Estate Administration

Published on: January 26, 2015

Petitioner Filed Claim to Determine the Validity of a Deed

by Stephen Bilkis

A New York Probate Lawyer said, in a probate proceeding in which the executor petitioned to determine the validity of a deed executed by the decedent LH, the appeal is from an order of the Surrogate’s Court, Kings County, dated May 11, 2007, which granted the petition to the extent of deeming the deed to be valid.

According to a Kings County Probate Attorney, on October 16, 2000 the late Mrs. LH (hereinafter the decedent) executed a will dividing her residuary estate between her son Mr. G, her daughter Ms. RB, and seven of her grandchildren. At the time she executed her will, the decedent was the owner of real property located at XX 56th Street in Brooklyn. Almost one year later, on October 4, 2001, Mr. G executed articles of organization to form ABC Realty Co. LLC (hereinafter the LLC) for the purpose of owning, operating, and managing the real property. On the same day, G and S also signed an operating agreement, which provided that they were to be the sole members of the LLC.

A New York Estate Lawyer said that on November 2, 2001 the decedent executed a deed transferring ownership of the real property to the LLC. However, the LLC’s articles of organization were not filed with the Department of State until November 16, 2001, two weeks after the conveyance. Thus, it is undisputed that the property was purportedly transferred to the LLC before the LLC came into legal existence.

Published on: January 14, 2015

Petitioner Moves to Amend Final Accounting

by Stephen Bilkis

Probate Lawyers said that in this contested accounting proceeding, the petitioner moves for an order permitting him to amend the final accounting to include trustee’s commissions to which he alleges he is entitled. Respondent opposes the motion. For the reasons that follow, the motion is granted

A Kings County Estate lawyer said that the decedent died on May 6, 1979, a resident of Nassau County. His will and a codicil thereto were admitted to probate by decree dated May 25, 1979. The will nominates the decedent’s two daughters and his grandson as co-executors and co-trustees of the trust created under Article FIFTH of the will. Letters testamentary and letters of trusteeship issued to them. The income beneficiaries of the Article FIFTH trust are the decedent’s two daughters and the decedent’s spouse, who died only a few months after the decedent. The remaindermen of the trust are the decedent’s grandchildren. On the other hand, the Oppositor fled objections to the account.

An Estate Lawyer said that according to his attorney, the co-executor is seeking leave to amend the account to include two-thirds trustee’s commissions chargeable to principal due to co-executor for the period of the account as shown on the amended affidavit sworn to on June 17, 2009. The total amount of these commissions is claimed to be $183,602.00.

Published on: January 13, 2015

Court Reviews Previous Account with Regard to Double Commissions

by Stephen Bilkis

A Probate Lawyer said the deceased died May 24, 1905, leaving a last will and testament which was duly admitted to probate in June, 1905. The testator left a widow and one child. The provisions of the will called the attention of the Court by the appellants.

A Kings County Probate lawyer said that in 1906 the executors of the will filed in the Surrogate’s Court an account of their proceedings to November 30, 1906. On the latter date a decree was entered in effect that the executors had accounted for all the money and property of the estate which had come to their hands as executors and judicially settling and allowing the account as filed. The decree further provided that the balance of cash and personal property in the possession of the executors was the sum of $11,392,724.22; that out of the balance in the hands of the executors they retain and pay over to each executor his or her statutory commission on the said property and estate for receiving, administering, and paying over the same, the sum of $149,494.39 to each, and one-half thereon to each for receiving the same as trustees; that the executors should pay over to and transfer to themselves as trustees the balance of cash and personal property then remaining in their hands to be held and administered by them under the trusts created by the will; that they should thereafter continue to perform their duties and exercise their powers as executors under the said will in all matters of administration, sale of real property, or anything else remaining to be done, and that said executors be and they hereby are discharged and released from all liability in respect of all matters and on account of all other acts and doing embraced in the said accounting and this order and decree.

Nassau County Probate Lawyers said from year to year thereafter down to and including the year 1911 separate accounts were filed by the parties, covering their proceedings as executors and also as trustees. As executors they accounted for the proceeds of the sale of real estate and for the rents and income of the property of the estate, both real and personal. Decrees were duly made by the Surrogate’s Court settling such separate accounts, and, although they do not appear in the record, the briefs contain a statement that in each instance the decrees directed them as executors to turn over to themselves as trustees the proceeds of the sales of the real estate made by them as executors in each year, and they were therein allowed one-half the statutory commission for receiving the proceeds of the sales of real estate, one-half commissions for paying the same out as executors to themselves as trustees, and one-half commissions as trustees for receiving the same.

Published on: January 12, 2015

Court Appoints Temporary Administrator in Probate Proceeding

by Stephen Bilkis

A Probate Lawyer said the plaintiffs motion pursuant to CPLR § 1015 seeking to substitute the law firm of K&K as temporary Administrator for the Estate of Mrs. C is denied. Instead the Public Administrator of Richmond County is hereby appointed as the Temporary Administrator of the Estate of Mrs. C.

On October 7, 2006, defendant Mrs. Z died. Mrs. Z’s attorneys K&K became aware of the passing of their client on or about October 13, 2006 and thereafter notified the court and all parties. K&K contacted Mrs. Z’s surviving family members in an attempt to ascertain the name of the Estate’s Administrator and obtain a certified copy of Mrs. Z’s death certificate. Mrs. Z’s surviving family informed K&K that no administrator would be appointed. Mrs. Z’s family did not cooperate in turning over a certified copy of the death certificate until October 2, 2007. On that same day K&K sent a copy of decedent’s death certificate to plaintiffs’ attorney via overnight mail.

An Estate Lawyer said the plaintiffs now move the court to have K&K appointed Temporary Administrator for the Estate of Mrs. Z for the purpose of defending the personal injury claims brought against Mrs. Z.

Published on: January 11, 2015

Court Looks at Jurisdiction Issue in Probate Case

by Stephen Bilkis

Plaintiffs motion pursuant to CPLR § 1015 seeking to substitute the law firm of K&K as temporary Administrator for the Estate of Mrs. C is denied. A Probate Lawyer said that instead the Public Administrator of Richmond County is hereby appointed as the Temporary Administrator of the Estate of Mrs. C.

On October 7, 2006, defendant Mrs. Z died. Mrs. Z’s attorneys K&K became aware of the passing of their client on or about October 13, 2006 and thereafter notified the court and all parties. K&K contacted Mrs. Z’s surviving family members in an attempt to ascertain the name of the Estate’s Administrator and obtain a certified copy of Mrs. Z’s death certificate. Mrs. Z’s surviving family informed K&K that no administrator would be appointed. Mrs. Z’s family did not cooperate in turning over a certified copy of the death certificate until October 2, 2007. On that same day K&K sent a copy of decedent’s death certificate to plaintiffs’ attorney via overnight mail.

An Estate Lawyer said the plaintiffs now move the court to have K&K appointed Temporary Administrator for the Estate of Mrs. Z for the purpose of defending the personal injury claims brought against Mrs. Z.

Published on: January 10, 2015

Court Rules on Notice of Pendency

by Stephen Bilkis

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.

Published on: January 9, 2015

Plaintiff Moves to Vacate Prior Court Order Regarding Settlement of Proceeds

by Stephen Bilkis

A Probate Lawyer said this matter arises out of a fatal, three-vehicle accident which occurred on September 25, 2006 on Interstate 87 in Ulster County, New York. At the time of the accident, the decedent was a front seat passenger in a vehicle being operated by defendant AS which, at the time in question, was proceeding north on I-87 near the Kingston exit. At this point in time, AS was allegedly cut-off by a pick- up truck towing a horse trailer (owned and operated by defendants L and RRs, respectively) which attempted to make a U-turn from the northbound shoulder of I-87, purportedly ten feet in front of the AS vehicle. After contact with the pick-up truck, AS’s Jeep was apparently propelled into the southbound lanes of I-87, where it was struck by a vehicle owned by defendant Y and operated by defendant LJ.

There is no dispute that Mr. V died as a result of the massive injuries which he sustained in this accident. However, as shall presently appear, a dispute has arisen as to the accuracy of AS’s claim that the decedent was asleep at the time of the initial impact and, therefore, incapable of experiencing any degree of pre-impact terror or conscious pain and suffering in the above accident.

An Estate Lawyer said that on his motion for leave to intervene pursuant to CPLR 1012, 1013, CX contends that the Order of this Court, dated August 10, 2009, should be vacated pursuant to CPLR 5015, and the matter removed or transferred to the Surrogate’s Court, Richmond County, for further proceedings to judicially account for the settlement proceeds. The order in question provides, in relevant part, for the settlement of plaintiffs’ cause of action for wrongful death for the sum of $300,000.00 and the voluntary discontinuance, with prejudice, of decedent’s personal injury action. In support of his motion, CX maintains that this court’s allocation order is invalid since all of the interested parties who might be adversely effected were not joined in the compromise proceeding.

Published on: January 6, 2015

Court Decides if Plaintiff has Standing to Bring Case

by Stephen Bilkis

An Probate Lawyer said that the records reflect that a mortgagor executed a note and mortgage in favor of a company. in the principal amount of $167,475.00, secured by the premises located in New York. As alleged in the affidavit, the Vice President of Loan Documentation of the mortgagee’s Bank, the note and mortgage fell into default upon the mortgagor’s failure to make the required payment due on August 1, 2010 and thereafter. Insofar as it appears, the borrower had died intestate. Letters of Administration for the Estate of the deceased borrower were subsequently issued by the Surrogate’s Court, naming one of the decedent’s two sons in taking charge of Estate Administration. The company commenced an action to foreclose the mortgage in the County, where the property is located.The two sons answered, denying the material allegations in the complaint and asserting several affirmative defenses, including the company’s purported lack of standing.

The court ruled that it is well settled that on a motion for summary judgment in an action to foreclosure a mortgage, a plaintiff/mortgagee, as here, establishes its prima facie right to judgment as a matter of law through the production of the relevant mortgage, the unpaid note and an affidavit attesting to the mortgagor’s default. However, where standing has been drawn into question, it is incumbent upon a plaintiff/mortgagee to prove its standing in order to be entitled to any relief. “A plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced”.

A Westchester County Probate Lawyer said that in the case at bar, the primary affidavit in support of summary judgment is subscribed by a Vice President of Loan Documentation of the Bank, who affirms, based on unstated sources of personal knowledge and a review of “the books and records maintained in the ordinary course of business in serving this loan, that the Bank, is in possession of the promissory note, endorsed in blank and confirms that the mortgagee was in possession of the promissory note prior to the commencement of this action. While the foregoing, in and of itself, is lacking in sufficient factual detail to establish standing prior to the commencement of this action, the various exhibits submitted therewith include a copy of the subject note indorsed by the company to the order of the corporation., and then, in blank, by the latter. Moreover, although neither indorsement is dated, these papers also contain a written assignment of the mortgage by the original lender to the corporation, and recorded in the County prior to the commencement of this action. More important, however, on the issue of standing is the fact that this assignment of mortgage also provides for an assignment of “the notes therein described or referred to, the money due and to become due thereon with interest, and all rights accrued or to accrue under said Real Estate Mortgage”. Since it is undisputed that the Bank, is the successor by merger of the corporation, the documents constitute prima facie evidence that the Bank, was the lawful owner of both the note and mortgage at the time that the action was commenced.

Published on: January 5, 2015

Court Determines if Charging Lien Exists if Favor of Former Lawyer

by Stephen Bilkis

A Probate Lawyer said that from the records, the genesis of this litigation arose when a lawyer was representing a corporation in regard to its purchase of the premises pursuant to a written contract. The contract was dated and was an “all cash deal.” The court notes that unlike contracts in another County, the real estate contract is actually dated. The transaction was scheduled on a specific date but did not when allegedly the seller became disenchanted with the terms and upset that the lawyer was representing his sister in regard to her interest in this transaction and their mother’s estate. The owner’s sister, sometime later apparently issued a power of attorney in favor of the lawyer. Why this was relevant is a mystery in that the seller is the owner individually and not an estate. Also the seller had his own independent counsel in negotiating the contract of sale to the corporation. In any case it is conceded that the seller refused to close title as scheduled. A litigation commenced to compel specific performance. This resulted in the order of the Supreme Court, directing the seller to honor the contract and close title within thirty days of the order. In spite of achieving the legal goal for which the lawyer had been directed to commence the litigation, for some reason the corporation did not seek to enforce the judgment and compel the seller to close.

As Estate Lawyer said that later on, the corporation notified the lawyer that his services would no longer be needed to complete the closing with the seller. A second lawyer became the attorney for the corporation in regard to the purchase. At the closing of title, a written escrow agreement was entered into between the former lawyer and the principal of the corporation. The agreement directed the second lawyer to hold the sum of $10,000.00 in escrow pending resolution of the former lawyer’s claim for the legal fees incurred in representing the corporation in the contract negotiations and subsequent litigation. The agreement recites that Schwartz is asserting a “charging lien” in regard to the services he rendered on behalf of the corporation.

A Nassau County Probate Lawyer said the issues presented are; whether or not a Charging Lien Exist in Favor of the former lawyer? Whether or not retainer agreement is required?

Published on: January 4, 2015

Court Questions if Venue is Proper in Case

by Stephen Bilkis

In this action for medical malpractice, the claimants are represented by the executor of their estate.

A Probate Lawyer said the records show that one of the accused has moved the medical malpractice action to change venue pursuant to CPLR section 510(1), claiming that claimants improperly placed venue based on the current New York residence of a co-accused doctor, rather than on his residence in another county at the time of the alleged negligence. The complainant opposes, arguing that the doctor’s current residence is a proper basis for placing venue in New York County.

Hence, the issue is whether or not the venue in this action is improperly laid.