SURROGATE’S COURTSurrogate Lopez TorresESTATE OF THOMAS SMITH, A/K/A THOMAS EDWARD SMITH, Deceased (12/3264/B) — The instant contested probate proceeding has been pending before this Court for over five years. Thomas Smith, a/k/a Thomas Edward Smith (the decedent) died at 78 years of age on July 7, 2012, survived by his spouse, Miriam Smith (Miriam) and two adult children, namely Derek Smith (the petitioner) and Debrah Smith (Debrah). On November 27, 2012, the petitioner filed a petition to probate a written instrument dated February 28, 2008, which purports to be the decedent’s last will and testament (the propounded instrument). Pursuant to the terms of the propounded instrument, the decedent bequeathed his entire estate to the petitioner. A waiver and consent to probate was executed by Miriam.On September 6, 2013, verified objections to the instant probate petition were filed by Debra, pursuant to which she asserts, inter alia, that the decedent lacked testamentary capacity at the time the propounded instrument was executed, and that the propounded instrument is a product of fraud and/or undue influence exercised by the petitioner and others.On November 6, 2013, the parties met in conference with the Court and executed a stipulation establishing a schedule for discovery (the 2013 discovery stipulation). Pursuant thereto, they agreed that discovery was to be completed and a Note of Issue filed by April 25, 2014.Since execution of the 2013 discovery stipulation, there has been no action whatsoever taken by either party in resolving this contested proceeding. Despite the passage of nearly four years from the stipulated date for filing the Note of Issue, the parties have failed to respond to repeated inquiries by the Court regarding the status of this proceeding. Pursuant to the provisions of SCPA §209 (8), this court has the power “[t]o dismiss any proceeding which the petitioner has neglected to prosecute diligently.” See Matter of Smith, N.Y.L.J., September 24, 2009, at 38 (col.2) (Sur. Ct. Kings County); Matter of McCabe, N.Y.L.J., December 30, 1998, at 31 (col. 1) (Sur. Ct. Suffolk County). The instant proceeding has languished, the parties have been unresponsive to Court inquiries, and the parties’ own deadline for filing a Note of Issue passed almost four years ago.Accordingly, the instant petition for probate of the Written instrument, dated February 28, 2008, purporting to be the last will and testament of Thomas Smith1 a/k/a Thomas Edward Smith, is hereby dismissed for failure to prosecute such petition with diligence.This constitutes the decision and order of the Court.Dated: February 2, 2018
