Matter of Voelker

Matter of Voelker 2021 NY Slip Op 00941 Decided on February 11, 2021 Appellate Division, Fourth 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 February 11, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
134 CA 20-00537

[*1]IN THE MATTER OF THE ESTATE OF KYMBER ANN VOELKER, DECEASED.

ANTHONY S. PECORARO, PETITIONER-RESPONDENT; SANDRA KENYON, RESPONDENT-APPELLANT. (APPEAL NO. 1.)

DENIS A. KITCHEN, JR., WILLIAMSVILLE, FOR RESPONDENT-APPELLANT.

COLE SORRENTINO HURLEY HEWNER GAMBINO P.C., BUFFALO, MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (EDWARD J. MARKARIAN OF COUNSEL), FOR PETITIONER-RESPONDENT.

Appeal from a decree of the Surrogate's Court, Niagara County (Matthew J. Murphy, III, S.), dated March 7, 2019. The decree, inter alia, ordered that a lost will may be offered for probate.

It is hereby ORDERED that the decree is unanimously affirmed without costs.

Memorandum: In appeal No. 1, respondent appeals from a decree that, following a hearing, ordered, inter alia, that decedent's lost will may be offered for probate. In appeal No. 2, respondent appeals from an order that denied her motion pursuant to CPLR 5015 for "reconsideration" of the decree. Although Surrogate's Court considered the motion to be one pursuant to CPLR 2221, a motion pursuant to CPLR 2221 is not the proper procedural vehicle in which to address a final judgment (see e.g. Matter of Synergy, LLC v Kibler, 124 AD3d 1261, 1262 [4th Dept 2015], lv denied 25 NY3d 967 [2015]; Gorman v Hess, 301 AD2d 683, 686 [3d Dept 2003]), and the decree is a final judgment inasmuch as it determined the rights of the parties in this special proceeding pursuant to SCPA 1407 (see SCPA 601; Matter of Carroll, 100 AD2d 337, 337 n 1 [2d Dept 1984]). Nevertheless, inasmuch as respondent has not raised on appeal any issues with respect to the denial of her motion pursuant to CPLR 5015, she has abandoned any contentions with respect thereto, and we therefore dismiss the appeal from the order in appeal No. 2 (see Matter of State of New York v Daniel J., 180 AD3d 1347, 1348 [4th Dept 2020], lv denied 35 NY3d 908 [2020]).

Based on our review of the record in appeal No. 1, we see no reason to disturb the findings of the Surrogate, " 'which are entitled to great weight inasmuch as they hinged on the credibility of the witnesses' " (Matter of Lee, 107 AD3d 1382, 1384 [4th Dept 2013]; see Matter of Winters, 84 AD3d 1388, 1389 [2d Dept 2011]).

Entered: February 11, 2021

Mark W. Bennett

Clerk of the Court