Matter of Constant

Matter of Constant 2015 NY Slip Op 03779 Decided on May 5, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 5, 2015
Tom, J.P., Andrias, Saxe, DeGrasse, Kapnick, JJ.
15001 514A/12

[*1]Basil Constant, etc., Deceased.

In re Anthony DeLorenzo, Petitioner-Appellant,



Anastasia Benoist, et al., Objectants-Respondents, Jack Stylianou, Respondent.

Mario Biaggi, Jr., New York, for appellant.

Laurino Laurino & Sconzo, Garden City (Lisa M. Sconzo of counsel), for Anastasia Benoist and Lucille Elko, respondents.

Order, Surrogate's Court, Bronx County (Nelida Malave-Gonzalez, S.), entered on or about June 27, 2014, which denied petitioner's motion to expand discovery beyond the time permitted under 22 NYCRR § 207.27, to permit depositions of the purported attorney draftsman and two attesting witnesses of an alleged 2006 will, to explain decedent's state of mind and reasons for executing the 2010 will as decedent approached 100 years old, unanimously affirmed, without costs.

The court properly exercised its discretion in denying petitioner's motion to expand the scope of discovery, as no special circumstances are presented in this case (22 NYCRR § 207.27). The alleged 2006 will is not at issue in this probate proceeding, and, to the extent objectants are asserting that the decedent had been incapacitated since 2006, they will bear the burden of such proof. In any event, it is decedent's capacity in 2010, when he executed the propounded will, that is at issue.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: May 5, 2015

DEPUTY CLERK