New York City

Published on: May 30, 2013

Petitioners Seek to Revoke Probate Petition

by Stephen Bilkis

The Facts of the Case:

On 26 October 2000, a decedent died with a Last Will and Testament dated 23 March 1995. Under the will, the decedent left her estate to her two sisters, A and B, or the survivor; named A as executor and B as successor. A predeceased the decedent without issue, thus, the entire estate passed to B.

Sometime in 2005, B petitioned for the appointment of a guardian of her property. The court, finding that B had a history of poor judgment with regard to her real and personal property management, appointed the petitioners, X, a niece, and Y, Esq., as guardians of B’s property. Consequently, in May of 2007, the judge authorized petitioners to petition to probate the 1995 will. By this time, the original could not be located and the petitioners petitioned to probate a copy of the 1995 will as a lost will. The affidavit of X stated that she located the copy among the decedent’s important papers after her death; that while the decedent must have had the original will, her house had been sold and the purchaser threw away all of her papers. The affirmation of Y also stated that after the decedent’s death, her home was taken over by a former handyman of B, who threw away all of the decedent’s papers. Allegedly, the instrument was prepared by an attorney, who supervised its execution and was a subscribing witness, and has filed an affirmation of due execution.

Published on: May 28, 2013

Court Decides Appropriate Legal Fees in Estate Litigation Case

by Stephen Bilkis

The Facts of the Case:

On 2 October 2005, a resident of Sands Point died with a will dated 6 June 1996. He is survived by his wife, his children, A, B and C, and his granddaughter, X, the infant daughter of a predeceased son, D. On 21 September 2006, the will was submitted for probate (will contest proceeding) and letters testamentary issued to the decedent’s wife, the decedent’s daughter, A, and the decedent’s brother. On 23 April 2008, A and the decedent’s brother filed their account, which was subsequently amended and supplemented. Thereafter,a New York Probate Lawyer said a guardian ad litem was appointed by the court to represent the interests of X. The administration and the account reflect ongoing discord between the wife and the decedent’s other fiduciaries, A and the brother, dominated by conflict over the computation of the wife’s elective share. Ultimately, the parties executed a stipulation, receipt, release and refunding agreement which resolves all of the disputed issues other than the legal fee paid from estate assets to an attorney, who provided legal services to A and the brother at the onset of the administration but whom they later replaced. The stipulation provides that for purposes of calculating the wife’s elective share, the gross estate is valued at $2,115,942.00; that the expenses paid to date, plus the amount reimbursable to the wife for administration expenses which she incurred, total $438,817.00. The parties agreed that the fees of their current attorneys and that of the guardian ad litem be fixed by the court.

The Issues of the Case:

Published on: January 25, 2013

Probate Court Discusses Hold Over Proceedings

by Stephen Bilkis

In a court proceeding, a complainant filed a motion to stay pending the determination of an appeal from an order of the civil court. Upon the papers filed in support of the motion and the papers filed in opposition, the court consequently ordered that the motion is granted on condition that the appeal will be completed. New York Probate Lawyers said the complainant however was directed to pay the opponent any and all arrears in rent and/or use and occupancy at the rate previously payable as rent within 10 days from the date of the decision. They also need to continue to pay the opponent’s use and occupancy at a like rate as it becomes due. The court further ordered that in the event that any of the above conditions are not met, the court, on its own motion, may vacate the stay, or the opponent may move to vacate the stay on three day’s notice.

In another case, another appeal was also filed from an order of the civil court. The order, insofar as appealed from, denied the branch of the tenants’ motion in seeking an award of attorney’s fees.

The landlord initiated the holdover proceeding after terminating the tenancy based upon the tenants’ failure to cease using the basement portion of the apartment as a living room. Based on records, the said usage had resulted in the issuance of a violation by the department of buildings. Thereafter, the parties entered into a condition, contained in which was an agreement that tenants had cured the breach to landlord’s satisfaction by moving their furniture and personal items, and the matter was marked off the calendar so that the department of buildings could re-inspect the basement.

Published on: January 24, 2013

Landlord Commences Nonpayment Summary Proceeding Against Tenants

by Stephen Bilkis

In a court proceeding, a complainant filed a motion to stay pending the determination of an appeal from an order of the civil court. New York Probate Lawyers said that upon the papers filed in support of the motion and the papers filed in opposition, the court consequently ordered that the motion is granted on condition that the appeal will be completed. The complainant however was directed to pay the opponent any and all arrears in rent and/or use and occupancy at the rate previously payable as rent within 10 days from the date of the decision. They also need to continue to pay the opponent’s use and occupancy at a like rate as it becomes due. The court further ordered that in the event that any of the above conditions are not met, the court, on its own motion, may vacate the stay, or the opponent may move to vacate the stay on three day’s notice.

In another case, another appeal was also filed from an order of the civil court. The order, insofar as appealed from, denied the branch of the tenants’ motion in seeking an award of attorney’s fees.

The landlord initiated the holdover proceeding after terminating the tenancy based upon the tenants’ failure to cease using the basement portion of the apartment as a living room. Based on records, the said usage had resulted in the issuance of a violation by the department of buildings. Thereafter, the parties entered into a condition, contained in which was an agreement that tenants had cured the breach to landlord’s satisfaction by moving their furniture and personal items, and the matter was marked off the calendar so that the department of buildings could re-inspect the basement.

Published on: December 28, 2012

Court Applies the Business Judgment Rule

by Stephen Bilkis

The plaintiffs own 1 of 20 lots comprising a subdivision known as Estates at Brookview. As such, the plaintiffs are members of the Estates at Brookview Homeowner’s Association (hereinafter the Association) and subject to its bylaws and “Declaration of Restrictions, Covenants, and Easements” (hereinafter the Declaration). A New York Probate Lawyer said that in the fall of 2004 the plaintiffs constructed a shed on their property. Upon inspection of the completed structure by the Town of Chester’s Building Inspector, the shed was approved and the plaintiffs were issued a certificate of compliance.

After complaints about the shed were received by the Board of Directors of the Association, the plaintiffs received a document entitled “Determination and Notice of Violation” (hereinafter the DNV), issued by the Board, advising them that their shed violated certain provisions of the Declaration. The plaintiffs contend that the Board lacked the authority to issue the DNV.

As a result, a New York Estate Litigation Lawyer said that, plaintiffs filed an action for summary judgment, declaring that the document entitled “Determination and Notice of Violation” issued by the Board of Directors of the Estates at Brookview Homeowner’s Association is null and void. A New York Estate Litigation Lawyer said that defendants filed a cross motion for summary judgment and for an award of an attorney’s fee pursuant to the Association’s bylaws and “Declaration of Restrictions, Covenants, and Easements.

Published on: December 27, 2012

Court Decides Whether Illegal Alien is Barred from Recovering Damages

by Stephen Bilkis

A New York Probate Lawyer said 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. 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.

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.

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 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 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.

Published on: December 18, 2012

Court Rules on Violation of Labor Law Section 240

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.

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 New York Probate Lawyer said 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.