Bronx

Published on: October 10, 2013

Court Discusses Insurance Claim for Real Property

by Stephen Bilkis

Respondent Estate Company is the owner of commercial rental property located at 33 West 19th Street in Manhattan. Respondent had a commercial property insurance policy with appellant Insurance Company which included “Builders’ Risk Coverage,” covering damage to its property while undergoing renovation. A New York Probate Lawyer said that during the policy period, the roof of its building was opened in order to perform construction work. Inclement weather caused rain to enter the building through the roof opening, resulting in extensive damage to the property.

A New York Estate Lawyer said that, shortly after the occurrence, respondent claimed it promptly notified appellant of the loss. According to the respondent, however, appellant failed to investigate or adjust the claim until several weeks later. A New York Estate Litigation Lawyer said that, Appellant then denied the claim three months after that, stating that respondent’s loss was the result of repeated water infiltration over time and wear and tear rather than from a risk covered under the builders risk policy provision.

A New York Will Lawyer said that, respondent commenced this action against appellant, alleging that it breached the insurance contract by failing to properly investigate the loss and denying the loss as not covered under the policy. Respondent sought both direct and consequential damages that it claimed stemmed from appellant’s breach.

Published on: September 28, 2013

Brother Battles Sister Over Father’s Estate

by Stephen Bilkis

A man died at the age of 71 years and his wife, who had been battling cancer, also died the day before his own death. The deceased man’s successors are his children.

A New York Probate Lawyer said at the examination, the ten passbooks, the deceased man’s hospital records, the deceased man’s spouse’s hospital records, and the man’s daughter’s examination in the contested probate proceeding were admitted in evidence. Almost the entire balance in eight of the accounts had been withdrawn shortly prior to the death of the deceased man and the entire balance had been withdrawn from two accounts.

The accounts were payable as to either the deceased man or his spouse or the survivor in trust for the man’s daughter, to either the deceased man or his spouse or the survivor in trust for their granddaughter, to either the deceased man or his spouse or the survivor in trust for the son of the deceased man and to the deceased man or his spouse or the survivor.

Published on: September 24, 2013

Court Rules on Setting Fees for Legal Counsel of the Executor

by Stephen Bilkis

A New York Family Lawyer said in this uncontested accounting proceeding are the issues of the fees of counsel for the executor, accountant’s fees and reimbursements to the executor of sums advanced by the counsel.

A woman died as resident of Massapequa, New York. She was survived by her son, the petitioner and her daughter. Her will of September 30, 1970 and a codicil thereto dated June 22, 1972 were admitted to probate and letters testamentary were issued to the petitioner. A codicil is a document that amends, rather than replaces, a previously executed will. The decedent’s will provides that the residuary estate be divided equally between the two children but the daughter, if unmarried, will be given a two year right to occupy the decedent woman’s Massapequa home provided she pay real estate taxes. The decedent’s daughter resided in the premises until late August, 2005 and the estate sold the property on February 14, 2006.

A New York Will Lawyer said as with any request for a fee, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal fees rendered in the course of an estate regardless of a retainer agreement. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate Court is required to exercise his or her authority with reason, proper discretion and not arbitrarily.

Published on: September 7, 2013

Court Reviews Details of Final Accounting

by Stephen Bilkis

Before the court is the first and final account of A as ancillary executor of the estate of B; an estate litigation. The court is asked to approve attorney’s fees, commissions, reimbursement of expenses for the estate administration and the settlement of the account.

A New York Probate Lawyer said on 3 May 2004, the decedent, B, died. B left a will dated 13 February 2001. At the time of her death, the decedent was domiciled in Florida. Ancillary letters testamentary issued to A on 18 July 2005. The accounting covers the period 3 May 2004 to 21 April 2009. An amended accounting covering the period 3 May 2004 to 22 December 2009 was filed on 5 February 2010. The amended accounting shows principal charges to the accounting party of $829,804.35. C, a $10,000.00 legatee and the beneficiary of fifty percent (50%) of the residuary estate filed objections to the accounting and the amended accounting. The ancillary executor is the beneficiary of the other fifty percent (50%) share of the residuary estate. By instrument dated 2 December 2010, C withdrew his objections to both the first account and the amended account.

A New York Wills Lawyer said with respect to the issue of attorneys’ fees, the court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of an estate as held in Matter of Stortecky v Mazzone, Matter of Vitole and Matter of Phelan. While there is no hard and fast rule to calculate reasonable compensation to an attorney in every case, the Surrogate is required to exercise his or her authority with reason, proper discretion and not arbitrarily as was also held in Matter of Brehm and Matter of Wilhelm.

Published on: August 31, 2013

Court Discusses Conflict of Creditor Acting as an Administrator

by Stephen Bilkis

In this Estate Litigation action, a creditor of the deceased filed a petition. Petitioner asks the court to issue limited letters of administration to the Public Administrator of Nassau County so that he can defend the estate against creditor’s mortgage foreclosure action against decedent’s residential real property. The petition avers that the outstanding mortgage is in the amount of $373,954.81 and that there are no other outstanding debts or funeral expenses.

A New York Probate Lawyer said that deceased died sometime in September 2007 while visiting El Salvador. According to the petition before the court, decedent was survived by his wife and two minor children, all of whom are citizens and residents of El Salvador. The petition does not contain street addresses for these non-resident distributees. The petition further reflects that decedent was also survived by one adult child, who resides in decedent’s home, which is the subject of the foreclosure action underlying this petition.

Citation issued listing the wife and the Public Administrator, and was returnable. Affidavits filed with the court indicate that the citation was served. An affirmation in support of amending the petition and dispensing with service on wife was filed by counsel on behalf of the Bank one day prior to the return date of the citation. Counsel for petitioner affirms that the daughter advised his office that the wife lives in El Salvador but that the child was unable to provide the wife’s address. Counsel avers that wife’s residency in El Salvador was confirmed by the process server’s unsuccessful attempt to serve citation on the wife at decedent’s home. Attached to counsel’s affirmation is an affidavit of due diligence that reflects that in addition to attempting to serve the wife at decedent’s last address, counsel’s staff also ran a computer search for the wife using the on-line telephone directory for El Salvador, but did not find a listing for the wife’s name. The affidavit concludes by stating that “deponent duly exhausted all efforts to obtain jurisdiction over the defendant”

Published on: August 20, 2013

Court Decides Property Ownership in Light of Two Separate Wills

by Stephen Bilkis

A New York Probate Lawyer said in an action transferred to this court from Supreme Court, Nassau County, defendant moves for an order directing the County Clerk of Nassau County to cancel a notice of pendency filed in connection with the action and for an order quieting title in the defendant and for such other relief as to the court seems just.

A Nassau County Estate lawyer said that defendant is the grandson of plaintiff, the decedent in the probate proceedings currently pending before this court. Decedent’s daughter is representing the estate in the Supreme Court action in her capacity as preliminary executor. A brief recitation of the essential allegations in the pending proceedings and the identities of the parties involved may facilitate an understanding of the court’s decision on the instant motion.

The decedent and her husband took title to the subject premises in New York by deed. The deed identifies the grantees as the spouses thus presumptively creating a tenancy by the entirety. The husband died in November 1996. A New York Will Lawyer said that assuming the validity of the tenancy by the entirety, the decedent became the sole owner of the premises upon the husband’s death.

Published on: July 7, 2013

Court Discusses Criminal Intention in Will Forgery Case

by Stephen Bilkis

This was a certiorari case filed before the court by the petitioner, a former war veteran, who was charged and indicted for conversion of government property.

A New York Probate Lawyer said the large tract of Michigan land was used by government for practice bombing range where the Air Force dropped simulated bombs at the ground targets. The range was also known for extensive hunting of deer. The used bomb casings were cleared from the targets and were piled up and dumped in heaps for several years and was exposed to weather conditions and became rusted.

The petitioner went deer hunting in the area and salvaged some of the casings as a means to lessen his expenses for the trip. He loaded three tons of the used bomb casings into his truck and flattened them by a tractor at a nearby farm. He sold the flattened casings to a market. He was a fruit stand operator and a trucker and scrap iron collector.

Published on: July 1, 2013

Court Discusses Labor Law Issue

by Stephen Bilkis

The defendant third-party plaintiff, corporation-one, owned real property where it was building a group of town houses. It hired the third-party defendant, corporation-two, to perform carpentry work and hired the defendant corporation-three to perform roofing work.

A New York Probate Lawyer said the plaintiff, an undocumented alien, was an employee of corporation-two. While standing on a makeshift scaffold, constructing a staircase between the second and third floors inside one of the new townhouses, the plaintiff was struck by a package of shingles that fell from the roof through an opening created for a skylight. The impact caused the scaffold to collapse, and the plaintiff fell to the basement, resulting in severe and permanent injuries, broken bones, head and neck injuries, and the like.

Consequently, a New York Will Lawyer said the plaintiff commenced a personal injury against corporation-one and corporation-three and sought to recover damages for the injuries he sustained in the aforesaid construction accident. Plaintiff asserted causes of action based on common-law negligence and violations of the Labor Law. In a cross claim against corporation-three, and in a third-party action against corporation-two, corporation-one sought contractual and common-law indemnification.

Published on: December 25, 2012

Court Discusses Liberal Interpretation of Lien Law

by Stephen Bilkis

Defendant Neptune Estates, LLC (“Neptune”), owner of 380 Neptune Avenue, Brooklyn,, NY (“Property”), entered a contractor’s agreement with defendant Big Poll Construction, Inc. (“Big Poll”) whereby Big Poll would act as the general contractor on a construction project on the Property (“Project”). In February 2009, plaintiff entered two subcontractor agreements with Big Poll whereby plaintiff agreed to perform the structural steel work, masonry, and concrete slabs on the Project.

A New York Probate Lawyer said that Neptune alleges that on or about February 22, 2009, Neptune removed Big Poll for cause and hired non-party Future City Plus, Inc. (“Future City”) to act as the new general contractor on the Project. A construction contract between Neptune and Future City was executed. On March 15, 2009, plaintiff entered two subcontractor agreements with Future City whereby plaintiff was to be paid $181,000 and $191,000, respectively, for the structural steel and masonry and concrete slabs on the Project. Neptune alleges that Future City subsequently terminated these subcontracts with plaintiff for cause on December 15, 2009.

A Kings Estate Litigation lawyer said that, exactly nine months after Future City entered the contractor agreement with Neptune, plaintiff filed a mechanic’s lien (“January Lien”) against the Property and, pursuant to Lien Law § 9(3), plaintiff identified the person with whom the contract was made as “Big Poll & Son Construction, LLC and Future City Plus, Inc.”. After Neptune moved to discharge the January Lien, Justice Bunyan vacated the January Lien without prejudice in a short form order with the consent of the parties. The order indicated that “a new Mechanic’s Lien may be filed in a timely manner. This is without costs to any party.” On April 1, 2010, plaintiff filed a second mechanic’s lien (“Lien”) and identified the person with whom the contract was made as “Big Poll & Son Construction, LLC. There may be a claim against the successor on the project, Future City Plus, Inc., if this company agreed to assume the obligation of its predecessor.” This is the only substantive change from the January Lien other than the identity of the plaintiff’s attorney and the signatories to the Lien.

Published on: December 17, 2012

Court Determines the First and Final Account for the Administrator

by Stephen Bilkis

The Facts of the Case:

On 22 February 2004, a resident of Hicksville died with a will dated 6 November 2002, months after a guardian was appointed on her behalf under Mental Health Law Article 81. The decedent left all of her property, other than a $15,000.00 bequest to a corporation, to “A”, to the exclusion of her family members. The will named “X” as executor and after he offered the will for probate it was revealed that he had a felony record, making him ineligible to serve as a fiduciary. Thus, on 2 May 2005, “X” renounced his appointment. The nominated successor to the named executor had previously renounced her appointment as well.

On 4 May 2005, “A” petitioned the court for letters of administration, for estate administration (estate litigation). However, “A” also had a felony record and was ineligible to serve. Therefore, on 9 June 2005, the court appointed the Public Administrator of Nassau County as temporary administrator. A New York Probate Lawyer said that the decedent’s distributees appeared and filed objections to the probate of the will, and notices of appearance were filed on behalf of “A”, the New York State Attorney General and the aforementioned corporation. On 22 November 2005, all of the interested parties entered into a stipulation of settlement. On 1 February 2006, the will, as reformed and restated by the settlement agreement, was admitted to probate, and full letters of administration, were issued to the Public Administrator. Under the terms of the stipulation, articles second and fifth of decedent’s will were reformed so that three of the decedent’s distributes will share in 2/3 of the decedent’s real property and her residuary estate; the remaining 1/3 will pass to “A”; that the decedent’s real property will pass to these parties in kind, so as not to be subject to a commission, and that the property would be sold and the proceeds held in an attorney’s escrow account; and that before any distributions are made to the interested parties from the escrow account, the sales proceeds will be used to pay the bequest to the aforesaid corporations, the commission of the Public Administrator, and all debts, fees and estate administration expenses of the estate.