The following papers were considered in this motion to extend time to file objections:PAPERS NUMBEREDNotice of Motion, Affirmation in Support 1,2Affirmation in Opposition 3Reply Affirmation 4DECISION and ORDER In this contested probate proceeding, respondent Keith Prunty (respondent) moves for an extension of time to file objections. Petitioner William Mott (petitioner) opposes the motion on the ground that respondent has failed to set forth a reasonable excuse for the delay in filing objections and that petitioner will be substantially prejudiced by further delay. For the reasons set forth below, the motion is granted.BackgroundDecedent died on November 4, 1992, apparently without a spouse or issue. At the time, the decedent was survived by a sister Neddie Rivers and by Margaret Prunty (Margaret), the issue of her pre-deceased sister Annie Rivers (Annie). In 1994, the petitioner initially sought to probate an original instrument dated July 20, 1966, that bequeaths the residuary estate to the decedent’s “foster son,” the petitioner herein, and to a church should the petitioner predecease the decedent. George E. Hodes, decedent’s friend and attorney, now deceased, was nominated executor. The respondent is a son of Margaret, who post-deceased the decedent and was the sole distributee of Annie.It appears that the proceeding then laid largely dormant from 1994 to 2017, with jurisdiction never having been completed and the attorney who commenced the proceeding having died. In 2017, new counsel appeared for the petitioner and amended the petition to probate a copy of a lost instrument dated December 8, 1983 (the 1983 instrument) that also bequeaths the residuary estate to the petitioner. The instrument also nominates the petitioner as executor and states, “I make no provision for any other relative or relatives of mine.”Motion for Extension of Time to File ObjectionsThe respondent moves for an extension of time to file objections. This proceeding was called on the court’s calendar on July 10, 2018, at which time the respondent appeared by counsel and the case was marked “submit subject to objections by July 31, 2018.” The respondent’s counsel states that he attempted to file objections by that date. However, the department rejected the filing for the reason that the respondent failed to attach proof that the respondent was appointed as fiduciary of Margaret’s estate. Thereafter, the respondent apparently obtained the proof required and filed a motion for an extension of time file objections returnable on September 19, 2018. However, the respondent failed to appear at calendar call on that date and the motion was denied for failure to appear. The respondent’s counsel claims that he failed to appear because the department advised him that the motion would be reviewed and if accepted, he would be notified of the court date. The respondent then filed a second motion, but the notice of motion was served upon prior counsel for the petitioner and, furthermore, failed to explain that the first motion for the same relief had been denied for failure to appear. Accordingly, the respondent withdrew that second motion. The respondent then filed the instant motion.The petitioner opposes the motion on the grounds that the petitioner will be substantially prejudiced and that the objectant has failed to set forth a reasonable excuse for his failure to file timely objections. The respondent counters that the brief delay in filing objections results in no prejudice, particularly since the decedent died 26 years ago and the petitioner himself delayed probating the 1983 instrument for decades.“The Surrogate’s Court has the discretion to allow the filing of objections beyond the time limitation established in SCPA 1410, as [the Surrogate's] court’s paramount concern is to admit only valid wills to probate.” In re Orlowski, 281 A.D.2d 422, 423 (2d Dep’t 2001); Matter of Kornicki, 101 A.D.3d 722, 724 (2d Dep’t 2012). Even in the absence of objections, the Surrogate must inquire into all of the facts and be satisfied with the “genuineness of the will and the validity of its execution” before admitting it to probate. SCPA 1408. Accordingly, denying leave to file late objections, which may or may not be meritorious, due to procedural technicalities would not serve that purpose. Further, the right to contest a will has been described as a “substantial right” and thus, leave to file late objections should not be denied absent clear and substantial prejudice. See Matter of Kryk, 15 Misc. 3d 1133(A) at *3 (Sur Ct, Monroe County 2007).While the respondent’s counsel delayed the instant motion being heard with a series of careless errors, the respondent did initially attempt to file objections by the date ordered by the court. However, according to the respondent’s counsel, the objections were rejected by the department for failure to attach proof that the respondent was the fiduciary of Margaret’s estate. Under the circumstances, it is arguable whether the objections should have been rejected, and in any event, such failure is a mere technicality that should not deny the respondent an opportunity to be heard. Further, the petitioner does not clearly state what substantial prejudice would occur as a consequence of the late filing of objections. Indeed, there has been a decades-long delay in resolving probate in this estate that is not attributable to the respondent. Accordingly, the respondent’s motion for an extension of time to file objections is granted and it is herebyORDERED that verified objections must be served and filed within twenty (20) days of the date of this decision and order.This constitutes the decision and order of the court.Clerk is directed to mail a copy of this decision to the parties.Dated: March 12, 2019Brooklyn, New York
