In re Willnus

101 A.D.3d 1036, 957 N.Y.2d 229

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 19, 2012
• Status: Published

Opinion

Here, the Surrogate’s Court providently exercised its discretion in granting that branch of the motion of the respondents Thomas Maguire and Steven Maguire (hereinafter together the respondents) which was to dismiss the petition pursuant to CPLR 3211 (a) (4). The relief sought by the petitioners in this Surrogate’s Court proceeding and a pending guardianship proceeding they had previously commenced in the Supreme Court was substantially the same, namely, a return of the decedent’s assets to a family trust, of which the petitioners were residuary beneficiaries (see Simonetti v Larson, 44 AD3d at 1029). In addition, both proceedings arose out of the same allegations of wrongdoing on the part of the respondents in handling the decedent’s financial affairs, and there was substantial identity of parties in each proceeding.

The Surrogate’s Court properly denied that branch of the petitioners’ motion which was for leave to renew their opposition to that branch of the respondents’ motion which was to dismiss the petition pursuant to CPLR 3211 (a) (4), since the new facts offered on the motion would not have changed the prior determination (see CPLR 2221 [e] [2]; Grossman v New York Life Ins. Co., 90 AD3d 990, 992 [2011]).

The petitioners’ remaining contentions are either not properly before this Court or without merit. Skelos, J.P., Hall, Austin and Hinds-Radix, JJ., concur.