

Matter of Allen (2015 NY Slip Op 03352)





Matter of Allen


2015 NY Slip Op 03352


Decided on April 22, 2015


Appellate Division, Second 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 April 22, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

PETER B. SKELOS, J.P.
JOHN M. LEVENTHAL
JEFFREY A. COHEN
COLLEEN D. DUFFY, JJ.


2013-10891

[*1]In the Matter of Lillian Allen, deceased. Robert Pincus, appellant-respondent; Helen Wells, respondent-appellant; Public Administrator of Kings County, et al., respondents. (File No. 3229/03)


Seth Rubenstein, P.C., Brooklyn, N.Y., for appellant-respondent.
Helen L. Wells, Brooklyn, N.Y., respondent-appellant pro se.

DECISION & ORDER
In a contested probate proceeding, the objectant appeals from so much of a decree of the Surrogate's Court, Kings County (Jacobson, A.S.), dated September 25, 2013, as, upon a decision of the same court dated March 12, 2013, inter alia, granting that branch of his application which was pursuant to SCPA 2302(2) only to the extent of awarding him statutory costs in the sum of $1,400 and denying that branch of his application which was for an award of disbursements, directed that his attorney be paid the sum of only $1,400, and the proponent cross-appeals from so much of the same decree as, upon the same decision, inter alia, denying her application for an award of costs pursuant to SCPA 2302(3), failed to award her costs for commencing this proceeding, and directed her to pay the sum of $1,100 to the objectant's attorney.
ORDERED that the decree is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
Upon dismissal of this contested probate proceeding pursuant to SCPA 209(8) based upon the proponent's failure to diligently prosecute, the Surrogate's Court providently exercised its discretion in granting that branch of the objectant's application which was pursuant to SCPA 2302(2) only to the extent of awarding him statutory costs in the sum of $1,400, denying that branch of his application which was for an award of disbursements, and directing the proponent to pay the sum of $1,100 to his attorney. The objectant failed to demonstrate that the disbursements for which he sought to be reimbursed were necessary, or that he was entitled to additional costs for days necessarily occupied in preparing for trial (see  SCPA 2302[2][a]; 22 NYCRR 207.39).
The proponent's remaining contentions are not properly before this Court.
Under the circumstances of this case, the Surrogate's Court providently exercised its discretion in denying the proponent's application for an award of costs for prosecuting this proceeding, which was dismissed for failure to diligently prosecute (see  SCPA 209[8]; 2302[3]).
SKELOS, J.P., LEVENTHAL, COHEN and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


