You are here: / / Petitioner Sufficiently Alleged She Is a Nonmarital Child of the Decedent—Probate...

Petitioner Sufficiently Alleged She Is a Nonmarital Child of the Decedent—Probate Decree Properly Vacated

The Second Department determined Surrogate’s Court properly vacated a probate decree based upon petitioner’s assertion she is a nonmarital child of the decedent:

Here, the petitioner … sufficiently alleged that the decedent … “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]…). 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'” … . “However, it is equally true that the Court should also be slow to say that an injustice may not be corrected'” … . “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'” … . An application to vacate a probate decree is committed to the discretion of the court … . 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. Matter of Saginario, 2014 NY Slip Op 05192, 2nd Dept 7-9-14

 

You might also like
In a Prohibition Proceeding Brought Under Article 78, Trial Judge’s Mistrial Order Deemed Improper, Retrial Precluded​
Tenant Has Duty to Keep Premises Reasonably Safe
ALLEGATIONS IN COMPLAINT AND AFFIDAVIT SUBMITTED IN RESPONSE TO A MOTION TO DISMISS MUST BE TREATED AS TRUE, PLAINTIFF RAISED A QUESTION OF FACT WHETHER RELEASE PROCURED BY FRAUD (SECOND DEPT).
Governmental Immunity Re: Plaintiff Does Not Insulate Governmental Defendants from Contribution Claim by Another Defendant to Whom the Governmental Defendants Owed a Duty of Care
ARBITRATOR’S RULING WAS IRRATIONAL AND VIOLATED CPLR 1209 IN THIS NO-FAULT INSURANCE ACTION, HEALTH CARE PROVIDER, AS AN ASSIGNEE, WAS ENTITLED TO ARBITRATE ITS CLAIM FOR CARE PROVIDED TO THE INJURED INFANT (SECOND DEPT).
THE CAR IN WHICH PLAINTIFFS WERE PASSENGERS HAD THE RIGHT OF WAY ON A THROUGH ROAD; WHETHER DEFENDANT’S CAR STOPPED AT THE STOP SIGN BEFORE PULLING OUT INTO THE PATH OF PLAINTIFFS’ CAR WAS NOT DISPOSITIVE; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
BECAUSE THE COURT DID NOT IMPOSE CONDITIONS ON THE PLEAS AND SENTENCING COMMITMENTS, THE SENTENCE SHOULD NOT HAVE BEEN ENHANCED BASED ON THE PURPORTED VIOLATIONS OF CERTAIN CONDITIONS, INCLUDING THE DEFENDANT’S FAILURE TO APPEAR AT SENTENCING, ALTHOUGH THE ISSUE WAS NOT PRESERVED, THE APPELLATE COURT CONSIDERED IT IN THE INTEREST OF JUSTICE (SECOND DEPT).
THERE WAS A QUESTION OF FACT WHETHER THE PLAINTIFF’S FAILURE TO INCLUDE DEFENDANT IN THE ORIGINAL FORECLOSURE PROCEEDING WAS THE RESULT OF “WILFUL NEGLECT;” THEREFORE, PURSUANT TO RPAPL 1523, DEFENDANT’S “WILFUL-NEGLECT” AFFIRMATIVE DEFENSE IN THIS REFORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Off-Duty Corrections Officer Was Not Acting Within the Scope of His Employment... Whether Lost Evidence Was Relevant to Plaintiff’s Case Presented a Jury...