New York Probate and Estate Administration Lawyer Blog
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.
On the 23rd of March, the couple gave a mortgage on the leasehold to the defendant, Ameriquest Mortgage Company. A loan of $435,000 was secured for the couple. Donald Jr. and his wife Michelle defaulted on the mortgage loan and Ameriquest Mortgage Company then instituted a foreclosure action against the couple.
In January of 2001, Donald’s sister filed a petition for the probate of the will that was purportedly executed by Donald on the 22nd of June, 2000. The plaintiff in this case, Richard Booth, is Donald’s older son, objected to the petition on the grounds that Donald was not competent to execute the will and that the will had been executed as a result of fraud and undue influence exerted by Donald Jr. The probate petition was then withdrawn and the plaintiff was appointed as the administrator of Donald’s estate.
In August of 2003, the plaintiff started an action against Donald Jr. declaring that the lease assignment made in November of 1998 was invalid. Donald Jr. passed away in 2005 and the case was transferred to the Surrogates Court. The Surrogates court ruled that the lease assignment was invalid and the plaintiff was the sole beneficiary of Donald’s estate.
The action before the court was commenced on the 2nd of August by the plaintiff to have the mortgage adjudged as null and void and to have the mortgage of record canceled and discharged. A Staten Island Probate Lawyer said the plaintiff also sought to bar Ameriquest from all claims to and in interest of the property.
Court Decision
The Supreme Court decision made previously in this case denied the branch of Ameriquest’s motion for summary judgment to dismiss the portion of the complaint that sought to have the mortgage canceled and discharged. Nassau County Probate Lawyers said the court finds that this original order from the Supreme Court was in fact correct.
The cross appeal made by the defendant for a motion to preclude the plaintiff from introducing as evidence at the trial the order that was made in the Surrogate’s Court of Suffolk County must be dismissed. This evidentiary ruling, even when it is made before a trial on the motion of papers, is not appealable as a right or by permission. All of the remaining contentions made by the plaintiff are found to be without merit.
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