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In re Saginario

Supreme Court, Appellate Division, Second Department, New York.
Jul 9, 2014
119 A.D.3d 697 (N.Y. App. Div. 2014)

Opinion

2014-07-9

In the Matter of Anthony SAGINARIO, deceased. Terri Ann Meyer, petitioner-respondent; Francine Saginario, executor-appellant.

Louis F. Simonetti, Jr., Woodbury, N.Y. (Daniel R. Wasp of counsel), for executor-appellant. Laurino, Laurino & Sconzo, Garden City, N.Y. (Louis M. Laurino and Louis D. Laurino of counsel), for petitioner-respondent.


Louis F. Simonetti, Jr., Woodbury, N.Y. (Daniel R. Wasp of counsel), for executor-appellant. Laurino, Laurino & Sconzo, Garden City, N.Y. (Louis M. Laurino and Louis D. Laurino of counsel), for petitioner-respondent.

In a probate proceeding, Francine Saginario, executor of the estate of Anthony Saginario, appeals from an order of the Surrogate's Court, Nassau County (McCarty III, S.), dated October 17, 2013, which denied her motion pursuant to CPLR 3211(a) to dismiss the petition of Terri Ann Meyer, granted that branch of the petition of Terri Ann Meyer which was to vacate a decree of the same court dated June 6, 2011, admitting to probate the last will and testament of Anthony Saginario, and revoked the letters testamentary granted to the executor.

ORDERED that the order is affirmed, with costs.

On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the petitioner the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; Matter of White Plains Plaza Realty, LLC v. Cappelli Enters., Inc., 108 A.D.3d 634, 636, 970 N.Y.S.2d 47;Breytman v. Olinville Realty, LLC, 54 A.D.3d 703, 703–704, 864 N.Y.S.2d 70). Here, the petitioner, Terri Ann Meyer, sufficiently alleged that the decedent, Anthony Saginario, “openly and notoriously acknowledged [her] as his own [child]” and, thus, she may be entitled to inherit from him (EPTL 4–1.2[a][2][C][ii]; see also Matter of Anne R. v. Estate of Francis C., 234 A.D.2d 375, 376, 651 N.Y.S.2d 539). Accordingly, the Surrogate's Court properly denied the executor's motion pursuant to CPLR 3211(a) to dismiss the petition.

“ ‘Because vacatur disrupts the orderly process of administration and creates a continual aura of uncertainty and nonfinality, a probate decree will be vacated only in extraordinary circumstances' ” (Matter of Loverme, 27 A.D.3d 747, 748, 812 N.Y.S.2d 631, quoting Matter of Bobst, 165 Misc.2d 776, 782, 630 N.Y.S.2d 228 [Sur.Ct., N.Y. County], affd. sub nom. Will of Bobst, 234 A.D.2d 7, 651 N.Y.S.2d 26). “However, it is equally true that ‘the Court should also be slow to say that an injustice may not be corrected’ ” (Matter of Loverme, 27 A.D.3d at 748, 812 N.Y.S.2d 631, quoting Matter of Musso, 227 A.D.2d 404, 405, 642 N.Y.S.2d 322). “A petitioner seeking to vacate a probate decree must establish ‘with some degree of probability that his claim is well founded, and that, if afforded an opportunity, he will be able to substantiate it’ ” (Matter of Musso, 227 A.D.2d at 406, 642 N.Y.S.2d 322, quoting Matter of Leslie, 175 App.Div. 108, 112, 161 N.Y.S. 790). An application to vacate a probate decree is committed to the discretion of the court ( see Matter of Loverme, 27 A.D.3d at 748, 812 N.Y.S.2d 631;Matter of Musso, 227 A.D.2d at 405, 642 N.Y.S.2d 322). Here, the petitioner showed with some degree of probability that she is a nonmarital child of the decedent and that, if afforded an opportunity, she will be able to substantiate her claim. Accordingly, the Surrogate's Court did not improvidently exercise its discretion when it vacated its decree dated June 6, 2011. BALKIN, J.P., DICKERSON, CHAMBERS and HALL, JJ., concur.


Summaries of

In re Saginario

Supreme Court, Appellate Division, Second Department, New York.
Jul 9, 2014
119 A.D.3d 697 (N.Y. App. Div. 2014)
Case details for

In re Saginario

Case Details

Full title:In the Matter of Anthony SAGINARIO, deceased. Terri Ann Meyer…

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: Jul 9, 2014

Citations

119 A.D.3d 697 (N.Y. App. Div. 2014)
119 A.D.3d 697
2014 N.Y. Slip Op. 5192

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