| Matter of Coccia |
| 2009 NY Slip Op 01477 [59 AD3d 716] |
| February 24, 2009 |
| Appellate Division, Second Department |
| In the Matter of the Estate of Marie Coccia, Also Known as MarieV. Coccia, Also Known as Maria Coccia, Deceased. Richard A. Coccia, Respondent; RobertCoccia, Appellant. |
—[*1] Michael J. Peterson, Brooklyn, N.Y., for respondent.
In a probate proceeding, the objectant, Robert Coccia, appeals from an order of theSurrogate's Court, Kings County (Torres, S.), dated June 26, 2008, which denied his motion tovacate a decree of the same court dated May 25, 2007, admitting the decedent's will to probate.
Ordered that the order is affirmed, with costs.
After signing a waiver and consent to probate, the appellant moved to vacate the decreeadmitting the decedent's will to probate on the ground that the testator lacked testamentarycapacity. Unlike a nonparty seeking such relief, who need only "demonstrate a substantial basisfor its contest and a reasonable probability of success through competent evidence that wouldhave probably altered the outcome of the original probate proceeding" (Matter of American Comm. for WeizmannInst. of Science v Dunn, 10 NY3d 82, 96 [2008]), a party seeking to set aside a decreeadmitting a will to probate entered upon his or her consent " 'must show that such consent wasobtained by fraud or overreaching (Matter of Frutiger, 29 NY2d 143), was the product ofmisrepresentation or misconduct (Matter of Westberg, 254 App Div 320), or newlydiscovered evidence, clerical error or other sufficient cause justifies the reopening of the decree(Matter of Hinderson, 4 Misc 2d 559, affd 2 AD2d 682)' " (Matter ofHall, 185 AD2d 322, 322 [1992], quoting Matter of Leeper, 53 AD2d 1054, 1055[1976]). The appellant's unsubstantiated and conclusory allegations that he did not appreciate orunderstand the significance of the waiver and consent were insufficient [*2]to satisfy this standard (see Matter of Frutiger, 29 NY2d143 [1971]; Matter of Hall, 185 AD2d at 323; Matter of Boyle, 107 AD2d 807[1985]; Matter of Leeper, 53 AD2d at 1055; see also Matter of Ancona, 17 AD3d 584 [2005]). The appellant'schallenge to the decedent's testamentary capacity did not constitute a basis upon which to vacatethe decree admitting the will to probate since it did not provide the "sufficient cause" necessaryto justify reopening the decree. The appellant was in possession of the medical certificationconcerning the decedent's alleged mental incapacity upon which he relied soon after it wasprepared in October 2005, which was almost 1½ years prior to the decedent's death.Spolzino, J.P., Santucci, Angiolillo and Eng, JJ., concur.