In re Philip

In a contested probate proceeding, the objectant appeals from so much of an order of the Surrogate’s Court, Dutchess County (Benson, S.), dated August 30, 1990, as, upon granting the objectant’s motion to renew, adhered to its prior order dated June 10, 1989, granting the petitioner’s motion, in effect, for summary judgment dismissing the objections to probate, only to the extent of dismissing the fourth and fifth objections grounded in undue influence and fraud.

Ordered that the order is affirmed insofar as appealed from, with costs payable by the appellant personally.

Summary judgment was properly granted since the objectant failed to present any evidence showing that undue influence was exercised by the petitioner, his wife, or the attorney who drafted the testator’s will, to effect a change in the testator’s testamentary intent. Nor was evidence presented that their behavior was fraudulent in that respect. A mere showing of opportunity and even of motive to exercise undue influence is insufficient to present a triable issue of fact, without additional evidence that such influence was actually exercised (see, Matter of Walther, 6 NY2d 49, 55). Nor can such inference be reasonably drawn from circumstances that are not inconsistent with a contrary inference (Matter of Walther, supra). Since there was no supportable inference of undue influence or fraud the court properly dismissed those objections as a matter of law (see, Matter of Pascal, 309 NY 108; Matter of Swain, 125 AD2d 574; Matter of Hedges, 100 AD2d 586). Kooper, J. P., Sullivan, Harwood and Rosenblatt, JJ., concur.