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Matter of Ajamian

Appellate Division of the Supreme Court of New York, Third Department
Mar 21, 1996
225 A.D.2d 992 (N.Y. App. Div. 1996)

Opinion

March 21, 1996

Appeal from the Surrogate's Court of Albany County (Marinelli, S.).


Decedent, Armenak Ajamian, died on June 25, 1991 leaving no last will and testament. Letters of administration were issued to petitioner by Surrogate's Court on September 11, 1992. Subsequently, petitioner commenced this proceeding to have three retirement accounts of the decedent turned over to the estate. Respondents Roger Ajamian and Robert Ajamian (hereinafter respondents) opposed turning over of the retirement accounts and counterclaimed to have the estate turn over two separate nonretirement accounts of decedent to them. In counterclaims served on November 29, 1993, respondents claimed that these two accounts had been irrevocably given to them by decedent, their father, in the form of Uniform Gift to Minors accounts. Petitioner failed to reply to these counterclaims and respondents moved for a default judgment in September 1994. Surrogate's Court denied this motion and directed petitioner to serve her reply within 30 days of the court's decision. Respondents now appeal.

We affirm. Contrary to respondents' assertions on appeal, we find that Surrogate's Court did not abuse its discretion by denying respondents' motion for a default judgment on their counterclaims. As excuse for the delay, petitioner's attorney averred that, although a reply to the counterclaims was duly prepared for mailing in December 1993, it was instead placed in petitioner's file through a clerical error that was only discovered after respondents' motion papers were served. Under the circumstances, we find no reason to disturb the court's determination that petitioner demonstrated a reasonable excuse for her default, namely, law office failure (CPLR 2005; see, Busa v Busa, 196 A.D.2d 267, 269; Lopez v City of New York, 179 A.D.2d 388, 389). Moreover, we conclude, as did Surrogate's Court, that the verified pleadings in the record sufficiently fulfilled petitioner's obligation to present a meritorious defense to the counterclaims ( see, Matter of Waite v Whalen, 215 A.D.2d 922, 924; cf., West Shore Bldrs. v Staller, 221 A.D.2d 881; Iovine v Caldwell, 215 A.D.2d 977, 978).

Mercure, J.P., White and Peters, JJ., concur. Ordered that the order is affirmed, with costs.


Summaries of

Matter of Ajamian

Appellate Division of the Supreme Court of New York, Third Department
Mar 21, 1996
225 A.D.2d 992 (N.Y. App. Div. 1996)
Case details for

Matter of Ajamian

Case Details

Full title:In the Matter of the Estate of ARMENAK AJAMIAN, Deceased. ALICE AJAMIAN…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Mar 21, 1996

Citations

225 A.D.2d 992 (N.Y. App. Div. 1996)
639 N.Y.S.2d 540

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