In re Carfizzi

289 A.D.2d 237, 734 N.Y.S.2d 482, 2001 N.Y. App. Div. LEXIS 11844

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 2001
• Status: Published

Opinion

In a contested probate proceeding, Anthony J. Carfizzi, Jr., appeals from (1) an order of the Surrogate’s Court, Orange County (Slobod, S.), dated August 22, 2000, which, upon his default, granted the motion of Nicholas Carfizzi, Theresa Austin, and Lucille DeStasio to direct the sale of the decedent’s residence, and (2) an order of the same court, also dated August 22, 2000, which, sua sponte, removed him as a co-executor of the decedent’s estate pursuant to SCPA article 7.

Ordered that the appeal from the first order is dismissed, as no appeal lies from an order entered upon the default of the appealing party (see, CPLR 5511); and it is further,

Ordered that on the Court’s own motion, the notice of appeal from the second order is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,

Ordered that the second order is affirmed; and it is further,

Ordered that the respondents are awarded one bill of costs payable by the appellant personally.

The Surrogate’s Court providently exercised its discretion in removing the appellant as a co-executor of the decedent’s estate (see, SCPA 719 [10]; Matter of Menis, 137 AD2d 692). Altman, J. P., H. Miller, Feuerstein and Cozier, JJ., concur.