Estate Administration

Published on: January 3, 2015

Court Determines if Courts Prior Jury Verdict was Proper

by Stephen Bilkis

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.

Published on: January 2, 2015

Court Determines if Prior Contract Existed

by Stephen Bilkis

A Probate Lawyer said the plaintiff-Claimant, Mr. W, commenced this day small claims action against defendant, RAL, alleging that owing to the defendant improperly listing the premises claimant purchased as having city sewers when it did not, claimant was forced to incur the cost of installing a sewer line after closing.

Claimant testified that he was induced to initially look at, and then eventually purchase, the premises because the house was listed as having city sewers. Defendant is a licensed real estate broker and was the listing broker on the sale. Claimant stated that he was only interested in homes that had a city sewer and was shown the house by another real estate brokerage firm. Claimant asserts that after he closed on the house in March 2013, he learned that the property did not have city sewers but in fact had a septic tank system. Because the City of New York installed sewers in Woodrow Road at that time, claimant was required to spend $4,200.00 to run a sewer line from the city line in the street to his house.

A New York Estate Lawyer said that there are several problems with the claimant’s allegations. First, he testified that he worked for the New York City Department of Environmental Protection and does sewer maintenance as part of his job. Second, both he and the defendant broker’s witness testified that there were contractors installing sewer lines in the Woodrow Road area when the house was listed and when the claimant visited the premises on more than one occasion. Yet no one thought to make inquires to why the streets were being dug up. Third, claimant hired a structural engineer to prepare a report prior to entering into the contract. That report was not put into evidence. Fourth, claimant did not produce the contract of sale which he entered into with the seller which may have had a representation as to the existence of city sewers, private sewers, septic tanks or cesspools. Fifth, claimant did not produce his title report which if done in the standard manner as prepared in Richmond County, would have included municipal searches marked for information only disclosing any city related water and sewer charges assessed against the property. The lack of this information in the title report should have triggered an inquiry by all parties to the transaction. A certificate of occupancy search which may have contained information in that regard, is also a customary document provided by a municipal search.

Published on: December 18, 2014

Plaintiff Seeks to Increase Damage Amount

by Stephen Bilkis

Probate Lawyers said the defendants appeal from an order of the Supreme Court, Richmond County, which granted the plaintiff’s motion to remove the case from the Civil Court of the City of New York to the Supreme Court, Richmond County, to amend the complaint to set forth a cause of action for wrongful death and to increase the amount of damages requested.

Following an automobile accident which occurred on July 10, 1971, the plaintiff brought this action in the Civil Court of the City of New York, Richmond County, on May 24, 1972, alleging negligence on the part of the defendants and requesting a total of $14,000 damages for injury to personal property, for personal injuries sustained by his son, aged 16, and for consequential damages sustained by the plaintiff-father.

An Estate lawyer said that the two automobiles of the defendants collided, sending one of them into the parked automobile in which the child was sitting. It is conceded that he died of Leukemia on August 14, 1972. On June 25, 1974, the plaintiff, as administrator of his son’s estate, moved in the Richmond Supreme Court for leave to amend the complaint so as to assert an action for wrongful death, to increase the amount of damages requested by the plaintiff, both as administrator and parent, and to remove the case from the Civil Court to the Supreme Court, which would have jurisdiction over the increased amount claimed.

Published on: December 17, 2014

Court Decides Case Involving Probate and Bankruptcy Proceedings

by Stephen Bilkis

A Probate Lawyer said in this Estate action, the defendant moves to dismiss the plaintiff’s complaint or in the alternative an order staying the action as against him. The co-defendant cross-moves to dismiss the plaintiff’s complaint or in the alternative an order staying the action against her. The co-defendants cross- move to dismiss the plaintiff’s complaint as against them, as well as an award of costs and disbursements. The motions are granted to the extent that this matter shall be stayed pending the completion of the federal bankruptcy proceedings.

A Estate lawyer said that the defendant is a principal of a Company that has its principal place of business at New York. It is acknowledged that co-defendant was a member of company. But in support of her cross-motion to dismiss, she submits a copy of an Agreement of Sale dated June 8, 2012 wherein Defendant agrees to buy her portion of the company.

The plaintiff alleges that on or about July 27, 2011, the company entered into an agreement (Treasury Management Agreement). This agreement set forth the terms of the company’s use of Funds Transfer/Wire and Remote Check Deposit Service. The funds transfer service allowed the company to make wire transfers from its accounts with the plaintiff to accounts held at other banks. The remote check deposit service allowed Richmond Wholesale to scan and deposit checks remotely from it’s office.

Published on: December 16, 2014

Court Considers Case Reqarding Law of Perpetuities

by Stephen Bilkis

A Probate Lawyer said the question presented on this record is whether the trusts created by the will of CMR, dated June 27, 1867, are valid within the law of perpetuities, or are void for remoteness. There can be no doubt that if the testatrix, at her death, was the absolute owner of the estate embraced in the trusts, they were valid both in respect of their purposes and duration. In general character they are trusts to apply the rents, profits, and income of the trust-estate for the support and maintenance of two children of the testatrix during their lives, respectively, with remainder, on the death of either, of the share of the one so dying, to his heirs and next of kin, except that in case of the death of either child during minority, and without issue, the whole estate is to be held in trust for the survivor during life, with remainder to his heirs and next of kin; and in case of the death of both children during minority and without issue, then, on the death of the longest liver, the whole estate is given absolutely to designated beneficiaries. Under the will the estate was to vest in absolute ownership, at the furthest, within the compass of the lives of the two children. The share of each child, provided he attained majority, would be liberated from the trust on his death, and the suspension of that share would in that event be but for one life only; but if either child should die during minority without issue, there would be a further suspension of the absolute ownership of his share during the life of the survivor. As to each share, therefore, there might be a suspension for two lives, but this would be within the limit allowed by law.

An Estate Lawyer said there would be no difficulty in sustaining the limitations in the will, if the period of suspension in this case is reckoned from the death of the testatrix, and the will only is to be regarded in determining the validity of the trusts. The statutory limit of suspension of the power of alienation of real estate is two lives in being at the creation of the estate, and a minority, and substantially the same rule applies to limitations of personal property. By another section of the statute it is declared that the delivery of the grant, where an expectant estate is created by grant, and where it is created by devise, the death of the testator shall be deemed the time of the creation of the estate. If nothing is to be considered in this case except the terms of the will, and these two sections of the statute, no doubt could be entertained of the validity of the trusts in the will; but if the will was the execution of a power of appointment vested in the testatrix, and not an exercise by her, as the owner of the property devised and bequeathed, of the jus disponendi, incident to ownership, a new element is introduced, and the validity of the trusts in the will is to be considered in view of the trust-deed of January 6, 1853, and the provisions of the statute of powers. By section 128 of that statute it is declared that ‘the period during which the absolute right of alienation may be suspended by an instrument in execution of a power shall be computed, not from the date of the instrument, but from the time of the creation of the power. Section 129 declares that no estate or interest can be given or limited to any person by an instrument in execution of a power which such person could not be capable of taking under the instrument by which the power was granted; and by section 105 it is declared, in substance, that a power reserved is subject to the provisions of the article in the same manner as a power granted.

A Westchester County Lawyer said it is claimed in behalf of the respondents that the will of Mrs. CMR was merely an execution of a power of appointment reserved in the trust-deed of January 6, 1853, made between the testatrix (then CMF) of the first part, and GSR and others of the second part, and that, construing the will in connection with the trust-deed and the provisions of the statute of powers, the trusts created by the will contravened the statute, for the reason that they were limited upon the lives of persons not in being at the creation of the power, viz., upon the lives of the two children of the testatrix, who, though living when the will was made, were not born until long after the trust-deed creating the power had been executed. The consequence is claimed to follow that the will was an unlawful attempt to suspend the power of alienation upon a contingency not authorized, viz., the lives of persons not in being at the time from which, by section 128 of the statute of powers, the suspension must be computed. The trust-deed was made in contemplation of the marriage of the settlor, CMF, with GSR. Its leading purposes were to secure to the settlor the income of her property for her own benefit during the marriage, free from the control, disposition, debts, or incumbrances of her husband, and to secure the principal to her, if she survived her husband; or, in case she should die during coverture, to her appointees by will; or, if she should make no appointment, to such persons as at her death would be her heirs, under the laws of New York, as if all the property was real estate.

Published on: December 15, 2014

Court Decides Case Reqarding Distribution of Retirement Funds

by Stephen Bilkis

An Executrix in a purported will dated June 29, 1964, has petitioned for its probate. Decedent’s brother has filed objections. The other eight distributees have appeared in the proceeding but have not filed objections.

A Probate lawyer said that subsequent to probate proceeding, all nine distributees, as plaintiffs, commenced an action in the Supreme Court of Richmond County against executrix as an individual, and against New York City Employees’ Retirement System of the Board of Estimate of the City of New York.

According to the complaint, the distributees seek, in that action, to set aside a designation dated January 10, 1956, whererby the Decedent designated the said the executrix as the beneficiary of his interest in funds payable on his death by the Retirement System.

Published on: December 14, 2014

Court Hears Appeal for the Issuance of a Set Off

by Stephen Bilkis

A Probate Lawyer said in an action to foreclose a materialman’s lien, the appeal is from a judgment of the Supreme Court, Richmond County, dated November 2, 1981, which confirmed the Referee’s decision of July 7, 1981, in favor of the plaintiff and against defendant Corporation in the total amount of $64,112.81.

By order of this court dated September 13, 1982, the appeal was held in abeyance and the matter was remitted to the Supreme Court, Richmond County, with the direction that upon remittitur “Special Term should refer this matter to the Referee for a factual determination with regard to whether defendant is entitled to a ‘set-off’ or credit in the sum of $25,000, thereby reducing the principal amount of the judgment against it to that extent”. The referee’s report on remittitur, dated November 15, 1982, states that Beverly is not entitled to the $25,000 setoff.

A general construction contractor of a residential community located on Staten Island, was a joint venture comprised of defendant and another corporation. Defendant is the representative of the estate, the subcontractor employed under two separate contracts to install the plumbing in those sections of the Village designated as Loop A and Loop B. Plaintiff allegedly delivered materials to Iosue for use at the Village project, and for which it was never compensated. Its lien in the amount of $43,148.88 was timely filed on December 28, 1972. It seeks recovery of that amount from Company.

Published on: December 13, 2014

Court Decides Summary Judgment Case

by Stephen Bilkis

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.

Published on: December 12, 2014

Court Decides an Action for Ejectment of Public Administrator

by Stephen Bilkis

Probate Lawyers said the People of the State of New York, by its Attorney-General, have commenced this action in ejectment against the Public Administrator of Richmond County in his capacity as said administrator and as administrator of the goods, chattels and credits of a decease; his widow, if any; his heirs at law, devisees and distributees; and any other persons, corporate or otherwise, including unknowns, interested in or claiming any right relative to certain hereinafter mentioned real property.

A New York Estate attorney said that the plaintiff demands judgment for the immediate possession of the said real property which it is alleged was formerly owned by the decedent and of which it is claimed he was seized in fee simple and was possessed at the time of his death, on May 6, 1950.

An Estate Lawyer said at the time of the trial, the Public Administrator appeared by his attorney and withdrew his answer to the complaint. The other defendants, except as herein stated, are in default. A guardian ad litem, appointed for such of the defendants as may be infants or incompetents, and to appear as attorney for such defendants as may be in military service of the United States or have been ordered to report for induction, interposed the usual guardian’s answer in behalf of said infants and incompetents and filed a notice of appearance as such attorney.

Published on: December 11, 2014

Mother Files Limited Letters Testamentary

by Stephen Bilkis

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.”