                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 5, 2016                       521274
_________________________________

In the Matter of the Estate of
   NANCY M. HORNBY, Deceased.

PETER C. HORNBY,                            MEMORANDUM AND ORDER
                    Respondent;

PETER R. HORNBY, as Executor
   of the Estate of NANCY M.
   HORNBY, Deceased,
                    Appellant.

(And Another Related Proceeding.)
_________________________________


Calendar Date:   March 25, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                             __________


     Michael T. Brockbank, Schenectady, for appellant.

      Pemberton and Briggs, Schenectady (Paul Briggs of counsel),
for respondent.

                             __________


McCarthy, J.P.

      Appeal from an order of the Surrogate's Court of
Schenectady County (Versaci, S.), entered January 21, 2015,
which, among other things, granted petitioner's application, in a
proceeding pursuant to EPTL 5-1.1-A, for an order extending the
time to file a right of election.

      In October 2004, Nancy M. Hornby (hereinafter decedent)
died as the result of a motor vehicle accident. In March 2005,
Surrogate's Court (Kramer, S.) admitted decedent's will to
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probate and issued letters testamentary appointing respondent,
decedent's son, as the executor of decedent's estate. In 2012, a
wrongful death action related to decedent's death was settled for
$277,799.92. In January 2014, respondent petitioned Surrogate's
Court to allocate the full wrongful death recovery to him, and
petitioner, decedent's husband, objected. Thereafter, petitioner
petitioned the court pursuant to EPTL 5-1.1-A (d) (2) to file a
late right of election against decedent's estate. Surrogate's
Court (Versaci, S.) granted the petition and allowed petitioner
60 days to file a right of election. Respondent appeals, and we
reverse.

      Where, as here, a surviving spouse has defaulted in filing
a right of election (see generally EPTL 5-1.1-A [d] [1]), a court
may extend the time to make an election and relieve him or her of
the default provided that, among other things, "no decree
settling the account of the personal representative has been made
and that twelve months have not elapsed since the issuance of the
letters" (EPTL 5-1.1-A [d] [2]). Here, more than nine years
elapsed between the issuance of the letters and the petition for
the right of election against decedent's estate. Although EPTL
5-1.1-A (d) (2) provides language allowing a court to relieve a
spouse of his or her failure to meet a separate condition
precedent – that "two years have not elapsed since the decedent's
date of death" – it provides no similar language permitting a
court to excuse the failure to satisfy the condition precedent
related to the timeliness of seeking election after the issuance
of letters.1 Accordingly, EPTL 5-1.1-A (d) (2) did not provide
Surrogate's Court the power to relieve petitioner of his default
(see Matter of Gross, 2 Misc 3d 793, 794-795 [Sur Ct, Dutchess
County 2004]).

        Garry, Lynch, Devine and Clark, JJ., concur.


    1
        Legislative history attending the most recent amendment
to EPTL 5-1.1-A (d) (2) establishes that lawmakers would have
been well aware of the fact that the provision did not permit a
court to excuse an attempt at election not made within 12 months
of the issuance of letters (see Surrogate's Assn of the State of
NY Letter in Support, Bill Jacket L 2010, ch 545 at 6).
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      ORDERED that the order is reversed, on the law, with costs,
and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
