In re the Estate of Poggemeyer

87 A.D.2d 822, 449 N.Y.S.2d 12, 1982 N.Y. App. Div. LEXIS 16279

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 5, 1982
• Status: Published

Opinion

In a proceeding pursuant to SCPA 2105, the appeal is from a decree of the Surrogate’s Court, Suffolk County (Signorelli, S.), entered April 23, 1981, which, after a nonjury trial, decreed that the proceeds, with accrued interest thereon, from the sale of certain real properties constitute assets of the estate. Decree affirmed, with costs payable personally by appellant. Essentially, appellant asks this court to substitute its own findings of fact for those of the Surrogate, who based his decision on the evidence presented, as well as the credibility of the witnesses presenting such evidence. The decision of a fact-finding court, however, should not usually be disturbed on appeal (Pordy v Scot Serv. Co., 15 AD2d 911), unless it is obvious that its conclusions could not be reached under any fair -interpretation of the evidence. (Billington v State of New York, 33 AD2d 822.) This is especially true when findings of fact rest in large measure on considerations relating to the credibility of witnesses. (67 Wall St. Co. v Franklin Nat. Bank, 44 AD2d 825, affd 37 NY2d 245; Matter of Anonymous v Anonymous, 25 AD2d 350, affd 19 NY2d 840.) A review of the record in this case convinces us that the decision of the Surrogate should not be disturbed. This is especially so since appellant was required to sustain his burden of proof in this matter by clear and convincing evidence. (See Matter of Effross, 43 AD2d 539.) Lazer, J. P., Mangano, Gibbons and Gulotta, JJ., concur.