Filed Date: 2/9/2010
Status: Precedential
Modified Date: 11/1/2024
In a probate proceeding in which Deborah Perciballi and Louis Nieto, Jr., co-executors of the estate of Richard Nieto, petitioned pursuant to SCPA 2103 to recover certain personal property, Michele April appeals from an order of the Surrogate’s Court, Suffolk County (Czygier, Jr., S.), dated January 22, 2009, which denied her motion pursuant to CPLR 5015 (a) to vacate an order of the same court entered August 4, 2008, upon her default in answering the petition and after an inquest, inter alia, granting the petition to the extent of directing her to turn over certain personal property to the petitioners.
Ordered that the order is affirmed, with costs.
This proceeding pursuant to SCPA 2103 was commenced by an order to show cause dated November 21, 2007, directing that service of process be made on the appellant by special mail service pursuant to SCPA 307 (2) and by delivery personally to Randazzo & Randazzo, LLE] the appellant’s former counsel. In opposition to that branch of the appellant’s motion which was pursuant to CPLR 5015 (a) (4) to vacate the order entered upon her default, the petitioners submitted their process server’s affidavit of service together with the Express Mail track and
Furthermore, the Supreme Court providently exercised its discretion in denying that branch of the appellant’s motion which was pursuant to CPLR 5015 (a) (1) to vacate the prior order based on excusable default. To vacate the order entered upon her default in answering the petition pursuant to CPLR 5015 (a) (1), the appellant was required to demonstrate a reasonable excuse for her default and a meritorious defense to the petition (see Matter of Olds v Binyard, 64 AD3d 658, 659 [2009]; Matter of Territo v Keane, 55 AD3d 744, 745 [2008]; Matter of Tobin, 261 AD2d 627, 628 [1999]). The appellant’s bare allegation that she believed that her former counsel and a Florida attorney. were representing her interests is belied by the record (see Moore v Claudio, 224 AD2d 502, 503 [1996]). Furthermore, under the circumstances, her bare and unsupported claim that she was unable to afford an attorney was insufficient to excuse the more than eight-month delay in answering the petition (see CPLR 320 [a]; SCPA 309 [2] [b]; Dorrer v Berry, 37 AD3d 519, 520 [2007]; Gerlin v Homann Trucking, 303 AD2d 262 [2003]; Kanat v Ochsner, 301 AD2d 456, 457-458 [2003]; Rottenberg v Lerner, 232 AD2d 395 [1996]).
The appellant’s remaining contention is without merit. Dillon, J.P., Miller, Eng and Hall, JJ., concur.