In re the Estate of Rella

Appellate Division of the Supreme Court of New York

In re the Estate of Rella

67 A.D.3d 493, 887 N.Y.S.2d 842

Appellate Division of the Supreme Court of the State of New York·Decided November 12, 2009·Published·Cited by 3 cases

Opinion

Order, Surrogate’s Court, Bronx County (Lee L. Holtzman, S.), entered on or about October 28, 2008, which denied petitioners’ motion to dismiss respondents’ amended objections to their accounting, deemed respondents’ opposition to the motion an application for leave to file amended objections and granted the application, and granted respondents leave nunc pro tunc to file the amended objections already served and filed, unanimously affirmed, without costs.

The determination to consider respondents’ amended objections, despite their failure to move for leave to amend, was within the Surrogate’s discretion (see 1 Warren’s Heaton, Surrogate’s Court Practice § 9.04 [3] [7th ed]). Petitioners’ contention that amended objection 2.C, which objects to the alleged failure to sell property at 2066 Yates Avenue in the Bronx, is time-barred is presented for the first time on appeal and will not be considered by this Court (see e.g. Omansky v Whitacre, 55 AD3d 373, 374 [2008]). The Surrogate correctly found that none of the other amended objections referred to any transaction that had not been referred to in some manner in the original objections, or in the SCPA 2103 proceeding brought by respondent Anthony Rella.

[494]*494Petitioners’ remaining contentions are unavailing. Concur— Gonzalez, PJ., Andrias, Saxe, Renwick and Manzanet-Daniels, JJ.

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Order, Surrogate’s Court, Bronx County (Lee L. Holtzman, S.), entered on or about October 28, 2008, which denied petitioners’ motion to dismiss respondents’ amended objections to their accounting, deemed respondents’ opposition to the motion an application for leave to file amended objections and granted the application, and granted respondents leave nunc pro tunc to file the amended objections already served and filed, unanimously affirmed, without costs.

The determination to consider respondents’ amended objections, despite their failure to move for leave to amend, was within the Surrogate’s discretion (see 1 Warren’s Heaton, Surrogate’s Court Practice § 9.04 [3] [7th ed]). Petitioners’ contention that amended objection 2.C, which objects to the alleged failure to sell property at 2066 Yates Avenue in the Bronx, is time-barred is presented for the first time on appeal and will not be considered by this Court (see e.g. Omansky v Whitacre, 55 AD3d 373, 374 [2008]). The Surrogate correctly found that none of the other amended objections referred to any transaction that had not been referred to in some manner in the original objections, or in the SCPA 2103 proceeding brought by respondent Anthony Rella.

[494]*494Petitioners’ remaining contentions are unavailing. Concur— Gonzalez, PJ., Andrias, Saxe, Renwick and Manzanet-Daniels, JJ.

In re the Estate of Rella, 67 A.D.3d 493, 887 N.Y.S.2d 842 (N.Y. Ct. App. 2009).

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Opinion

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