In re a Trust Created by Malasky

Appellate Division of the Supreme Court of New York

In re a Trust Created by Malasky

302 A.D.2d 761, 754 N.Y.S.2d 915, 2003 N.Y. App. Div. LEXIS 1504

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 20, 2003

StatusPublished

Cited by2 cases

This text of 302 A.D.2d 761 (In re a Trust Created by Malasky) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re a Trust Created by Malasky, 302 A.D.2d 761, 754 N.Y.S.2d 915, 2003 N.Y. App. Div. LEXIS 1504 (N.Y. Ct. App. 2003).

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Opinion

Rose, J.

Appeal from an order of [762]*762the Surrogate’s Court of Ulster County (Czajka, S.), entered April 20, 2001, which denied respondent Philip Mann’s motion for reconsideration.

This proceeding, which concerns a joint revocable living trust, has been before this Court on two prior occasions (290 AD2d 631; 275 AD2d 500). On October 13, 2000, Surrogate’s Court granted petitioners’ motions for preclusion based on respondents’ failure to comply with an earlier discovery order and summary judgment dismissing many of respondents’ objections. Although petitioner Marion Malasky appealed from a portion of this ruling (290 AD2d 631, supra), respondents filed no cross appeal. Instead, during the pendency of Malask/s appeal, respondent Philip Mann (hereinafter respondent) moved for reconsideration of the earlier motions. Surrogate’s Court denied the motion, prompting this appeal.

We affirm. As Surrogate’s Court aptly noted, respondent’s motion largely parroted the information contained in the earlier motion papers, offered no reason why the few new facts could not have been presented earlier, and contended that the court had misapprehended the issues of law and fact. Thus, although also labeled a motion to renew, respondent’s motion was primarily one for reargument and, to that extent, not subject to appellate review (see CPLR 2221 [d] [2]; Aiello v Manufacturers Life Ins. Co. of N.Y., 298 AD2d 662, 663, lv dismissed and denied 99 NY2d 575; Matter of Bernthon v Utica Mut. Ins. Co., 279 AD2d 728, 730; Pixel Intl. Network v State of New York, 228 AD2d 899, 901). To the extent that respondent’s motion sought renewal (see CPLR 2221 [e] [2]), it was correctly denied because respondent provided no reasonable justification for his failure to present the new facts on the prior motions (see Carota v Wu, 284 AD2d 614, 617; Bank of Richmondville v Terra Nova Ins. Co., 263 AD2d 786, 787). Nor is there any indication in either respondent’s motion for reconsideration or his appeal as to how the new facts would alter the earlier rulings (see Matter of Cerro v Washington County Bd. of Supervisors, 270 AD2d 679, 680, appeal dismissed 95 NY2d 887).

Mercure, J.P., Crew III, Peters and Kane, JJ., concur. Ordered that the order is affirmed, with one bill of costs.

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Rose, J.

Appeal from an order of [762]*762the Surrogate’s Court of Ulster County (Czajka, S.), entered April 20, 2001, which denied respondent Philip Mann’s motion for reconsideration.

This proceeding, which concerns a joint revocable living trust, has been before this Court on two prior occasions (290 AD2d 631; 275 AD2d 500). On October 13, 2000, Surrogate’s Court granted petitioners’ motions for preclusion based on respondents’ failure to comply with an earlier discovery order and summary judgment dismissing many of respondents’ objections. Although petitioner Marion Malasky appealed from a portion of this ruling (290 AD2d 631, supra), respondents filed no cross appeal. Instead, during the pendency of Malask/s appeal, respondent Philip Mann (hereinafter respondent) moved for reconsideration of the earlier motions. Surrogate’s Court denied the motion, prompting this appeal.

We affirm. As Surrogate’s Court aptly noted, respondent’s motion largely parroted the information contained in the earlier motion papers, offered no reason why the few new facts could not have been presented earlier, and contended that the court had misapprehended the issues of law and fact. Thus, although also labeled a motion to renew, respondent’s motion was primarily one for reargument and, to that extent, not subject to appellate review (see CPLR 2221 [d] [2]; Aiello v Manufacturers Life Ins. Co. of N.Y., 298 AD2d 662, 663, lv dismissed and denied 99 NY2d 575; Matter of Bernthon v Utica Mut. Ins. Co., 279 AD2d 728, 730; Pixel Intl. Network v State of New York, 228 AD2d 899, 901). To the extent that respondent’s motion sought renewal (see CPLR 2221 [e] [2]), it was correctly denied because respondent provided no reasonable justification for his failure to present the new facts on the prior motions (see Carota v Wu, 284 AD2d 614, 617; Bank of Richmondville v Terra Nova Ins. Co., 263 AD2d 786, 787). Nor is there any indication in either respondent’s motion for reconsideration or his appeal as to how the new facts would alter the earlier rulings (see Matter of Cerro v Washington County Bd. of Supervisors, 270 AD2d 679, 680, appeal dismissed 95 NY2d 887).

Mercure, J.P., Crew III, Peters and Kane, JJ., concur. Ordered that the order is affirmed, with one bill of costs.

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302 A.D.2d 761, 754 N.Y.S.2d 915, 2003 N.Y. App. Div. LEXIS 1504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-a-trust-created-by-malasky-nyappdiv-2003.

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