Opinion
134 CA 20-00537
02-11-2021
In the MATTER OF the ESTATE OF Kymber Ann VOELKER, Deceased. Anthony S. Pecoraro, Petitioner-Respondent; v. Sandra Kenyon, Respondent-Appellant. (Appeal No. 1.)
DENIS A. KITCHEN, JR., WILLIAMSVILLE, FOR RESPONDENT-APPELLANT. COLE SORRENTINO HURLEY HEWNER GAMBINO P.C., BUFFALO, MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (EDWARD J. MARKARIAN OF COUNSEL), FOR PETITIONER-RESPONDENT.
DENIS A. KITCHEN, JR., WILLIAMSVILLE, FOR RESPONDENT-APPELLANT.
COLE SORRENTINO HURLEY HEWNER GAMBINO P.C., BUFFALO, MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (EDWARD J. MARKARIAN OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the decree is unanimously affirmed without costs.
Memorandum: In appeal No. 1, respondent appeals from a decree that, following a hearing, ordered, inter alia, that decedent's lost will may be offered for probate. In appeal No. 2, respondent appeals from an order that denied her motion pursuant to CPLR 5015 for "reconsideration" of the decree. Although Surrogate's Court considered the motion to be one pursuant to CPLR 2221, a motion pursuant to CPLR 2221 is not the proper procedural vehicle in which to address a final judgment (see e.g. Matter of Synergy, LLC v. Kibler , 124 A.D.3d 1261, 1262, 1 N.Y.S.3d 630 [4th Dept. 2015], lv denied 25 N.Y.3d 967, 8 N.Y.S.3d 263, 30 N.E.3d 907 [2015] ; Gorman v. Hess , 301 A.D.2d 683, 686, 754 N.Y.S.2d 393 [3d Dept. 2003] ), and the decree is a final judgment inasmuch as it determined the rights of the parties in this special proceeding pursuant to SCPA 1407 (see SCPA 601 ; Matter of Carroll , 100 A.D.2d 337, 337 n. 1, 474 N.Y.S.2d 340 [2d Dept. 1984] ). Nevertheless, inasmuch as respondent has not raised on appeal any issues with respect to the denial of her motion pursuant to CPLR 5015, she has abandoned any contentions with respect thereto, and we therefore dismiss the appeal from the order in appeal No. 2 (see Matter of State of New York v. Daniel J. , 180 A.D.3d 1347, 1348, 118 N.Y.S.3d 346 [4th Dept. 2020], lv denied 35 N.Y.3d 908, 2020 WL 3422539 [2020] ).
Based on our review of the record in appeal No. 1, we see no reason to disturb the findings of the Surrogate, " ‘which are entitled to great weight inasmuch as they hinged on the credibility of the witnesses’ " ( Matter of Lee , 107 A.D.3d 1382, 1384, 966 N.Y.S.2d 629 [4th Dept. 2013] ; see Matter of Winters , 84 A.D.3d 1388, 1389, 923 N.Y.S.2d 730 [2d Dept. 2011] ).