| IN THE MATTER OF THE ESTATE OF MAGDA CORDELL MCHALE, DECEASED. |
| Motion No: CA 13-00385 |
| Slip Opinion No: 2013 NY Slip Op 70729(U) |
| Decided on April 12, 2013 |
| Appellate Division, Fourth Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
PRESENT: SCUDDER, P. J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
DOCKET NO. CA 13-00385
| IN THE MATTER OF THE ESTATE OF MAGDA CORDELL MCHALE,
DECEASED. EVAN MCHALE, APPELLANT, V THE JOHN MCHALE AND MAGDA MCHALE ARCHIVES FOUNDATION,
RESPONDENT. |
Respondent having moved to dismiss the appeal taken herein from an order of the Erie County Surrogate's Court entered in the Office of the Clerk of said court on September 28, 2012, on the ground that appellant failed to file timely an indorsed notice of appeal,
Now, upon reading and filing the affirmation of Patrick J. Hines, Esq., dated February 28, 2013, the notice of motion with proof of service thereof, and the affidavit of John A. Cirando, Esq., sworn to March 12, 2013, and due deliberation having been had thereon,
It is hereby ORDERED that the motion is denied on the ground of waiver and failure to demonstrate that the appeal was untimely filed (see CPLR 2101 [f]; CPLR 5513), and
It is further ORDERED that the appellant is granted leave to serve a properly indorsed notice of appeal and file it with the Clerk of Erie County Surrogate's Court (see CPLR 2101 [d], [f]), and
It is further ORDERED that if a properly indorsed notice of appeal is not filed and served on or before May 6, 2013, the appeal is hereby dismissed without further order.
Entered: April 12, 2013
Frances E. Cafarell, Clerk