IN RE: the ESTATE OF Ruth A. TIMM (2025)

MEMORANDUM AND ORDER

Appeal from an order of the Surrogate's Court of Schuyler County (Matthew C. Hayden, S.), entered July 24, 2023, which, in a proceeding pursuant to SCPA 702, dismissed the petition for failure to prosecute.

In August 2017, Ruth A. Timm (hereinafter decedent) died testate.  She was survived by her three children – petitioner, respondent and Deborah St. Julien.  In June 2021, petitioner commenced this proceeding seeking letters of limited administration.  A return date regarding the petition and associated citation was scheduled for November 1, 2021, and respondent was served with the citation and filed a notice of appearance before Surrogate's Court in October 2021.  Petitioner's then-counsel requested an adjournment of the proceeding, which Surrogate's Court granted, adjourning the proceeding until December 2021.  Thereafter, petitioner substituted counsel on two occasions and made multiple requests for adjournments, each one requiring that a supplemental citation be filed and served on respondent.  Surrogate's Court conditioned the most recent adjournment on petitioner finding new counsel within 30 days and filing and serving a supplemented citation within 60 days.  Days before the 30–day deadline, petitioner made another request to adjourn the proceeding.  Surrogate's Court denied the request and dismissed the petition without prejudice based on a failure to prosecute (see CPLR 3216[a];  see also SCPA 2701).  The court further articulated in its order that, upon filing a petition seeking the same relief, petitioner would be required to post a bond or pay money into court sufficient to finance all expenses of discovery – a minimum of $5,000 – without prejudice to his right to seek reimbursement.  Petitioner appeals.

As limited by his brief, petitioner's sole contention on appeal is that Surrogate's Court abused its discretion in setting the minimum amount of security at $5,000 in the event that petitioner refiled for letters of limited administration.  However, that aspect of Surrogate's Court's decision is dicta, as it “was not necessary” to the court's determination to dismiss the petition before it for failure to prosecute (Matter of Kosmo Family Trust [Wieland–Savino], 176 A.D.3d 1465, 1467, 111 N.Y.S.3d 454 [3d Dept. 2019];  see Matter of RT 13 Rocks LLC v. Town of Cortlandville, 229 A.D.3d 1018, 1020, 216 N.Y.S.3d 85 [3d Dept. 2024]).  Accordingly, “[b]ecause disagreement with dicta does not provide a basis to take an appeal, the appeal must be dismissed” (Matter of FMC Corp. v. New York State Dept. of Envtl. Conservation, 151 A.D.3d 1416, 1417, 54 N.Y.S.3d 342 [3d Dept. 2017] [internal citations omitted];  see Matter of Doe v. Rensselaer Polytechnic Inst., 172 A.D.3d 1691, 1692, 102 N.Y.S.3d 303 [3d Dept. 2019]).

ORDERED that the appeal is dismissed, without costs.

McShan, J.

Egan Jr., J.P., Aarons, Fisher and Mackey, JJ., concur.