Opinion
2017–01420 2017–03442 File No. 157528
03-27-2019
In the MATTER OF Nicholas D. LOGAN, also known as Nicholas D. Karapaleologou, Deceased. Penelope Sue Logan, Respondent; v. Demetrios N. Logan, Appellant.
Ray Elliot Shain, Garden City, NY, for appellant. Laurino & Laurino (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Joel A. Sweetbaum and Marshall D. Sweetbaum ], of counsel), for respondent.
Ray Elliot Shain, Garden City, NY, for appellant.
Laurino & Laurino (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Joel A. Sweetbaum and Marshall D. Sweetbaum ], of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDERORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp. , 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,
ORDERED that the order is affirmed; and it is further,
ORDERED that one bill of costs is awarded to Penelope Sue Logan payable by Demetrios N. Logan personally.
On September 25, 1970, Nicholas D. Logan, also known as Nicholas D. Karapaleologou (hereinafter the decedent), executed a last will and testament that, inter alia, created a trust for the benefit of his "natural grandchildren." After the decedent died on March 3, 1972, his attorney was appointed executor and trustee of his estate. The attorney later resigned, and Alice Ruth Logan (hereinafter Alice), the daughter-in-law of the decedent, was appointed as successor trustee of the estate.
By petitions for a compulsory accounting, both dated November 8, 2011, Penelope Sue Logan (hereinafter Penelope) sought to compel Alice, Penelope's mother, to account to her in Alice's capacity as successor trustee and executor of the decedent's estate. Alice filed verified answers, both dated January 18, 2012, in which she, inter alia, admitted that Penelope was a grandchild of the decedent and a beneficiary of the subject trust. In October 2013, Alice died, and her husband, Demetrios N. Logan (hereinafter Demetrios), who is the decedent's son, was substituted for her in these proceedings. On January 6, 2015, Penelope filed a third petition for a compulsory accounting. Demetrios filed a verified answer in which he admitted the allegations in the petition that Penelope was a natural grandchild of the decedent and a beneficiary of the trust.
Subsequently, by notice of motion dated August 11, 2016, Demetrios moved for leave to amend the answers so as to deny the allegations that Penelope is a natural grandchild of the decedent and to assert as an affirmative defense, in effect, that Penelope lacks standing to petition for an accounting. In the motion, Demetrios also sought to direct Penelope to submit to genetic marker testing. Demetrios claimed that, although he had raised Penelope as his daughter, he had recently formed reason to believe that he was not her biological father. Penelope, who was then 54 years old, opposed the motion, arguing, inter alia, that she would be severely prejudiced by Demotrios's delay in seeking the proposed amendments, and that the motion was merely an attempt to further delay an accounting. The Surrogate's Court denied Demetrios's motion, and Demetrios appeals.
A determination of whether to grant leave to amend pleadings is within a court's " ‘broad discretion, and the exercise of that discretion will not be lightly disturbed’ " ( Krigsman v. Cyngiel , 130 A.D.3d 786, 786, 14 N.Y.S.3d 94, quoting Gitlin v. Chirinkin , 60 A.D.3d 901, 902, 875 N.Y.S.2d 585 ; see U.S. Bank N.A. v. Lomuto , 140 A.D.3d 852, 854, 35 N.Y.S.3d 123 ). " ‘In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated [and] whether a reasonable excuse for the delay was offered’ " ( Yong Soon Oh v. Hua Jin , 124 A.D.3d 639, 640, 1 N.Y.S.3d 307, quoting Cohen v. Ho , 38 A.D.3d 705, 706, 833 N.Y.S.2d 542 ; see Caruso v. Anpro, Ltd. , 215 A.D.2d 713, 713, 627 N.Y.S.2d 72 ). Generally, leave to amend pleadings " ‘should be freely given provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit’ " ( Krigsman v. Cyngiel , 130 A.D.3d at 786, 14 N.Y.S.3d 94, quoting Gitlin v. Chirinkin , 60 A.D.3d at 901–902, 875 N.Y.S.2d 585 ).
Here, the Surrogate's Court providently exercised its discretion in denying that branch of Demetrios's motion which was for leave to serve amended answers denying that Penelope was a natural grandchild of the decedent and to assert the defense that she lacked standing to compel an accounting. The 1972 application for letters testamentary and letters of trusteeship by the original executor listed Penelope as a grandchild of the decedent. These accounting proceedings have been litigated by the various executors from their inception with the understanding that Penelope was a natural grandchild of the decedent. Further, Demetrios admitted in a deposition in these proceedings that Penelope was his biological child. Under these circumstances, Demetrios's extensive delay in seeking the proposed amendments would have resulted in unfair surprise and prejudice to Penelope (see Yong Soon Oh v. Hua Jin , 124 A.D.3d at 640, 1 N.Y.S.3d 307 ; see also Wells Fargo Bank, N.A. v. Fanto , 146 A.D.3d 1012, 1013, 45 N.Y.S.3d 546 ; U.S. Bank N.A. v. Lomuto , 140 A.D.3d at 854–855, 35 N.Y.S.3d 123 ; HSBC Bank USA v. Philistin , 99 A.D.3d 667, 668, 952 N.Y.S.2d 83 ).
In light of the foregoing, Demetrios's remaining contention has been rendered academic.
MASTRO, J.P., BALKIN, LASALLE and CONNOLLY, JJ., concur.