SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

917 

CA 14-01287 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ. 

 

IN THE MATTER OF THE ESTATE OF DAVID C. PETERS, 

DECEASED. 

----------------------------------------------- 

COREEN N. THOMPSON, ADMINISTRATRIX CTA, 

PETITIONER-RESPONDENT; 

 MEMORANDUM AND ORDER

JOAN PETERS, OBJECTANT-APPELLANT. 

(APPEAL NO. 3.) 

COLUCCI & GALLAHER, P.C., BUFFALO (MOLLY M. KRAUZA OF COUNSEL), FOR

OBJECTANT-APPELLANT. 

LAW OFFICES OF JOHN P. BARTOLOMEI & ASSOCIATES, NIAGARA FALLS, D.J. &

J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR

PETITIONER-RESPONDENT. 

 

Appeal from a decree of the Surrogate’s Court, Genesee County

(Robert C. Noonan, S.), entered June 4, 2014. The decree determined

that the business of Arrowhawk Smoke and Gas Shop, its related

businesses and the tangible and intangible assets of the businesses

are assets of the estate of David C. Peters. 

It is hereby ORDERED that the decree so appealed from is

unanimously reversed on the law without costs, and the matter is

remitted to Surrogate’s Court, Genesee County, for further proceedings

on the petition. 

Memorandum: In his last will and testament (will), David C.

Peters (decedent), who was a citizen of the Tonawanda Seneca Nation

(Nation), attempted to devise real property located within the

Tonawanda Seneca Nation Territory or Reservation (Territory) to

petitioner, and to bequeath a business known as Arrowhawk Smoke and

Gas Shop and all of its assets (hereafter, businesses), to petitioner

and Thomas Peters. Objectant, however, claimed ownership of the real

property and the businesses. Petitioner is decedent’s daughter,

objectant is decedent’s mother, and Thomas Peters is decedent’s

brother. The will also contained an in terrorem clause, directing

that if anyone named in the will acted in any manner to oppose the

probate of the will or “to impair, invalidate or set aside the [will]

or any of its provisions,” any provisions for the benefit of that

person would be revoked and that person would cease to have any

“right, title, or interest in or to any portion of [decedent’s]

estate.” Following decedent’s death, multiple petitions and/or

complaints related to the probate of decedent’s will were filed in
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CA 14-01287 

Surrogate’s Court, federal court, and this Court (see e.g. Matter of

Peters, 124 AD3d 1266; Matter of Tonawanda Seneca Nation v Noonan, 122

AD3d 1334, lv granted 25 NY3d 903; Peters v Noonan, 871 F Supp 2d

218). The focus of many of the court proceedings was the issue

whether the Surrogate could exercise jurisdiction over property and

businesses located in the Territory and objectant’s claims that she

owned the real property and businesses. 

Insofar as relevant to this appeal, petitioner, who was appointed

administratrix, C.T.A., after the coexecutors were removed, filed a

petition (Petition I) seeking forfeiture and disgorgement of any

bequests to objectant based on objectant’s alleged violation of the in

terrorem clause. Petitioner also filed a petition (Petition L)

seeking a declaration of estate assets and, in particular, seeking a

declaration that the businesses discussed in the will were assets of

decedent’s estate. Objectant objected to Petition I and filed a

motion seeking to dismiss Petition L and to intervene in that

proceeding.

In appeal No. 1, objectant appeals from an order in which

Surrogate’s Court granted Petitions I and L, thereby determining that

the businesses were assets of the estate and that objectant had

violated the in terrorem clause of the will by claiming ownership of

the businesses. Appeal Nos. 2 and 3 are appeals from the Surrogate’s

ensuing decrees related to that order.

As a preliminary matter, we note that the appeal from the order

in appeal No. 1 “must be dismissed because the right of direct appeal

therefrom terminated with the entry of the decree[s] in the

proceeding” (Matter of Winters, 84 AD3d 1388, 1388; see Matter of

Beiny, 16 AD3d 221, 222, lv denied 5 NY3d 710). 

With respect to appeal Nos. 2 and 3, we agree with objectant that

the Surrogate erred in summarily granting the petitions. All

Surrogate’s Court proceedings are special proceedings (see SCPA 203)

and, in special proceedings, the court or Surrogate “shall make a

summary determination upon the pleadings, papers and admissions to the

extent that no triable issues of fact are raised. The court [or

Surrogate] may make any orders permitted on a motion for summary

judgment” (CPLR 409 [b]; see SCPA 102). Thus, if no triable issues of

fact are raised, the Surrogate “must make a summary determination on

the pleadings and papers submitted as if a motion for summary judgment

were before it” (Matter of Korotun v Laurel Place Homeowner’s Assn., 6

AD3d 710, 712; see Matter of Bahar v Schwartzreich, 204 AD2d 441,

443). Even assuming, arguendo, that petitioner met her initial burden

of proof with respect to both petitions, we conclude that objectant

raised triable issues of fact whether the businesses were assets of

the estate and whether, by claiming ownership of the businesses,

objectant violated the in terrorem clause. 

Petitioner submitted documentary evidence establishing that

decedent was the owner, sole incorporator, and/or sole proprietor of

the businesses. In support of her answer to the petitions, objectant

submitted her deposition testimony. In that deposition, objectant
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stated that she did not contribute to development of the buildings in

which the businesses were located, and that her claims to own the

businesses were based solely on the fact that they were situated “on

[her] land.” Objectant also admitted that decedent had owned the

“doing business as” name as well as the corporation associated with

those businesses and that decedent never paid her any money from the

businesses. Despite those statements, objectant also testified that

she “[a]lways owned” the businesses and that she “never signed any

papers over to [decedent] as ownership of it.” Also in opposition to

the petitions and in support of her answer to the petitions, objectant

submitted affidavits in which she averred that she was the owner of

the businesses and that she had funded the businesses by liquidating

her private pensions. While there were times in her deposition

testimony that objectant wavered on why or how she owned the

businesses, we conclude that “[a]ny inconsistences between the

deposition testimony of [objectant] and [her] affidavits submitted in

opposition to the [petitions] present[ed] credibility issues for

trial” (Knepka v Tallman, 278 AD2d 811, 811; see Godlewski v Carthage

Cent. Sch. Dist., 83 AD3d 1571, 1572; see generally Glick & Dolleck v

Tri-Pac Export Corp., 22 NY2d 439, 441). In addition, objectant

submitted an affidavit of petitioner’s attorney from a 2001 proceeding

in which petitioner’s attorney averred that objectant and decedent

built the businesses “at their own great expense.” With respect to

the in terrorem clause, we note that, “while in terrorem clauses are

enforceable, they are ‘not favored and [must be] strictly construed’ ”

(Matter of Singer, 13 NY3d 447, 451, rearg denied 14 NY3d 795). Here,

the in terrorem clause applied to anyone who challenged the probate of

the will or who sought to impair, invalidate or set aside the will or

any of its provisions. In discussing the distribution of the

businesses in his will, decedent wrote, “If at the time of my demise,

I own and operate [the businesses] . . . , such business[es] and

assets shall pass to my heirs as set forth in this Article.” Inasmuch

as there are issues of fact whether decedent owned the businesses at

the time of his death, we conclude that there are issues of fact

whether objectant’s claims of ownership constitute an attempt “to

impair, invalidate or set aside” a provision of the will (see Matter

of Robbins, 144 Misc 2d 510, 512-513). 

Entered: October 2, 2015 Frances E. Cafarell

Clerk of the Court