New York Probate and Estate Administration Lawyer Blog

Published on: December 15, 2014

Court Decides Case Reqarding Distribution of Retirement Funds

by Stephen Bilkis

An Executrix in a purported will dated June 29, 1964, has petitioned for its probate. Decedent’s brother has filed objections. The other eight distributees have appeared in the proceeding but have not filed objections.

A Probate lawyer said that subsequent to probate proceeding, all nine distributees, as plaintiffs, commenced an action in the Supreme Court of Richmond County against executrix as an individual, and against New York City Employees’ Retirement System of the Board of Estimate of the City of New York.

According to the complaint, the distributees seek, in that action, to set aside a designation dated January 10, 1956, whererby the Decedent designated the said the executrix as the beneficiary of his interest in funds payable on his death by the Retirement System.

Published on: December 14, 2014

Court Hears Appeal for the Issuance of a Set Off

by Stephen Bilkis

A Probate Lawyer said in an action to foreclose a materialman’s lien, the appeal is from a judgment of the Supreme Court, Richmond County, dated November 2, 1981, which confirmed the Referee’s decision of July 7, 1981, in favor of the plaintiff and against defendant Corporation in the total amount of $64,112.81.

By order of this court dated September 13, 1982, the appeal was held in abeyance and the matter was remitted to the Supreme Court, Richmond County, with the direction that upon remittitur “Special Term should refer this matter to the Referee for a factual determination with regard to whether defendant is entitled to a ‘set-off’ or credit in the sum of $25,000, thereby reducing the principal amount of the judgment against it to that extent”. The referee’s report on remittitur, dated November 15, 1982, states that Beverly is not entitled to the $25,000 setoff.

A general construction contractor of a residential community located on Staten Island, was a joint venture comprised of defendant and another corporation. Defendant is the representative of the estate, the subcontractor employed under two separate contracts to install the plumbing in those sections of the Village designated as Loop A and Loop B. Plaintiff allegedly delivered materials to Iosue for use at the Village project, and for which it was never compensated. Its lien in the amount of $43,148.88 was timely filed on December 28, 1972. It seeks recovery of that amount from Company.

Published on: December 13, 2014

Court Decides Summary Judgment Case

by Stephen Bilkis

A Probate Lawyer said the defendants the City of New York and the New York City Fire Department (hereinafter, “the City”), move by notice of motion for summary judgment and dismissal of the complaint as against them. Defendant hospital cross-moves for identical relief. Plaintiff, as Administrator of the Estate of an infant, deceased, and administrator, individually oppose both motions.

An Estate lawyer said that this litigation arises from the untimely death of a deceased. On July 5, 2003, while the family was hosting a barbecue in honor of their daughter and son, a fire broke out in their residence. At approximately 5:00 p.m., the mother called 911 to report the fire and realized that another son, was still inside the house. Upon their prompt arrival, New York City Firefighters found the son on the third floor, unresponsive. He was not breathing and had no pulse. The gravamen of plaintiff’s complaint revolves around the subsequent attempts at resuscitation by the Fire Department’s Basic Life Support Unit (EMTs) and the hospital t, whose efforts ultimately proved fruitless. Plaintiff commenced this action by the filing and service of a summons with complaint upon the City on or about July 13, 2004.

Brooklyn Probate Lawyers said in moving to dismiss, the City alleges that (1) they did not owe any special duty to the decedent and, therefore, are immune from liability; (2) nothing done by the municipal defendants worsened the decedent child’s condition; and (3) any negligence on the part of the City cannot be shown to be a proximate cause of decedent’s death.

Published on: December 12, 2014

Court Decides an Action for Ejectment of Public Administrator

by Stephen Bilkis

Probate Lawyers said the People of the State of New York, by its Attorney-General, have commenced this action in ejectment against the Public Administrator of Richmond County in his capacity as said administrator and as administrator of the goods, chattels and credits of a decease; his widow, if any; his heirs at law, devisees and distributees; and any other persons, corporate or otherwise, including unknowns, interested in or claiming any right relative to certain hereinafter mentioned real property.

A New York Estate attorney said that the plaintiff demands judgment for the immediate possession of the said real property which it is alleged was formerly owned by the decedent and of which it is claimed he was seized in fee simple and was possessed at the time of his death, on May 6, 1950.

An Estate Lawyer said at the time of the trial, the Public Administrator appeared by his attorney and withdrew his answer to the complaint. The other defendants, except as herein stated, are in default. A guardian ad litem, appointed for such of the defendants as may be infants or incompetents, and to appear as attorney for such defendants as may be in military service of the United States or have been ordered to report for induction, interposed the usual guardian’s answer in behalf of said infants and incompetents and filed a notice of appearance as such attorney.

Published on: December 11, 2014

Mother Files Limited Letters Testamentary

by Stephen Bilkis

A Probate Lawyer said records reflect that for reasons unbeknownst to the court at this time, the decedent, a 19 year old female, was at a Hotel located approximately one half mile from her residence, where she resided with her mother. While at the Hotel, the decedent made her way to the roof of the Hotel where she plunged to her death. The mother filed for Limited Letters Testamentary for the estate administration, which were issued to her by the Surrogate County court in order to bring an action for a potential wrongful death action. The mother’s Verified Complaint read that at the time of the commencement of the action, she was a resident of the County. The verified complaint contains allegations of fact in support for a single cause of action for damages due to wrongful death and the decedent’s conscious pain and suffering up until her death. The defense counsel moved to transfer the venue.

An Estate Lawyer said that the mother’s counsel, whose law office is located in Kings County, selected Kings County as the venue in the Summons of this action based on the purported residence of the decedent. Yet, the Verified Complaint lists Richmond County as the decedent’s residence. Article 5 of the CPLR sets forth the rules governing proper venue. Section 503 states “the place of trial shall be in the county in which one of the parties resided when the action was commenced.” It has long been held by the courts that residency, for purposes of venue, is defined as “where a party stays for some time with a bona fide intent to retain the place as a residence for some length of time and with some degree of permanency.” It is further established that any documents or “indicia of residence acquired after the commencement of the action are irrelevant to the determination of residency,” for purposes of venue. In Siegfried v. Siegfried, the Appellate Division, Second Department stated that the court should not consider factors such as bank statements, voter registration, and a library card that came about after the commencement of the action.

An Estate Lawyer said the documentary evidence that can prove a person’s residence include driver’s license, voter registration card, and utility bills. Simple letters of correspondence sent to the purported address will not suffice. Furthermore, mere affidavits with conclusory statements, without being buttressed by ample documentary evidence, is not enough to prove a person’s residence. However, an affidavit supplemented with rent receipts, telephone bills, and lease agreements does create the “necessary indicia of residency.”

Published on: December 10, 2014

Defense Counsel Moves for Change of Venue in Wrongful Death Action

by Stephen Bilkis

Records reflect that for reasons unbeknownst to the court at this time, the decedent, a 19 year old female, was at a Hotel located approximately one half mile from her residence, where she resided with her mother. While at the Hotel, the decedent made her way to the roof of the Hotel where she plunged to her death. The mother filed for Limited Letters Testamentary for the estate administration, which were issued to her by the Surrogate County court in order to bring an action for a potential wrongful death action. The mother’s Verified Complaint read that at the time of the commencement of the action, she was a resident of the County. The verified complaint contains allegations of fact in support for a single cause of action for damages due to wrongful death and the decedent’s conscious pain and suffering up until her death. The defense counsel moved to transfer the venue.

A Probate Lawyer said that the mother’s counsel, whose law office is located in Kings County, selected Kings County as the venue in the Summons of this action based on the purported residence of the decedent. Yet, the Verified Complaint lists Richmond County as the decedent’s residence. Article 5 of the CPLR sets forth the rules governing proper venue. Section 503 states “the place of trial shall be in the county in which one of the parties resided when the action was commenced.” It has long been held by the courts that residency, for purposes of venue, is defined as “where a party stays for some time with a bona fide intent to retain the place as a residence for some length of time and with some degree of permanency.” It is further established that any documents or “indicia of residence acquired after the commencement of the action are irrelevant to the determination of residency,” for purposes of venue. In Siegfried v. Siegfried, the Appellate Division, Second Department stated that the court should not consider factors such as bank statements, voter registration, and a library card that came about after the commencement of the action. Documentary evidence that can prove a person’s residence include driver’s license, voter registration card, and utility bills. Simple letters of correspondence sent to the purported address will not suffice. Furthermore, mere affidavits with conclusory statements, without being buttressed by ample documentary evidence, is not enough to prove a person’s residence. However, an affidavit supplemented with rent receipts, telephone bills, and lease agreements does create the “necessary indicia of residency.”

An Estate Lawyer said that on both the Verified Complaint and the Amended Verified Complaint, the first allegation stated that she was a resident of Richmond County at the commencement of the action. This is not merely an “unfortunate typographical error” or a “regretful misreading” as she contends. It clearly stated that she was a resident of Richmond County. Here the complainant has put forth numerous documents to try and prove her residency is Brooklyn, including tax returns, cell phone bills, pay stubs, and bank statements. Only one document, a pay stub dated December 2009, was sent to the Brooklyn address before the start of the action. All the other letters and forms are undated or dated after the commencement of the action and are therefore, irrelevant in trying to prove residency.

Published on: December 9, 2014

The Court Decides if a Company is Authorization

by Stephen Bilkis

Probate Lawyer from the records, the instant case involves a will contest as regards the legacy of the decedent. The decedent died in 1905. By her will she bequeathed $10,000 to a Hose Company ‘to be kept at all times intact and the income derived from the safe and judicious investment thereof to be devoted to the reasonable and proper uses of said company for whatever purposes its members acting as an organization may see fit to direct.’ If, however, the legacy for any reason ‘shall lapse or fail or for any cause not take effect in whole or in part,’ she bequeathed it to the one who survived her.

The Hose Company was a corporation organized for the purpose of aiding in the suppression of fires in the village. It could only engage under the statute in such business as properly belongs to hose companies. In taking part in the prevention of fires it was placed under the control and subject to the orders of the village fire authorities. Annually its trustees must file an inventory of its property and an affidavit that it has not directly or indirectly engaged in any other business. Before its certificate of incorporation could be filed it had to be approved by the trustees of the village. It might take and hold personal property bequeathed to it, and it was further said to be capable of taking and holding property for the purpose of its incorporation and for no other purpose. It was named after the father of the decedent. To it the legacy was paid in 1906.

The issue raised before the court is whether or not the company is authorized to received the legacy.

Published on: December 7, 2014

Court Resolves Dispute Between Two Businesses

by Stephen Bilkis

A Probate Lawyer said the records reflect that the instant case is one wherein estate of the parties are involved for settling the dispute between them. This involves two domestic businesses located in Richmond County, owned by two persons. As a result of disagreements in their business relationship, several lawsuits were filed regarding the Businesses. The first Lawsuit involved an entity Corporation. The initial complaint in the matter alleged that one of the owners obtained majority control of and tried to remove the partner from his responsibilities in the corporation. The complaint recently amended to add claims alleging other breaches of agreements and breaches of fiduciary duty by his partner. On May 25, 2010, a temporary restraining order was granted that, pending the hearing and determination of the motion at issue, directed that 1) the owner shall not cause nor allow the corporation to make any repayment of loans or interest on loans purportedly due to him or his entity, nor enter into a new loan from him or his Entity, nor incur any debt obligation or make any expenditure without advance notice to the partner and without his partner’s written consent; 2) he shall not cause or allow the 2009 federal and/or state tax returns of the corporation to be finalized or filed; and 3) they were to immediately provide to the partner all corporate ledgers, financial statements and loan documents for the years 2008-2010.

An Estate Lawyer said the second Lawsuit which involved another entity. The allegations in the second Lawsuit were that 1) the owner wrongfully diverted a payment in the sum of $100,000, due to his partner, to the corporation without his partner’s consent; and 2) he failed to distribute the other entity’s profits to his partner and other members. After conducting hearings on the matter, the judge entered judgment in favor of the Partner. The Judge issued Orders holding that the owner was in contempt for transferring certain funds in violation of court orders, ordering him to pay his partner certain monies and directing that he was to be incarcerated if he failed to make the required payment. The owner appealed the judgments but were denied.

The third Lawsuit filed involved a third entity. In this Lawsuit, the partner alleged that the owner refused to distribute the profits. The complainant’s counsel submits that these Lawsuits establish that 1) the owner has repeatedly and improperly transferred monies between entities, to fund certain real estate projects to which the Partner does not consent; and 2) owner has attempted to use his control over the finances of these entities to pressure his partner into consenting to these transferrals. The counsel also contends that the parties in the matter at bar disagree as to whether there exists an arrangement between them that permits these transferrals; the complainant denies that such an arrangement exists.

Published on: December 6, 2014

court Decides Whether or Not Sale of Property Should be Affirmed

by Stephen Bilkis

A Probate Lawyer said sources revealed that in the instant case, the decedent died insolvent, leaving a last will and testament, which has been duly admitted to probate as a will of real and personal property. The executor and executrix of the deceased, as creditors, petitioned the surrogate’s court for the sale of the real estate of which the decedent died seised, for the purpose of the payment of their debts. The decedent was also owing the Bank, for money loaned in his lifetime and used in the business of the Knitting Company. The bank appeared in this proceeding and interposed an answer setting up a provision of the will of decedent, and demanding that the real estate known as the ‘Knitting Mill’ be excepted from any decree of sale which might be made in the proceedings. The provision of the will referred to devises and bequeaths the knitting mill property to a son-in-law of the testator, but subject to the following provision that the devise and bequest, however, is upon the condition that all the debts and obligations of every name and nature owing by the said Knitting Company, and which has been contracted by or on account of that branch of his business, is assumed and paid by said the son-in-law; and decedent hereby impress a trust and lien upon the said real and personal property hereby devised for the payment of such debts and obligations, and make such payments of those debts a lien thereon. The son-in-law was appointed sole executor of the estate. Upon the death of the testator he took possession of all of the property of the estate, and carried on the mill business under the same name of the Knitting Company. He subsequently failed and became insolvent, and failed to pay the claim of the Bank or the other creditors of the estate.

The issue is whether or not the surrogate court’s ordering the sale of the property should be affirmed.

A Manhattan Probate Lawyer said the jurisdiction of the surrogate’s court in proceedings to dispose of the real property of a decedent for the payment of his debts is prescribed by the provisions of the Code of Civil Procedure. In the transmission of the property of a deceased debtor to his heirs at law or next of kin, or to his devisees or legatees, it becomes charged with his debts, and it may be appropriated in payment thereof in the manner provided by the Code. These provisions carefully prescribe the order of the payment of the debts, including funeral expenses and judgments docketed against the decedent in his lifetime, and prohibit preferences over others of the same class. The rights of creditors thus provided for attach to the real estate of the decedent immediately upon his death, and continue during the period of three years after the issuing of letters testamentary or of administration upon his estate. These rights which so attach are superior to those acquired by any devisee or legatee under the will. A solvent testator may undoubtedly make certain debts a charge upon a parcel of his real estate. He may devise a part of his real estate to a particular person upon condition that he pay the whole or a specified portion of his indebtedness, but an insolvent testator cannot prefer one creditor over another in such a way as to deprive the general creditors of their right to have his real estate sold and distributed among them after the personal estate has been exhausted.

Published on: December 5, 2014

Court Discusses ‘One Dollar Clause’ in Real Estate Case

by Stephen Bilkis

Probate Lawyers said that records show that this is a proceeding in eminent domain to acquire title to real property required for the widening of an Avenue from one Road to another. This proceeding involves matters of the estate, not pertaining to probate but which affects the estate by the City’s road widening project. It is undisputed that the claimant owned a parcel 100 feet by 100 feet on the specific Avenue upon which is a building approximately 40 feet in depth and 100 feet wide, fronting on the Avenue and on or close to the building line. It consists of 5 stores. The City has taken 1,852 square feet of the claimant’s 10,000 square feet. This 1,852 square feet includes 1,340 square feet on the front of the building. In short, some 14 feet must be sliced off the front of the building for its entire width. The entire parcel, including the building, was purchased from the City of New York at public auction by the fee claimant in 1957.

The issue presented is whether the claimant fee owner is entitled to One Dollar or substantial damages resulting from the acquisition of a portion of the building. The determination of this issue requires a construction of this ‘One Dollar Clause’. Such clause appears also in the brochure of sale which gave a description of the property, its location, the upset price and the terms and conditions of sale.

An Estate Lawyer said the City of New York maintains that the purchaser had full knowledge of the proposed acquisition, as shown on the damage map; that the deed stated that the claimant ‘shall only be entitled to compensation for such acquisition to the amount of One Dollar’; that the above language in the deed is clear and unambiguous; that the claimant knew that the front part of the building would eventually be chopped off, damaging the remainder and that damages would be limited to One Dollar. The claimant fee owner agrees that the language of the deed is clear and unambiguous but contends that the award of One Dollar applies only to the land and the portion of the building within the bed of the mapped street; and claimant requests an award for consequential damage to the portion of the building not within the bed of the mapped street.