In re the Estate of Foris

In a proceeding to probate the will of Joseph John Foris, the appeal is from a decree of the Surrogate’s Court, Nassau County (Radigan, S.), dated November 25, 1996, which, upon a jury verdict finding that the decedent was not of “sound mind and disposing memory’, inter alia, denied probate of the will.

Ordered that the decree is affirmed, with costs payable by the appellant individually.

“When there is conflicting evidence or the possibility of drawing conflicting inferences from undisputed evidence, the issue of capacity is one for the jury’ (Matter of Kumstar, 66 NY2d 691, 692). Here, there was conflicting evidence presented on the issue of testamentary capacity. While the proponent’s witnesses testified that, on the date that the subject will was executed the decedent was alert and understood what was taking place, the testimony of the objectant’s expert, who opined with a degree of medical certainty, that the decedent lacked the mental capacity to enter into the will, created an issue of fact for the jury. Therefore, the motion of the proponent, Lynne Travis, for judgment as a matter of law was properly denied.

Moreover, upon our review of the record, we find that the Surrogate properly denied the proponent’s post verdict motion for judgment notwithstanding the verdict, as the evidence provided a rational basis for the jury’s verdict (see, Cohen v Hallmark Cards, 45 NY2d 493).

The appellant’s remaining contentions are without merit. Copertino, J. P., Sullivan, Friedmann and Luciano, JJ., concur.