Opinion
2013-07856, File No. 346747.
09-16-2015
In the Matter of Roy L. GILMORE, Sr., also known as Roy Gilmore, also known as Roy L. Gilmore, deceased. Angela Manning, petitioner-respondent; Andrea Hofler, objectant-appellant.
Zak Law Group, New York, N.Y. (Oshrie Zak of counsel), for objectant-appellant. Vishnick McGovern Milizio LLP, Lake Success, N.Y. (Bernard Vishnick of counsel), for petitioner-respondent.
Zak Law Group, New York, N.Y. (Oshrie Zak of counsel), for objectant-appellant.
Vishnick McGovern Milizio LLP, Lake Success, N.Y. (Bernard Vishnick of counsel), for petitioner-respondent.
Opinion
In a contested probate proceeding, the objectant Andrea Hofler appeals from an order of the Surrogate's Court, Nassau County (McCarty III, S.), dated June 26, 2013, which granted the petitioner's motion for summary judgment dismissing her objections and admitting to probate the decedent's last will and testament.
ORDERED that the order is affirmed, with costs. The Surrogate's Court providently exercised its discretion in considering the petitioner's belated summary judgment motion. The petitioner's counsel established good cause for the delay by submitting an affidavit stating that he had been hospitalized and out of his office for a significant period of the relevant time (see Castro v. Homsun Corp., 34 A.D.3d 616, 617, 826 N.Y.S.2d 89 ; see also Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 ).
The Surrogate's Court properly determined that the motion was not premature pursuant to CPLR 3212(f), since the objectant Andrea Hofler failed to show that “facts essential to justify opposition may exist but cannot then be stated” (CPLR 3212[f] ; see Anzel v. Pistorino, 105 A.D.3d 784, 786, 962 N.Y.S.2d 700 ).
Finally, the Surrogate's Court properly granted the petitioner's motion for summary judgment dismissing Hofler's objections and admitting to probate the decedent's last will and testament. The petitioner established her prima facie entitlement to judgment as a matter of law and, in opposition, Hofler failed to raise a triable issue of fact (see Matter of DeMarinis, 294 A.D.2d 436, 436–437, 741 N.Y.S.2d 907 ; Matter of Rosen, 291 A.D.2d 562, 562–563, 737 N.Y.S.2d 656 ; Matter of Bustanoby, 262 A.D.2d 407, 408, 691 N.Y.S.2d 179 ).
RIVERA, J.P., DICKERSON, COHEN and BARROS, JJ., concur.