In re the Estate of Morgen

Appellate Division of the Supreme Court of New York

In re the Estate of Morgen

251 A.D.2d 333, 672 N.Y.S.2d 803, 1998 N.Y. App. Div. LEXIS 6289

Appellate Division of the Supreme Court of the State of New York·Decided June 1, 1998·Published·Cited by 2 cases

Opinion

—In a probate proceeding, the petitioner Eleanor Livoti appeals from a decree of the Surrogate’s Court, Queens County (Nahman, S.), dated March 7, 1997, which denied her petition to vacate a decree of the same court dated January 25, 1995, admitting the decedent’s will to probate.

Ordered that the decree is affirmed, with costs payable by the appellant personally.

Contrary to the petitioner’s contentions, the Surrogate did not improvidently exercise his discretion in denying her petition seeking to vacate the decree which admitted the decedent’s October 22, 1987, will to probate (see, Matter of Greene, 240 AD2d 745; Matter of Marturano, 203 AD2d 295). The Surrogate correctly determined that the release signed by the petitioner when she received her bequest under the will was valid and barred the instant proceeding, since the petitioner failed to establish any basis for setting aside the release (see, Matter of Stark, 233 AD2d 450; Martino v Kaschak, 208 AD2d 698; Dreyer & Traub v Rubinstein, 191 AD2d 236; Langer v Krivitzky, 147 AD2d 687). The petitioner’s allegations were insufficient to sustain her burden of showing that there was a substantial basis for the contest and a reasonable probability of success (see, Matter of Greene, supra; Matter of Gross, 242 AD2d 333; Matter of Richtman, 221 AD2d 640; Matter of Es-berg, 215 AD2d 655). O’Brien, J. P., Pizzuto, Joy and Florio, JJ., concur.

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—In a probate proceeding, the petitioner Eleanor Livoti appeals from a decree of the Surrogate’s Court, Queens County (Nahman, S.), dated March 7, 1997, which denied her petition to vacate a decree of the same court dated January 25, 1995, admitting the decedent’s will to probate.

Ordered that the decree is affirmed, with costs payable by the appellant personally.

Contrary to the petitioner’s contentions, the Surrogate did not improvidently exercise his discretion in denying her petition seeking to vacate the decree which admitted the decedent’s October 22, 1987, will to probate (see, Matter of Greene, 240 AD2d 745; Matter of Marturano, 203 AD2d 295). The Surrogate correctly determined that the release signed by the petitioner when she received her bequest under the will was valid and barred the instant proceeding, since the petitioner failed to establish any basis for setting aside the release (see, Matter of Stark, 233 AD2d 450; Martino v Kaschak, 208 AD2d 698; Dreyer & Traub v Rubinstein, 191 AD2d 236; Langer v Krivitzky, 147 AD2d 687). The petitioner’s allegations were insufficient to sustain her burden of showing that there was a substantial basis for the contest and a reasonable probability of success (see, Matter of Greene, supra; Matter of Gross, 242 AD2d 333; Matter of Richtman, 221 AD2d 640; Matter of Es-berg, 215 AD2d 655). O’Brien, J. P., Pizzuto, Joy and Florio, JJ., concur.

In re the Estate of Morgen, 251 A.D.2d 333, 672 N.Y.S.2d 803, 1998 N.Y. App. Div. LEXIS 6289 (N.Y. Ct. App. 1998).

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