| Matter of Tripp |
| 2012 NY Slip Op 09075 [101 AD3d 1137] |
| December 26, 2012 |
| Appellate Division, Second Department |
| In the Matter of Clarence A. Tripp, Also Known as Clarence A.Tripp II, Deceased. Norman Shaifer, Appellant; Kevin J. Plunkett et al.,Respondents. |
—[*1] DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Brian T.Belowich of counsel), for respondent Kevin J. Plunkett.
In a probate proceeding, the former executor of the estate of Clarence A. Tripp, also knownas Clarence A. Tripp II, appeals from a decree of the Surrogate's Court, Rockland County (WalshII, S.), dated November 30, 2010, which, upon his default in appearing at trial, inter alia, grantedthe amended objections filed by the administrator of the estate to his accounting.
Ordered that the decree is affirmed, with costs to the respondent Kevin J. Plunkett payable bythe appellant personally.
The appellant, Norman Shaifer, was the executor of the estate of Clarence A. Tripp, alsoknown as Clarence A. Tripp II, from August 2003 until he was removed by the Rockland CountySurrogate's Court in September 2008. Kevin J. Plunkett was thereafter appointed as theadministrator of the estate. Prior to being removed, Shaifer filed an accounting and therespondents—Plunkett and the two beneficiaries of the estate—thereafter filedobjections and amended objections to the accounting. A trial was scheduled for August 12, 2010,but was adjourned until November 16, 2010. Shaifer failed to appear at two settlementconferences and at a pretrial conference. He also failed to submit timely affidavits from hisphysicians regarding his alleged inability to participate in the trial. When Shaifer failed to appearin court on the morning of November 16, 2010, the court informed Shaifer's attorney that, in lightof Shaifer's long history of delays throughout the entire proceeding, it would not grant anadjournment, but would commence the trial at 11:00 a.m. The court gave Shaifer's attorney theopportunity to contact Shaifer. When the trial commenced, the attorney reported that Shaifercould not appear. Upon Shaifer's default, the Surrogate's Court granted the relief requested in theamended objections.
Where, as here, the decree appealed from was made upon the party's default, "review islimited to matters which were the subject of contest below" (Matter of Constance P. v Avraam G., 27 AD3d 754, 755 [2006][internal quotations marks omitted]; see James v Powell, 19 NY2d 249, 256 n 3 [1967];Diamond v Diamante, 57 AD3d826, 827-828 [2008]; Wexler vWexler, 34 AD3d 458, 459 [2006]; Brown v Data Communications, 236 AD2d499 [1997]). Accordingly, in this case, review is limited to the denial of Shaifer's request for anadjournment (see Matter of Paulino vCamacho, 36 AD3d 821, 822 [2007]; Tun v Aw, 10 AD3d 651, 652 [2004]).
Turning to the merits, "[t]he granting of an adjournment for any purpose is a matter [*2]resting within the sound discretion of the trial court" (Matter ofAnthony M., 63 NY2d 270, 283 [1984]; see Matter of Steven B., 6 NY3d 888, 889 [2006]; Matter of Sicurella v Embro, 31 AD3d651 [2006]), and its determination will not be disturbed absent an improvident exercise ofthat discretion (see Davidson vDavidson, 54 AD3d 988 [2008]). "In making such a determination, the court mustundertake a balanced consideration of all relevant factors" (Matter of Sicurella v Embro,31 AD3d at 651), including "the merit or lack of merit of the action, extent of the delay," thenumber of adjournments granted, the "lack of intent to deliberately default or abandon the action"and the length of the pendency of the proceeding (Belsky v Lowell, 117 AD2d 575, 576[1986]; see Matter of Claburn v Claburn, 128 AD2d 937, 938 [1987]). Applying theselegal principles here, the Surrogate's Court did not improvidently exercise its discretion indeclining to grant an adjournment. Shaifer had a history of delaying prior proceedings before theSurrogate's Court. Moreover, in the proceeding to settle the account, as previously stated, hefailed to appear at two settlement conferences, at a pretrial conference, and at the trial. WhenShaifer failed to appear at the trial on November 16, 2010, the court gave his attorney theopportunity to contact him, in order to tell him that he was required to appear at the trial, but hedid not appear. Contrary to Shaifer's contention, there is no evidence in the record that he was tooill to attend the trial. In light of his unreasonable failure to proceed, we decline to disturb theSurrogate's Court's exercise of discretion (see Diamond v Diamante, 57 AD3d at 828;Matter of Steven B., 6 NY3d at 889; Matter of Nicholas S., 46 AD3d 830 [2007]; Matter of DoranJ., 266 AD2d 99 [1999]; Brown v Data Communications, 236 AD2d at 499;Wren v Lawrence Hosp., 203 AD2d 559 [1994]). Dillon, J.P., Leventhal, Austin andMiller, JJ., concur.
Cross motion by the respondent Kevin J. Plunkett to dismiss an appeal from a decree of theSurrogate's Court, Rockland County, dated November 30, 2010, on the ground, inter alia, that noappeal lies from a decree entered upon the default of the appealing party. By decision and orderon motion of this Court dated April 24, 2012, the cross motion was held in abeyance, and wasreferred to the panel of Justices hearing the appeal for determination upon the argument orsubmission thereof.
Upon the papers filed in support of the cross motion and the papers filed in oppositionthereto, and upon the argument of the appeal, it is
Ordered that the cross motion is denied (see Matter of Tripp, 101 AD3d 1137 [2012][decided herewith]). Dillon, J.P., Leventhal, Austin and Miller, JJ., concur.