Closing Comments At the Close of the Year

December 06, 2021

As the year comes to a close, and we begin to resume life as we once knew it, we take note of some of the significant decisions that were rendered in the final months of 2021.

Vacatur of Court Order Affirmed by Third Department

Although the Surrogate’s Court often considers motions to vacate a default in pleading, it has the inherent authority to vacate its own judgments or orders for sufficient cause. This authority was the basis for the Appellate Division’s decision in In re Braunstein, 194 A.D.3d 1165 (3d Dep’t 2021), in which the court affirmed an order of the Surrogate’s Court, Chemung County granting respondent’s motion to vacate a prior order.

Before the Surrogate’s Court was an accounting proceeding by the petitioner as executor of the decedent’s estate. The petitioner was also trustee of certain trusts created under the decedent’s will, which had not yet been funded because the estate had not been judicially settled. After a court conference, the court entered an order setting a deadline for the respondent, the decedent’s daughter and beneficiary of one of the testamentary trusts, to file objections or request examinations pursuant to SCPA 2211. Respondent failed to take any action by the deadline; but two months thereafter, requested an SCPA 2211 examination of the petitioner. Although the court accepted the reasons offered by the respondent for her untimeliness, it denied the respondent’s request for the examination due to respondent’s failure to submit an affidavit of merit. Over one year later, the respondent filed a motion to reconsider and vacate the court’s order denying her relief, which was granted. The petitioner appealed.

Ilene Sherwyn Cooper is a partner with Farrell Fritz, P.C. in Uniondale, where she concentrates in the area of trusts and estates.

Reprinted with permission from New York Law Journal, Monday, December 6, 2021, Vol 266 – No. 108.

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