Discipio v. Sullivan

14 A.D.3d 866, 786 N.Y.S.2d 924, 2005 N.Y. App. Div. LEXIS 269

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 13, 2005
• Status: Published

Opinion

Lahtinen, J. Appeal from an order of the Supreme Court (Williams, J.), entered July 15, 2004 in Saratoga County, which denied defendant’s motion to remove the action to the Surrogate’s Court of Westchester County.

Thirty-seven days after Gail A. Sullivan signed a contract to purchase property in Saratoga County owned by plaintiff, she passed away. Less than two months later, defendant was issued letters of administration by Westchester County Surrogate’s Court and demanded that plaintiff cancel the contract. Rejecting defendant’s demand, plaintiff scheduled a closing and, when defendant failed to appear, commenced this action for breach of contract.

Following joinder of issue, defendant moved pursuant to CFLR 325 (e) to transfer the action to Westchester County Surrogate’s Court. Supreme Court denied the motion and defendant appeals.

Although CFLR 325 (e) expresses a preference for removal to Surrogate’s Court of all matters affecting the administration of a decedent’s estate, we do not find that Supreme Court abused its discretion in denying defendant’s motion (see Wain v Catón, 224 AD2d 863, 864 [1996]).

Peters, J.P., Carpinello and Mugglin, JJ., concur. Ordered that the order is affirmed, with costs.