Opinion
Argued February 8, 2001.
March 5, 2001.
In a probate proceeding, the petitioner appeals from (1) a decision of the Surrogate's Court, Westchester County (Emmanuelli, S.), dated March 27, 2000, (2) a decision of the same court dated March 31, 2000, (3) an order of the same court, dated April 17, 2000, which granted the motion of Estelle Noble for leave to withdraw her waiver and consent to the probate of the propounded will and to file objections thereto, and (4) an order of the same court, dated April 21, 2000, which denied the petitioner's motion to reject the late filing of objections and to admit the propounded will to probate.
Delbello Donnellan Weingarten Tartaglia Wise Wiederkehr, LLP, White Plains, N.Y. (Andrew J. Balint of counsel), for appellant.
Piscionere Nemarow, P.C., Rye, N.Y. (Anthony G. Piscionere of counsel), for respondents.
Before: SONDRA MILLER, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the appeals from the decisions are dismissed, as no appeal lies from a decision (see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,
ORDERED that the orders are affirmed; and it is further,
ORDERED that the respondents are awarded one bill of costs payable by the estate.
The Surrogate's Court has the discretion to allow the filing of objections beyond the time limitation established in SCPA § 1410, as that court's paramount concern is to admit only valid wills to probate (see, SCPA 1408; see also, Turano, Practice Commentaries, McKinney's Con Laws of NY, Book 58A, SCPA 1408, at 235 and SCPA 1410, at 310-312). Contrary to the petitioner's contention, the Surrogate's Court providently exercised its discretion in allowing the late filing of objections, under the circumstances (see, Anolick v. Travelers Ins. Co., 63 A.D.2d 665; see also, Matter of Boyce, 158 A.D.2d 442).
The Surrogate's Court may grant an application to withdraw a waiver and consent to probate if the movant demonstrates some merit to the objection to probate and a reasonable probability of success (see, Matter of Frutiger, 29 N.Y.2d 143). Under the circumstances, the Surrogate's Court properly allowed the objectant Estelle Noble to withdraw her waiver and consent to probate and to file objections (see, Matter of Sisko, 270 A.D.2d 276; Matter of Hall, 185 A.D.2d 322).