IN RE: Ira L. Gershenson (2012)

Submitted—January 12, 2012

DECISION & ORDER

In a probate proceeding in which Spencer Thomas Gershenson and Claudia Grosso petitioned pursuant to SCPA 1420 for the construction of Article Second (B) of the will of Ira L. Gershenson, also known as Ira Gershenson, the petitioners appeal from an order of the Surrogate's Court, Queens County (Nahman, S.), dated October 14, 2010, which, in effect, denied their motion for summary judgment on their petition and determined that the bequest of a certain retirement account to, among others, the petitioner Spencer Thomas Gershenson, had adeemed.

ORDERED that the order is affirmed, with costs payable personally by the petitioners.

Contrary to the petitioners' contention, the Surrogate's Court did not err in finding that the subject bequest was a specific bequest (see EPTL1–2.17;  Matter of Powers, 166 A.D.2d 534;  Matter of Fitzgerald, 29 A.D.2d 325, 328, affd 23 N.Y.2d 973).   Under the circumstances herein, the Surrogate's Court also did not err in determining that the subject bequest had adeemed, by virtue of certain acts taken by the testator subsequent to the execution of the will (see EPTL 3–4.3;  Matter of Lucia, 2 AD3d 638;  Matter of Powers, 166 A.D.2d at 534).

The petitioners' remaining contentions are without merit.

The respondent's request for an award of attorney's fees and sanctions is not properly before this Court, insofar as the respondent's request is based upon the filing of the Surrogate's Court petition (see Kohn v. Kohn, 86 AD3d 630;  Kane v. Rudansky, 309 A.D.2d 785).   Insofar as the respondent seeks fees and sanctions in connection with this appeal, we decline that request (see 22 NYCRR 130–1.1).

FLORIO, J.P., CHAMBERS, HALL and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court