           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1296
CA 13-00464
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF THE ESTATE OF MOOSHI R.
NAMORDI, DECEASED.
----------------------------------------          MEMORANDUM AND ORDER
NICOLE NAMORDI, PETITIONER-APPELLANT;

CLIFFORD FORSTADT, ESQ., EXECUTOR OF THE
ESTATE OF MOOSHI R. NAMORDI, DECEASED,
RESPONDENT-RESPONDENT.


THE LAW OFFICES OF PHILIP A. BAUMGARTEN, LARCHMONT (PHILIP A.
BAUMGARTEN OF COUNSEL), FOR PETITIONER-APPELLANT.

CLIFFORD FORSTADT, DEWITT, FOR RESPONDENT-RESPONDENT.


     Appeal from a decree (denominated order) of the Surrogate’s
Court, Onondaga County (Ava S. Raphael, S.), entered May 15, 2012.
The decree dismissed the petition seeking, inter alia, vacatur of a
decree of probate.

     It is hereby ORDERED that the decree so appealed from is
unanimously affirmed without costs.

     Memorandum: Mooshi R. Namordi died on February 11, 2009, leaving
a will in which he created residuary trusts for the benefit of his
daughter (petitioner) and her son, and devised real property to
petitioner’s former husband. Petitioner signed a waiver of process
and consent to probate on March 3, 2009, and the will was subsequently
admitted to probate on April 3, 2009. On April 5, 2012, petitioner
sought vacatur of the decree of probate on the ground of “newly-
discovered evidence,” and Surrogate’s Court dismissed the petition
without a hearing. We affirm. We reject petitioner’s contention that
the Surrogate erred in dismissing the petition. Although a party
seeking to set aside a decree of probate entered upon that party’s
waiver of process and consent to probate may indeed submit newly-
discovered evidence as a ground for justifying the reopening of the
decree (see Matter of Leeper, 53 AD2d 1054, 1055, appeal dismissed 42
NY2d 910), here petitioner failed to do so. In light of our
determination, we conclude that petitioner’s remaining contentions are
without merit.



Entered:    December 27, 2013                   Frances E. Cafarell
                                                Clerk of the Court
