New York Probate and Estate Administration Blog

The plaintiffs and appellants in this case are Leslie Lerman and Lois Lerman. Summerhill Estates, Inc, Adam C. Robinson, Marleen L. Robinson, Allen M. Robinson, and Michele A. Keagle are the defendants of the case. Cayuga County is the defendant and respondent in the case.

A New York Probate Lawyer said this appeal case is being heard in the Supreme Court of the State of New York in the Appellate Division. The judges overseeing the case are P. J. Smith, Scudder, Fahey, Centra, and Peradotto, JJ. The case is being heard on the 25th of October in 2011.

Respondents Case

The respondent in this case, Cayuga County is moving to dismiss an appeal that was ordered by the Supreme Court. The original appeal was entered into the court by the Office of the Clerk in Cayuga County on the first of July in 2011. The reason given by the respondent for the dismissal of the appeal is that the appellants did not act within the necessary time frame for making the appeal.

Affidavit

The court has read the affidavit of J. Ryan Hatch, Esquire. The affidavit was written by J. Ryan Hatch, Esquire on the 20th of September. The affidavit was affirmed by the court on October 7th, 2011. It is written that the notice of motion was provided at this time along with the proof of service. This shows due deliberation of delivery of the information by the respondents and defendants.

From this affidavit, the court can see that the defendant – respondent are correct in stating that the appeal was not made within the specified time frame that was ordered by the original court where the case was heard.

Court Order

Based on the information that has been provided to the court, we find in favor of the defendant. Nassau County Probate Lawyers said the motion for the appeal to be dismissed is hereby granted. This is without any further orders, unless the appellant perfects the appeal and submits it to the courts on or before the 27th of December, 2011.

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The plaintiff in this case is Robinson Duran Urena. The defendant and third party plaintiff/respondent in the case is Ciampa Estates, LLC. They are represented by the law offices of Fiorella Rubin & Friedman LLP. His council in the case is Stewart B. Greenspan. The third -party defendant-appellant in the case is Sanita Construction Company, Inc. They are represented by John Bonanno from Weiner, Morgan, Millo & Bonanno, LLC.

A New York Probate Lawyer said the case is being heard in the Supreme Court of the State of New York, Appellate Division. The judges in the case are Sheri S. Roman, JJ, Ariel E. Belen, Daniel D. Angiolillo, and Reinaldo E. Rivera, J.P.

Appeal

The original case was an act to recover personal injury damages that were sustained and found to be caused by the defendants, et all. This case is an appeal from third -party defendant, Sanita Construction Company. The third -party defendant, Sanita Construction Company is appealing an original decision in the case issued by the Supreme Court of Queens County, which established the motion from the third -party plaintiff, Ciampa Estates, LLC to plan a hearing in order to determine how reasonable the amounts of the proposed settlement to the plaintiff. The hearing would also determine the judgment against Sanita Construction Company, third party defendant for the final settlement amount.

Court Decision and Orders

The Court is ordering that the appeal made from the original order is hereby dismissed. The reason is that third -party defendant, Sanita Construction Company is not distressed, and the appeal is unnecessary.

The Court also orders that the original order, which took place in September of 2010 and was amended by an order in January of 2011, is affirmed.

The final decision of the Court is that there will be a bill of costs to be given to the, Ciampa Estates, LLC, third –party plaintiff. Queens Probate Lawyers said this will be determined after the hearing is held as stated by the previous court that issued the order for a hearing to take place.

The Court is declining to address the argument raised by the Sanita Construction Company, listed as the third-party defendant, that states the third party plaintiff and defendant, Ciampa Estates, LLC, does not have an entitlement to contractual indemnification since there was no negligence found on the part of Sanita Construction Company. This appeal should have been considered in the fall of 2009 as originally ordered by the previous court that heard this case.

Sanita Construction Company did not perfect their appeal on this account from the original order that was made to do so by November of 2009.The Court does not typically consider an issue that was raised on a succeeding appeal when the issue could have been made previously on another appeal that has been dismissed because there was lack of prosecution. In this particular case, Sanita Construction Company has failed to provide enough evidence for the court to consider this appeal even though the Court does have jurisdiction to do such, but in this case Sanita Construction Company has not shown any foundation for the court to rule on this matter. A Staten Island Probate Lawyer said additionally, the remaining contentions from Sanita Construction Company are not held properly in front of this Court.

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The petitioner for this particular case is Carlton Estates, Inc. The respondents of the case are Humberto Cruz, et al. The case is being heard in the Second Judicial Department of the Supreme Court of the State of New York Appellate Division. The judges that are hearing the case are Sheri S. Roman, JJ, Plummer E. Lott, L. Priscilla Hall, and Peter B. Skelos, J.P.

Appeal

A New York Probate Lawyer said Uumberto and Lise Cruz have created a motion for appeal for a case that was originally heard in the Kings County Civil Court in January of 2010. The case was appealed on the 12th of May in 2011 in the Judicial districts, two, eleven, and thirteen. The respondents, Humberto Cruz and Lise Cruz are appealing both of these decisions.

Decision

The court has read the papers that have been filed to support the motion for appeal. The court has also read all of the papers supplied by the petitioner in the case to oppose the motion for appeal. After thoroughly investigating the case and the previous rulings, we find that the there has not been enough evidence supplied in order to support a cause for the motion to be granted.

The overall ruling of the court is hereby in favor of the petitioner. We will deny the motion for appeal based on the evidence that has been provided to the court from both sides of the case. There is not significant enough evidence to show reason to overturn the judgments that were made by both the Civil Court in the City of New York, in Kings County and backed by the Appellate terms of the judicial districts, two, eleven, and thirteen.

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In this case, Plaro Estates, Inc. is the appellant. The Town of Clarkstown and the Clarkstown Central School district are the respondents.

History

A New York Probate Lawyer said Plaro Estates moves to expand the time allowed for perfecting its appeal. They move for this based on 22 NYCRR 670.8(d)(2). The original appeal's deadline stems from the Rockland County Supreme Court's ruling which was dated on the 15th of April, 2011.

The only papers that were filed in regards to this request for an extension were filed in support of the motion. With no reasonable opposition filed or served, the requested is granted.

Results

Plaro Estates were given more time to work on the appeal. The new deadline for perfecting the appeal was January 24th of 2012. Any records that need to be served involving the appeal and the brief itself must be served by the 24th of January 2012 at the latest.

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This case is in regards to the estate of Mark Rothko. Kate Rothko and Christopher Rothko are petitioners, while charitable beneficiaries are also cross-petitioners. The respondents are Bernard J. Reis, Theodoros Stamos, Morton Levine, Marlborough Gallery, Inc., Marlborough A.G., and Francis K. Lloyd. The Mark Rothko Foundation, Inc. was listed as an intervener.

The Case

A New York Probate Lawyers said Mark Rothko, a worldwide renowned abstract expressionist artist passed away on February 25, 1970. The petitioners are the artist's children. The children seek restitution for their father's estate, both in terms of paintings that were sold by the parties involved, and in financial compensation for the paintings which were already sold to non-party purchases. They also seek to have their legal fees compensated. Essentially, the suit is about whether the children, should have control over their father's estate, or whether the executors named should. The Attorney General represented the people of New York due to the charitable interest in the case. Reis and Stamos are charged with acting in a conflict of interest, while Levine is charged with negligence regarding the sale of the property. All are charged with not fulfilling their legal obligations correctly.

Examination

The respondents were prohibited from selling paintings without court permission, although the children allege that this has taken place. Mr. Reis is accused of a conflict of interest based on his positions as executor, friend and professional advisor of the deceased and as director of Marlborough Gallery. His positions as executor and as director for the gallery had opposing interests. Because of the direct conflict of interest, the courts evaluate his behavior as the same as self-dealing.

Levine and Stamos also face a problem because they knew that Reis was acting in a direct conflict of interest and did nothing, leaving them liable, in addition to Stamos' own actions against the estate which lead to further liability. Nassau County Probate Lawyer said because of the failure of the three to properly execute the will of the estate, the court saw fit to remove them as fiduciaries.

When determining restitution to the estate, the value of the paintings sold off by the Marlborough respondents needed to be calculated. A well-respected art historian, Professor Shapiro, compared Rothko's value and popularity to that of artists like Jackson Pollock. Others, including the Director of the Guggenheim and an international art dealer also testified to the importance and value of Rothko in the art world.

Further complicating the issue is that the respondents were found to be in violation of the order issued by the court which restrained them from in any way disposing of any of the paintings included in the estate. NY Probate Lawyers said this entitles the estate for restitution for those paintings which were improperly sold off. The court also needs to determine if the correct value for reparations to the petitioners should be the value of the work when it was sold, or the present value. However, following Scott on Trusts and Restatement of Trusts, it is found that the petitioners in such a case should be entitled to the value of the objects at present day if they have appreciated in value, which the paintings have. The petitioners used Ben Heller, an expert, to evaluate the value of the paintings and papers included in their father's estate. However, the courts thought his values were too high and had to lower them somewhat when assessing damages.

Results

At the end of the process, the Marlboroughs and Lloyd were fined $3,332,000 for violating orders laid down by the court. If any of the paintings which contributed to the value of this liability are returned, that amount will be subtracted from the fines owed by any of the respondents. Levine is separately liable for $6,464,880 plus interest. To discharge their liabilities to the estate, Reis, Stamos, MNY and MAG were found owing $9,252,000. Finally, the 658 paintings included in the estate which had not already been sold are to be returned to the family.

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The plaintiff and appellant of this case is Gray Wolf Corporation. Gray Wolf Corporation is being represented by Warren B. Rosenbaum from Woods, Oviatt and Gilman, LLP. The defendant and respondent et al of the case is Gleason Estates Associates, LP. Gleason Estates Associates LP is being represented by Gregory J. Mascitti from Leclair Ryan. The case is being heard in the Appellate Division of the Supreme Court of the State of New York in the fourth judicial department. The judges who are hearing the case are Martoche, JJ, Lindley, Smith, and Scudder, P.J.

About the Case

A New York Probate Lawyer said this case was started by the plaintiff as a foreclosure action and then moved to a summary judgment based on the complaint. The defendant of the case made a cross move for a summary judgment to dismiss the case altogether.

Case Facts and Findings

From the beginning of the case it is noted that the Supreme Court came to the proper conclusion that the defendant was not obligated to provide the defendant with specific financial statements. This is in accordance with the different documents that were signed by both the parties as well as signed by the parties and the United States Department of Housing and Urban Development.

Additionally, the court finds that the plaintiffs’ motion for a summary judgment on the foreclosure complaint was properly denied. Suffolk County Probate Lawyers said that on the records that have been provided to us there is an issue with whether or not the defendant was in fact default on the loan.

For the same reason as above, we have made the decision that the Supreme Court made a mistake when they granted the cross motion of summary judgment to the defendant to dismiss the case.

Court Rulings

Westchester Country Probate Lawyers said that based on the above findings and the information that has been provided to the court, we have modified the order that granted the cross motion for dismissal of the case to the defendant. We feel that this is the only error made in the case and we rule in favor of the plaintiff on this particular motion.

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In this case, Scott H. See Jr. is the appellant. Baltic Estates, Inc. are the respondents.

History

A New York Probate Lawyer said this case involves the recovery of damages for personal injuries. There was another action that was tied to this one, but the two were eventually consolidated. With the limitations involved in his brief, the plaintiff makes an appeal against an order issued by the Supreme Court of Dutchess County which was entered in July of 2008. This order denied a motion that the appellant made which moved for the dismissal of a verdict reached by a jury. The conclusion reached by the jury had been on the side of the defendant in regards to the liability in the case. The appellant contends that the majority of the evidence should have lead the jury to rule in his favor instead of falling on the side of the defendant, which he feels is grounds for a new trial. By the same token, he appeals against the judgment made by the court on February 24th, 2009. This ruling was also in favor of the defendant.

Results

The appeal against the order issued as a result of the jury verdict was dismissed. The appeal against the other order passed by the same court at a later date was also dismissed, and the ruling of the original judgement affirmed in any aspect that was appealed against by the appellant.

Further, a single bill of costs is awarded to the respondent. Brooklyn Probate Lawyer said the reason that this appeal has to be dismissed is because no right of direct appeal exists for the appellant. Once the judgment from the original action was entered, the direct right of appeal no longer applied.

Also, the only reason that a jury verdict should be dismissed is if the verdict they reached appears to be impossible. That is to say, that if any fair and reasonable interpretation of the evidence put before a jury can indicate the reasoning of their ruling, then the verdict should never be set aside. Going against a jury verdict simply because someone argues that the majority of the evidence seemed to be on their side is a more complicated matter.

Basically, the jury in this case was presented with two separate versions of events. These events both claimed to be factual in nature, but were in conflict with each other on several points. This means that the only way for the jury to reach a verdict is to interpret the data given to them as best they can. As long as they do this in a fair manner, the ruling should be upheld.

Therefore, Long Island Probate Lawyers said that the plaintiff's movement that, pursuant to CPLR 4404(a), the jury verdict that ruled in the favor of the original defendant should be set aside because most of the evidence presented at the original hearing favored the plaintiff has to be denied on these grounds.

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In this case Leslie Lerman and Lois Lerman were both plaintiff-s appellants. Summerhill Estates, Inc., Michele A. Keagle, Allen M. Robinson, Marleen L. Robinson and Adam C. Robinson are the defendants. Cayuga County is a defendant-respondent.

History

A New York Probate Lawyer said the representation for the appellants put forward a motion which requested that the appellants be given more time to perfect an appeal. The appeal referred to is from an order of the Supreme Court. It was originally logged in the County of Cayuga Clerk's Office on July 1, 2011. The representation also asked for permission to remove themselves as the legal counsel of the appellants.

On December 8th, 2011 and December 20th of the same year, Alan J. Pierce, Esq. Wrote and filed an affirmation of proof of service. J. Ryan Hatch, Esq. also filed an affirmation which was dated December 19th of 2011. The affirmations submitted by these two were considered by the court in coming to its conclusion.

Result

The court granted the motion that requested that Hancock Estabrook, LLP be allowed to remove themselves as the appellant’s legal representation. Bronx Probate Lawyers said an amendment was also made to the original order of the court which was issued in regards to the original appeal. The date that was originally listed on the order dated October 25th, 2011 as the deadline for perfecting the appeal was December 27th, 2011. That date was removed and replaced with the new deadline of March 5th, 2012.

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The plaintiff in the case is Island Estates Management, while the defendant is MBA-Manorhaven, LLC.

History

A New York Probate Lawyer said the plaintiff had an agreement to buy a property from the defendant, based on a contract signed in December of 1998. A deposit of $350000 was placed to secure the purchase, but the final purchase price was to be based on how many units got approved for the subdivision. Island Estates had an option to review the property which was to last 60 days. During that window they could terminate the agreement if they chose. That agreement was extended, in writing, several times, a fact that neither party argues.

The agreement also includes obligations on behalf of the buyer. For example, Island Estates had a year to get a zoning permit so that subdivision could go forward. Brooklyn Probate Lawyers said the seller also had thirty-days to provide written notice to cancel the agreement and refund the deposit. This couldn't be exercised if the failure to meet milestones was beyond the control of the buyer. However, the buyer had a maximum of two years to meet these milestones unless they paid $100,000 for an extension, which they did not.

A problem arose when environmental contamination was found on the property; although MBA-Manorhaven had not represented that there was such according to Island Estates. Long Island Probate Lawyers said it was agreed that along with extending the deadline that MBA would pay for the cleanup costs of the site up to the amount of $400,000, while Island Estates would pay any amount beyond that up to $600,000, while anything beyond that would be shared 50/50.

Island Estates alleges that MBA-Manorhaven breached their contract by failing to provide bills showing the amount of the cleanup costs, and also that they did not complete the cleanup as required in the agreement. Based on the various portions of the agreement, closing of the deal would not be completed until Island Estates received the Special Use Permit and Site Plan. However, that would not be issued until the environmental conditions were improved. MBA-Manorhaven is using that breach of contract as its reason for termination of the contract. Island Estates would like to instead close the deal.

Submitted as evidence that MBA-Manorhaven has a poor track record of cleaning up environmental problems was the claim that the DEC stated that MBA-Manorhaven has “...not always been as aggressive about remediating pollution as they have been about debating its existence...” That statement and the elapsed four year period shows that MBA-Manorhaven did not take sufficient action to correct the problem of the environmental status of the property.

When a party breaches a contract, they are not permitted to use their own breach as a reason for canceling the agreement. Essentially, MBA-Manorhaven sought to get out of any obligation they might face simply by failing to conform to their responsibilities in the agreement. This would not be an act of good faith, and is why the defendant's request to dismiss the case must be denied.

According to the initial contract, if the cleanup costs were going to be more than 2 million, then either party could cancel, unless the other party notified them within a time limit that they would pay for costs in excess of that amount. MBA-Manorhaven sought to cancel, but within the time limit, Island agreed to pay the costs, rendering that cancellation invalid.

Results

None of the reasons given by MBA-Manorhaven was able to create a valid reason by which they could cancel the contract with Island Estates. As a result, the defendant's move to dismiss the case is denied. Further, the counsel for both sides of the contract was ordered to move to a conference that would start in motion the proceedings of completion of the original deal.

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In this case, the Sharrots Estates Homeowners Association, Inc. is the appellant. Mitchel Eilenberg et al. are listed as the respondents.

A New York Probate Lawyer said this case took place in the Supreme Court of the State of New York. The Appellate Division in the Second Judicial Department heard the case, and it ruled on the matter on January 18th of 2012.

Case

In this case, the appellant, the Sharrots Estates Homeowners Association moved to withdraw an appeal that was placed before the Supreme Court of Richmond County. The appeal had been dated August 6th, 2011.

The appellants filed papers to support this application, but no papers were filed to oppose the motion to dismiss the appeal.

Results

As no opposition was made to the request, the motion is granted. The appeal will be withdrawn from the Supreme Court of Richmond County.

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Estates 7

The Hudson Insurance Company is the plaintiff and AK Construction Co. LLC., Panasia Estates INC., and Hement Mehta are the defendants.

The Case

A New York Probate Lawyer said that in this action, the plaintiff is seeking a declaratory judgment related to property damage, while the defendants move to dismiss the plaintiff's complaint. There are six different avenues pursued by the plaintiffs, involving breach of contract, breach of warranty, misrepresentation, neglect or intentional misconduct regarding the statute of limitations and the same in regards to subrogation rights. They are also seeking to be compensated for the costs of their legal aide.

Panasia Estates held a builder's risk insurance policy issued by the Hudson Insurance Company. This policy covered the property which it owned. AK Construction was hired by Panasia to work on those properties. Around July 2003, Panasia made an insurance claim regarding water damage to a property. The plaintiff argues that building deterioration caused the damage, and as such claimed it was not responsible for covering the damages. They did not claim that AK Construction caused the leak; as such a problem would have been covered under the insurance policy. The plaintiff would be free to pursue action against AK Construction if their activity caused the damage, and also wants to hold Hehment Mehta liable.

Mr. Mehta is the property manager for Panasia Estates. He has also invested in AK Construction. It is important to note, however, that it is not an insured or a party to the insurance policy held on the property by Panasia Estates. Nassau County Probate Lawyers said that he, therefore, can have no personal liability no matter what positions he might hold with those two organizations. The plaintiff alleges that he was an officer, director and member of those organizations but that fact remains irrelevant to the matter of his personal liability. The complaint against him therefore needs to be dismissed.

When a declaratory judgment is made, the court has to state its grounds. When the question at hand is whether or not to dismiss a complaint because a proper claim wasn't made, the issue is not about whether or not the end result of the hearing would be favorable to either party. Instead, the court only has to decide whether or not a case is actually presented which indicates that a declaratory judgment should be made.

Results

The motions that were put forward by AK Construction and by Panasia Estates were not granted. The plaintiff made a claim under the doctrine of anticipatory subrogation which prevented these movements for dismissal. When a defendant is subject to this type of a claim, they may implead another party if that party could be liable to the defendant for the claim being made by the original plaintiff. Suffolk County Probate Lawyers said the language which permits this is broadly phrased, which allows the court to include claims that are based on subrogation. It is important to note that no statute of limitations or the doctrine of laches should prevent this action from going forward. Neither AK Construction nor Panasia Estates could prove definitively that the plaintiff took a prohibitive amount of time to move forward with a claim. The key is that the defendants were not prejudiced by any excessive delay in moving forward on the part of the plaintiff.

Typically speaking, contractual obligations and liability claims are subject to a six year state of limitations. This involves property damage and a construction contract between the parties. As such, the six year statute of limitations applies, but it began on July 12, 2003. The action commenced four days short of the xi year period, rendering the statute of limitations an invalid reason for dismissal.

AK Construction had its motion denied. The plaintiff was also awarded $100 of motion costs to abide the event. Hement Mehta's motion to dismiss the claim against him was granted, as was the claim of Panasia Estates.

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In this case, Michael J. Spence was the plaintiff. The defendants were the Island Estates at Mt. Sinai II, LLC, Gessin Contracting Co., Inc., and Island Estates. Island Estates at Mt. Sinai II and Gessin Contracting were also third-party plaintiffs while Lakeville Industries was listed as a third-party defendant.

History

A New York Probate Lawyer said the primary plaintiff in this case, Michael J. Spence was injured in 2005 when making a delivery of a countertop to a property at the Mount Sinai Island Estates. In the course of the delivery, a rut in the ground caused him to trip, resulting in an injury. Lakeville Industries was the employer of Spence at the time. There are other complaints, separate from this which alleges negligence and violation of labor laws against Lakeville and the third-party complaint accuses Lakeville of negligence and breach of contract, among other things related to improperly protecting and insuring their employees.

The defendants in this case sought to have a summary judgment made which would dismiss the case. In order to support this motion, they submitted the bill of particulars submitted by Spence, the construction agreement involved in the job, the pre-trial examinations of Spence, Jim Meyn, and Richard Sirlin.

The original contract between Lakeville and Mt. Sinai II involved Lakeville agreeing to cabinetry to the homes in the development. Island Estates, the primary contractor was to be held legally harmless in their insurance policy. NYC Probate Lawyers said the company was also to provide liability insurance and worker's compensation coverage. According to this same agreement, it was the responsibility of the subcontractor to inspect and report any safety issues.

At the time the injury occurred, Spence was driving the delivery truck for Lakeville. With the help of his assistant, he had loaded a 20-22 foot long and 4 foot deep countertop into his truck. It weighed somewhere between 800 to 900 pounds. He was instructed to get assistance from someone at Island Estates to help unload the delivery because it was so large and heavy. The truck was able to be parked approximately 20 feet from the truck on a muddy surface. There was no path to the house where the delivery needed to go, and construction debris littered the site. The ground was also uneven with ruts cut into the mud. He, his helper and the Island Estates worker planned to pull the counter off the truck and carry it together. While walking, his foot caught in one of the ruts which caused the load they were all carrying to unbalance. Although the delivery was completed, he says that he felt pain in his left side shoulder and arm, as well as along his neck and back. He states that the rut had tire tracks in it, and that he had made deliveries and noticed the ruts previously, although he hadn't complained of them.

Mr. Meyn testified prior to the trial's beginning that he had been an employee of Island Estates for 27 years. Queens Probate Lawyers said he worked each day at the housing site where the injury happened where his duties include construction, as well as supervising the site and keeping the log. He knew that employees sometimes had to help with Lakeville deliveries, but had not been aware of the delivery in question. He also mentioned that another contractor was responsible for maintaining the cleanliness of the site.

Sirlin is the President of Lakeville. He said that typically Lakeville delivers only much lighter laminate counter tops rather than heavy stone ones. He did not have an invoice to verify what type of countertop was delivered that day.

Results

The defendants that moved for dismissal of the case could not present sufficient evidence to dismiss with a summary judgment. Too many questions remain; including who the contractor was that was supposedly responsible for the cleanup of the site. It is also not clear who the general contractor in charge of the site was at the time of the incident. The other motion to dismiss which was put forward by Lakeville and Sirlin was also dismissed due to a lack of compelling and clear reasons why a summary judgment should be issued.

Stephen Bilkis & Associates offers legal services throughout the metropolitan area of Manhattan. If you find yourself in need of legal advice, whether for a will contest, probate or estate litigation, you may contact one of our offices to set up an appointment for your free consultation. Our lawyers will help you determine what your best course of legal action will be based on your current situation.