In this estate case, petitioner appealed an order and judgment (one paper) of the Supreme Court, Suffolk County, dated February 10, 1981, as denied his motion for summary judgment and thereupon dismissed a writ of habeas corpus. By order dated July 25, 1983, this court remitted the matter to the Supreme Court, Suffolk County, to hear and report, and held the appeal in abeyance in the interim.
Pursuant to an order of this court, this matter was remitted to the Supreme Court to hear and report on the issue of whether the appellant’s failure to appear on March 7, 1978, the date set for the hearing on a petition to adjudge him in contempt of court for noncompliance with a turnover order in a probate proceeding, constituted a voluntary waiver of his right to be present and proffer evidence in his defense. Initially, we note that a prompt evidentiary hearing on this issue was obstructed for over three years by the appellant’s numerous, meritless attempts to appeal directly to the Court of Appeals or collaterally attack this court’s order dated July 25, 1983.
At an evidentiary hearing commenced on September 25, 1986, the appellant’s former wife, who is an attorney, testified as a witness. According to the witness, on March 7, 1978, the appellant was of counsel for her client in the trial of a matrimonial action before a Justice, in the Supreme Court, Bronx County. Since the testimony of a witness had not been completed on March 6, 1978, the Justice directed the parties to return with counsel the next day to continue the trial. To her knowledge, the appellant was on trial before the Justice the entire day of March 7, 1978. The witness conceded that she had not attended the trial of the matrimonial action on either March 6 or 7, 1978, but maintained that she knew the aforenoted facts were true from having read the trial transcript when the judgment in the action was on appeal.