| Matter of Bryer |
| 2010 NY Slip Op 03166 [72 AD3d 532] |
| April 20, 2010 |
| Appellate Division, First Department |
| In the Matter of the Estate of Elsa K. Bryer, Deceased. Elliott K.Bryer, Appellant; The Bank of New York et al., Respondents. |
—[*1] Greenfield Stein & Senior, LLP, New York (Jeffery H. Sheetz of counsel), forrespondents.
Order, Surrogate's Court, New York County (Renee R. Roth, S.), entered on or aboutNovember 18, 2008, which granted respondents' motion for summary judgment dismissingpetitioner's application to vacate a 1994 decree admitting his mother's will to probate,unanimously affirmed, without costs.
A party seeking to set aside a decree admitting a will to probate entered upon his or herconsent bears the initial burden of articulating a claim of good cause to set aside the waiverbased upon a showing that such consent was obtained by fraud or overreaching, was the productof misrepresentation or misconduct, or other sufficient cause that justifies the reopening of thedecree (see Matter of Frutiger, 29 NY2d 143 [1971]; Matter of Wright, 271AD2d 201 [2000]; Matter of Westberg, 254 App Div 320 [1938], appealdismissed 279 NY 316 [1938]).
Here, petitioner failed to make such a showing. His claim that his father used financialleverage over him to obtain the waiver and consent does not provide a sufficient basis to makeout a claim of economic duress (see e.g.767 Third Ave. LLC v ORIX Capital Mkts., LLC, 26 AD3d 216, 218 [2006], lvdenied 8 NY3d 803 [2007]; Edison Stone Corp. v 42nd St. Dev. Corp., 145 AD2d249 [1989]). Nor does the affirmation of petitioner's former psychiatrist demonstrate thatpetitioner suffered from a cognizable mental disability at the time he signed the waiver andconsent, and the evidence does not show that petitioner was otherwise incapable of safeguardinghis legal rights at that time (see Matter of Bobst, 234 AD2d 7 [1996], lv dismissed90 NY2d 844 [1997]).
Furthermore, absent a valid excuse for the 12-year delay in seeking to vacate the decree, andgiven the prejudice that would result from revoking the probate decree, petitioner was guilty ofgross laches (see Matter of Linker,23 AD3d 186, 189 [2005]).
We have considered petitioner's remaining arguments, including his challenge to hismother's testamentary capacity, and find them unavailing. Concur—Andrias, J.P., Sweeny,Renwick, Abdus-Salaam and Manzanet-Daniels, JJ.