Greene v. Greene (In re Greene), File No. 98344/09

• Decision Date: 15 November 2011
• Docket Number: 2011-00203,2011-00201,File No. 98344/09
• Citation: 2011 NY Slip Op 08359
• Parties: In the Matter of Lena A. Greene, deceased. Kevin Greene, et al., petitioners-respondents; v. Keith B. Greene, appellant.
• Court: New York Supreme Court — Appellate Division

2011 NY Slip Op 08359

In the Matter of Lena A. Greene, deceased.
Kevin Greene, et al., petitioners-respondents;
v.
Keith B. Greene, appellant.

File No. 98344/09
2011-00201
2011-00203

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

Decided on November 15, 2011

ANITA R. FLORIO, J.P.
L. PRISCILLA HALL
LEONARD B. AUSTIN
JEFFREY A. COHEN, JJ.

H. Scott Ziemelis, Goshen, N.Y., for appellant.

DECISION & ORDER

In a contested probate proceeding, the objectant appeals (1), as limited by his brief, from so much of an order of the Surrogate's Court, Dutchess County (Pagones, S.), dated November 9, 2010, as granted that branch of the petitioners' motion which was for summary judgment dismissing his objection to probate based on lack of due execution, and (2) from a decree of the same court dated November 9, 2010, which, upon the order, admitted the will to probate.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the decree is reversed, on the law and the facts, that branch of the petitioners' motion which was for summary judgment dismissing the objection to probate based on lack of due execution is denied, that objection is reinstated, the order dated November 9, 2010, is modified accordingly, and the matter is remitted to the Surrogate's Court, Dutchess County, for further proceedings in accordance herewith; and it is further,

ORDERED that one bill of costs is awarded to the appellant.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the decree (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the decree (see CPLR 5501[a][1]).

The decedent, Lena A. Greene, died on August 16, 2009, survived by three children as her distributees. On November 1, 2008, the decedent allegedly executed a will naming two of her children, Kevin Green and Karen Hinton, the petitioners herein (hereinafter together the petitioners), as co-executors, and executed a living trust, naming the petitioners as cotrustees....