Matter of Agiovlasitis 2025 NY Slip Op 34090(U) October 30, 2025 Surrogate’s Court, New York County Docket Number: File No. 2024-416 Judge: Rita Mella goes into a plethora of things that never came up in Trusts and Estates, including “affidavits of comparison”, lost and replacement wills and Judiciary Law 487 deceit.

“The pertinent facts are as follows. Decedent died on January 20, 2024. Proponents filed a probate petition on February 9, 2024, offering a purported will dated January 13, 2024 (2024 Will), that named Proponents as the nominated executors. Landsman and Glass, who were attorneys at the same law firm, were allegedly witnesses to the 2024 Will. The petition lists Landsman as an attorney-drafter, and Glass filed an affidavit of comparison. Preliminary letters were issued to Proponents on March 15, 2024.”

“On November 14, 2024, Glass filed a detailed affirmation in which he admitted that the 2024 Will was not the document signed by Decedent, and that he had “modified” the document outside of Decedent’s presence, after Decedent signed it. Glass annexed to his affirmation what he characterized as “an exact true and complete final draft of the of [sic] Last Will and Testament that was signed by the Testator and witnessed by Mr. Landsman and myself on January 13, 2024” (Glass Aff. ,25). Also on November 14, 2024, Proponents filed the third amended probate petition asking the court to probate the draft purported will referenced by Glass as a “destroyed” will under SCP A 1407.”

“Here, the third amended petition is premised on SCP A 1407. Pursuant to that provision, a lost or destroyed will may be admitted to probate if 1) it is established that the will has not been revoked, 2) execution of the will is proved in the manner required for the probate of an existing will, and 3) all of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete. The court concluded that the allegations in the petition and the statements in Glass’s affirmation, which on this motion the court accepts as true, were sufficient to satisfy all elements of SCP A 1407 (see e.g. Matter of Castiglione, 40 AD3d 1227, 1229 [3d Dept 2007] [lost will was properly admitted to probate under SCP A 1407 where, inter alia, petitioner “offered a signed photocopy of the will, along with a sworn statement by [the attorney-draftsperson] that this copy was an exact replica of the original will”]). In reaching this determination, the court considered Movant’ s argument that the success of the third amended petition hinges on the statements in Glass’s affirmation, and that the petition must therefore be dismissed because Glass is an inherently incredible witness. However, the court found Movant’s contention unavailing, given that the petition, coupled with Glass’s affirmation, satisfies all elements of SCP A 1407, and Movant failed to establish that any allegations or statements made by Glass in his affirmation are inherently incredible. The court also noted that it would be premature to make credibility determinations at this stage. Discovery has not yet been conducted. Indeed, issue has not even been joined. Under these circumstances, none of Movant’s cited cases, which are primarily personal injury cases at the summary judgment or trial stage, support the conclusion that dismissal of the petition is warranted.

The court next addressed Movant’s contention, based on CDR Creances S.A.S. v Cohen (23 NY3d 307 [2014]), that the court must either dismiss the petition or strike Glass’s affirmation because Glass committed fraud on the court. In that case, after the Supreme Court held a full evidentiary hearing and concluded that various parties to a lawsuit had engaged in egregious conduct, the Court of Appeals stated that “where a court finds, by clear and convincing evidence, conduct that constitutes fraud on the court, the court may impose sanctions including, as in this case, striking pleadings and entering default judgment against the offending parties to ensure the continuing integrity of our judicial system” (id. at 311, 315-316). By contrast, here, no evidentiary hearing has been conducted and the proceeding is in the pre-answer stage. Moreover, Glass is neither a party nor an attorney for any party to this proceeding, and the relief requested would penalize Proponents, two of whom, at least on the record before the court at this time, do not appear to have played a role in Glass’s actions. Further, if, in fact, Decedent intended for a signed version of the draft purported will to be his Last Will and Testament, the relief requested would also thwart Decedent from disposing of his property as he wished. 1

1 Movant also argued that Judiciary Law § 487, which states that an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party … [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action,” supports dismissal of the petition. However, Movant failed to establish that this statute has any bearing on the issues presently before the court. Furthermore, a claim under Judiciary Law § 487 must be brought by petition, not by motion as here (see Matter of Rappaport, NYLJ, Sep. 6, 2017, at 22, col 3 [Sur Ct, NY County]).”