Appellate Division: Second Judicial Department

M117638

E/sl

WILLIAM F. MASTRO, J.P.

ANITA R. FLORIO

ARIEL E. BELEN

LEONARD B. AUSTIN, JJ.

2010-11458, 2008-02441, 2010-11456 In the Matter of Manny Kornicki, also known as Manes Kornicki, deceased. Terry Kornicki, et al., appellants; Marian G. Kornicki, respondent. (File No. 342334)

DECISION & ORDER ON MOTION

Motion by the respondent to dismiss an appeal by Terry Kornicki from a decree of the Surrogate's Court, Nassau County, dated October 18, 2010, on the grounds that review from so much of the decree as was entered upon an order of the same court dated February 4, 2008, is precluded under Bray v Cox (38 NY2d 350) and that so much of the decree as dismissed the objections of Terry Kornicki based upon lack of due execution and testamentary capacity was entered upon her default. Separate motion by the appellant Terry Kornicki for leave to prosecute her appeal from the decree dated October 18, 2010, as a poor person and for the assignment of counsel, and to reinstate appeals from two orders of the Surrogate's Court, Nassau County, both dated February 4, 2008, which were dismissed by decisions and orders on motion dated January 14, 2011, and May 26, 2009, respectively, and for poor person relief and the assignment of counsel with respect to those appeals.

Upon the papers filed in support of the motions and the papers filed in opposition thereto, it is

ORDERED that the branch of the respondent's motion which is to dismiss the appeal by Terry Kornicki from so much of the decree as was entered upon an order of the same court dated February 4, 2008, is held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof; and it is further,

ORDERED that the branch of the respondent's motion which is to dismiss the appeal by Terry Kornicki from so much of the decree as dismissed the objections based upon lack of due execution and testamentary capacity is granted, and the appeal by Terry Kornicki from that portion of the decree is dismissed, without costs or disbursements (see CPLR 5511); and it is further,

ORDERED that the branch of the motion of the appellant Terry Kornicki which is for leave to prosecute the appeal from the decree dated October 18, 2010, on the original papers is denied with leave to renew upon proper papers including an affidavit setting forth her full financial situation including all assets, both real and personal, the value of all real property and the equity in the same, as well as any and all sources of income and expenses; and it is further,

ORDERED that the motion of the appellant Terry Kornicki is otherwise denied.

MASTRO, J.P., FLORIO, BELEN and AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court