New York City

Published on: July 4, 2013

Defendants Fail to Establish Prima Facie Case for Summary Judgment

by Stephen Bilkis

Two cases were brought before the court for resolution.

In the first case:

A New York Probate Lawyer said that 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: 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: July 1, 2013

Court Discusses Labor Law Issue

by Stephen Bilkis

The defendant third-party plaintiff, corporation-one, owned real property where it was building a group of town houses. It hired the third-party defendant, corporation-two, to perform carpentry work and hired the defendant corporation-three to perform roofing work.

A New York Probate Lawyer said the plaintiff, an undocumented alien, was an employee of corporation-two. While standing on a makeshift scaffold, constructing a staircase between the second and third floors inside one of the new townhouses, the plaintiff was struck by a package of shingles that fell from the roof through an opening created for a skylight. The impact caused the scaffold to collapse, and the plaintiff fell to the basement, resulting in severe and permanent injuries, broken bones, head and neck injuries, and the like.

Consequently, a New York Will Lawyer said the plaintiff commenced a personal injury against corporation-one and corporation-three and sought to recover damages for the injuries he sustained in the aforesaid construction accident. Plaintiff asserted causes of action based on common-law negligence and violations of the Labor Law. In a cross claim against corporation-three, and in a third-party action against corporation-two, corporation-one sought contractual and common-law indemnification.

Published on: June 30, 2013

Probate Court Reverses Summary Judgment

by Stephen Bilkis

The order of the Appellate Term of the Supreme Court which reversed a judgment of the New York County Civil Court in tenant’s favor was unanimously reversed, on the law and the facts, without costs, and the landlord’s petition is dismissed.

A New York Probate Lawyer said the evidence presented to the trial court amply supported its conclusion that the respondent’s relationship with the now deceased tenant of record was that of a nontraditional family member, as defined in Rent Stabilization Code wherein any other person residing with the tenant or permanent tenant in the housing accommodation as a primary or principal residence, respectively, who can prove emotional and financial commitment, and interdependence between such person and the tenant or permanent tenant. Although no single factor shall be solely determinative, evidence which is to be considered in determining whether such emotional and financial commitment and interdependence existed may include, without limitation, such factors as longevity of the relationship or sharing of or relying upon each other for payment of household or family expenses, and/or other common necessities of life. Another factor is intermingling of finances as evidenced by, among other things, joint ownership of bank accounts, personal and real property, credit cards, loan obligations, sharing a household budget for purposes of receiving government benefits. Engaging in family-type activities by jointly attending family functions, holidays and celebrations, social and recreational activities are yet another factor to be considered. Another factor is formalizing of legal obligations, intentions, and responsibilities to each other by such means as executing wills naming each other as executor and/or beneficiary, granting each other a power of attorney and/or conferring upon each other authority to make health care decisions each for the other, entering into a personal relationship contract, making a domestic partnership declaration, or serving as a representative payee for purposes of public benefits.

A Queens Probate Lawyer said the court will also consider when the person residing with the tenant is holding themselves out as family members to other family members, friends, members of the community or religious institutions, or society in general, through their words or actions or if the person is regularly performing family functions, such as caring for each other or each other’s extended family members, and/or relying upon each other for daily family services; or if the person residing with the tenant is engaging in any other pattern of behavior, agreement, or other action which evidences the intention of creating a long-term, emotionally committed relationship. In no event would evidence of a sexual relationship between such persons be required or considered.

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 28, 2013

Court Decides Will Contest Involving Minor Children

by Stephen Bilkis

A New York Probate Lawyer said that on 11 April 2007, the decedent died leaving a will dated 7 August 1997. She was survived by her two sons, A and B, and a granddaughter, CC, issue of a predeceased daughter, C.

Under the decedent’s will, her estate was to be divided equally between her two sons, and the issue of her predeceased daughter. It was provided in the will that, where any part of the estate vests in a minor, the executor named is authorized and empowered in his absolute discretion, to hold the property so vested in such minor and to invest and reinvest the same, collect the income therefrom, and during the minority of such minor, to apply so much of the net income therefrom or of the principal thereof for the care, support, maintenance or education of such minor as the executor deems it necessary and to accumulate any such income not so paid, if any, and to invest and reinvest same until said minor shall attain the age of 21 years, at which time the accumulated income and unexpended principal shall be paid over to him; the authority conferred upon the executor must be construed as a power only and cannot operate to suspend or prevent absolute vesting of any property in such minor; with respect to any such property which shall vest in absolute ownership in a minor or minors but which shall be held by the executor as authorized, the executor is entitled to such commissions at the rates and manner payable to a testamentary trustee with the same power and authority. The decedent nominated her three children as co-executors and directed that they serve without bond. The estate was valued at approximately $345,000.

Consequently, a probate proceeding was instituted. At that time, CC was a minor and a guardian ad litem was appointed to represent her. The guardian ad litem had no objections to the will being admitted to probate. However, the guardian ad litem recommended that the infant’s share of the estate be placed in trust with the Public Administrator to act as Trustee.

Published on: June 27, 2013

Court Hears Venue Challenge in Will Contest Case

by Stephen Bilkis

On 16 July 1983, a decedent died leaving a will. He was survived by several children, one of whom receives less than his distributive share in the estate under the propounded will.

A New York Probate Lawyer said that on 8 September 1983, the probate petition, a will contest proceeding, was filed and on 9 November 1983, jurisdiction was complete. On 14 December 1983, preliminary letters were issued to the nominated fiduciary on consent. On 3 January 1984, objections were filed by the partially disinherited son. On 6 February 1984, examinations before trial were complete. Approximately 10 months after the filing of the objections, the partially disinherited son moves to dismiss the petition on the ground that the decedent was not domiciled in Nassau County but in Bronx County.

As provided for under Article 2 of the Surrogate’s Court Procedure Act, jurisdiction over domiciliaries of the State of New York rests solely with the county where the decedent died domiciled.

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: June 3, 2013

Court Decides Property Dispute Among Family Members

by Stephen Bilkis

The Facts of the Case:

On 18 October 2007, a decedent died and is survived by his daughter-one and his granddaughters, A and B, the children of predeceased daughter-two, as his sole distributes. The decedent’s wife had predeceased him in September 2003. After the death of the decedent, the petitioner instituted an SCPA 2103 discovery proceeding. A New York Probate Lawyer said the petitioner is granddaughter B, who resides in Florida and to whom limited letters of administration (for estate administration purposes in an estate litigation) issued for the sole purpose of prosecuting the discovery proceeding and the respondent is daughter-one, who resides in Selden, Suffolk County. The property, subject of the proceeding, is a parcel of real property in Massapequa Park, Nassau County, and three bank accounts. Apparently, the real property was conveyed by the decedent to the respondent by deed dated 26 August 2004 and recorded 7 September 2004. The deed purported to convey all of the decedent’s right, title and interest in the property, except that it reserved a life estate in the decedent. At the time of decedent’s death, the bank accounts were held either jointly between decedent and respondent or solely by respondent.

In the SCPA 2103 proceeding, petitioner alleges that respondent was in a confidential relationship with the decedent and used that relationship to exert undue influence upon the decedent to convey the real property and change the title and/or beneficiary designations on the subject accounts. In opposition, respondent denies petitioner’s allegations and contends that all the transactions reflect the exercise of the decedent’s own free will. The respondent now moves for a summary judgment and for an order dismissing the petition and canceling a notice of pendency filed against the decedent’s former residence.

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.