In re the Estate of Cosgrove

281 A.D.2d 626, 722 N.Y.S.2d 180, 2001 N.Y. App. Div. LEXIS 3077

Opinion

—In a proceeding, inter alia, pursuant to SCPA 2103 to discover property withheld from the decedent’s estate, Dominick J. DeDeo and Deborah A. DeDeo appeal, as limited by their brief, from so much of an order of the Surrogate’s Court, Suffolk County (Weber, S.), dated December 6, 1999, as denied that branch of their motion which was to vacate an order of the same court (Prudenti, S.), entered June 25, 1996, upon their default in answering or appearing at an inquest, directing them to reimburse the decedent’s estate in the sum of $60,327.

Ordered that the order is affirmed insofar as appealed from, with costs.

The appellants were obligated to establish both a reasonable excuse for their default and a meritorious defense (see, Roussodimou v Zafiriadis, 238 AD2d 568). “A decision to vacate a prior order or judgment rests in the sound discretion of the court and will be upheld in the absence of an improvident exercise of that discretion” (Spodek v Feibusch, 259 AD2d 693). The Surrogate’s Court providently exercised its discretion in denying that branch of the appellants’ motion which was to vacate the order entered upon their default, as they did not offer a reasonable excuse for the default and a meritorious defense to the proceeding. O’Brien, J. P., Krausman, Florio and Schmidt, JJ., concur.