Suffolk County

Published on: June 1, 2013

Court Decides Reasonable Attorneys Fees for Estate Administration

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. A New York Probate Lawyer said 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. 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: January 24, 2013

Petitioner Questions Validity of Will

by Stephen Bilkis

In a will contest probate proceeding, the appellant woman appeals from a decree of the Surrogate’s Court which as granted the motion of the petitioner, Public Administrator of Kings County, for summary judgment dismissing her objections to admit the deceased person’s will dated September 30, 1977, admitted the will to for validation and determined that the will was validly executed. The court ordered that the decree is affirmed insofar as appealed from, with costs payable personally by the appellant.

The last will and testament purporting to be the will of the deceased man was executed on September 30, 1977, under the supervision of an attorney. New York Probate Lawyers said the will contains a confirmation clause and was subscribed by witnesses whose signatures were notarized. The will devised certain real property located in Brooklyn to one of the deceased man’s three daughters. The man died on November 30, 1977, and his will was filed with the Surrogate’s Court, Kings County, in April 1978. The man died without a valid will in 2000, and the Public Administrator of Kings County was appointed to oversee her estate.

In May 2003, a photocopied document was submitted to the Probate Department of the Surrogate’s Court, Kings County, purporting to be the will of the deceased man. The 2003 instrument provided that the real property was to be divided equally among the deceased man’s three daughters.

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 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 15, 2012

Petitioners Request Withdrawl of Probate Petition and Move for Issuance of Letters of Administration

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. A New York Probate Lawyer said 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. However, the second subscribing witness cannot be located. Thus, the petitioners now move to withdraw their probate petition and ask that the Court issue letters of administration to them (for the purposes of estate administration in an estate litigation). They allege that they are unable to probate the instrument because of the unavailability of the second subscribing witness; and that the distributees have executed agreements waiving their intestate rights so as to mirror the testamentary plan set forth in the subject Last Will & Testament.

Published on: November 21, 2012

Defendant Contends Court Lacks Personal Jurisdiction

by Stephen Bilkis

This case is being heard in the Supreme Court of Nassau County. The action before the court is a case of accounting in regard to an estate. The decedent passed away on the 20th of September, 2000. A New York Probate Lawyer said at the time of her death she was a partner defendant in two cases involving property located in Queens. The plaintiff is also a partner in these cases.

Case Background

The will left by the decedent provides that the plaintiff and another individual would each receive a third of a share of her residuary estate. The remaining third of the estate was to be placed in a trust for the benefit of another.

Published on: November 20, 2012

Court Decides Probate Jurisdiction Issue

by Stephen Bilkis

This is a case being heard in the Supreme Court of Queens County. The defendants in this case have moved for an order to vacate their default and to grant them leave to serve an answer in regard to the matter.

Case Background

A New York Probate Lawyer said the plaintiffs in this case made a down payment on a real property located at 159-8 132nd Avenue, in Springfield Gardens, New York in the amount of $15,000. They paid the amount to the seller’s attorney and it was held in escrow. The plaintiffs allege that they obtained a mortgage commitment, a title report, and had the property both surveyed and inspected and then requested that a closing be scheduled. The plaintiffs were then informed that the seller had passed away and therefore the closing could not take place.

Published on: November 18, 2012

Court Analyzes Format of the Will

by Stephen Bilkis

This is a case being heard in the Surrogate’s Court of Queens County. The matter involves the executor of a will who is requesting that the court construe the instrument, particularly the first paragraph in order to determine what is to be charged to the legacy that he receives under it.

Court Discussion

The paragraph that is being question reads, “After my lawful debts are paid I bequeath the sum of $10,000 to the executor. A New York Probate Lawyer said that out of this sum he is to pay my funeral expenses and other lawful debts and pay for the perpetual care for my grave and the grave of my late husband.”

Published on: November 3, 2012

Court Looks at the Intent of the Decedent

by Stephen Bilkis

Establishing the jurisdiction that will handle a probate action in a New York Probate Court sometimes requires the knowledge of the decedent’s entire residential history. Just because a person dies in one county does not mean that the probate should be handled by that county. Probate in New York Law is handled by the jurisdiction that the decedent lived in for the ending years of their life. A New York Probate Lawyer said that address must be a voluntary residence and not necessarily a nursing home or hospice where the person resided toward the end of their lives. In New York law, it is referred to as a domicile. A domicile is existing until a new one is set up. A person moves from one domicile to another throughout their lives. The primary element in establishing a domicile is intent. Sometimes, the evaluation of residential change and intent to move can be blurry.

In one case, a woman who was born in Odessa, Russia in 1898, moved to Brooklyn, New York sometime around 1911. She was married and lived as an American citizen for the remainder of her life. She and her husband purchased a home on Beaumont Street in Manhattan Beach in Brooklyn, New York shortly after their marriage. They lived in that house and raised their family to adulthood in that house. In 1989, she began to have medical problems. During that year and the one that followed, she spent most of her time in hospitals or nursing homes. On December 6, 1990, she was a resident patient at Beth Israel Hospital in Manhattan. She died on that date. For three months before she died she had lived in a nursing home in Bronx County.

Her family had sold her home in Manhattan Beach during her long illness. The court was required to determine if she was considered a resident of Bronx County or a resident of Brooklyn. An additional complication was that she died in Manhattan. The court must evaluate which county was the woman’s domicile at the time of her death. They determined that it would not be appropriate to determine that she was a resident of Manhattan since her stay there was too short. A Westchester County Probate Lawyer said the question remains as to whether she has a domicile in the Bronx, or Brooklyn. The argument that is most important in this particular case involves that of intent. Did the woman have the intent to sell her lifelong domicile in Brooklyn and establish a new domicile in the Bronx prior to her death? The court must try to determine what the woman’s intent was at the time that her home was sold.

Published on: November 1, 2012

Petitioner Claims Will Not Valid

by Stephen Bilkis

An instrument alleged to have been executed in December of 1955 by the decedent is being offered for probate in the Surrogate’s Court of Queens County. The instrument names an executor and an attorney and draftsman as well.

Case Background

The decedent passed away in April of 1957. She was survived by her sister to whom she left $500 and the right to be buried in her plot. The decedent left $200 to a former employee. The rest was given to a “dear friend.” The estate has an estimated worth of $5,500.