| Matter of Tognino |
| 2011 NY Slip Op 06850 [87 AD3d 1152] |
| September 27, 2011 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Betty C. Tognino, Deceased. John Tognino, Appellant; Robert Tognino et al., Respondents. |
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Neal J. Roher, Garden City, N.Y., for respondents.
In a proceeding for the construction of a living trust, the petitioner appeals, as limited by his brief, from so much of an order of the Surrogate's Court, Nassau County (Riordan, S.), dated December 23, 2009, as granted that branch of the respondents' motion which was to dismiss the petition pursuant to CPLR 3211 (a) (7) and stated that if the petitioner is unsuccessful in contesting the amendments to the decedent's living trust he will forfeit his bequest.
Ordered that the appeal from so much of the order dated December 23, 2009, as stated that if the petitioner is unsuccessful in contesting the amendments to the decedent's living trust he will forfeit his request, is dismissed, as the petitioner is not aggrieved by that portion of the order appealed from (see CPLR 5511); and it is further,
Ordered that the order dated December 23, 2009, is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the respondents, payable by the appellant.
"Merely because the order appealed from contains language or reasoning that a party deems adverse to its interests does not furnish 'a basis for standing to take an appeal' " (Castaldi v 39 Winfield Assoc., LLC, 22 AD3d 780, 781 [2005], quoting Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465, 472-473 [1986]). The appellant is not aggrieved by the statement in the order appealed from that if he is unsuccessful in contesting the amendments to the decedent's living trust he will forfeit his bequest.
The Surrogate's Court properly granted that branch of the respondents' motion which was to dismiss the petition since the petitioner failed to allege that any provision of the trust was ambiguous and, therefore, failed to state a cause of action for the construction of the decedent's living trust (see CPLR 3211 [a] [7]; cf. Williams v Williams, 36 AD3d 693 [2007]). [*2]
The petitioner's remaining contention is without merit. Skelos, J.P., Eng, Austin and Miller, JJ., concur.