In re Manasen

247 A.D.2d 908, 668 N.Y.S.2d 530, 1998 N.Y. App. Div. LEXIS 1247

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 1998
• Docket: Appeal No. 1
• Status: Published

Opinion

Order unanimously affirmed without costs. Memorandum: In light of the numerous issues of fact, Surrogate’s Court properly denied the motion of objectants for partial summary judgment and ordered a hearing on the objections.

The court erred, however, in denying objectants’ motion to dismiss the amended petition for tax apportionment. On January 3, 1983, the executors paid from the estate the Federal and State taxes of $911,790.65. Petitioners, by their amended petition filed July 31, 1996, seek to apportion the estate taxes among certain estate beneficiaries. Objectants contend that the relief sought in the amended petition is barred by the Statute of Limitations. We agree.

“The CPLR and other laws applicable to practice and procedure apply in the surrogate’s court” if “other procedure is [not] provided by this act” (SCPA 102). CPLR 213 (1) prescribes a six-year Statute of Limitations where, as here, there is no limitation period “specifically prescribed by law”. Because the amended petition was filed almost 14 years after the payment of the estate taxes, the amended petition is time-barred.

In light of our decision, it is unnecessary to consider the contention of objectants that the petition is also barred by laches.

Finally, the contention of petitioner Kevin D. Cox that the order of Surrogate’s Court is not appealable as of right is without merit (see, CPLR 5701 [a]). (Appeal from Order of Erie County Surrogate’s Court, Mattina, S. — Summary Judgment.)

Present — Pine, J. P., Lawton, Wisner, Callahan and Boehm, JJ.