Vivian B. Skeele, as Executrix of the Estate of Carl H. Skeele, Deceased, Respondent-Respondent. v. <<

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

Matter of the ESTATE OF Carl H. SKEELE, Deceased. Robert Skeele, Claimant-Appellant; Vivian B. Skeele, as Executrix of the Estate of Carl H. Skeele, Deceased, Respondent-Respondent.

Decided: March 18, 2005

PRESENT:  GREEN, J.P., SCUDDER, KEHOE, SMITH, AND HAYES, JJ. Baldwin & Sutphen, LLP, Syracuse (Robert F. Baldwin, Jr., of Counsel), for Claimant-Appellant. Hiscock & Barclay, LLP, Syracuse (Philip P. Whaling of Counsel), for Respondent-Respondent.

 Robert Skeele (claimant) submitted a claim against his father's estate, seeking to recover funds allegedly due to him from a real estate transfer in 1994, based upon a 1988 agreement reached with his father.   He appeals from an order that granted respondent's motion to dismiss the claim as time-barred, contending that decedent's will directed the payment of all debts, whether time-barred or not.   As neither the will nor claimant's opposition to the motion is included in the record, the issue is not properly before this Court (see Matter of Dailey v. Allerton, 216 A.D.2d 865, 867, 628 N.Y.S.2d 911;  Fehlhaber Corp. v. State of New York, 65 A.D.2d 119, 131, 410 N.Y.S.2d 920, lv. denied 48 N.Y.2d 604, 421 N.Y.S.2d 1029, 396 N.E.2d 486).   In any event, Surrogate's Court properly dismissed the claim as time-barred.  “An executor or administrator is bound to set up the bar of the [s]tatute of [l]imitations, and has no authority to allow a claim so barred” (Hamlin v. Smith, 72 App.Div. 601, 610, 76 N.Y.S. 258;  see also Matter of Estate of Werner, 248 A.D.2d 907, 908, 670 N.Y.S.2d 609;  Matter of Flaum v. Birnbaum, 177 A.D.2d 170, 180, 582 N.Y.S.2d 853, lv. dismissed 80 N.Y.2d 925, 589 N.Y.S.2d 311, 602 N.E.2d 1127).   As the claim was not filed until November 11, 2002, it was properly dismissed as time-barred pursuant to CPLR 213(2).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: