In re the Estate of Cristo

92 A.D.2d 691, 460 N.Y.S.2d 184, 1983 N.Y. App. Div. LEXIS 16968

Opinion

— Appeal from a decree of the Surrogate’s Court of Rensselaer County (Travers, S.), entered February 18, 1982, which denied petitioner’s motion pursuant to CPLR 5015 for a new trial. By decree of the Surrogate’s Court of Rensselaer County (Travers, S.), entered June 6,1980, it was held that decedent made a valid inter vivas gift of 43 shares of stock in M. Cristo, Inc., to his son Michael P. Cristo, Jr. This decree was subsequently affirmed by this court in January, 1982 (Matter of Cristo, 86 AD2d 700). Thereafter, petitioner Sebastian Cristo, another son of decedent, moved pursuant to CPLR 5015 for a new trial. Petitioner based the application on the grounds of fraud, misrepresentation or other misconduct (CPLR 5015, subd [a], par 3), and/or upon newly discovered evidence (CPLR 5015, subd [a], par 2). Surrogate’s Court denied this application and the present appeal was commenced. Motions pursuant to CPLR 5015 are addressed to the discretion of the court (5 Weinstein-Korn-Miller, NY Civ Prac, par 5015.03). Since a review of the record fails to support petitioner’s contention that Surrogate’s Court abused its discretion, the decree should be affirmed. Decree affirmed, with costs. Sweeney, J. P., Kane, Main, Mikoll and Weiss, JJ., concur.