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In re Hayes

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


January 5, 2010

IN THE MATTER OF EDNA HAYES, A/K/A EDNA G. HAYES, A/K/A EDNA NEUMANN HAYES, DECEASED.
JAMES R. COYLE, ET AL., APPELLANTS;
DAVID A. HAYES, RESPONDENT. (FILE NO. P-269/91)

In a probate proceeding in which the executors under the will petitioned for the judicial settlement of their account, the petitioners appeal from an order of the Surrogate's Court, Richmond County (Gigante, S.), dated September 30, 2008, which granted the motion of the objectant, David A. Hayes, for summary judgment dismissing the petition as time-barred.

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.

A. GAIL PRUDENTI, P.J., JOSEPH COVELLO, PLUMMER E. LOTT and SANDRA L. SGROI, JJ.

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The objectant established his entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324), by demonstrating that the executors' petition asserting, inter alia, that certain funds withdrawn by the objectant from certain bank accounts are assets of the decedent's estate, was interposed after the expiration of the applicable statute of limitations (see CPLR 214[3]; Matter of King, 305 AD2d 683; Matter of Neshewat, 237 AD2d 524, 525; see also Matter of O'Brien, 54 AD2d 880). Since, in opposition, the executors failed to raise a triable issue of fact, the Surrogate's Court properly granted the objectant's motion for summary judgment dismissing the petition as time-barred (see Alvarez v Prospect Hosp., 68 NY2d at 324).

PRUDENTI, P.J., COVELLO, LOTT and SGROI, JJ., concur.

20100105

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