IN RE: John A. Forgione (2010)

Supreme Court, Appellate Division, Second Department, New York.

IN RE: John A. Forgione, deceased. Christine Forgione, appellant; Gary Forgione, respondent. (File No. 333152) Finkelstein & Feil, LLP, Garden City, N.Y. (Michael S. Finkelstein of counsel),

2009-06578

Decided: October 26, 2010

MARK C. DILLON, J.P. ANITA R. FLORIO RUTH C. BALKIN SHERI S. ROMAN, JJ.

for appellant. Harry H. Kutner, Jr., Mineola, N.Y., for respondent.

Argued-October 5, 2010

DECISION & ORDER

In a probate proceeding, the petitioner appeals, as limited by her brief, from so much of an order of the Surrogate's Court, Nassau County (Riordan, S.), dated May 18, 2009, as granted the respondent's motion pursuant to CPLR 3126 to dismiss the proceeding.

ORDERED that the order is affirmed insofar as appealed from, with costs payable by the petitioner personally.

The Surrogate's Court providently exercised its discretion in granting the respondent's motion to dismiss the proceeding pursuant to CPLR 3126 because of the petitioner's extensive delay in scheduling the examinations of out-of-state attesting witnesses pursuant to SCPA 1404 (see Rizzuti v. Laucella, 57 AD3d 755).

DILLON, J.P., FLORIO, BALKIN and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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