Opinion
2003-06585, 2003-06733.
Decided May 17, 2004.
In a proceeding to probate the last will and testament of Eshagh Eshaghian, a/k/a E. Ike Eshaghian, David Eshaghian appeals from (1) an order of the Surrogate's Court, Queens County (Nahman, S.), dated June 17, 2003, which denied his motion for leave to file objections to a purported codicil to the decedent's last will and testament, and (2) an order of the same court dated July 16, 2003, which denied his motion for leave to renew.
Cowan, Liebowitz Latman, P.C., New York, N.Y. (Michael F. Mashio of counsel), for nonparty-appellant.
Schwartzman Garelik Walker Kapiloff Troy, P.C., New York, N.Y. (Daniel S. Wohlfarth of counsel), for respondents.
Before: ANITA R. FLORIO, J.P., SANDRA L. TOWNES, BARRY A. COZIER, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the orders are affirmed, with one bill of costs.
The Surrogate's Court properly denied the appellant's motion for leave to file objections to a purported codicil to the decedent's last will and testament. The appellant's only interest in the estate was in the commission to which he would have been entitled if his appointment as a fiduciary in the will had not been revoked by the codicil, and the appellant, who did not waive those commissions, failed to establish that his proposed objection was prompted solely by the obligation to see that the decedent's wishes were not frustrated ( see SCPA 1410; Matter of Lerman, 238 A.D.2d 341, 342; Matter of Peckolick, 167 Misc.2d 597, 599). In addition, the appellant offered only conclusory allegations of fraud, undue influence, and lack of testamentary capacity, which were insufficient to establish "good cause" for leave to file objections ( see generally Matter of Lerman, supra; Matter of Marks, 142 Misc.2d 733; Matter of Hatzistefanou, 77 Misc.2d 594).
The Surrogate's Court properly denied the appellant's motion for leave to renew. The appellant failed to offer any new evidence in support of his motion, or any evidence that could not have been discovered with due diligence before he made his original motion ( see Yarde v. New York City Tr. Auth., 4 A.D.3d 352; Matter of Orange and Rockland Utils. v. Assessor of Town of Haverstraw, 304 A.D.2d 668).
FLORIO, J.P., TOWNES, COZIER and MASTRO, JJ., concur.