| Matter of McLaughlin |
| 2013 NY Slip Op 07893 [111 AD3d 1185] |
| November 27, 2013 |
| Appellate Division, Third Department |
| In the Matter of the Estate of John McLaughlin, Deceased.John M. Thomas, as Administrator of the Estate of John McLaughlin, Deceased,Respondent; Nina Savino, Appellant. |
—[*1] Coughlin & Gerhart, Binghamton (Robert R. Jones of counsel), forrespondent.
Peters, P.J. Appeal from an order of the Surrogate's Court of Broome County(Buckley, S.), entered August 1, 2012, which sua sponte denied Nina Savino's motion to,among other things, vacate a prior decision finding her ineligible to be coexecutor ofdecedent's estate.
In June 2005, decedent executed a will that named Nina Savino as a coexecutor ofhis estate. Following decedent's death, his will was offered for probate and temporaryletters of administration were issued to petitioner. Thereafter, Michael McLaughlin, oneof decedent's sons and beneficiaries, filed an objection to the appointment of Savino ascoexecutor on the basis that she is ineligible to receive letters testamentary because of herstatus as a felon (see SCPA 707 [1] [d]). At a hearing to determine thequalifications of the nominated coexecutors, at which Savino appeared pro se, SeanMcLaughlin, another of decedent's sons and beneficiaries, submitted a certification ofcriminal record establishing that Savino was convicted of three counts of grand theft inCalifornia in 1985, which is the equivalent of three felony convictions of grand larcenyin New York (see Penal Law § 155.30 [1]; Cal Penal Code §§484, 487). At the conclusion of the hearing, Surrogate's Court granted the objection anddisqualified Savino as coexecutor of decedent's estate. Decedent's will was subsequentlyadmitted to probate and [*2]petitioner was appointedadministrator c.t.a. of the estate.
Over six years later, Savino moved pro se to vacate and set aside Surrogate's Court'sdecision disqualifying her as coexecutor and all other subsequently entered orders on thegrounds of fraud and misrepresentation (see CPLR 5015 [a] [3]). Savino alsosought sanctions against Sean McLaughlin, Michael McLaughlin and their respectivecounsel pursuant to 22 NYCRR 130-1.1 (c) (3), alleging that they, among other things,asserted false material factual statements to the court concerning her criminal history.Surrogate's Court sua sponte denied the motion without a hearing. Savino appeals, andwe affirm.
A motion to vacate pursuant to CPLR 5015 must be made within "a reasonable time"(City of Albany Indus. Dev. Agency v Garg, 250 AD2d 991, 993 [1998]; see HSBC Bank USA, N.A. vAshley, 104 AD3d 975, 976 [2013], lv dismissed 21 NY3d 956 [2013])and "is addressed to the trial court's sound discretion, subject to reversal only where therehas been a clear abuse of that discretion" (Maddux v Schur, 53 AD3d 738, 739 [2008]; see Pritchard v Curtis, 101AD3d 1502, 1503 [2012]; Solomon v Solomon, 27 AD3d 988, 989 [2006]). Here,Savino was present at the hearing during which the alleged misrepresentations weremade concerning her prior criminal convictions, but nevertheless failed to move to vacateSurrogate's Court's decision disqualifying her as coexecutor until more than six yearslater. Accordingly, her motion was not made within a reasonable time and was thereforeproperly denied (see HSBC Bank USA, N.A. v Ashley, 104 AD3d at 976; Sieger v Sieger, 51 AD3d1004, 1006 [2008], appeal dismissed 14 NY3d 750 [2010], lvdenied 14 NY3d 711 [2010]; Rizzo v St. Lawrence Univ., 24 AD3d 983, 984 [2005];City of Albany Indus. Dev. Agency v Garg, 250 AD2d at 993). In any event, herallegations of fraud or other misconduct on the part of Sean McLaughlin, MichaelMcLaughlin and their respective attorneys are unsupported by the record (see Bank of N.Y. v Stradford,55 AD3d 765, 765-766 [2008]; Rizzo v St. Lawrence Univ., 24 AD3d at984; Aames Capital Corp. vDavidsohn, 24 AD3d 474, 475 [2005]). For this same reason, the court did notabuse or improvidently exercise its discretion in declining to impose sanctions(see 22 NYCRR 130-1.1 [c] [3]; Academy of Medicine of Queens County v Seminole 75 RealtyCorp., 38 AD3d 693, 697 [2007]). Accordingly, Savino's motion was properlydenied in all respects.
McCarthy, Spain and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.