
    In the Matter of the Estate of Carmine A. Martorano, Deceased. Anthony R. Martorano, Respondent; Anna E. Martorano, Appellant.
   — In proceedings to probate a will and to determine the validity of a notice of election by Anna Emma Martorano, the appeal, as limited by Ms. Martorano’s brief, is from stated portions of an order of the Surrogate’s Court, Queens County (Laurino, S.), dated August 13, 1981, which, inter alia, (1) denied the branch of appellant’s motion which requested that her default in the probate proceeding be vacated, but granted leave to renew within 30 days; (2) refused to grant summary judgment declaring an antenuptial agreement invalid as a matter of law; and (3) denied her request to, inter alia, preclude one Joseph Cuccia from testifying at the trial in the right of election proceeding. Order affirmed insofar as appealed from, with costs payable personally by the appellant. The Surrogate properly determined that there are triable issues of fact as to the validity of the antenuptial agreement. The papers are insufficient for a determination, as a matter of law, that the appellant was a victim of fraud, overreaching, or any other untoward influence. (See Matter of Sunshine, 51 AD2d 326, affd 40 NY2d 875; Matter of Davis, 20 NY2d 70; Matter of Liberman, 4 AD2d 512, affd 5 NY2d 719; Matter of Phillips, 293 NY 483.) Further, the Surrogate properly exercised his discretion in denying appellant’s request to vacate her default in the probate proceeding, with leave to renew. By so doing, the appellant was not prejudiced and her rights were preserved. Finally, the branch of the appellant’s motion seeking preclusion of any testimony by Joseph Cuccia or the introduction of any evidence which contains his name was properly denied since it was not demonstrated that his failure to appear for an examination before trial was the result of any willful default. Rather, it appears that by virtue of a pretrial stipulation entered into before the Surrogate, the order of priority for pretrial examination was established, and that appellant was to appear prior to Mr. Cuccia. Mollen, P. J., Gibbons, Weinstein and Rubin, JJ., concur.  