IN RE: Mary BALSAMO

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

IN RE: Mary BALSAMO, deceased. Rose Bonacci, petitioner-respondent; F. Paul Balsamo, respondent-appellant.

Decided: October 28, 2008

ROBERT A. SPOLZINO, J.P., FRED T. SANTUCCI, HOWARD MILLER, THOMAS A. DICKERSON, and RANDALL T. ENG, JJ. Howard M. File, P.C., Staten Island, N.Y., for respondent-appellant. Danna & Associates, P.C., Staten Island, N.Y. (Anthony S. Danna of counsel), for petitioner-respondent.

In a proceeding pursuant to SCPA 2103 to disclose and recover certain assets alleged to be a part of the decedent's estate, F. Paul Balsamo appeals, as limited by his brief, from so much of an order of the Surrogate's Court, Richmond County (Gigante, S.), dated February 28, 2008, as granted that branch of the petitioner's motion which was, in effect, pursuant to 22 NYCRR 130-1.1 for an award of costs and an attorney's fee against him, in the sum of $2,597.

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

The Surrogate's Court providently exercised its discretion in granting that branch of the petitioner's motion which was, in effect, pursuant to 22 NYCRR 130-1.1 for an award of costs and an attorney's fee against the appellant.   Contrary to the appellant's contention, since the petitioner expressly requested the subject relief in her motion papers, and the appellant was afforded an opportunity to be heard and to oppose the motion, a hearing was not required (see 22 NYCRR 130-1.1[d];  Matter of Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of N.Y. v. 198 Broadway, 76 N.Y.2d 411, 413 n, 559 N.Y.S.2d 866, 559 N.E.2d 429;  Wesche v. Wesche, 51 A.D.3d 909, 910, 859 N.Y.S.2d 231;  RCN Constr. Corp. v. Fleet Bank, N.A., 34 A.D.3d 776, 825 N.Y.S.2d 140).

The appellant's remaining contentions are without merit.

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