Staten Island

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 14, 2012

Petitioner Alleges Fraud in Will Contest Proceeding

by Stephen Bilkis

The Facts of the Case:

On 8 January 2006, the decedent died with a will dated 31 December 1993. On 26 April 2007, the decedent’s will was admitted for probate (will contest proceeding) by the court and a decree was thereafter issued, and letters testamentary also issued to the decedent’s wife as executor of the estate of her husband, the decedent (for estate administration as may be determined in estate litigation). At the time of the decedent’s death, he owns a surveying business. On 12 December 2007, an Asset Purchase Agreement was entered into between the decedent’s wife and “A” where “A” agreed to purchase the decedent’s business and all of the assets used in connection with the business. The purchase price was $375,000.00. On 14 December 2007, “A” executed a promissory note in the sum of $200,000.00. The note was guaranteed by a Land Surveyor company, “X”. The terms of the promissory note provide that “A” will pay the sum of $200,000.00, together with interest thereon at the rate of 5% per annum, in sixty consecutive monthly payments of principal and interest, each of which, except the last, was required to be in the sum of $3,774.25, the first payment to be made before 14 January 2008. Thereafter, on 14 December 2007, a bill of sale was executed by the decedent’s wife in favor of “A” where she was represented in the sale and in post-closing disputes concerning the sale by lawyer-two. However, no payment was ever made. Thus, on 25 January 2008, by written notice, the wife exercised her option to declare the unpaid principal balance of the promissory note to become immediately due, plus interest. The wife hired lawyer-one, and lawyer-two to act as co-counsel.

In opposition, respondent “A” alleges that the wife breached their agreement by failing to provide adequate documentation to allow him to collect on the accounts receivable; that the wife fraudulently misrepresented the value of the accounts receivable, either by intentionally keeping the necessary documentation from him or by misrepresenting that said documentation ever existed; that the wife fraudulently misrepresented that “A” would be receiving as part of the sale business assets such as cars, documents and files and other significant assets of the business; that, as a result, “A” has refused to make payment on the note. Moreover, “A” argues that lawyer-two should be disqualified from serving as the wife’s co-counsel on the grounds of the advocate-witness rule because he is a material and necessary witness; because he served as the wife’s attorney throughout the negotiation and sale of the business; that lawyer-two has intimate knowledge regarding the assets of the business and what was promised to “A” as part of the sale; that lawyer-two will be deposed and questioned as to the existence of the accounts receivable and his role in furnishing the necessary documents to allow “A” to collect on those accounts; that lawyer-two is a material and necessary witness because he was involved in negotiations, meetings and drafting of documents in connection with the sale. Furthermore, “A” also asks for leave of court to amend his answer to add two affirmative defenses, one alleging mutual mistake concerning the disputed invoices and the value of the accounts receivable and one alleging unilateral mistake by “A” caused by fraudulent conduct on the part of the wife, since the wife’s counsel has declined to stipulate to allow the amendment; that the amendment does not create any prejudice or cause any surprise to the wife; that these defenses arise out of the same set of facts previously set forth in the petition; and that the case is still in the early stages of discovery where no depositions have yet taken place, and the wife will still have the opportunity to seek discovery on these new defenses.

Published on: December 1, 2012

Court Decides Whether Opening a Bank Account Constitutes a Settlement

by Stephen Bilkis

This is a case of appeal regarding probate. The case is being heard in the Supreme Court of the State of New York, Appellate Division, and Second Department. The appellant is appealing a decree that was made in the Surrogate’s Court of Queens County. The decree admitted a will to probate and allowed the opening of a savings account by the testator in trust for his son that was born after the will was executed and constituted a settlement within the meaning of section 26 of the Decedent Estate Law. The appellant also states that the after born son is barred from taking an intestate share of the estate.

Case Discussion

A New York Probate Lawyer said when reviewing the case it is this court’s opinion that the Surrogate did not have the authority to determine the rights of the after born infant under section 26 of the Decedent Estate Law. The question of whether opening a bank account constituted a settlement within the meaning of section 26 should not have been decided without notice and without an opportunity for the interested parties to be heard.

Published on: November 22, 2012

Court Looks at the Intent of the Decedent

by Stephen Bilkis

This is a petition for probate of the will of the decedent. The decedent died as a resident of Richmond County on the 19th of September, 1901 and left a last will and testament that was admitted to the courts on the 10th of October, 1902.

Background

The petition for probate sets forth that the next of kin are his widow, a son, and two daughters. A granddaughter is now seeking construction of paragraph five of the will that directs the executrix of the will to sell the farm located in Springfield in Queens County, New York. A New York Probate Lawyer said the proceeds from the sale are to be paid in the sum of $500 each for his daughters and the rest of the proceeds are to be invested and the rents, issues and profits are to be divided between his daughters in equal shares. Upon the passing of my daughters the sum invested shall be divided among their children. If they leave no issue of them surviving, then my son’s children as may be living shall receive the sum.

Published on: November 11, 2012

Court Decides Jurisdiction of Will

by Stephen Bilkis

This is a probate case being held in the Surrogate’s Court of Queens County. The testatrix in the matter died a resident of Connecticut. She left both tangible and intangible personal property in Queens County. Her will states that her entire estate is to be divided equally between her two sons who are non residents. The oldest son is named as the executor of the estate and has filed a petition for probate in this court. After this proceeding was commenced, the younger brother who knew about the will received letters of administration from his mother’s estate in Connecticut. The youngest son is now moving to dismiss the petition in this court for lack of jurisdiction.

Case Discussion and Decision

A New York Probate Lawyers said while it is inarguable that the testatrix was a resident of Connecticut and the two legatees are non residents, the court has the discretion to permit the original probate of a will of a non resident who dies outside of the state that leaves personal property within this county.

Published on: November 6, 2012

Court Interpretes Last Will and Testament

by Stephen Bilkis

This is a probate matter dealing with the will of the decedent. In this proceeding it has been requested that a construction of specific paragraphs of the decedents will be conducted. A New York Probate Lawyer said in the second paragraph of the will it is clearly written that the premises located at 42-32 81st Street in Elmhurst, Queens County, New York be left to her daughter. The condition to the home being given to her daughter is that it cannot be sold until ten years after the decedent’s death.

In the seventh paragraph of the will the testator named her other daughter as the sole beneficiary of the income of the home located at 42-30 81st Street in Elmhurst, Queens County, New York. The paragraph goes on to state that if the marital relationship between her daughter and her daughter’s husband is terminated either by the death of the husband or through divorce the property is to be hers absolutely and forever.

Court Decision

Published on: October 31, 2012

Respondent Filed a Petition for Letters

by Stephen Bilkis

This case is being heard in the Second Department, Appellate Division, of the Supreme Court of the State of New York. The appeal in this case involves an application made by the administratrix of an estate to disqualify the attorney as her co-administrator. The attorney previously represented both parties but was dismissed by the petitioner when he participated in the prosecution of a compulsory accounting proceeding trying to surcharge her. The Surrogate’s Court of Queens County ruled that the allegations made by the petitioner were insufficient to warrant disqualification.

Case Background

The decedent passed away on the 28th of March, 1979. The respondent acting as the attorney for the estate filed a petition for letters of administration on behalf of the decedent’s widow and his son of a previous marriage.

Published on: October 25, 2012

Plaintiff Contends Lease Assignment Invalid

by Stephen Bilkis

This case is being heard in the Appellate Division of the Supreme Court of the State of New York, Second Department. The respondent and appellant in the case is Richard P. Booth. The appellant and respondent in the case is the Ameriquest Mortgage Company.

Case Background

A New York Probate Lawyer said Donald Booth and his wife Diane Booth had a leasehold estate of land located in Babylon. The lease was dated the first of January, 1977 and was renewed in August of 1990. When Diane passed away in 1998, Donald assigned the leasehold estate to himself and his son, Donald Jr. This lease assignment was made on the 9th of November, 1998. Donald passed away on the sixth of October in the year 2000. After his father passed away, Donald Jr. assigned the lease to himself and his wife Michelle as joint tenants.

Published on: October 22, 2012

Court Hears Will Contest

by Stephen Bilkis

This case is being heard in the Surrogates Court of Westchester County. The matter before the court deals with the estate of Leonard M. Greene, deceased. A New York Probate Lawyer said this is an incident that deals with the contested probate proceeding where the guardian ad litem for the infant distributes is seeking authorization to retain a medical expert to be paid from the estate.

Case History

Leonard Greene, the decedent, passed away on the first of December, 2006. He was 88 years old at the time he passed away. Survivors include seven children and two grandchildren. There is an issue of a predeceased child that was a passenger on United Airlines Flight 93 on September 11th, 2001.

Published on: October 15, 2012

Wife Claims Husband Executed Will Under Undue Influence

by Stephen Bilkis

This case is being heard in the Supreme Court of the State of New York, Appellate Division, Second Department. The matter before the court deals with Leonard Favaloro, deceased, Joan Favaloro as the appellant and Joyce Donahue, et al. as the respondents.

Case Background

The decedent, Leonard Favaloro died on May 8th, 2006 when he was 79 years old. He is survived by his wife of 34 years, Joan Favaloro and his two adult daughters from a previous marriage. The daughters are the petitioners in this case.