| Matter of Evert |
| 2010 NY Slip Op 03444 [72 AD3d 1081] |
| April 27, 2010 |
| Appellate Division, Second Department |
| In the Matter of the Estate of Herman Evert, Jr., Also Known asHerman F. Evert, Jr., Deceased. Bette Dee Evert, as Successor Administrator of the Estate ofHerman Evert, Jr., Also Known as Herman F. Evert, Jr., Deceased, Respondent; William Evert etal., Appellants. |
—[*1] Vittoria & Purdy, LLP, New York, N.Y. (John G. Lipsett of counsel), forpetitioner-respondent.
In a proceeding to discover withheld property pursuant to SCPA 2103, William Evert andRoger Evert appeal from an order of the Surrogate's Court, Suffolk County (Czygier, S.), datedJune 12, 2009, which, inter alia, in effect, denied their motion to vacate their default in failing tocomply with discovery.
Ordered that the order is affirmed, with costs payable by the appellants personally.
The petitioner is the successor administrator of the estate of Herman Evert, Jr., also knownas Herman F. Evert, Jr. (hereinafter the decedent), who died on December 9, 2003, survived byfour sons, Herman, Clifford, and the appellants, William and Roger. In 2004 the petitioner'spredecessor administrator commenced this proceeding to discover withheld property pursuant toSCPA 2103. The petition alleged, inter alia, that William Evert improperly obtained money fromthe decedent. The appellants defaulted in answering the petition. Thereafter they did not respondto the petitioner's discovery demands, failed to oppose the petitioner's motion to compeldiscovery, did not comply with a court order directing compliance with discovery, and did notoppose a subsequent motion by the petitioner, made pursuant to CPLR 3126, for an inquestbased upon the failure to comply with discovery. The appellants appeared at the inquest. Afterthe inquest the court entered an order directing the appellants to pay the sum of $88,030 to bedistributed by the administrator of the estate of Herman Evert, Jr., also known as Herman F.Evert, Jr., to the estate of Herman F. Evert III, "representing the latter's intestate share of theformer's estate, together with interest."
Generally, to vacate a default, the movant is required to demonstrate a reasonable excuse forthe default and a meritorious defense (see CPLR 5015 [a] [1]; Diamond vVitucci, 36 AD3d 650 [2007]). Here the appellants failed to demonstrate a valid excuse fortheir multiple defaults. The appellants' conduct cannot be excused merely because they chose torepresent themselves. " 'A litigant appearing pro se [*2]acquiresno greater right than any other litigant and such appearance may not be used to deprive [thepetitioner] of the same rights enjoyed by other [petitioners]' " (Roundtree v Singh, 143AD2d 995, 996 [1988], quoting Morgan v Sylvester, 125 F Supp 380, 388 [1954],affd 220 F2d 758 [1955], cert denied 350 US 867 [1955]; see Walter v Jones,Sledzik, Garneau & Nardone, LLP, 67 AD3d 671, 672 [2009], lv denied 14 NY3d706 [2010]; Kanat v Ochsner, 301 AD2d 456, 458 [2003]). It was not reasonable for theappellants to ignore the petitioner's demands and the orders of the court because they allegedlybelieved that the petitioner had herself obtained the information and documents which had beendemanded. Accordingly, the appellants were not entitled to vacatur of their default (seeBrightly v Florida N., Inc., 54 AD3d 1127 [2008]; Marinoff v Natty Realty Corp.,17 AD3d 412 [2005]; Matter of Gambardella v Ortov Light., 278 AD2d 494 [2000]).
The appellants' remaining contentions are without merit. Santucci, J.P., Angiolillo,Leventhal and Lott, JJ., concur.