Matter of Luca

[*1] Matter of Luca 2008 NY Slip Op 52099(U) [21 Misc 3d 1119(A)] Decided on October 21, 2008 Sur Ct, Richmond County Gigante, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 21, 2008
Sur Ct, Richmond County

In the Matter of the Estate of Frances Luca, Deceased.



2008-148



Attorneys for Proponent: Thomas Pietrantonio, Esq.- (516) 944-6169

Attorneys for Movant/Objectants: Novick & Associates- (631) 547-0300

Robert Gigante, J.

In this pending probate proceeding, the objectants, Lorraine Gallo, Richard Luca and Robert Luca, move for an order pursuant to CPLR 3025(b) granting them leave to amend their objections to probate by adding an objection based on lack of due execution. They contend that the CPLR permits a party to amend their pleading by leave of court and that "leave shall be freely given." Indeed, they allege that leave to amend should be freely granted after considering the following factors: (1) the timing of the motion; (2) prejudice to the adverse party, and (3) the sufficiency of the proposed amendment (Matter of Hopson, NYLJ, August 9, 2000, at 28, col 4). Clearly, they contend the motion is timely made, there will be no prejudice to petitioner due to the early stage of the proceeding, and the proposed amendment is sufficiently supported by the testimony elicited at the SCPA 1404 examination.

Petitioner, Susann Luca, contends however, citing numerous cases, that in weighing whether to excuse default in pleading an objection to probate, the issues of prejudice and the passage of time are not the proper considerations. Rather, the movant must demonstrate a justifiable excuse and absence of willfulness, and proof in a non-conclusory fashion of the basis for the claim the movant seeks to add. In this regard, petitioner contends, objectants have clearly failed.

Petitioner's specious argument, however, is without merit. All of her cited cases relate to the late filing of objections, and not to the amendment of objections which have been timely filed, as is the case here.

After reviewing all of the papers heretofore submitted herein, both in support of and in opposition to the motion, the Court determines that the papers presented in support of the motion clearly satisfy the requirements set forth in Matter of Hopson (Id.). The motion is hereby granted. The movants will serve their amended objections within twenty (20) days of service of a copy of this Order with Notice of Entry.

This decision shall constitute the Order of the Court.

Dated:October 21, 2008

[*2]

ROBERT J. GIGANTE, Surrogate