Opinion
Motion No: CA 11-01650
09-13-2011
IN THE MATTER OF THE ESTATE OF STEPHEN MAKITRA, SR., DECEASED. WILLIAM T. MAKITRA, AS EXECUTOR OF THE ESTATE OF STEPHEN MAKITRA, SR., DECEASED, PETITIONER-RESPONDENT; v. STEVEN A. MAKITRA, OBJECTANT-APPELLANT; PATRICK MCALLISTER, ESQ., GUARDIAN AD LITEM FOR SHANE GLASS.
PRESENT: , P. J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
Respondent having moved to dismiss the appeal taken herein from a decision of the Steuben County Surrogate's Court dated March 28, 2011, on the ground that appellant has failed to perfect timely the appeal and did not appeal from the decree entered in the Office of the Clerk of said court on March 30, 2011,
Now, upon reading and filing the affidavits of Peter K. Skivington, Esq., sworn to August 2, 2011, and August 15, 2011, the notice of motion with proof of service thereof, and the affidavit of Terrence J. Baxter, Esq., sworn to August 10, 2011, and due deliberation having been had thereon,
It is hereby ORDERED that the motion insofar as it seeks to dismiss the appeal for failure to perfect timely the appeal is granted and the appeal is dismissed without further order unless the appeal is perfected on or before November 14, 2011, and
It is further ORDERED that the remainder of motion is denied and the appeal from the decision dated March 28, 2011, is deemed to be a valid, premature appeal to this Court from the decree entered March 30, 2011 (see CPLR 5520 [c]).
Patricia L. Morgan, Clerk