IN RE: Edmond Winters

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

IN RE: Edmond Winters, deceased.  Kevin Winters, respondent;  John E. Lawler, appellant.  (File Nos. 723/09, 723B/09) John E. Lawler, Yonkers, N.Y., appellant

2010–04404

Decided: May 31, 2011

JOSEPH COVELLO, J.P. CHERYL E. CHAMBERS PLUMMER E. LOTT ROBERT J. MILLER, JJ. pro se. Diviny & Merchant, P.C., Pearl River, N.Y. (Joy D. Diviny of counsel), for respondent.

Argued—May 5, 2011

DECISION & ORDER

In a proceeding commenced by Kevin Winters pursuant to SCPA 1001 to obtain letters of administration for the estate of Edmond Winters, in which John E. Lawler cross-petitioned pursuant to SCPA 1407 to admit a copy of a lost will of Edmond Winters to probate, John E. Lawler appeals from an order of the Surrogate's Court, Westchester County (Scarpino, Jr., S.), dated April 9, 2010, which denied his motion to compel the Clerk of the Surrogate's Court, Westchester County, to accept his demand for a jury trial.

ORDERED that the appeal is dismissed, with costs to the petitioner payable by the appellant personally.

The appeal from the order dated April 9, 2010, must be dismissed because the right of direct appeal therefrom terminated with the entry of the decree in the proceeding (see Matter of Aho, 39 N.Y.2d 241, 248).   The issues raised on the appeal from the order dated April 9, 2010, are brought up for review and have been considered on the companion appeal from the decree (see Matter of Winters, AD3d [Appellate Division Docket No. 2010–08560;  decided herewith] ).

COVELLO, J.P., CHAMBERS, LOTT and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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