Probate & Estate Litigation

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 29, 2012

Court Looks at Whether Defendant is Liable For Negligence

by Stephen Bilkis

A New York Probate Lawyer said in an action to recover damages for personal injuries, the plaintiffs allegedly sustained personal injuries when the limb of a tree fell onto the motor vehicle in which they were traveling, in the defendant Village of Great Neck Estates. Thereafter, a Nassau Estate Litigation Lawyer said that, the plaintiffs commenced this action, alleging, inter alia, that the accident and their resulting injuries were proximately caused by the negligence of the Defendant County of Nassau in failing, among other things, to remove a dead and/or diseased tree. A Nassau Estate Litigation Lawyer said that, the defendant County subsequently cross-moved for summary judgment dismissing the complaint insofar as asserted against it on the grounds that the plaintiffs had not complied with the prior written notice requirement set forth in section 12-4.0 (e) of the Administrative Code of Nassau County and that it lacked both actual and constructive notice of the purported hazard. A Nassau Estate Litigation Lawyer said that, the defendant County additionally sought to dismiss the complaint insofar as asserted by the plaintiff Lakeysha Agugbo on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). The Supreme Court properly denied the County’s cross motion and held that: In an action to recover damages for personal injuries, the defendant County of Nassau appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), entered February 21, 2007, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

The issue in this case is whether defendant is liable for damages, for the injuries sustained by the plaintiff on the ground that the resulting injuries were proximately caused by the negligence of the Defendant County in failing, among other things, to remove a dead and/or diseased tree.

The Court in deciding the case said that, Prior written notice statutes apply to “actual physical defects in the surface of a street, highway or bridge of a kind which do not immediately come to the attention of the town officers unless they are given actual notice thereof”. Accordingly, the Court held that, the prior written notice requirement invoked by the County does not apply to the facts of this case. Furthermore, the County failed to establish a prima facie case that it lacked actual and constructive notice of the alleged hazard in this case. Lastly, the Court held that, the plaintiff Lakeysha Agugbo was not required to establish that she sustained a serious injury in the subject accident as she did not allege any negligence on the part of the County in the use or operation of a motor vehicle. Instead, the allegations against the County related to premises liability. Therefore, the Court held that, the County does not qualify as a covered person within the meaning of Insurance Law § 5102 (j) and § 5104 (a).

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.

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.

Published on: December 16, 2012

Co-Executors File Motion for Eviction in Estate Litigation

by Stephen Bilkis

The Facts of the Case:

On 30 December 2006, the decedent died a resident of Nassau County leaving a last will and testament dated 13 July 2006. On 19 March 2007, the will was admitted to probate and letters issued to A and B as co-executors and co-trustees. After making some specific bequests, the decedent left her residuary estate to her four daughters, A, B, C, and D, in equal shares; and placed C’s share in a Supplemental Needs Trust under her name created pursuant to Article Fourth of the will. Under the will, the trustees were given discretion in distributing income and principal to C; that at C’s death, the remainder of the trust, if any, will pass to C’s son, CC; and D is the named successor fiduciary. The estate contains approximately $125,000.00 in personal property and three homes, which are valued in the aggregate at $1,285,000.00.

Thereafter, five miscellaneous proceedings were filed with the court in connection with the estate administration and that of the trust. On 10 December 2008, some of the issues raised were resolved in a stipulation of partial settlement entered into by all the interested parties, viz: that A and B, as co-trustees of the supplemental needs trust, would enter into a contract for the purchase of property-two which C and CC agreed to use as their long-term primary residence; that C and CC, who were residing in decedent’s real property, property-one, would vacate that property and move to property-two; and that the fiduciaries are obliged to put property-one up for sale within 90 days after respondents move out. Pursuant to the agreement, the co-executors purchased property-two and made it available to respondents as of 16 March 2009.