| Matter of Esposito |
| 2008 NY Slip Op 10160 [57 AD3d 894] |
| December 23, 2008 |
| Appellate Division, Second Department |
| In the Matter of the Estate of George J. Esposito, Deceased. SusanEsposito et al., Appellants; Lillian Esposito, Respondent. |
—[*1] John Z. Marangos, Staten Island, N.Y., for respondent.
In a proceeding pursuant to SCPA 2205 to compel an estate accounting, the objectants, SusanEsposito, Suelena Hess, George J. Esposito, Jr., and Nancianne Pearce, appeal from an order of theSurrogate's Court, Richmond County (Fusco, S.), dated December 31, 2007, which denied theirmotion to vacate an order of the same court dated May 31, 2007, dismissing their objections to theaccounting upon their failure to appear at a compliance conference, and to restore the matter to theconference calendar.
Ordered that the order dated December 31, 2007 is reversed, on the facts and in the exercise ofdiscretion, with costs, and the appellants' motion to vacate the order dated May 31, 2007 and restorethe matter to the conference calendar is granted on condition that Fox and Fox LLP pay, from its ownfunds, the sum of $10,000 to the respondent within 60 days after service upon it of a copy of thisdecision and order; in the event that the condition is not complied with, the order dated December 31,2007 is affirmed, with costs.
The decedent George J. Esposito died in September 1991 and his will was admitted to probate inJanuary 1992. In April 2004, upon the petition of Susan Esposito, Suelena Hess, George J. Esposito,Jr., and Nancianne Pearce (hereinafter the appellants), the Surrogate directed Lillian Esposito, theexecutor of the decedent's estate, to file an accounting, a task which she completed the next month. InSeptember 2004 the appellants filed objections to the accounting. Over the course of the next threeyears, the appellants failed to appear for court-ordered discovery and two compliance conferences. InMay 2005, as a result of one of those failures, the Surrogate dismissed [*2]the objections, but later vacated the dismissal order. When the appellantsfailed to appear for a second compliance conference, the court again dismissed their objections. Theappellants thereafter moved to vacate this second order of dismissal, blaming their failure to appear onlaw office failure, the same excuse they had proffered to explain their earlier default. This time,however, the Surrogate refused to accept their excuse and denied their motion to vacate.
To be relieved of their default in appearing at the conference, the appellants were required to showboth a reasonable excuse for the default and a substantial basis for their objections (see Matter ofFotiades, 38 AD3d 892, 893 [2007]; cf. CPLR 5015 [a] [1]; Matter of Maxwell,13 AD3d 630 [2004]; Matter of Gjokaj, 286 AD2d 330 [2001]). Law office failure may,under certain circumstances, constitute a reasonable excuse for a default, but the party seeking tovacate the default must provide detailed allegations of fact that explain the failure (see GazettenContr., Inc. v HCO, Inc., 45 AD3d 530 [2007]; Grezinsky v Mount Hebron Cemetery,305 AD2d 542 [2003]). Here, the affirmation of an attorney from the law firm representing theappellants explained that the firm was downsizing significantly, two attorneys who had been handling thecase were no longer with the firm, and the newly-assigned attorney's secretary, upon whom theattorney relied for calendering matters, had recently left the firm. This was a sufficiently detailedexplanation for the law firm's failure to appear (see Franco Belli Plumbing & Heating & Sons, Inc. vImperial Dev. & Constr. Corp., 45 AD3d 634, 636 [2007]; Friedman v Crystal Ball Group,Inc., 28 AD3d 514, 515 [2006]; Weekes v Karayianakis, 304 AD2d 561, 562 [2003];Morris v Metropolitan Transp. Auth., 191 AD2d 682 [1993]). Further, the appellantsestablished a substantial ground for their objections (cf. Matter of Fotiades, 38 AD3d at 893;Matter of Maxwell, 13 AD3d 630, 631 [2004]). Nevertheless, in light of the fact that this wasnot the first time that the appellants failed to appear in this proceeding by virtue of the law office failureof their attorneys, we deem it appropriate to direct the law firm representing the appellants to pay therespondent, from its own funds, the sum of $10,000 to cover the expenses attributable to theappellants' default (see Levy Williams Constr. Corp. v United States Fire Ins. Co., 280 AD2d650, 651-652 [2001]). Fisher, J.P., Lifson, Covello and Balkin, JJ., concur.