Articles Posted in Suffolk County

Probate Lawyers said that records reveal that in an action to impress a trust upon funds on deposit claimed to be the property of the father, the father moved to enjoin the his daughter, and the banks in which the moneys are deposited, from withdrawing or in any manner disposing of the same. During the pendency of the motion the father died. The father’s will, which was admitted to probate, named the daughter as the sole legatee of the father. The daughter now cross-moves to have the action discontinued and to vacate the temporary stay contained in the order to show cause which brought on the original motion. The executor of the deceased’s estate, who is also the daughter’s attorney, refuses to continue with the action and joins in asking for the relief sought by daughter. The sole objectant to the cross-motion is the attorney for the father in this action who claims a lien for services rendered herein and moves by way of separate petition to impress such lien under section 475 of the Judiciary Law.

A New York Estate Lawyer said that the father’s action involved approximately $30,000. Immediately after the service of the summons and complaint, together with the motion papers containing the stay, the father and his daughter arranged for a settlement. The father notified his attorney to discontinue the action. To work out the mechanics of the settlement the father’s attorney adjourned the motion containing the stay but in the meanwhile the father died. The terms of settlement provided that the daughter would retain the bulk of the money in dispute except that $1,300 would be turned over to the father and that she would pay the funeral, doctor’s and hospital bills in connection with her late mother’s last illness and funeral, which amounted to approximately $1,800. The attorney asks for a lien in an amount of $6,000 to $7,500. No agreement between the attorney and the father had been made with respect to the attorney’s fees. Admittedly the estate of the father is in sound financial condition, having upwards of $100,000 exclusive of the moneys involved in this action, and it is willing to pay the attorney’s just claims. Under these circumstances the wishes of the father to discontinue the action should be respected and given effect.

Westchester County Probate Lawyers said that it was was aptly said in Lee v. Vacuum Oil Co.: ‘We are of the opinion that the existence of such a lien in favor of the attorneys does not confer a right on them to stand in the way of a settlement of an action which is desired by the parties, and which does not prejudice any right of the attorneys. We do not think that such an agreement deprives a party of the right to control the management of his own case, and to determine when the litigation shall cease, and how far it shall be extended. The client still remains the lawful owner of the cause of action, and is not bound to continue the litigation for the benefit of his attorneys when he judges it prudent to stop, provided he is willing and able to satisfy his attorney’s just claims. In fact the lien under the agreement, was intended for and operates only as security for the attorney’s legal claims, and, unless those are prejudiced by the client’s contract, she has unrestricted control of the subject of the action, and the terms upon which a settlement shall be effected.’

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A Probate Lawyer said on the records, this is a motion by claimants to dismiss the petition by the executrix for disallowance of their claims for accounting services allegedly rendered to testator. The ground for the motion is that this court was ousted of jurisdiction to adjudicate the claims because of the civil court action on the claims brought by claimants against the estate within 60 days after their rejection by the executrix. The opposition is based on the fact that the claims had been presented once before to the executrix, as preliminary executrix and rejected by her as such, and that the civil court action was not commenced within 60 days after such prior rejection, thereby requiring determination of the claims in this court either upon the accounting or, as requested, in this proceeding.

The sole issue involves the validity and effect of the prior presentation of the claims and rejection thereof by executrix as preliminary executrix. Claimants contend that as preliminary executrix, she had no power to receive and reject claims; that they were not bound by such rejection; that only the presentation of the claims to executrix was valid and that they were within their rights to commence the civil court action within 60 days from date of rejection by executrix. The two cases cited by claimants do not concern the issue at hand, nor do they in any respect support claimants’ argument. In the first case the court held in abeyance the executor’s application to disallow the creditor’s claim pending expiration of the short statute of limitations in order to afford the creditor an opportunity to sue before such expiration. The second case, decided by this court, discusses the statutory powers of a preliminary executor and stresses that they are wider than those of a temporary administrator. If anything, that decision leads to the conclusion that rejection of a claim by a preliminary executor is as effective and binding as his other functions in the administration of the estate, subject to specific restriction by statute or court order of which none is present here bearing upon the issue.

The executrix relies upon Titus v. Poole, wherein a claim based on fraud was presented to the executors and rejected, whereupon civil action thereon was commenced promptly but resulted in a non-suit. Thereafter the claim was presented to the executors again, based upon breach of warranty. After its second rejection action thereon was commenced promptly but more than six months (the then applicable limitation) after the original rejection. The court said: ‘The plaintiff, therefore, by the presentation of his original claim, under the statute subjected himself to the conditions which attached on its rejection, and thereupon the statute commenced to run against any cause of action founded upon the transaction embraced in the claim, whether an action for deceit or for breach of warranty. The party who presents a claim which is rejected cannot be permitted to evade the statute of limitations by successive presentations of claims founded on the same transaction, but varying in form or detail.’ However, the short statute of limitations, otherwise a bar to the action, was held inapplicable because the case was brought directly within the saving provision of another statute permitting a complainant whose action was terminated by non-suit to commence a new action within a prescribed period of time after judgment, with which complainant had complied. But the quoted rule is applicable in the instant matter where no saving statute is involved, and SCPA 1810 bars claimants’ pending civil court action, provided the earlier rejection of the claims by a preliminary executor is binding and effective.

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A Probate Lawyer said that according to sources, this is a partition action in which defense move, pursuant to Rule 107, subdivisions 2 and 3 of the Rules of Civil Practice, to dismiss the complaint on the grounds that the complainants have no legal capacity to sue and that there is another action pending between the same parties for the same cause. The issue of legal capacity to sue presented here may be determined in construction of paragraphs ‘Third’ and ‘Tenth’ of the will, the basis for the action in partition. Paragraph ‘Third’ of the will devises two parts of the remainder of the estate to the defendant and one part each to the complainants.

Paragraph ‘Tenth,’ subdivision 7, provides that the executors may sell or exchange any property (except any specifically bequeathed herein) at public or private sale at such price for cash or upon credit or partly for cash and partly upon credit, and generally upon such terms as my executors may deem proper and to make and deliver any and all instruments in writing necessary or convenient for any such purpose or purposes’.

A New York Estate Lawyer said that the defense contend that the above quoted power to sell is tantamount to a devise to the executors with a direction for sale and that under the circumstances an equitable conversion of the real estate into personal property occurred barring a partition action. The facts contained in the authority cited by defendants are clearly distinguishable from the situation presented herein. The underlying principle of equitable conversion hinges upon the language and the expressions used by the testator in the direction of sale of the real estate. In the absence of an imperative direction to sell, there can be no equitable conversion. As stated in White v. Howard: ‘To constitute a conversion of real estate into personal, in the absence of an actual sale, it must be made the duty of and obligatory upon the trustees to sell it in any event. Such conversion rests upon the principle, that equity considers that as done which ought to have been done. A mere discretionary power of selling produces no such result.’

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A Probate Lawyer said this is a motion to substitute the executor of the Last Will and Testament of the deceased as plaintiff herein and to permit the said Executrix upon substitution to serve an amended complaint to include therein an action for wrongful death; and to serve an amended bill of particulars.

A Kings County Estate lawyer said that the action was commenced on July 31, 1957 to recover damages for personal injuries allegedly sustained in an accident on December 14, 1956. Issue was joined on August 20, 1957 and on February 12, 1958 a bill of particulars, verified was served on defendants. In February, 1958, a note of issue was served for the March 1958 Trial Term of this Court. The deceased died on February 16, 1958. His Last Will and Testament was admitted to probate and the plaintiff was appointed Executrix on December 14, 1958. The sole excuse offered for the failure to have moved previously for the relief sought herein is that it appeared to plaintiff that defendants would possibly settle the action for personal injuries.

The branch of the motion to substitute the executrix as plaintiff in this action is granted.

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.

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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.

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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.

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