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In re the Estate of Rock

105 A.D.2d 707, 481 N.Y.S.2d 317, 1984 N.Y. App. Div. LEXIS 20814
Appellate Division of the Supreme Court of the State of New York·Decided November 5, 1984·Published

Opinion

In an accounting proceeding, the appeal is from a decree of the Surrogate’s Court, Dutchess County (Benson, S.), dated September 28, 1983, which, inter alia, denied appellant’s application to vacate a default in appearance and settled the account of the executor.

Decree reversed, on the law and in the exercise of discretion, without costs or disbursements, and matter remitted to the Surrogate’s Court, Dutchess County, for further proceedings consistent herewith.

A review of the entire record convinces us that it was an improvident exercise of discretion to deny appellant’s application to vacate his default (see Smith v Waldbaum’s Supermarket, 99 AD2d 530; Matter of Kline, 59 Misc 2d 27). Further, the merits may only be resolved following a hearing (see SCPA 1808, subd 5; Matter of Starr, 86 AD2d 829). Titone, J. P., Lazer, Bracken and Boyers, JJ., concur.

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In re the Estate of Rock, 105 A.D.2d 707, 481 N.Y.S.2d 317, 1984 N.Y. App. Div. LEXIS 20814 (N.Y. Ct. App. 1984).

105 A.D.2d 707 (In re the Estate of Rock) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

In re the Estate of Starr
86 A.D.2d 829 (Appellate Division of the Supreme Court of New York, 1982)
Smith v. Waldbaum's Supermarket, Inc.
99 A.D.2d 530 (Appellate Division of the Supreme Court of New York, 1984)
In re the Estate of Kline
59 Misc. 2d 27 (New York Surrogate's Court, 1969)