
    In the Matter of the Estate of Lawrence H. Forray, Deceased. Marie Forray, Appellant; Sarah Forray, as Executrix, Respondent.
    [650 NYS2d 553]
   —Order and decree (one paper), Surrogate’s Court, New York County (Renee Roth, S.), entered on or about August 16, 1995, which, inter alia, denied petitioner’s motion to modify and reject the report of the Referee and granted respondent’s cross motion to confirm the report, denied petitioner’s motion to renew, and thereupon denied the petition to vacate the probate decree, declared void petitioner’s notice of election and awarded the estate $1,900 pursuant to SCPA 2302, unanimously affirmed, without costs.

The Surrogate’s Court properly refused to disturb the Referee’s determination that respondent was decedent’s surviving spouse based on petitioner’s failure to rebut the presumption of the validity of the later marriage, inasmuch as the Referee’s findings rested, in large measure, upon her resolution of issues of credibility and were substantiated by the record (Matter of Mayer v National Arts Club, 223 AD2d 440, lv denied 88 NY2d 802). The Referee’s determination was based upon her overall evaluation of the evidence, including petitioner’s several representations after her separation from decedent that she was "single” and her written acknowledgment that respondent was decedent’s wife.

Renewal was properly denied because the purportedly new evidence was available when the original application was made and no valid excuse was provided for not submitting it (Yoshida Print. Co. v Aiba, 213 AD2d 275). In any event, the court correctly concluded that such evidence would not have altered the result.

While this was not a construction proceeding for which costs are authorized under SCPA 2302 (6), costs and allowances are authorized under SCPA 2302 (2) where, as here, vacatur of a probate decree is denied. Concur—Milonas, J. P., Wallach, Kupferman, Ross and Williams, JJ.  