On this petition for letters of administration c.t.a, by the decedent’s spouse, a specific and residuary beneficiary, seeking to probate a purported instrument dated August 16, 2016, two of the decedent’s children (respondents) appeared and requested to conduct SCPA 1404 examinations. The parties thereupon entered into a “so ordered” stipulation on April 17, 2018, which inter alia, provided dates certain for document exchanges, examinations, filing objections and placing the matter on the trial calendar. Upon the failure of the respondents to comply with the terms of the stipulation, the spouse moves to preclude the filing of objections and seeks probate of the instrument. In opposition to the motion, respondents’ counsel indicates that she failed to comply with the stipulation as she spoke to both of her clients, who were interested in asserting their claim to property in the Dominican Republic and as it was her understanding that under Dominican law an individual could not legally disinherit their offspring, counsel sought instead to investigate the decedent’s holdings in the Dominican Republic, which resulted in counsel’s non-compliance. Further, she states that there are issues with the purported will, including different page formatting insofar as the first two pages are marked “Page 1 of 4″ and Page 2 of 4″, yet page 3 has no such formatting. Lastly, counsel states she spoke to the non-attorney drafter of the will who indicated the decedent’s brother and sister, Peter and Dolores, were witnesses to the will, and thus needs not examine the two. Counsel acknowledges her default stating: “Your affirmant is aware that the deadline for both completion of the examinations and filing of objections is passed. But permission to file late objections is requested as the objections can be filed without further delays on this matter.” The petitioner in reply papers argues that the respondents have not demonstrated any valid reason for their failure to comply with the stipulation: first, the will offered for probate contains an affidavit from two attesting witnesses who are not the decedent’s siblings and further, the decedent’s brother, Peter, submitted a sworn affidavit in a supreme court action where he averred the decedent never had a will. Moreover, a review of the will that has been offered for probate reveals the formatting is proper and not inconsistent as counsel argues.Courts have the inherent discretionary authority to relieve parties of their failure to comply with “so ordered” stipulations (see Teitelbaum Holdings Ltd v. Gold (48 NY2d 51 [1979]). To be relieved, the defaulting party must move either by motion in the proceeding, or in an appropriate circumstance, by plenary action (Teitelbaum Holdings Ltd v. Gold 48 NY2d at 55 [1979]). “‘Parties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce. * * * and all such stipulations not unreasonable, not against good morals or sound public policy, have been and will be enforced.” Tepper v. Tannenbaum (83 AD2d 541 [1st Dept 1981] quoting Matter of New York, Lackawanna and Western R.R. (249 App Div 764 [2nd Dept 1936]).Although the motion may be granted upon the failure of the respondents to properly seek relief by formal motion, the respondents nonetheless fail to establish a basis for the court granting such relief. In opposition is solely the affirmation of counsel, and not the affirmation of a party with first-hand knowledge, which constitutes impermissible hearsay and is defective (see Zuckerman v. City of New York, 49 NY2d 557 [1980]). Moreover, even assuming the opposition was proper, there is no basis for the court to relieve the respondents from the effects of their stipulation as they acknowledge they wilfully failed to adhere to the terms of the stipulation, instead opting to investigate the property in the Dominican Republic. Based on their representation that under Dominican law a child cannot be disinherited, if true, the probate of the purported will would have no bearing on them. Further, the arguments made concerning the different formatting are spurious once one examines the purported will. Accordingly, this decision constitutes the order of the court granting the motion and marking the matter “probate clerk” for further proceedings thereon.Proceed accordingly.
