Majority
p. 653In the Matter of the Estate of Rocco R. Pellegrino, Deceased. Carol Pesch, Appellant; Margarita Mansilla, Respondent. [609 NYS2d 820]
In a probate proceeding, the objectant appeals from an order of the Surrogate’s Court,
p. 654
Nassau County (Radigan, S.), dated February 14, 1992, which denied her motion, denominated as a motion to "renew and reargue” a prior motion to vacate a decree admitting the will to probate upon her default in appearing for trial, which was denied by an order of the same court, dated August 1, 1991.
Ordered that the appeal is dismissed, with costs payable by the appellant personally.
The Surrogate accurately noted that the objectant’s motion, characterized as one "to renew and reargue”, was not based upon new facts which were unavailable at the time of the original motion. Under these circumstances, this Court has held that such a motion is actually a motion to reargue, the denial of which is not appealable (see, e.g., Mgrditchian v Donato, 141 AD2d 513 ; Matter of Bosco, 141 AD2d 639 ; Matter of Kadish v Colombo, 121 AD2d 722 ). Accordingly, the instant appeal is dismissed. Thompson, J. P., Rosenblatt, Copertino and Hart, JJ., concur.
Cases cited
- Kadish v. Colombo 121 AD2d 722 p. 654