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In re Rizzuto

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


October 27, 2009

IN THE MATTER OF ROSE RIZZUTO, DECEASED.
CAROL ANN RIZZUTO, APPELLANT;
v.
ROSEANN SIMS, RESPONDENT. (FILE NO. 342792)

In a probate proceeding, Carol Ann Rizzuto appeals from an order of the Surrogate's Court, Nassau County (Riordan, S.), dated September 12, 2008, which denied that branch of her petition which was to vacate a decree of the same court dated December 28, 2007, admitting the decedent's will to probate and, in effect, to vacate her default in contesting the probate of the will.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PETER B. SKELOS, J.P., JOSEPH COVELLO, FRED T. SANTUCCI RUTH C. BALKIN, JJ.

DECISION & ORDER

ORDERED that the order is affirmed, with costs payable by the petitioner personally.

To vacate her default in contesting the probate of the decedent's will, the petitioner was required to show (1) a valid excuse and the absence of willfulness, and (2) a meritorious claim (see CPLR 5015[a][1]; Matter of Maxwell, 13 AD3d 630, 631; Matter of Wang, 5 AD3d 785, 787; see also Matter of American Comm. for Weizmann Inst. of Science v Dunn, 10 NY3d 82). The petitioner failed to establish a reasonable excuse for her default in failing to timely file objections to probate (see SCPA 1410). Accordingly, the Surrogate's Court properly declined to vacate the decree of probate entered upon the petitioner's default.

In light of our determination, we need not reach the petitioner's remaining contentions.

SKELOS, J.P., COVELLO, SANTUCCI and BALKIN, JJ., concur.

20091027

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