| Matter of Mouawad |
| 2009 NY Slip Op 02713 [61 AD3d 1169] |
| April 9, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Estate of Salim Kaddo Mouawad, Deceased.Cathia Kaddo Mouawad, as Administrator of the Estate of Salim Kaddo Mouawad, Deceased,Respondent; Francis Kaddo Mouawad, Appellant. |
—[*1] Martin, Shudt, Wallace, DiLorenzo & Johnson, Troy (Carlo A.C. deOliveira of counsel), forrespondent.
Kane, J. Appeal from an order of the Surrogate's Court of Rensselaer County (Hummel, S.),entered January 22, 2008, which denied respondent's motion for reconsideration.
Petitioner, as administrator of decedent's estate, filed a petition to reject respondent's claimsfiled against the estate. After an April 2006 trial, Surrogate's Court found, among other things,that respondent was not entitled to the return of $15,000 paid to the estate. The court acceptedpetitioner's testimony that the money was payment for three tow trucks, rejecting respondent'stestimony that the money was a down payment on decedent's real property. Respondent testifiedthat the parties signed a contract for the real property, but that he could not find the contractfollowing a 2003 burglary of his garage. In October 2007, respondent filed a motion to renewbased upon newly discovered evidence, namely his recent discovery of the written contract.Surrogate's Court denied the motion, prompting this appeal.[*2]
Surrogate's Court properly denied respondent's motion.To prevail on a motion to renew, respondent was required to provide newly discovered facts tosupport his position and a reasonable justification for not previously submitting those facts(see CPLR 2221 [e]; Tibbits vVerizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [2007]). Although respondent's garagewas burglarized in 2003, he found the contract in the garage in 2007. His failure to search allbags and papers within his own garage in the three years between the burglary and trial evince alack of due diligence in attempting to produce the contract (see Martocci v Bowaskie Ice House, LLC, 31 AD3d 1021, 1022[2006], lv dismissed 7 NY3d 916 [2006], cert denied 552 US —, 128 S Ct277 [2007]; Cippitelli v County of Schenectady, 307 AD2d 658 [2003]). As respondentlacked a reasonable justification for his failure to locate the contract by the time of trial, the courtdid not abuse its discretion by denying the motion to renew (see Matter of Dyer v PlanningBd. of Town of Schaghticoke, 251 AD2d 907, 909-910 [1998], appeal dismissed 92NY2d 1026 [1998], lv dismissed 93 NY2d 1000 [1999]).
Peters, J.P., Rose, Lahtinen and Stein, JJ., concur. Ordered that the order is affirmed, withcosts.