Long Island

Published on: September 1, 2013

Probate Clears up Issue of Old Loan by Decendent

by Stephen Bilkis

In this Probate action, the decedent died leaving a will which was admitted to probate in July 2004. The decedent was survived by his four children. A New York Probate Lawyer said the will makes pre-residuary cash bequests of $45,000.00 to each child. The will further provides that the decedent’s residuary estate be divided equally among his four children. Letters testamentary issued to one of the child.

A New York Will Lawyer said that the administrator originally filed a First and Final Accounting of his proceedings covering the period May 2004 through January 2008. Thereafter, He filed a document which covers the same period covered by the First and Final Accounting. The Interim Account was verified by him nearly one year after the First and Final Account.

One of the administrator’s sibling filed objections to the accounting

Published on: August 19, 2013

Attorneys Fees Determined in Lengthy Probate Proceeding

by Stephen Bilkis

A New York Probate Lawyer said iIn related probate and miscellaneous proceedings regarding the estate of the decedent, before the court is a proposed stipulation of settlement resolving the issues in both proceedings. Because the interests of the decedent’s infant son may be affected by the settlement, the approval of the court is required (SCPA 2106). The guardian ad litem appointed to represent the interests of the decedent’s infant son has filed his final report wherein he recommends that the court approve the settlement and authorize him to enter into it on behalf of his ward.

A Nassau County Probate lawyer said that the probate proceeding has been pending in the court for over three years and the miscellaneous proceeding, a discovery proceeding pursuant to SCPA 2103, has been pending nearly three years. The proposed settlement will end both disputes and provides for the infant son to receive a 10% interest in the decedent’s home, valued at approximately $1.5 million. The other 90% interest will be held by the child’s mother. A New York Will Lawyer said the stipulation of settlement is approved, the court being satisfied that the interests of the infant beneficiary and the other interested parties will be promoted by an end to the current litigation. The decedent’s will shall be admitted to probate in accordance with the terms of the stipulation of settlement.

Queens Probate Attorneys said the court must also fix a reasonable fee for the services of the guardian ad litem. The court notes that the stipulation of settlement provides that the fee of the guardian ad litem will be a charge against the general estate. 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. 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”.

Published on: August 2, 2013

Petitioner Challenges Validity of Tax Assessment

by Stephen Bilkis

In this estate case, New York Probate Lawyer said that a hybrid proceeding pursuant to CPLR article 78, inter alia, to review real property tax assessments for tax year 2008 and action for a judgment declaring that certain undeveloped parcels of real property owned by the petitioner/plaintiff were unlawfully assessed at nine times their values, the petitioner/plaintiff appeals, as limited by its brief, from so much of an order and judgment (one paper) of the Supreme Court, Orange County, dated July 15, 2009, as granted the motion of the respondents/defendants, as Assessor for the Town of Goshen, and the Town of Goshen, in which the respondent/defendant School District joined, pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition/complaint insofar as asserted against each of those respondents/defendants, and dismissed the proceeding and action insofar as asserted against each of them.

A New York Will Lawyer said that, also in an action pursuant to General Municipal Law § 205-e to recover damages for personal injuries, the defendant 1299 Eastern, LLC, appeals from so much of an order of the Supreme Court, as granted that branch of the plaintiff’s motion which was for leave to renew his opposition to its prior motion for summary judgment dismissing the complaint insofar as asserted against it, which had been determined in a prior order dated August 11, 2006, and upon renewal, vacated the order dated August 11, 2006, and denied the motion for summary judgment.

Long Island Probate Lawyers said the issue in this case is whether the subject property of the estate were unlawfully assessed.

Published on: July 29, 2013

Probate Court Analyzes Landlord Tenant Relationship

by Stephen Bilkis

A New York Probate Lawyer said this is an appeal from an order of the County Court of Delaware County entered June 23, 2006, which, among other things, dismissed petitioner’s application, in a proceeding pursuant to RPAPL article 7, to recover possession of certain real estate property. In August 2005, the parties entered into a written contract for the sale of certain real property by petitioner to respondent. Respondent took possession of the property and, when he failed to pay rent and taxes and maintain homeowner’s insurance as allegedly required by the parties’ agreement, a New York Estate Lawyer said that petitioner commenced an eviction proceeding in the Justice Court of the Town of Colchester, Delaware County. In settlement of that proceeding, the parties entered into a written “Rental Agreement” providing that respondent, as “tenant,” would maintain possession and pay $1,000 owed for back rent and $1,000 monthly for rent thereafter, plus $95 for taxes and $40 for homeowner’s insurance as additional monthly “rent.” The rental agreement further stated that respondent was to obtain a mortgage commitment by December 2005 and, if he failed to do so, the prior contract of sale would be “cancelled” and petitioner, as “landlord,” would be entitled to a warrant of eviction.

A New York Will Lawyer said that, after respondent failed to obtain a mortgage commitment, petitioner obtained a warrant of eviction in Justice Court awarding him possession of the property on the ground that respondent “stipulated to a mortgage commitment which has not been obtained.” Upon respondent’s appeal, County Court concluded that Justice Court did not have subject matter jurisdiction, dismissed the petition and rescinded the amended warrant of eviction. Petitioner appeals and we now affirm.

The issue in this case is whether petitioner can recover possession of the said real estate property which is the subject of the litigation.

Published on: July 6, 2013

Plaintiff Petitions for a Rent-Stabilized Lease and Lease Renewal in Perpetuity

by Stephen Bilkis

This is an action for breach of an illegal oral contract to issue plaintiff a rent-stabilized lease and lease renewals, in perpetuity. The complaint filed in April 2004 asserts a right to a renewal lease under a tenancy created by a purported 1992 verbal agreement with defendant landlord’s principal. A New York Probate Lawyer said that the plaintiff allegedly paid $50,000 in consideration of “his understanding and agreement that he would have the right to remain in the apartment for as long as he cared to rent it,” in apparent disregard of whether the apartment was to be used as his primary residence. Defendant alleges that plaintiff maintains his primary residence in Florida.

A New York Wills Lawyer said that, defendant previously brought a holdover proceeding on non-primary residence grounds, which had been pending in Civil Court for two months when plaintiff commenced this action alleging breach of the parol agreement and seeking specific performance and monetary damages of $500,000. A New York Estate Litigation Lawyer said that, plaintiff’s first cause of action seeks specific performance and a permanent injunction against his eviction. The second and third causes of action allege breach of the 1992 oral agreement and seek monetary damages of $500,000 against defendants, respectively, for failing to offer plaintiff a renewal lease in January 2004 and for refusing to extend the term of the lease. The fourth cause of action seeks recovery of the $50,000 paid by plaintiff in 1992, asserting that such payment constitutes an illegal rent overcharge.

A Queens Probate Attorney said that, in the pending Civil Court holdover proceeding to recover possession of the subject dwelling unit, defendant alleged that plaintiff does not use the premises as his primary residence and, apparently, never has. However denominated, the present action seeks to impose upon defendant the obligation to continue the statutory tenancy indefinitely. Because the right to lease renewal can be adjudicated in the Civil Court proceeding and because it is dispositive of the asserted breach of contract, the complaint was properly dismissed on the ground that there is another action pending.

Published on: July 2, 2013

Court Hears Action for Ejectment

by Stephen Bilkis

Two cases were brought before the court for resolution.

In the first case:

On 24 July 2006, the Supreme Court of New York County rendered judgment granting the defendant’s motion for summary judgment only to the extent of precluding plaintiff from asserting any claims for legal fees incurred in the prosecution of the action, and denied the defendant’s application to dismiss plaintiff’s claims for consequential damages based on the alleged breach of duty. The defendant appealed.

Published on: June 29, 2013

Court Determines How Residuary Bequest Shall Be Made

by Stephen Bilkis

Two probate proceedings were brought before the court for resolution.

A New York Probate Lawyer said in the first case, the Court was required to determine the manner in which payment of the residuary bequest shall be made. As provided for under the will’s eleventh article, the residuary estate was bequeathed to a resident of Poland to be hers absolutely and forever. A provision followed to the effect that she would go to New York City to receive payment.

Here, the language requiring that the payment be made in New York City must be construed as a precatory provision in no manner affecting the absolute nature of the bequest made. As per written request, the executor may make payment of the said legacy by the appropriate transfer of the funds to the said legatee after 10 July 1962 when she shall have attained her majority, in the manner set forth by the Court in the case entitled Matter of Tybus’ Will.

Published on: June 4, 2013

Executor of Will Sued

by Stephen Bilkis

In a probate proceeding, the petitioner woman appeals from an order of the Surrogate’s Court dated October 16, 2007, as, after a hearing, granted those branches of the motion of the opponent man, which were to disqualify the petitioner from serving as executor for the estate of a woman and to reinstate letters of administration previously issued to the opponent man.

A New York Probate Lawyer said the court ordered that the order is reversed with costs, that branch of the motion of the opponent man, which was to disqualify the petitioner woman is granted only to the extent of requiring the petitioner to retain new counsel for the estate and that branch of the motion is otherwise denied, that branch of the motion which was to reinstate letters of administration previously issued to the opponent man is denied, and the matter is remitted to the Surrogate’s Court for further proceedings.

The right of a testator or the person who made the will to designate, among those legally qualified, who will settle his or her affairs, is not to be lightly discarded. However, the Surrogate Court may disqualify an individual from receiving letters of administration where friction or hostility between such individual and a beneficiary or a co-administrator or co-administratrix, especially where such individual is at fault, interferes with the proper estate administration, and future cooperation is unlikely.

Published on: December 26, 2012

Court Interprets Labor Law Sect. 240(1)

by Stephen Bilkis

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Whelan, J.), entered September 2, 2009, which, upon a jury verdict, and upon the granting of the motion of the defendant Swiss Ranch Estates, Ltd., in effect, pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1), upon the denial, in effect, of his motion pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on that cause of action, and upon the denial of his motion pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law or, in the alternative, to set aside the jury verdict as contrary to the weight of the evidence, is in favor of the defendant Swiss Ranch Estate, Ltd., dismissing the complaint insofar as asserted against that defendant.

A New York Probate Lawyer said the plaintiff, who was preparing to install insulation at a home being constructed on property owned by the defendant, Swiss Ranch Estate, Ltd. (hereinafter Swiss Ranch), fell and was injured when a set of stairs connecting the first floor of the home to the garage collapsed beneath him as he stepped onto it.

A Suffolk Estate Litigation lawyer said that, the plaintiff commenced the instant action alleging, inter alia, violations of Labor Law §§ 240(1) and 241(6). At trial, the Supreme Court granted Swiss Ranch’s motion, in effect, pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1), and denied, in effect, the plaintiff’s motion pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on that cause of action. The jury returned a verdict in favor of Swiss Ranch on the remaining cause of action, which alleged a violation of Labor Law § 241(6). The plaintiff moved to set aside the verdict and the Supreme Court denied his motion. A judgment was entered in favor of Swiss Ranch and against the plaintiff, dismissing the complaint insofar as asserted against it. The plaintiff appealed.

Published on: December 23, 2012

Court Rules on Complex Estate Litigation Matter

by Stephen Bilkis

The plaintiff, an undocumented alien from Ecuador, immigrated to the United States in 2000, and was hired as a construction worker by the third-party defendant, City Wide Building Corp. Plaintiff was working on a construction project in which town houses were being built by the defendant Wildflower Estate Developers, Inc., the owner of the property, which acted as its own general contractor. Wildflower had hired City Wide to do carpentry work, and had hired the defendant Classic Construction to do roofing work. A New York Probate Lawyer said the plaintiff was performing his work while standing on a makeshift scaffold, which consisted of two layers of 2-inch-by-10-inch boards, supported at the ends by beams which were part of the structure being built. A bundle of shingles weighing roughly 80 pounds, which had been left on the sloped roof near an opening that had been created for a skylight, fell through the opening and struck the plaintiff in the back. The impact caused the boards on which the plaintiff was standing to break, and the plaintiff fell approximately 25 feet to the basement floor. The plaintiff sustained severe injuries, which rendered him a paraplegic.

A New York Estate Litigation Lawyer said that, the plaintiff commenced this action against Wildflower and Classic, asserting causes of action based on common-law negligence and violations of Labor Law §§ 200, 240 (1) and § 241 (6). The defendants asserted cross claims for indemnification against each other. Wildflower commenced a third-party action for indemnification against City Wide, and City Wide asserted a counterclaim against Wildflower and a cross claim against Classic.

Brooklyn Probate Lawyers said the plaintiff moved for summary judgment on the issue of the defendants’ liability pursuant to Labor Law § 240 (1). Wildflower cross-moved for summary judgment on its cross claims against Classic, on its third-party cause of action against City Wide, and dismissing the complaint insofar as it sought damages for lost wages.