In re Rizzuto

Appellate Division of the Supreme Court of New York

In re Rizzuto

66 A.D.3d 1033, 886 N.Y.S.2d 819

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

DecidedOctober 27, 2009

StatusPublished

Cited by2 cases

This text of 66 A.D.3d 1033 (In re Rizzuto) 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.

Bluebook

In re Rizzuto, 66 A.D.3d 1033, 886 N.Y.S.2d 819 (N.Y. Ct. App. 2009).

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Opinion

In a probate proceeding, Carol Ann Rizzuto appeals from an order of the Surrogate’s Court, Nassau County (Riordan, S.), dated September 12, 2008, which denied that branch of her petition which was to vacate a decree of the same court dated December 28, 2007, admitting the decedent’s will to probate and, in effect, to vacate her default in contesting the probate of the will.

Ordered that the order is affirmed, with costs payable by the petitioner personally.

To vacate her default in contesting the probate of the decedent’s will, the petitioner was required to show (1) a valid excuse and the absence of willfulness, and (2) a meritorious claim (see CELR 5015 [a] [1]; Matter of Maxwell, 13 AD3d 630, 631 [2004]; Matter of Wang, 5 AD3d 785, 787 [2004]; see also Matter of American Comm. for Weizmann Inst. of Science v Dunn, 10 NY3d 82 [2008]). The petitioner failed to establish a reasonable excuse for her default in failing to timely file objections to probate (see SCEA 1410). Accordingly, the Surrogate’s Court properly declined to vacate the decree of probate entered upon the petitioner’s default.

In light of our determination, we need not reach the petitioner’s remaining contentions. Skelos, J.E, Covello, Santueci and Balkin, JJ., concur.

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In a probate proceeding, Carol Ann Rizzuto appeals from an order of the Surrogate’s Court, Nassau County (Riordan, S.), dated September 12, 2008, which denied that branch of her petition which was to vacate a decree of the same court dated December 28, 2007, admitting the decedent’s will to probate and, in effect, to vacate her default in contesting the probate of the will.

Ordered that the order is affirmed, with costs payable by the petitioner personally.

To vacate her default in contesting the probate of the decedent’s will, the petitioner was required to show (1) a valid excuse and the absence of willfulness, and (2) a meritorious claim (see CELR 5015 [a] [1]; Matter of Maxwell, 13 AD3d 630, 631 [2004]; Matter of Wang, 5 AD3d 785, 787 [2004]; see also Matter of American Comm. for Weizmann Inst. of Science v Dunn, 10 NY3d 82 [2008]). The petitioner failed to establish a reasonable excuse for her default in failing to timely file objections to probate (see SCEA 1410). Accordingly, the Surrogate’s Court properly declined to vacate the decree of probate entered upon the petitioner’s default.

In light of our determination, we need not reach the petitioner’s remaining contentions. Skelos, J.E, Covello, Santueci and Balkin, JJ., concur.

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Bluebook (online)

66 A.D.3d 1033, 886 N.Y.S.2d 819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rizzuto-nyappdiv-2009.

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