Articles Posted in Brooklyn

Probate Lawyers show that the instant proceeding was commenced by the executors pursuant to section 145-a of the Surrogate’s Court Act to determine the validity and effect of the widow’s notice of election served and filed pursuant to section 18 of the Decedent Estate Law. However, after commencement of the proceeding, the widow withdrew said issue, and instead submitted for the Court’s determination on a basis of conceded facts the issue raised in her counterclaim for $10,000 with interest from date of decedent’s death. Widow, in her counterclaim alleges that she and decedent entered into a written agreement wherein inter alia decedent agreed to leave her a legacy of $10,000; that he failed to provide for her in his will which was admitted to probate; that the estate is sufficient for all purposes; that she duly performed all the terms, conditions and covenants on her part to be performed; that payment of said amount has been refused although duly demanded; and the widow therefore prays for an award in said amount. The other parties contend that said agreement between decedent and the said widow is unenforceable.

Under the agreement, the widow, under her maiden name renounced any and all right, title, interest in any property that decedent was then seized of or might thereafter acquire, as well as to the estate of decedent in the event that he predeceased her. Decedent on his part ‘promises and agrees to make a provision in his Last Will and Testament whereby the first party shall receive a bequest in the sum of $10,000.’ This is followed by the final paragraph stating: ‘The reason, purpose and object of this agreement is that the parties thereto intend to marry and become husband and wife, and each having children by a prior marriage, and each being desirous that their children shall inherit there respective property and estate, have entered into mutual or like agreements for the purpose of assuring each to the other, that they will not claim any interest in the estate of the one dying first, except as aforesaid.’

A New York Estate Lawyer said it would appear that the agreement contemplated a marriage in future which, though prohibited in this State by reason of the fact that decedent was widow’s uncle, could have been entered into validly in some other jurisdiction in which event the marriage would be entitled to recognition as valid in this State. The relationship of decedent and the widow was not meretricious. On March 23, 1945 decedent, a widower 72 years old, and the wife, a widow 57 years old, had obtained a marriage license in Brooklyn and entered into a religious marriage ceremony. They lived together for more than 15 years as husband and wife. Their marriage apparently was entered into in good faith. It was solemnized by a Rabbi who, in a statement, certified that he united the parties in marriage on March 23, 1945, and that the said widow was decedent’s legal wife. The agreement by decedent to provide a legacy for the widow being in writing satisfies the Statute of Frauds strongly relied upon by the other parties is not in point. It deals with an ante-nuptial contract which contemplated a marriage that would be invalid because of a living spouse, whereas in the instant case there was no impediment to the marriage in a jurisdiction where they could legally marry.

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A Probate Lawyer said that incidental to this proceeding to judicially settle decedent’s final account, covering the period from December 1, 1984 to July 31, 1999, is a plea for construction of paragraphs Fifth and Sixth of his will. National Bank (petitioner), the successor executor and trustee under the will, maintains that construction is necessary before final distribution can be made. Petitioner, the stakeholder of testamentary trusts created under paragraphs Fifth and Sixth, takes no position with respect to the ultimate remaindermen of the trusts.

Mr. FC (hereafter decedent) died testate on January 18, 1944. His last will and testament of February 27, 1942 was admitted to probate by this court on February 10, 1944. Decedent was survived by a daughter, M, and a son, L, his distributees. Decedent’s wife predeceased him in 1942.

An Estate Lawyer said after directing the payment of debts and expenses and leaving personal effects, real property and the sum of $1,000 to M, decedent’s will directed that the residue be divided into three equal shares. From these shares, the will established two testamentary trusts: one funded with two thirds of the residuary estate (the article Fifth Trust) and one funded with the remaining one third of the residuary estate (the article Sixth Trust).

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A Probate Lawyer said the plaintiffs, TM Inc. and Mr. D commenced this action against the defendants, Mr. and Mr. X alleging that the defendants failed to pay a real estate brokerage commission. The file reveals that after commencing this action, the plaintiffs filed with the Richmond County Clerk a “Notice of Pendency” against the defendants’ real property located at 1XX Winant Avenue, Staten Island, New York in order to secure payment of the real estate broker’s commission claimed due in this matter. The notice of pendency was dated on April 25, 2005 the same date of the summons and complaint. The plaintiffs’ filing of the notice of pendency with the County Clerk on April 26, 2005 necessitated the defendants seeking an order to show cause to cancel the lispendens (Annotation at the back of the title as to the pending issue involving the said property) of record. A hearing on the issue resulted in an order dated May 6, 2005 canceling the notice of pendency.

The court made a finding that plaintiffs’ complaint is for breach of contract and it is not one that seeks a judgment which would “affect the title to, or possession, use or enjoyment of, real property” as required by CPLR 6501 as a basis for filing a notice of pendency.

Defendants have asserted two counterclaims; one alleges that the plaintiffs have violated the Federal Debt Collection Practice Act (FDCPA) and the second alleges that the plaintiffs improperly filed the notice of pendency. Plaintiffs also seek to dismiss two affirmative defenses of the defendants, one alleging a failure of documentary evidence while the second asserts the equitable defense of unclean hands. The defendants have opposed the motion by filing a cross-motion seeking dismissal of the complaint.

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A Probate Lawyer said that the four motions made by all of the parties to set aside the jury verdict of March 22, 2008 and to enter judgments as a matter of law pursuant to CPLR §4404(a) are denied in part and granted in part.

This case arose from a July 1, 2000 motor vehicle accident where a 1998 Ford Explorer, a sport utility vehicle (“SUV”) rolled over, three and three quarter times resulting in two deaths and serious injuries to three other passengers. The vehicle was manufactured and designed by the defendant, Ford Motor Company. Ford Motor Credit Co. was the owner and lessor of the SUV. The driver and lessee, SM, died in the accident. The front seat passenger, G, was SM’s son. He sustained physical and serious emotional injuries as a result of the accident. Two of the rear seated passengers were SM’s grandsons, who were also G’s sons: B, who died one day after the accident, and E, who survived with physical and extreme emotional distress as a result of the accident. The third rear seated passenger, S, sustained serious physical, head and psychiatric injuries and settled with Ford Motor Credit Company on June 19, 2007, prior to trial for the amount of $1,750,000. S discontinued his products liability actions against Ford Motor Company.

An Estate Lawyer said that after three weeks of testimony, the jury found that the roof support system of the 1998 Ford Explorer SUV was defectively designed and found Ford liable in strict liability and negligent design, both of which were substantial factors in causing the driver, SM’s death. The jury found that the acceleration cable of the speed control system was not defective. The jury found that the two children, E and B, were not wearing their seatbelts and therefore concluded that the rear seat belts were not defectively designed causing them to unlatch upon a sustained impact, as plaintiffs demonstrated.

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A Probate Lawyer said the defendants the City of New York and the New York City Fire Department (hereinafter, “the City”), move by notice of motion for summary judgment and dismissal of the complaint as against them. Defendant hospital cross-moves for identical relief. Plaintiff, as Administrator of the Estate of an infant, deceased, and administrator, individually oppose both motions.

An Estate lawyer said that this litigation arises from the untimely death of a deceased. On July 5, 2003, while the family was hosting a barbecue in honor of their daughter and son, a fire broke out in their residence. At approximately 5:00 p.m., the mother called 911 to report the fire and realized that another son, was still inside the house. Upon their prompt arrival, New York City Firefighters found the son on the third floor, unresponsive. He was not breathing and had no pulse. The gravamen of plaintiff’s complaint revolves around the subsequent attempts at resuscitation by the Fire Department’s Basic Life Support Unit (EMTs) and the hospital t, whose efforts ultimately proved fruitless. Plaintiff commenced this action by the filing and service of a summons with complaint upon the City on or about July 13, 2004.

Brooklyn Probate Lawyers said in moving to dismiss, the City alleges that (1) they did not owe any special duty to the decedent and, therefore, are immune from liability; (2) nothing done by the municipal defendants worsened the decedent child’s condition; and (3) any negligence on the part of the City cannot be shown to be a proximate cause of decedent’s death.

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A Probate Lawyer said records reflect that for reasons unbeknownst to the court at this time, the decedent, a 19 year old female, was at a Hotel located approximately one half mile from her residence, where she resided with her mother. While at the Hotel, the decedent made her way to the roof of the Hotel where she plunged to her death. The mother filed for Limited Letters Testamentary for the estate administration, which were issued to her by the Surrogate County court in order to bring an action for a potential wrongful death action. The mother’s Verified Complaint read that at the time of the commencement of the action, she was a resident of the County. The verified complaint contains allegations of fact in support for a single cause of action for damages due to wrongful death and the decedent’s conscious pain and suffering up until her death. The defense counsel moved to transfer the venue.

An Estate Lawyer said that the mother’s counsel, whose law office is located in Kings County, selected Kings County as the venue in the Summons of this action based on the purported residence of the decedent. Yet, the Verified Complaint lists Richmond County as the decedent’s residence. Article 5 of the CPLR sets forth the rules governing proper venue. Section 503 states “the place of trial shall be in the county in which one of the parties resided when the action was commenced.” It has long been held by the courts that residency, for purposes of venue, is defined as “where a party stays for some time with a bona fide intent to retain the place as a residence for some length of time and with some degree of permanency.” It is further established that any documents or “indicia of residence acquired after the commencement of the action are irrelevant to the determination of residency,” for purposes of venue. In Siegfried v. Siegfried, the Appellate Division, Second Department stated that the court should not consider factors such as bank statements, voter registration, and a library card that came about after the commencement of the action.

An Estate Lawyer said the documentary evidence that can prove a person’s residence include driver’s license, voter registration card, and utility bills. Simple letters of correspondence sent to the purported address will not suffice. Furthermore, mere affidavits with conclusory statements, without being buttressed by ample documentary evidence, is not enough to prove a person’s residence. However, an affidavit supplemented with rent receipts, telephone bills, and lease agreements does create the “necessary indicia of residency.”

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A Probate Lawyer said the records reflect that the instant case is one wherein estate of the parties are involved for settling the dispute between them. This involves two domestic businesses located in Richmond County, owned by two persons. As a result of disagreements in their business relationship, several lawsuits were filed regarding the Businesses. The first Lawsuit involved an entity Corporation. The initial complaint in the matter alleged that one of the owners obtained majority control of and tried to remove the partner from his responsibilities in the corporation. The complaint recently amended to add claims alleging other breaches of agreements and breaches of fiduciary duty by his partner. On May 25, 2010, a temporary restraining order was granted that, pending the hearing and determination of the motion at issue, directed that 1) the owner shall not cause nor allow the corporation to make any repayment of loans or interest on loans purportedly due to him or his entity, nor enter into a new loan from him or his Entity, nor incur any debt obligation or make any expenditure without advance notice to the partner and without his partner’s written consent; 2) he shall not cause or allow the 2009 federal and/or state tax returns of the corporation to be finalized or filed; and 3) they were to immediately provide to the partner all corporate ledgers, financial statements and loan documents for the years 2008-2010.

An Estate Lawyer said the second Lawsuit which involved another entity. The allegations in the second Lawsuit were that 1) the owner wrongfully diverted a payment in the sum of $100,000, due to his partner, to the corporation without his partner’s consent; and 2) he failed to distribute the other entity’s profits to his partner and other members. After conducting hearings on the matter, the judge entered judgment in favor of the Partner. The Judge issued Orders holding that the owner was in contempt for transferring certain funds in violation of court orders, ordering him to pay his partner certain monies and directing that he was to be incarcerated if he failed to make the required payment. The owner appealed the judgments but were denied.

The third Lawsuit filed involved a third entity. In this Lawsuit, the partner alleged that the owner refused to distribute the profits. The complainant’s counsel submits that these Lawsuits establish that 1) the owner has repeatedly and improperly transferred monies between entities, to fund certain real estate projects to which the Partner does not consent; and 2) owner has attempted to use his control over the finances of these entities to pressure his partner into consenting to these transferrals. The counsel also contends that the parties in the matter at bar disagree as to whether there exists an arrangement between them that permits these transferrals; the complainant denies that such an arrangement exists.

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Page 727

145 N.Y.S.2d 727

1 Misc.2d 440

A New York Probate Lawyer said that, in this contested probate proceeding, petitioner seeks a declaration that the proceeding was commenced on December 8, 2005, before the commencement of a probate proceeding in Arizona. Objectant seeks an order dismissing the probate proceeding on the grounds that this court lacks subject matter jurisdiction (CPLR 3211 [a] [2]) and that there is a prior proceeding pending in Arizona (CPLR 3211 [a] [4]).

A New York Estate Lawyer said that, the decedent died on December 4, 2005, survived by two grandchildren. The decedent was born and raised in Brooklyn. For many years, the decedent and his wife lived in Florida, where his granddaughter lived. At some point, he and his wife moved to Phoenix, Arizona, where his grandson lived. They were living in Phoenix when the decedent’s wife died. The decedent remained in Phoenix until moving to New York in late September 2005. While living in Phoenix, the decedent executed a will, dated April 2, 2004, which left his estate to the trustee revocable trust. On the same day, he executed a trust agreement creating a revocable inter vivos trust. Under the terms of the trust, the estate passes to one of the grand children upon the decedent’s death.

A Brooklyn Probate Lawyer said that, in 2005, the decedent called his sister, and told her he wanted to return to Brooklyn to live with her. she and her daughter visited the decedent on September 27, 2005. At that time, the decedent was 95 years old and suffering from cardiac problems. He asked his sister to take him back to Brooklyn to live with her. According to the said sister, the decedent told her that he wanted to change his will, revocable trust and health care proxy before boarding the plane. On September 30, 2005, the day they were to travel to New York, he visited the offices of the law firm in Arizona and asked her to change the beneficiaries of the 2004 will and trust. The decedent executed a new will, an amendment of the 2004 trust and a health care proxy in the office. The 2004 trust was amended to provide that, upon the decedent’s death, his sister receives one half of the trust principal, his granddaughter receives three eighths of the trust principal and his grandson receives one eighth. The decedent then left immediately for the airport, without stopping to get his glasses, clothes or medicine. They traveled back to New York that day, September 30, 2005.

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A New York Probate Lawyer said in this probate proceeding, the decedent’s eldest son petitions for his appointment as the sole preliminary executor. The decedent’s youngest son opposes that application and cross-petitions for his appointment as the sole preliminary executor. The decedent’s only other distributee, her middle son, who is disinherited under the propounded instrument, supports his eldest brother’s application.

It appears from papers filed in this proceeding that the battle between the decedent’s sons commenced prior to her death. In a petition verified in March of 2010, the eldest and youngest son sought to be appointed as the guardians of the decedent’s person and property pursuant to Mental Hygiene Law. At that time, the decedent was living in her Bronx home with her youngest son who was handling her affairs pursuant to a power of attorney. Due to the decedent’s death on October 26, 2010, the guardianship proceeding was terminated without the appointment of a guardian.

A New York Estate Lawyer said that after the decedent’s death, the will was not produced until the eldest son commenced a proceeding against the youngest son to produce the will and the court entered an order on December 29, 2010 directing its production. Thereafter the eldest and the youngest son filed separate probate petitions, each of them seeking the issuance of letters testamentary solely to himself. In a brief period of harmony, the two brothers stipulated that preliminary letters testamentary would issue jointly to them for a period of 90 days. During that 90-day period, it appears that the two brothers failed to do anything with regard to either the probate proceeding or administering the five parcels of realty owned by the decedent which appear to be the primary assets of her estate. After the preliminary letters expired, the instant applications were presented to the court and the brothers continued trading accusations.

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