Summary
In Matter of McLaughlin (111 AD3d 1185, 1186 [3d Dept 2013]), the Third Department sets forth the standard for considering a motion to vacate a prior decision and order pursuant to CPLR 5015, noting that such motion must be made within "a reasonable time" and be "addressed to the trial court's sound discretion, subject to reversal only where there has been a clear abuse of that discretion" (id. [citations omitted]).
Summary of this case from State v. StevensOpinion
2013-11-27
In the Matter of the Estate of John McLAUGHLIN, Deceased. John M. Thomas, as Administrator of the Estate of John McLaughlin, Deceased. Respondent. Nina Savino, Appellant.
Nina Savino, Endicott, appellant pro se. Coughlin & Gerhart, Binghamton (Robert R. Jones of counsel), for respondent.
Nina Savino, Endicott, appellant pro se. Coughlin & Gerhart, Binghamton (Robert R. Jones of counsel), for respondent.
Before: , P.J., McCARTHY, SPAIN and EGAN JR., JJ.
, P.J.
Appeal from an order of the Surrogate's Court of Broome County (Buckley, S.), entered August 1, 2012, which sua sponte denied Nina Savino's motion to, among other things, vacate a prior decision finding her ineligible to be coexecutor of decedent's estate.
In June 2005, decedent executed a will that named Nina Savino as a coexecutor of his estate. Following decedent's death, his will was offered for probate and temporary letters of administration were issued to petitioner. Thereafter, Michael McLaughlin, one of decedent's sons and beneficiaries, filed an objection to the appointment of Savino as coexecutor on the basis that she is ineligible to receive letters testamentary because of her status as a felon ( seeSCPA 707[1][d] ). At a hearing to determine the qualifications of the nominated coexecutors, at which Savino appeared pro se, Sean McLaughlin, another of decedent's sons and beneficiaries, submitted a certification of criminal record establishing that Savino was convicted of three counts of grand theft in California in 1985, which is the equivalent of three felony convictions of grand larceny in New York ( seePenal Law § 155.30[1]; Cal. Penal Code §§ 484, 487). At the conclusion of the hearing, Surrogate's Court granted the objection and disqualified Savino as coexecutor of decedent's estate. Decedent's will was subsequently admitted to probate and petitioner was appointed administrator c.t.a. of the estate.
Over six years later, Savino moved pro se to vacate and set aside Surrogate's Court's decision disqualifying her as coexecutor and all other subsequently entered orders on the grounds of fraud and misrepresentation ( seeCPLR 5015 [a] [3] ). Savino also sought sanctions against Sean McLaughlin, Michael McLaughlin and their respective counsel pursuant to 22 NYCRR 130–1.1(c)(3), alleging that they, among other things, asserted false material factual statements to the court concerning her criminal history. Surrogate's Court sua sponte denied the motion without a hearing. Savino appeals, and we affirm.
A motion to vacate pursuant to CPLR 5015 must be made within “a reasonable time” (City of Albany Indus. Dev. Agency v. Garg, 250 A.D.2d 991, 993, 672 N.Y.S.2d 541 [1998]; see HSBC Bank USA, N.A. v. Ashley, 104 A.D.3d 975, 976, 961 N.Y.S.2d 337 [2013], lv. dismissed21 N.Y.3d 956, 969 N.Y.S.2d 439, 991 N.E.2d 213 [2013] ) and “is addressed to the trial court's sound discretion, subject to reversal only where there has been a clear abuse of that discretion” (Maddux v. Schur, 53 A.D.3d 738, 739, 861 N.Y.S.2d 814 [2008]; see Pritchard v. Curtis, 101 A.D.3d 1502, 1503, 957 N.Y.S.2d 440 [2012]; Solomon v. Solomon, 27 A.D.3d 988, 989, 813 N.Y.S.2d 787 [2006] ). Here, Savino was present at the hearing during which the alleged misrepresentations were made concerning her prior criminal convictions, but nevertheless failed to move to vacate Surrogate's Court's decision disqualifying her as coexecutor until more than six years later. Accordingly, her motion was not made within a reasonable time and was therefore properly denied ( see HSBC Bank USA, N.A. v. Ashley, 104 A.D.3d at 976, 961 N.Y.S.2d 337; Sieger v. Sieger, 51 A.D.3d 1004, 1006, 859 N.Y.S.2d 240 [2008], appeal dismissed14 N.Y.3d 750, 898 N.Y.S.2d 541, 925 N.E.2d 579 [2010], lv. denied14 N.Y.3d 711, 2010 WL 1854440 [2010]; Rizzo v. St. Lawrence Univ., 24 A.D.3d 983, 984, 805 N.Y.S.2d 479 [2005]; City of Albany Indus. Dev. Agency v. Garg, 250 A.D.2d at 993, 672 N.Y.S.2d 541). In any event, her allegations of fraud or other misconduct on the part of Sean McLaughlin, Michael McLaughlin and their respective attorneys are unsupported by the record ( see Bank of N.Y. v. Stradford, 55 A.D.3d 765, 765–766, 869 N.Y.S.2d 554 [2008]; Rizzo v. St. Lawrence Univ., 24 A.D.3d at 984, 805 N.Y.S.2d 479; Aames Capital Corp. v. Davidsohn, 24 A.D.3d 474, 475, 808 N.Y.S.2d 229 [2005] ). For this same reason, the court did not abuse or improvidently exercise its discretion in declining to impose sanctions ( see22 NYCRR 130–1.1[c][3]; Academy of Medicine of Queens County v. Seminole 75 Realty Corp., 38 A.D.3d 693, 697, 832 N.Y.S.2d 286 [2007] ). Accordingly, Savino's motion was properly denied in all respects.
ORDERED that the order is affirmed, without costs. McCARTHY, SPAIN and EGAN JR., JJ., concur.