Opinion
No. 17178 Index No. 4509/16 Case No. 2022-01743
01-26-2023
In the Matter of Patricia H. Penick, Deceased. v. Gerald Anderson et al., Respondents-Respondents. Earl G. Thompson, Petitioner-Appellant,
Earl G. Thompson, appellant pro se. RK Law PC, New York (Regina Kiperman of counsel), for respondents.
Earl G. Thompson, appellant pro se.
RK Law PC, New York (Regina Kiperman of counsel), for respondents.
Before: Friedman, J.P., Moulton, Kennedy, Pitt-Burke, JJ.
Order, Surrogate's Court, New York County (Rita Mella, S.), entered November 19, 2021, which denied petitioner's motion to renew and reargue his petition to extend his time to file a spousal election pursuant to EPTL 5-1.1-A , unanimously affirmed, as to renewal, and the appeal therefrom otherwise dismissed, without costs, as taken from a nonappealable order.
The court providently exercised its discretion in denying petitioner's motion to renew because he failed to point to new facts that were not provided in his original motion that would change the result (CPLR 2221[e][2], [3]; see Singh v QLR Five LLC, 171 A.D.3d 614 [1st Dept 2019]), and he did not demonstrate that the interests of justice required renewal.
As the court noted in the original motion petitioner did not show reasonable cause for his failure to elect in a timely fashion (see EPTL 5-1.1-A[d][2]; Matter of Cavallo, 98 A.D.3d 1115, 1116 [2d Dept 2012]). Nothing he presented on renewal would change that result. The court properly concluded that petitioner was aware that he was required to make an election within a stated time period, and that despite his alleged infirmities and difficulties, he was able to challenge respondent's petition to probate a 2015 instrument that benefited decedent's siblings and to petition for the probate of a 2016 instrument that benefited himself.
No appeal lies from denial of a motion for reargument (see Board of Mgrs. of BeWilliam Condominium v 90 William St. Dev. Group LLC, 187 A.D.3d 680, 682 [1st Dept 2020]).
We have considered petitioner's remaining arguments and find them unavailing.