IN THE MATTER OF THE ESTATE OF THOMAS ANTONELLI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2502-09T2

IN THE MATTER OF THE ESTATE OF

THOMAS ANTONELLI, DECEASED.

December 13, 2010

Argued November 1, 2010 - Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Hudson County, Docket No. C-298296.

Roger S. Mitchell argued the cause for appellant Lucrezia Luberto.

Lawrence N. Meyerson argued the cause for respondent Isabella Stallone (Rubenstein, Meyerson, Fox, Mancinelli & Conte, P.A., attorneys; Mr. Meyerson, of counsel; Michael A. Austin, on the brief).

PER CURIAM

Plaintiff Lucrezia Luberto appeals the denial of her motion for leave to file a complaint out-of-time contesting the probate of her father's will. She contends that she meets the requirements of Rule 4:85-2, which permits late filings where a movant can establish good cause for the delay and the absence of prejudice to interested parties. We affirm the decision of the motion court rejecting the application and dismissing plaintiff's complaint.

After plaintiff filed a verified complaint and an order to show cause on August 14, 2009, defendant Isabella Stallone, plaintiff's sister, filed an answer and a motion to dismiss the complaint as time-barred. On December 9, 2009, Judge Olivieri ruled from the bench that plaintiff had not established the necessary good cause required by Rule 4:85-2 and he dismissed the complaint with prejudice. This appeal followed.

Decedent, Thomas Antonelli, was plaintiff's father. He died December 18, 2008. It is undisputed that an earlier will, executed thirteen months prior to decedent's death, bequeathed seventy-five percent of his home and the entire residue of his estate to defendant. Under that will, plaintiff received twenty-five percent of the home. It is also undisputed that on November 27, 2007, decedent executed another will which was admitted to probate, making defendant his sole beneficiary and the executor of his estate. Plaintiff resides in Pennsylvania; defendant lived with her parents in this state, caring for them as they aged. For years prior to her death, the parties' mother, Rosina Antonelli, was quite ill and became progressively disabled.

The November 2007 will was admitted to probate on January 15, 2009, and plaintiff was noticed on January 29, 2009. She did not retain counsel until April 2009.

Plaintiff contends that the trial court abused its discretion because it did not find the circumstances alleged in support of the late filing to constitute the good cause required by Rule 4:85-2. Under the rules, an out-of-state litigant must file a complaint contesting a will within six months of probate. Rule 4:85-1. Plaintiff was required to file by July 15, 2009. Thus, her August 14 complaint was filed a month out of time.

Plaintiff's counsel submitted certifications in support of the application explaining that the delay beyond the six months under Rule 4:85-1, was occasioned by a planned visit from his son. Counsel further attributed the delay to visits from other family members and a step-son's wedding in Boston, which required him to travel for a few days.

Judge Olivieri stated that the late filing was due only to "oversight." As he said, the complaint could have been filed prior to or after counsel's visits with family. Hence, he concluded that the asserted circumstances did not constitute good cause, only mistake.

The phrase "good cause" has been interpreted as "a substantial reason that affords legal excuse for the default." Nemeth v. Otis Elevator Co., 55 N.J. Super. 493, 497 (App. Div. 1959). Moreover:

[g]ood cause is difficult of precise delineation. Its application requires the exercise of sound discretion in light of the facts and circumstances of the particular case considered in the context of the purposes of the Court Rule being applied.

[Delaware Valley Wholesale Florist, Inc. v. Addalia, 349 N.J. Super. 228, 232 (App. Div. 2002).]

We agree with Judge Olivieri that counsel's stated reasons for his failure to file did not provide a "legally palpable excuse for the untimely submission." The asserted family circumstances are simply not "good cause" within the intendment of the rule. Mere oversight is generally not a sufficient basis for an extension of time. See e.g., Martinelli v. Farm-Rite, Inc., 345 N.J. Super. 306, 311 (App. Div. 2001) (holding that a computer malfunction is not sufficient justification for late filings); Hartsfield v. Fantini, 149 N.J. 611, 618 (1997) (quoting In re T., 95 N.J. Super. 228, 235 (App. Div. 1967)) (finding that permission to file late is not granted for "mere carelessness" or "lack of proper diligence").

Furthermore, plaintiff has failed to establish the absence of prejudice. The estate consists of, among other assets, decedent's home, worth an estimated $500,000. That property, however, has also been defendant's home for some unspecified number of years. Contrary to plaintiff's assertion, the mere fact that plaintiff's counsel contacted defendant's attorney, and that defendant was thereby aware of a possible claim against the estate, does not establish the absence of prejudice.

An abuse of discretion has been defined as a "clearly unreasonable [decision] in light of the accompanying and surrounding circumstances," which prejudices the party. Smith v. Smith, 17 N.J. Super. 128, 132-33 (1951). No such abuse occurred here.

We also note in passing that decedent was eighty-five years old at the time of his death. It is no surprise that he would bequeath his entire estate to the child with whom he lived, who cared for him in his old age, and who cared for his wife after she became so disabled as to require around-the-clock care.

That decedent was elderly, that, as plaintiff asserts, an attorney selected by defendant prepared the will, and that defendant resided with decedent, do not add up in this case to per se suspicious circumstances. The dismissal of plaintiff's complaint may not have resulted in the dismissal of a meritorious claim.