Surrogate Mella ESTATE OF SOL LIEBERMAN, Deceased (89-4135/C); 89-4135/D) — In these two contested accounting proceedings for the estate and testamentary trust, respectively, of decedent Sol Lieberman, there has been no filing from the parties since 2014. Court inquiries as to status of these matters by letter in 2015, and by email in June and August of 2018, and again in March of 2019 have not been answered. In view of the foregoing, the court directs as follows. Unless a party files a note of issue and certificate of readiness for trial no later than 90 days from the receipt of this demand, the court, exercising its supervisory function, will dismiss these two accounting proceedings for failure to proceed with and prosecute them (SCPA 209 [8]; CPLR 3216; see Bort v Perper, 82 AD3d 692, 694 [2d Dept 2011]; Koscinski v St. Joseph’s Med. Ctr., 24 AD3d 421, 421-422 [2d Dept 2005]). This decision constitutes the order of the court. The clerk of the court is directed to mail a copy of this decision to the parties appearing in these proceedings by certified mail, return receipt requested. Dated: October 23, 2019
ESTATE OF PATRICIA H. PENICK, Deceased (16-4509/E) — Earl Thompson is the self-represented, surviving spouse of decedent Patricia Penick, and he here petitions for court permission to file belatedly his notice of election against the estate under EPTL 5-1.1-A(d). His notice is late because he did not file it within two years of decedent’s death (see EPTL 5-1.1-A[d][1]). A 2015 instrument offered as decedent’s will, benefiting decedent’s siblings, indicates that decedent was estranged from Thompson, and it is emphatic that he receive nothing more from her estate than a spousal election by him would allow. Thompson has actively litigated his cross-petition for probate of a later, November 23, 2016, instrument that benefits him and that he alleges was dictated and signed by decedent in hospice before her death a few days later (on November 28, 2016) from ALS (also known as Lou Gehrig’s Disease). This court denied Thompson’s motion for summary judgment that sought to admit the 2016 instrument to probate, as well as his motion to reargue that decision (see Matter of Penick, NYLJ, Oct. 18, 2018, at 29, col 3 [Sur Ct, NY County]; Matter of Penick, NYLJ, April 10, 2019, at 22, col 5 [Sur Ct, NY County]). Thompson filed the current petition on December 21, 2018, seeking to extend the time to file his spousal election pursuant to EPTL 5-1.1-A. This petition, however, was filed beyond the period of two years after decedent’s death and was thus itself untimely (Matter of Levin, 181 Misc 2d 868 [Sur Ct, Erie County 1999]; see Matter of Allan, 5 NY2d 333 [1959]; cf. Matter of Silverman, 74 Misc 2d 399 [Sur Ct, Erie County 1973]). On this basis alone, with no evidence of fraud or inequitable conduct, the petition should be denied. Even were the court to consider whether a “good cause” extension of this two-year period should be granted (EPTL 5-1.1-A[d][2]; see Matter of James, NYLJ, March 8, 2017, at 23, col. 4 [Sur Ct, Bronx County]),1 Thompson has set forth no reason, other than his own inadvertence or inattention, for the late filing he seeks (see Matter of Cavallo, 98 AD3d 1115 [2d Dept 2012]). The court recognizes that Thompson is self-represented, but, as a former attorney, he is not unsophisticated. Yet he alleges no reasonable cause for having failed to timely file, nor any wrongdoing or conduct that somehow prevented him from doing so2 (cf. Matter of Fernandez, 1 Misc 3d 908[A], 2003 NY Slip Op 51597[U] [Sur Ct, Bronx County 2003]).3 He was certainly aware of decedent’s death and of the 2015 instrument, which put him on notice of his need to elect. In the absence of good cause and under all the circumstances presented, the court exercises the discretion provided to it under EPTL 5-1.1-A[d](2) to deny the late filing requested. Accordingly, the petition is denied; the court does not relieve petitioner Earl Thompson from his default in timely filing, and he is not permitted an extension of time within which to file his notice of election as spouse. This decision constitutes the order of the court. Dated: October 23, 2019.
