Matter of Forgione
2010 NY Slip Op 07760 [77 AD3d 943]
October 26, 2010
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 15, 2010


In the Matter of the Estate of John A. Forgione, Deceased. Christine Forgione, Appellant; Gary Forgione, Respondent.

—[*1] Finkelstein & Feil, LLP, Garden City, N.Y. (Michael S. Finkelstein of counsel), for appellant.

Harry H. Kutner, Jr., Mineola, N.Y., for respondent.

In a probate proceeding, the petitioner appeals, as limited by her brief, from so much of an order of the Surrogate's Court, Nassau County (Riordan, S.), dated May 18, 2009, as granted the respondent's motion pursuant to CPLR 3126 to dismiss the proceeding.

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

The Surrogate's Court providently exercised its discretion in granting the respondent's motion to dismiss the proceeding pursuant to CPLR 3126 because of the petitioner's extensive delay in scheduling the examinations of out-of-state attesting witnesses pursuant to SCPA 1404 (see Rizzuti v Laucella, 57 AD3d 755 [2008]). Dillon, J.P., Florio, Balkin and Roman, JJ., concur.