., Saxe, Buckley, Friedman and Marlow, JJ.