Proponent, Stuart Moses, a beneficiary and the named executor in the will of his late mother, dated May 26, 2011, has submitted a decree admitting the will to probate with notice of settlement on October 7, 2013. Same was submitted by his counsel on notice to the attorneys for respondent and potential objectant, petitioner's brother, Jay D. Moses. On October 1, 2013, the attorneys for Jay filed objections to probate of the will with the court, same having been served on September 27, 2013. With those objections, an affirmation by counsel, likewise dated September 27, 2013, was served and filed in support of the acceptance of the objections by way of an explanation that the proposed decree was premature [the objections not yet being due] or, in the alternative, in the nature of proffering an excuse for their late filing.

In a letter to the court dated October 2, 2013 and filed on October 3, 2013, counsel for petitioner asks that the objections be discounted and rejected and the decree signed.

The court will deem the foregoing as an application by Jay for a determination that the objections were timely filed, or alternatively, to excuse their late filing and the letter opposition thereto.

SCPA 1410, as relevant here, requires that objections to probate be filed 10 days after completion of examinations under SCPA 1404 unless there is a stipulation otherwise between the parties or the court fixes a different date. At bar, the SCPA 1404 examinations were completed on September 11, 2013 and accordingly the objections should have been filed on or before September 23, 2013, September 21 having been a Saturday.

The attorney for Jay, Jeffrey S. Greener, Esq., avers that at the conclusion of the examinations he had a discussion with his adversary regarding the due date of the objections and that it was his "understanding" the deadline would be 10 days from the receipt of the transcripts. There is no written stipulation reflecting this understanding and indeed no writing at all regarding [*2]same. When Mr. Greener received the proposed decree, etc., the transcripts had not been received and the objections immediately prepared and served. Proponent's attorney, Alan G. Kaut, Esq., states in his letter that neither he nor his associate counsel "recall" any discussion along the lines affirmed to by Mr. Greener.

Preferably, there would have been some type of written confirmation of the understanding. There is not and the court cannot discern whether there was or was not an accord as to the extension. CPLR 3012 (d), however, empowers the court with the discretion ("the court may extend the time to appear or plead") to relieve a pleading or appearance default upon a showing of reasonable excuse for same. Except where otherwise expressly proscribed by law, CPLR 2004 vests a court with the discretion to "extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown," even when an application to extend the time is made after the expiration of time to file (Matter of Burkich, 12 AD3d 755, 756 [3d Dept 2004], citing CPLR 2004).

Moreover, recognizing that the Surrogate's overriding concern is that only valid wills be admitted to probate, as the Practice Commentary to SCPA 1410 observes, the tendency is for the courts to liberally exercise their discretion to permit the filing of late objections weighing whether the default was deliberate or not, the reason for and the extent of the delay, merit of the objections and the resulting prejudice, if any, from permitting the late filing (Matter of Pascale, 102 AD3d 796 [2d Dept 2013], Turano, Practice Commentaries, McKinney's Cons Laws of NY, Book 58A, SCPA 1410, at 386-387).

Considering all of the foregoing, the court will permit the late filing of the objections.

This matter will appear on the court's calendar for conference on November 20, 2013, at 9:30 a.m., to enter a discovery order.

This constitutes the decision and order of the court.

Dated: November 4, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court