Plaintiff Seeks to Increase Damage Amount

December 18, 2014,

Probate Lawyers said the defendants appeal from an order of the Supreme Court, Richmond County, which granted the plaintiff's motion to remove the case from the Civil Court of the City of New York to the Supreme Court, Richmond County, to amend the complaint to set forth a cause of action for wrongful death and to increase the amount of damages requested.

Following an automobile accident which occurred on July 10, 1971, the plaintiff brought this action in the Civil Court of the City of New York, Richmond County, on May 24, 1972, alleging negligence on the part of the defendants and requesting a total of $14,000 damages for injury to personal property, for personal injuries sustained by his son, aged 16, and for consequential damages sustained by the plaintiff-father.

An Estate lawyer said that the two automobiles of the defendants collided, sending one of them into the parked automobile in which the child was sitting. It is conceded that he died of Leukemia on August 14, 1972. On June 25, 1974, the plaintiff, as administrator of his son's estate, moved in the Richmond Supreme Court for leave to amend the complaint so as to assert an action for wrongful death, to increase the amount of damages requested by the plaintiff, both as administrator and parent, and to remove the case from the Civil Court to the Supreme Court, which would have jurisdiction over the increased amount claimed.

Although it does not appear from the record exactly when each defendant was served with the amended complaint pursuant to the order, no claim is made that the 20-day limitation was not complied with. Defendants assert that service was made October 18, 1974.

Nassau County Probate Lawyers said in this appeal the defendants argue that the order should be reversed on the ground that the wrongful death cause of action asserted in the amended complaint is barred by the applicable two-year Statute of Limitations. This Statute of Limitations begins to run at the decedent's death and in this case would bar any claim interposed after August 14, 1974.

The motion for leave to amend was made June 28, 1974, about a month and a half prior to the expiration of the two-year period, and the return date of the motion, July 9, 1974, was over a month prior to the expiration date. However, Special Term did not grant leave to amend until Septembeer 5, 1974, 22 days following the last day to interpose a claim under the statute.
The CPLR informs that a claim asserted in an amended pleading will relate back to the date of interposition of the original pleading if the required notice of the occurrence in question was given in the original pleading. However, there is no provision establishing when a claim asserted in an amended complaint is interposed in the absence of, or disregarding, such notice.

Staten Island Probate Lawyers said the defendants argue that such a claim is not interposed until the service of the amended complaint pursuant to leave. If this is so, the claim for wrongful death was not interposed until after September 5, 1974, and, unless held to have related back to an earlier date, would be barred by the Statute of Limitations. The plaintiff argues that the claim is interposed when the motion for leave to amend is made, and the supporting papers, including the proposed amended complaint is served.

From the dates involved, it can be seen that the weakness of the defendants' theory is that, whether the plaintiff may timely serve the amended complaint depends upon the speed with which the court decides the motion for leave to amend.

The purpose of the Statute of Limitations is to force a plaintiff to bring his claim within a reasonable time, set out by the Legislature, so that a defendant will have timely notice of a claim against him, and so that stale claims, and the uncertainty they produce, will be prevented. The purpose of the statute is in no way served by a rule which would place the plaintiff in a position whereby the timeliness of his claim would depend upon the speed with which a court decides a motion.

In the present case the defendant had notice of the claim before the expiration of the Statute of Limitations when the supporting papers containing the proposed amended complaint were served, and we find that this is the most appropriate time to deem a claim asserted in an amended complaint to be 'interposed' so as to stop the Statute of Limitations. As compared with other possibilities, deeming the claim to be interposed on the date the motion is made and the proposed amended complaint served has the advantage of being certain and completely within the plaintiff's control, not subject to the vagaries of calendar practice or calendar congestion.
Holding that a claim in an amended complaint is interposed only when the amended complaint is served pursuant to order would also create a procedural trap. Since neither the three-year Statute of Limitations for personal injuries, nor the two-year wrongful death statute, had expired when the plaintiff served his motion for leave to amend the complaint, the plaintiff could have simply served a summons in another plenary action claiming wrongful death and then have moved for consolidation or a joint trial.

In light of the above, we hold that where a court grants permission to serve an amended complaint and both the notice of motion and the proposed amended complaint are served upon the defendant prior to the expiration of the applicable Statute of Limitations, the claim asserted in the amended complaint is interposed at service of the proposed amended complaint.
In urging a contrary holding, the defendants rely heavily upon a case where the plaintiff had commenced an action for wrongful death and sought to bring in an additional defendant. Exactly two years from the date of the decedent's death, the potential defendant was served with a notice of motion for leave to serve a supplemental summons and an amended complaint. The supplemental summons and the amended complaint served with the notice of motion were considered to be merely 'evidentiary in nature' (p. 60, 85 N.E.2d 616) and the claim against the new defendant was held barred by the Statute of Limitations. Whatever the validity of that holding following the enactment of the liberal amendment provisions of the CPLR, we find the Arnold holding distinguishable in that it applies to bringing in an additional defendant, a party never before served, as opposed to amending a complaint against someone who has previously been served and is already well aware that he is a defendant.

Moreover, the return date of the motion in Arnold was after the expiration of the statute, and the Court of Appeals did not have the opportunity in that case, as we do here, of assessing the impact of court delay on the Statute of Limitations.

In addition to the claim being timely because of its interposition prior to the expiration of the Statute of Limitations, we find that the Statute of Limitations is no bar in the present case since the claim asserted in the amended complaint also Relates back to the original pleading, under CPLR 203. Although the matter is not altogether free from doubt, we find the original pleading did give the defendants 'notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading'.

The defendants also argue that even if the wrongful death claim is not barred by the Statute of Limitations, the papers supporting the motion to amend the complaint and to increase the damages were insufficient. As to the increase in damages, assuming that leave to amend the complaint was properly granted, we do not find that Special Term abused its discretion. In the present case, the plaintiff submitted his own affidavit, the affidavit of his attorney and the affidavit of his physician. The physician's affidavit states that he 'obtained a history' of the accident indicating that as a result of the accident the decedent inhaled gasoline for approximately 45 minutes and that his clothing was drenched with gasoline.

A fair reading of the father's affidavit is that the father states that gasoline spilled from either a ruptured gas tank or gas line and that his son was saturated with that gasoline and absorbed the fumes. With these allegations in the supporting affidavits, Special Term did not abuse its discretion in allowing the amendment. However, in so holding we do not imply that the allegations are sufficient to withstand a motion for accelerated judgment.

Where the record affords sufficient information for an informed decision, as in the Statute of Limitations question herein, we see no reason to proliferate motion practice 'through avoiding coming to grips with the substantial question'. However, where the papers adequately support a motion for leave to amend, but are not sufficiently full to support a decision on a matter of substance, we find the better practice is to allow amendment, with leave to a party so desiring to raise the substantive issue at a later date.

Order of the Supreme Court, Richmond County, dated September 5, 1974, affirmed, with $20 costs and disbursements jointly against appellants appearing separately and filing separate briefs.

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Court Decides Case Involving Probate and Bankruptcy Proceedings

December 17, 2014,

A Probate Lawyer said in this Estate action, the defendant moves to dismiss the plaintiff's complaint or in the alternative an order staying the action as against him. The co-defendant cross-moves to dismiss the plaintiff's complaint or in the alternative an order staying the action against her. The co-defendants cross- move to dismiss the plaintiff's complaint as against them, as well as an award of costs and disbursements. The motions are granted to the extent that this matter shall be stayed pending the completion of the federal bankruptcy proceedings.

A Estate lawyer said that the defendant is a principal of a Company that has its principal place of business at New York. It is acknowledged that co-defendant was a member of company. But in support of her cross-motion to dismiss, she submits a copy of an Agreement of Sale dated June 8, 2012 wherein Defendant agrees to buy her portion of the company.

The plaintiff alleges that on or about July 27, 2011, the company entered into an agreement (Treasury Management Agreement). This agreement set forth the terms of the company's use of Funds Transfer/Wire and Remote Check Deposit Service. The funds transfer service allowed the company to make wire transfers from its accounts with the plaintiff to accounts held at other banks. The remote check deposit service allowed Richmond Wholesale to scan and deposit checks remotely from it's office.

Westchester County Probate Lawyer said it is alleged that between November 1, 2012 and November 14, 2012 the company and the named defendants utilized accounts held at the plaintiff institution and third-party accounts in a check-kiting scheme. A check-kiting scheme is a form of check fraud where the "check kiter" maintains accounts at two or more separate banks and passes checks, or wire transfers, between them to obtain unauthorized credit from each bank during the time it takes the checks to clear, which is known as the "float time." This scheme may continue as long as the check kiter continues to deposit checks, or wire transfers, in both banks and both banks believe there are sufficient funds in their respective accounts to cover the checks or wire transfers.

Suffolk County Probate Lawyers said that between November 1, 2012 and November 13, 2012 the company issue approximately $31,000,000 in checks drown on third-party accounts and deposited into the plaintiff's institution. All or nearly all of the checks were signed by defendant. And all or nearly all of the checks were deposited remotely using the defendant’s online user ID. Concurrently, Richmond Wholesale initiated wire transfers and issued checks from accounts held with the plaintiff to third party accounts.

On November 20, 2012 the plaintiff commenced a special proceeding in aid of arbitration in the Supreme Court for the State of New York, New York County.

On December 11, 2012 defendant confessed judgment on behalf of Richmond Wholesale in favor of the plaintiff in the amount of $13,522,540.05 plus interest and costs by affidavit.
The confession of judgment was entered in the Richmond County Clerk's Office on December 14, 2012. That same day Flushing commenced a special proceeding seeking to attach defendant's assets, and on December 17, 2012 commenced an additional action by summary judgment in lieu of complaint to collect under a guaranty allegedly signed by defendant.

On or about December 19, 2013, Capital One commenced an action against defendant in the United States District Court for the District of New Jersey.

The plaintiff's complaint contains the following nine causes of action: 1) Fraud against all defendants; 2) Aiding and Abetting Fraud against all defendants; 3) Civil Conspiracy against all defendants; 4) Breach of Contract; 5) Indemnification; 6) Tortious Interference with contract against all defendants; 7) Unjust Enrichment against all defendants; 8) Conversion; and 9) Aiding and Abetting Conversion against all defendants.

Each of the defendants cite the involuntary bankruptcy of Richmond Wholesale as grounds to stay this action. The Bankruptcy Code provides for an automatic stay as follows: (a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of-- (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title; (2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate; (4) any act to create, perfect, or enforce any lien against property of the estate; (5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title;(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title.

The defendantseach argue that the this matter should be stayed pursuant to aforementioned section of the Bankruptcy Code arguing that the plaintiff is pursuing the owners of Richmond Wholesale under a theory that they are its "alter-ego" without joining Richmond Wholesale as a party defendant. The defendants Khan and Hussain argue that the Appellate Division, First Department's decision in a case. In that case the Appellate Division affirmed the trial court's dismissal of a complaint with leave to replead in an action against the defendants as alter-egos of a corporation where the corporate defendant was not made a party.

In order to pierce the corporate veil it is necessary to show first, that the owners exercised complete domination of the corporation in respect to the alleged transaction; and secondly, that such domination was used to commit a fraud or wrong against the plaintiff which resulted in the plaintiff's injury.

The plaintiff concedes that at least three of the causes of action alleged against the defendants constitute an alter-ego theory of liability. Consequently, motions are granted to the extent that this matter is stayed pending either the resolution of the bankruptcy proceeding; or the lifting of the automatic stay by the federal bankruptcy judge to allow this action to move forward.

The cross-motion to dismiss made by the employees of the company shall be held in abeyance pending the lifting of the automatic stay by the federal bankruptcy court.

Accordingly, it is hereby: ORDERED, that the motion made by Defendant and cross-motion by co defendant is granted to the extend that this action is stayed pending the removal of the stay by the federal bankruptcy judge in the federal bankruptcy action involving Company.

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Court Considers Case Reqarding Law of Perpetuities

December 16, 2014,

A Probate Lawyer said the question presented on this record is whether the trusts created by the will of CMR, dated June 27, 1867, are valid within the law of perpetuities, or are void for remoteness. There can be no doubt that if the testatrix, at her death, was the absolute owner of the estate embraced in the trusts, they were valid both in respect of their purposes and duration. In general character they are trusts to apply the rents, profits, and income of the trust-estate for the support and maintenance of two children of the testatrix during their lives, respectively, with remainder, on the death of either, of the share of the one so dying, to his heirs and next of kin, except that in case of the death of either child during minority, and without issue, the whole estate is to be held in trust for the survivor during life, with remainder to his heirs and next of kin; and in case of the death of both children during minority and without issue, then, on the death of the longest liver, the whole estate is given absolutely to designated beneficiaries. Under the will the estate was to vest in absolute ownership, at the furthest, within the compass of the lives of the two children. The share of each child, provided he attained majority, would be liberated from the trust on his death, and the suspension of that share would in that event be but for one life only; but if either child should die during minority without issue, there would be a further suspension of the absolute ownership of his share during the life of the survivor. As to each share, therefore, there might be a suspension for two lives, but this would be within the limit allowed by law.

An Estate Lawyer said there would be no difficulty in sustaining the limitations in the will, if the period of suspension in this case is reckoned from the death of the testatrix, and the will only is to be regarded in determining the validity of the trusts. The statutory limit of suspension of the power of alienation of real estate is two lives in being at the creation of the estate, and a minority, and substantially the same rule applies to limitations of personal property. By another section of the statute it is declared that the delivery of the grant, where an expectant estate is created by grant, and where it is created by devise, the death of the testator shall be deemed the time of the creation of the estate. If nothing is to be considered in this case except the terms of the will, and these two sections of the statute, no doubt could be entertained of the validity of the trusts in the will; but if the will was the execution of a power of appointment vested in the testatrix, and not an exercise by her, as the owner of the property devised and bequeathed, of the jus disponendi, incident to ownership, a new element is introduced, and the validity of the trusts in the will is to be considered in view of the trust-deed of January 6, 1853, and the provisions of the statute of powers. By section 128 of that statute it is declared that ‘the period during which the absolute right of alienation may be suspended by an instrument in execution of a power shall be computed, not from the date of the instrument, but from the time of the creation of the power. Section 129 declares that no estate or interest can be given or limited to any person by an instrument in execution of a power which such person could not be capable of taking under the instrument by which the power was granted; and by section 105 it is declared, in substance, that a power reserved is subject to the provisions of the article in the same manner as a power granted.

A Westchester County Lawyer said it is claimed in behalf of the respondents that the will of Mrs. CMR was merely an execution of a power of appointment reserved in the trust-deed of January 6, 1853, made between the testatrix (then CMF) of the first part, and GSR and others of the second part, and that, construing the will in connection with the trust-deed and the provisions of the statute of powers, the trusts created by the will contravened the statute, for the reason that they were limited upon the lives of persons not in being at the creation of the power, viz., upon the lives of the two children of the testatrix, who, though living when the will was made, were not born until long after the trust-deed creating the power had been executed. The consequence is claimed to follow that the will was an unlawful attempt to suspend the power of alienation upon a contingency not authorized, viz., the lives of persons not in being at the time from which, by section 128 of the statute of powers, the suspension must be computed. The trust-deed was made in contemplation of the marriage of the settlor, CMF, with GSR. Its leading purposes were to secure to the settlor the income of her property for her own benefit during the marriage, free from the control, disposition, debts, or incumbrances of her husband, and to secure the principal to her, if she survived her husband; or, in case she should die during coverture, to her appointees by will; or, if she should make no appointment, to such persons as at her death would be her heirs, under the laws of New York, as if all the property was real estate.

A Suffolk County Probate Lawyer said to secure these objects, the settlor conveyed by the trust-deed to the trustees all her real and personal estate in trust, to receive and apply the rents, issues, profits, and income to her use as received without power of anticipation during her coverture, and in case she survived her coverture, to reconvey the property to her; but in case she should die during coverture, then the trustees are directed to grant, assure, and deliver all and whatever may remain of the hereby granted premises unto such devisee or devisees, in such share or proportion as she, the said party of the first part, by her last will and testament may appoint, which appointment the instrument declares she, the said party of the first part, is empowered, authorized, and enabled to make, and by force of these presents, without any other or further reservation of power in that behalf, etc. Then follows an alternative provision that in default of appointment the property shall go unto such person or persons living at the death of the said party of the first part, and being her heir or heirs at law, as would be entitled to take the same by descent from her in case the same was land belonging to her, situate in the state of New York, and, if more than one person, then in the proportion in that behalf prescribed by the laws of said state.

The trust-deed created a valid trust for the joint lives of Mrs. CMR and her husband, or during coverture, if she should become discovert by the death of her husband before her death. It was one of the express trusts authorized by statute, to receive the rents and profits of lands, and apply them to the use of any person during the life of such person, or for a shorter period, and suspended the power of alienation of the real estate and the absolute ownership of the personal property embraced in the trust, during the trust term; and although the trust might have terminated before the expiration of Mrs. Rigg's life by the death of her husband in her life-time, the suspension was, in legal effect, a suspension during a life. Neither she alone, nor in conjunction with the trustees, could abrogate the trust. The statute makes every conveyance or other acts of the trustees of an express trust in lands, in contravention of the trust, absolutely void, and by analogy the same rule governs trusts of personal property. The will further provides in a contingency for the suspension of the power of alienation and the absolute ownership of at least one-half of the same property during the lives of the two children of the testatrix, making possible a suspension for three lives, if the trust created by the trust-deed, and the trusts created by the will, are to be read as if incorporated in a single instrument, viz., the trust-deed of 1853. If Mrs. CMR remained the absolute owner of the property after the execution of the trust-deed, subject only to the estate of the trustees for her life, the trusts in the will would be valid. The reversion in the case supposed would be property which she could grant or devise, and limit future estates thereon in her discretion, subject only to the restriction that they must vest in absolute ownership within two lives in being at their creation. But Mrs. CMR was not the absolute owner of an estate in reversion after the execution of the trust-deed. In form the whole estate was conveyed to the trustees. Their title, however, was, in legal effect, limited in point of duration to the trust term. But the trust-deed itself contains a limitation of the estate to other persons than Mrs. CMR in the event of her death before her husband, and without having made an appointment by will, viz., to such persons living at her death as would take the property as her heirs, under the laws of the state of New York, by descent, as if it was wholly real estate. The property transferred by the trust-deed was mainly personal, but at the time of Mrs. CMR' death was mainly real, the trustees having, under the authority of the deed, invested the fund to a large extent in real estate situate in New York and Maryland.

The remainder-men, in case the event happened upon which the remainder was limited, would take as purchasers. It was limited to persons who would not be entitled as of course to the personal estate, and who might not be entitled to the real estate outside of New York, and whose title would not be subject to the tenancy by the curtesy of the husband, as it would have been if the deed had not been made. It is true that the remainder might be defeated by either of two events,-by the death of Mrs. CMR before the death of her husband, or by her will in execution of the power of appointment made and taking effect during his life,-and it was in fact defeated in the latter way. But Mrs. CMR could not during the life of her husband affect the limitation in remainder, except in the particular way pointed out; that is, by an appointment by will. She could not defeat it by a conveyance inter vivos. The quality of absolute property, which enables an owner to dispose of it in any of the forms known to the law, did not attach to the interest remaining in Mrs. CMR after the execution of the trust-deed. What she did have was a reversion depending on the event of her outliving her husband, which has been defeated by her death, and in addition a right to appoint by will only in case of her death during coverture. It is a doctrine of the common law that an unrestricted power to appoint a fee in lands by deed or will is equivalent to ownership, because the donee of the power may at any time, by exercising the power, acquire an absolute estate, and in such cases the question of perpetuity arising upon limitations made by the donee of the power is determined with reference to the date of the execution of the power, and not of the instrument creating it. But the general rule is expressed by Chancellor Kent, in his Commentaries, An estate created by the execution of a power takes effect in the same manner as if it had been created by the deed which raised the power. The power of disposition reserved by Mrs. CMR in the trust-deed was not an absolute power equivalent to absolute ownership. It was restricted to a disposition by will. The statute of powers defines an absolute power to be one by which the grantee is enabled, in his lifetime, to dispose of the entire fee for his own benefit. The power in this case was general, but not absolute.
We think the validity of the suspension in the will of Mrs. CMR is to be determined by the test, whether it would be valid if it had been part of the limitation in the trust deed, and had been inserted therein at the time the deed was executed. This seems to be the rule of our statute, and it is the rule of the common law in respect to appointments under special powers. Mr. Jarman, in referring to this subject, says that the reason that this test is not applicable to appointments under general powers is that such powers are, in point of alienation, equivalent to actual ownership; but he adds: This reason fails when the power, though general in its objects, is to be exercised by will only. In such a case, the power of disposition is suspended during the life of the donee, and appointments made by virtue of it are therefore to be tested in the same way as appointments under a special power. The case of In re Powell's Trusts, 39 Law J. Ch. 188, decided by JAMES, V. C., cited by Mr. Jarman, fully sustains the text. The case of Rous v. Jackson, L. R., 29 Ch. Div. 521, seems to be adverse, but it proceeded, I think, on a failure to discriminate between a general and unrestricted power, and one to be exercised by will only, and this is the view taken by Mr. Gray, in his work on Perpetuities, § 526. We think, therefore, the trusts in the will of Mrs. CMR are to be construed as if created at the date of the trust-deed of 1853, and that, so reading them, they are invalid as an attempt to suspend the power of alienation of real estate and the absolute ownership of personal property for three lives, and for the additional reasons that the two children upon whose not in being when the trust-deed was executed, and could not have taken such an estate as was limited under the will, if it had been limited in the same manner in the deed of 1853.

The argument has been urged upon us that, conceding that the absolute power of alienation of the trust-estate was suspended during the coverture of Mrs. CMR, under the general rule, by reason of the disability imposed by the statute upon the trustees to do any act or make any conveyance in contravention of the trust, this disability was removed as to property held in trust for married women by the married woman's act of 1848, as amended by the second section of the act of 1849. That section provides that any person who may hold any real or personal property as trustee for any married woman may, on her written request, convey the same to her, or the rents, issues, or profits thereof, for her sole and separate use and benefit; but it is made a condition to such conveyance that the request shall be accompanied by a certificate of a justice of the supreme court that ‘he has examined the condition and situation of the property, and made due inquiry into the capacity of the married woman to manage and conduct the same. This statute does not, we think, answer the difficulty. Assuming that the trust in this case was within the statute of 1849, the disability imposed upon a trustee of an express trust by the general statute is not removed in the case of a trustee for a married woman except conditionally, the condition being the judicial action of a judge certifying, after a judicial examination of the facts, that it is a proper case for the exercise of the power conferred by the act. In substance the statute confers a power dependent upon the consent of a judge of the court. Until such consent is obtained, the suspension continues. It could not be terminated by the conjoint action of the trustees and Mrs. CMR. The general test of alienability is that there are persons in being who can make a perfect title. This cannot be predicated, we think, of a situation where judicial action, which may or may not be obtained, is requisite to authorize a conveyance. See Gray, Perp. § 527. But, independently of this consideration, we think the statute was intended to apply merely to nominal trusts, to secure a married woman in the enjoyment of her separate estate, where this was the sole object of the trust. The statute, in such a case, permits the trust to be abrogated and the legal title to be vested in the beneficial owner, the separation of the legal and equitable estate no longer serving under our statutes any useful purpose. It certainly cannot be construed to prevent a parent, relative, or other person from creating an express trust to apply the rents and profits of the trust-estate for the benefit of a married daughter, niece, or other female, without subjecting it to the risk of destruction by the conjoint action of the trustee, the beneficiary, and the court. In this case the trust created by the deed of 1853 was not a mere formal or passive trust. The title to the property was vested in the trustees. It was strictly a trust under the statute. The deed not only declared the interest of Mrs. CMR in the trust property, but limited thereon future contingent estates, to take effect on her death during coverture, unless defeated by her appointment by will. This trust was not, we think, within the purview of the statute of 1849. If a conveyance had been made to her under that statute, the property would not be held ‘for her sole and separate use and benefit, because the contingent estate in remainder could not in that way be defeated. We think the court below properly construed the will, and the judgment should therefore be affirmed.

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Court Decides Case Reqarding Distribution of Retirement Funds

December 15, 2014,

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.

The Proponent has now moved this Court for permission to transfer the Supreme Court action to this Court.

An Estate Lawyer said that during his lifetime the Decedent apparently executed various beneficiary designations. According to the complaint in the Supreme Court action, on his original application he named his father. On January 18, 1929, he named his wife. On November 6, 1952, he named his estate. On January 10, 1956, he named the executrix.

Nassau County Probate Lawyers said it is the contention of the plaintiffs in the Supreme Court action that the Retirement System funds are payable to Decedent's estate. It would seem obvious then, that if the plaintiffs in the Supreme Court action are successful, the ultimate distribution of the Retirement System funds will have to await the determination of the Surrogate's Court in the pending will contest and the administration of Decedent's estate. Unless and until a representative of Decedent's estate is appointed by the Surrogate's Court and is made a party to the action in the Supreme Court, it is difficult to see how a final binding determination can be made. The validity of the designation of beneficiary might have to be relitigated in an action brought, this time, by an administrator of the estate.

Section 19(a) of Article VI of the Constitution of the State of New York provides that the Supreme Court may transfer 'any action or proceeding to any other court having jurisdiction of the subject matter.'

A Staten Island Probate Lawyer said that section 33 of Article VI of the Constitution of the State of New York provides that 'Existing provisions of law not inconsistent with this article shall continue in force.'

In the light of section 19(a) of Article VI of the Constitution of the State of New York, there may be some question as to the necessity of the Surrogate's consent viewed as a prerequisite to an order of the Supreme Court transferring the pending action in question to this Court. However, since the action sought to be transferred is appropriate to the administration of Decedent's estate and since full and final justice to all parties may depend upon the completion of the administration of the estate, the application is granted.

In another case, two proceedings concerning the estate of a deceased, who died in 1914, are before the Court. In one proceeding, an individual has asked to have his accounts settled and for permission to resign as executor and trustee. In an earlier opinion, dated May 22, 1963, he was allowed to resign and decedent's son was appointed in his place. The other proceeding involves the settlement of the accounts of a deceased executrix and trustee. These two proceedings are consolidated with the consent of the parties.

A New York Estate lawyer said that there have been four prior accountings in this estate. The last one was in 1935. In settling that account the then Surrogate expressly reserved for a later determination the question of whether a certain extraordinary dividend received by the trustees from the a corporation should be treated as principal or income.

When he died, decedent owned undivided fractional interests in various parcels of real estate in Richmond and Suffolk Counties. In 1923 the executors and trustees sought and received Supreme Court approval of the formation of the corporation pursuant to Section 116 of the Real Property Law. The Corporation took title to the real property and the estate received stock and bonds in exchange. Prior to 1935 the Corporation sold substantial portions of its real estate holdings in Richmond County at a profit over book value of $91,816.70.

'The right to a dividend as between the life tenant and remainderman of an estate is determined by the facts as to the source and character of the dividend considered in the light of the testator's intention.'

As a general rule dividends representing the increased value of the investments of a corporation are to be considered a distribution of capital and should be added to the principal of the trust.
There are exceptions to the general rule, and it is urged that the exception established in a case, should be applied. This exception was based on a finding that the corporation there involved was a real estate trading corporation, and when it sold its real property it was merely selling its stock in trade. These facts led the Court to conclude that the profits realized were made in the ordinary course of business and belonged to the income beneficiary.

The corporation was not a trading corporation buying and selling real estate in the ordinary course of business. It was formed under a special statute, Real Property Law, § 116. This statute, while permitting a trustee to make what would otherwise be an unauthorized investment, does not authorize the formation of a real estate trading corporation. There is no evidence that the Corporation ever bought any real property. It appears that the lands initially conveyed to the Corporation produced enough income to pay expenses and from time to time to pay some ordinary dividends.

The Court concludes that the extraordinary dividends must be added to the principal of the trust.
Although no formal objections were ever filed in either of the proceedings, several matters were the subject to disagreement among the parties. These disagreements have now been resolved by stipulation.

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Court Hears Appeal for the Issuance of a Set Off

December 14, 2014,

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.

An Estate Attorney said that the Referee concluded that defendant did not breach the contract and that the Company was indebted to defendant in the amount of $41,483.32, for the unpaid extras. Further, the Referee determined that the lien was valid, and that it could attach to the full amount awarded. However, the Referee's initial decision did not address the validity of the Company's claim for a $25,000 setoff against any amount owed.

Accordingly, this court remitted the matter to enable the Referee to make a determination on the issue of the setoff. After conducting a hearing, the Referee concluded that Beverly was not entitled to the requested setoff, since it failed to establish that the $25,000 payment was for noncontractual extras, and not for items covered under the original contract.

In regard to the claim for extras, the law is well settled. It was succinctly stated in a case, where the court held:

"With respect to material furnished a subcontractor by materialmen, liens filed by such materialmen can only be enforced to the extent of money owed by the contractor to the subcontractor.

Consequently, unless the corporation is indebted, there is no fund upon which the lien may attach.

Long Island Probate Lawyers said the Referee was correct in concluding that there was no breach of contract. The record revealed that the corporation's actions were partially responsible for any delay in completing the contract. In such a situation, the company may not be permitted to assert to its advantage the failure to perform within the time originally allotted. Furthermore, the company failed to establish by a preponderance of the evidence that the breached the contract by abandoning performance thereunder. Thereafter, defendant forwarded a written response indicating that he had supplied additional men and intended to abide by the terms of the contract.

Where the evidence of a party to the action is not contradicted by direct evidence, nor by any legitimate inferences from the evidence, and is not opposed to the probabilities; nor in its nature, surprising or suspicious, there is no reason for denying to it conclusiveness.

We pause to note that the Referee erred in relying on the testimony to establish that Beverly waived any claim of breach by abandonment. The testimony did not establish that the continued to perform pursuant to the Loop B contract, following the aforementioned letter of proposed termination.

Queens Probate Lawyers said the Company's assertion that defendant failed to prove a prima facie case is meritless. There is no reason to disturb the Referee's determination that Beverly is indebted in the amount of $41,483.32. Moreover, the company is not entitled to the requested setoff of $25,000, since it failed to sustain its burden of proving that the payment was for noncontractual extras. Inasmuch as defendant did not breach the contract, Beverly may not setoff its alleged damages against the amount owed. Thus, there is a fund upon which defendant's lien may attach. Moreover, defendant proffered sufficient proof to establish delivery of the materials.

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Court Decides Summary Judgment Case

December 13, 2014,

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.

In support of these allegations, the City relies upon the well established principles of governmental immunity, as well as the expert affirmation and the deposition testimon.
According to the City, the case against it must be dismissed pursuant to the general rule that a municipality may not be held liable for claims of negligence arising out of the performance of its governmental function. While recognizing that an exception exists where a special relationship is found between the claimant and the municipality, the City alleges that no such relationship is present herein. The City also alleges that even if a special relationship did exist, none of the care rendered to the deceased infant by any of its employees was a proximate case of his death.

Bronx Probate Lawyers said in cross-moving for summary judgment, the Hospital's adopts many of the same arguments advanced by the City and, in reliance upon the affidavit of the doctor, argues that its motion should be granted due to the absence of any causal relationship between the acts or omissions attributed to it and decedent's death.

In opposing both the motion and the cross motion, plaintiff alleges that sufficient evidence has been proffered to establish not only that a special relationship existed between decedent and the City, but that the City affirmatively assumed a duty to render care to the decedent. Plaintiffs further contend that sufficient evidence has been adduced to establish prima facie that the acts and omissions of the City's and the hospital's EMTs were a substantial factor in causing the infant's death.

In reply, the City maintains that plaintiff has failed to establish a special relationship between itself and the deceased based upon detrimental reliance. Accordingly, no duty was created. Moreover, even if such a duty did exist, the City argues that plaintiff has failed to show any non-speculative basis on which to demonstrate that said duty was breached. In this regard, the City contends that the affidavits of plaintiff's experts (1) include numerous factual errors and misstatements, and (2) repeatedly confuse the duties of the hospital 's Advanced Life Support Unit with those of the Fire Department's Basic Life Support Unit, e.g., alleging departures in procedure by Basic Life Support personnel regarding measures which they are not permitted by law to perform, such as intubations, the administration of cardiac medications and the attachment of a cardiac monitor.

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law. On a motion for summary judgment, the function of the court is issue finding, not issue determination. In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion. To prevail on the motion, the moving party must present prima facie evidence of its entitlement to judgment as a matter of law.

In this regard, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise a triable issue. Thus, summary judgment is only appropriate where the movant's initial burden of proof has been satisfied, and the opposing party has failed to adduce competent evidence demonstrating the presence of a genuine issue of material fact.
It is be incontrovertible that municipalities are generally immune from tort liability for the negligent performance of discretionary acts, i.e., those which require the use of reasoned judgment. Thus, a municipality may not be held liable for injuries resulting from the failure to provide adequate police or fire protection.

As for, the exception claimed by plaintiff, i.e., the second exception, it has been held to have four basic elements (a) an assumption by the municipality of an affirmative duty to act on behalf of the injured party; (b) knowledge on the part of its agents that inaction could lead to harm; (c) direct contact between the City's agents and the injured party; and (d) that party's justifiable reliance on the municipality's affirmative undertaking. In this regard, it must also be noted that the special relationship rule has been applied to cases involving both nonfeasance.
With respect to establishment of a special relationship, the City alleges that plaintiffs must demonstrate that the decedent justifiably relied upon the actions of the municipal defendants to his or her detriment. Accordingly, when viewed in the present context, it is incumbent upon plaintiff to show that the acts of the City's employees lulled her into a false sense of security, and that such reliance induced her to forego other possibilities of obtaining medical care, thereby placing the deceased in a worse position then he would have been in had the City never acted.

Contrary to plaintiff's conclusory allegations of detrimental reliance, the papers presently before the Court are devoid of any evidence of same. Rather, the deposition testimony of both the firefighters who initiated resuscitative efforts and the members of the Basic Life Support Unit which took their place until the Hospital's Advanced Life Support Unit arrived, as well as that of the decedent's mother, demonstrates that the actions attributed to the City did not cause plaintiff to forego any other avenues of rescue.

A likewise result is required with respect to St. Vincent's. Viewing the evidence in the light most favorable to the plaintiff, and accepting the affidavits of plaintiff's experts, in which they opined defendant St. Vincent departed from acceptable practice in that there was a failure to defibrillate, establish an IV line, or administer appropriate heart rhythm medications, these said alleged departures are insufficient to establish they were a substantial factor in causing the son's death. To the extent plaintiff's experts' opinions indicated, the deceased could have been resuscitated, this Court finds them to be mere speculation and conjecture without a sufficient objective basis.

According, it is ORDERED that the motion for summary judgment by the City of New York, the New York City Fire Department and the hospital's are granted; and it is further ORDERED that the Clerk of the Court enter judgment accordingly.

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Court Decides an Action for Ejectment of Public Administrator

December 12, 2014,

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.

Queens Probate Lawyers said the section 10 of article I of the Constitution of New York State, provides that the People of the State, in their right of sovereignty, possess the original and ultimate property in and to all lands within the jurisdiction of the State, and that all lands, the title of which shall fail, from a defect of heirs, shall revert or escheat to the people. Section 200 of the Abandoned Property Law relative to escheated lands, is repetitive of that portion of the latter part of the above section of the Constitution.

On the death of an intestate, title by escheat, propter defectum sanguinis, passes at once to the State by operation of law. Statutory provision, however, is given by the Abandoned Property Law authorizing an action by the Attorney-General to confirm the State's right to escheated property and to afford an opportunity to any claimant to dispute that an escheat has in fact occurred. This remedy to the State, replacing the ancient writ of escheat, is an action in ejectment, but the State has no right of entry until it pursues the measures necessary to the determination of the decedent's lack of heirs.

Long Island Probate Lawyer said the proof here shows that diligent effort has been made by the State to locate and ascertain the whereabouts of the heirs at law of the decedent. Investigation was made in and about the premises where the decedent lived at the time of his death, and at other places where he had previously resided. Friends and acquaintances have been interviewed.

A friend and neighbor of the deceased, who had resided near the intestate's Staten Island address, and with whom he had been in frequent contact and intimate relationship, testified that the decedent had told him that he had no known relatives. This witness had known the decedent for about thirty-five years. According to the latter, Smith had been born in London, had come to the United States with his widowed mother and sister, who died at the age of three years.

The guardian ad litem and special attorney offered no proof at the trial and has duly submitted his report to the effect that the decedent died intestate, without known heirs, and that in his opinion his realty escheated to the State of New York.

Rule 241 of the Rules of Civil Practice makes it requisite that a decision in favor of the plaintiff in an action for the recovery of real property, or the possession thereof, and the judgment rendered thereon must specify in writing the estate of the plaintiff in the property recovered.
The People of the State of New York have presented an abstract of title, and a certificate based thereon, which show that the decedent was the owner in fee simple of the said premises at the time of his death.

The relief for possession of the property, prayed for in the complaint, is granted, and judgment is rendered accordingly.

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Mother Files Limited Letters Testamentary

December 11, 2014,

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."

A Manhattan Probate 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.

A Brooklyn Probate Lawyer said the defending party also contend in their Affirmation in Reply that the mother lacks the legal capacity to bring this action in her current role as "perspective administratrix." Under EPTL section 5-4.1, a personal representative may bring suit on behalf of the decedent for a wrongful death suit within two years from the date of death. A personal representative is defined by EPTL section 1-2.13 as "a person who has received letters to administer the estate of the decedent."

Bronx Probate Lawyers said admited letters testamentary are valid for 6 months and are routinely extended during the pendency of the lawsuit or permanent letters testamentary are issued without an expiration date. The mother never applied to extend the limited letters testamentary in Richmond County. When this current action commenced, it had been more than one year since the County limited letters testamentary had expired. There is no record in the Surrogate's Court of Kings County that the mother, the perspective Administratrix, ever applied for limited or permanent letters testamentary in Brooklyn. Therefore, she may not have standing to maintain a lawsuit on behalf of her daughter's estate in Kings County. Accordingly, it is hereby ordered, that the motion to change venue to Richmond County is granted.

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Defense Counsel Moves for Change of Venue in Wrongful Death Action

December 10, 2014,

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.

A Westchester County Probate Lawyer said that the defending party also contend in their Affirmation in Reply that the mother lacks the legal capacity to bring this action in her current role as "perspective administratrix." Under EPTL section 5-4.1, a personal representative may bring suit on behalf of the decedent for a wrongful death suit within two years from the date of death. A personal representative is defined by EPTL section 1-2.13 as "a person who has received letters to administer the estate of the decedent."

Limited letters testamentary are valid for 6 months and are routinely extended during the pendency of the lawsuit or permanent letters testamentary are issued without an expiration date. The mother never applied to extend the limited letters testamentary in Richmond County. When this current action commenced, it had been more than one year since the County limited letters testamentary had expired. There is no record in the Surrogate's Court of Kings County that the mother, the perspective Administratrix, ever applied for limited or permanent letters testamentary in Brooklyn. Therefore, she may not have standing to maintain a lawsuit on behalf of her daughter's estate in Kings County. Accordingly, it is hereby ordered, that the motion to change venue to Richmond County is granted.

A Suffolk County Probate Lawyer saidthat services of legal counsels are very important especially in cases involving probate, estate litigation, will contest and the likes. Jurisdictions and Venue are sometimes included as issues in the matters relating to the estate. Stephen Bilkis & Associates, with offices throughout New York, with its Richmond County Estate Lawyers, or its New York Estate Administration Attorneys, you can be assured that proper remedies are accorded to you.

The Court Decides if a Company is Authorization

December 9, 2014,

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.

An Estate Lawyer the court held that, the gift created no trust. And, the title of the property vesting at once, there was no suspension of its ownership or of its alienability. The purpose for which the gift was made is reasonably clear. The income is to be applied ‘to the proper uses of the company.’ These purposes are defined by its certificate of incorporation and by the statute. They are uses incidental to the end of fire protection for the village. Whether the hose company is a charitable corporation within the meaning of that term wherever it may be used in our statutes we need not decide. Section 61 of the Real Property Law, as to accumulations, and section 221 of the Tax Law, as to taxable transfers, refer generally to such corporations. So does section 4 of the Tax Law, but this latter reference was not thought sufficient to cover the real property of an incorporated association of volunteer firemen. Section 4, subd. 8. Yet the provision that formerly existed. as to the amount that might be given by will to a body incorporated under chapter 397 by one having a wife, child, or parent has been repealed very possibly with the idea that the matter is sufficiently covered by section 17 of the Decedent Estate Law. Be that as it may, it is certainly a charitable corporation, and this is a charitable bequest in the broader sense of the term.

Nassau County Probate Lawyers said the doctrine of charitable uses involving the idea of a trust and indefinite beneficiaries did not become part of the law of New York. We thought it better to limit a charitable gift in perpetuity to those instances where it was made absolutely to a corporation whose objects were approved by the Legislature and which was authorized to accept it under such conditions as the Legislature might impose. Yet the kind of uses called charitable are of assistance in deciding what is a charitable purpose. The Statute of 43 Elizabeth enumerates what were considered charitable uses, and subsequently a charitable use was said either to be one included in this enumeration or one created for some analogous public purpose. The statute spoke of such a use as for the repairs of bridges and highways as well as of uses for religious, educational, and benevolent purposes, and it was held that a charitable use is not confined to the relief of the poor or to the assistance of learning and religion, but includes the advancement of objects of general public utility. Thus a trust that tends to reduce taxation and lessen the burdens of government was a charitable use.

A Staten Island Probate Lawyer said the definition of the Kentucky Statutes as to a public charity, the purposes of this particular corporation as defined in its act of incorporation, its freedom from public control, and the failure to impose upon it any public duties differentiated it from such a corporation as that which we are now considering. The bequest we are considering was given for the advancement of an object of general public utility. It was for a public purpose, even if this purpose was not charitable within the common and narrow sense of the words. It does carry the implication of public benefit, and ‘when the purpose accomplished is that of public usefulness unstained by personal, private, or selfish considerations, its charitable character insures its validity.’ The mere fact that the gift is intended as a memorial does not affect its public character. It being, therefore, for a charitable purpose, to a corporation authorized to receive it, the hose company held this legacy for ten years. It took it for the purpose of its organization. To this end it was bound to devote it. To divert it to other purposes would have exceeded its powers. To do so would subject it to action by the state.

As this bequest was of personal property, assuming it was upon a condition subsequent, the condition would not become operative unless upon its breach there was a gift over, and a general gift of the residue is not such a gift over. We do not understand, however, that any claim to this fund is made by the administrator and trustee of the decedent's estate. It is said, however, that the gift to the hose company was subject to a conditional limitation. The contingency which limited the title of the company has arisen. Therefore the title vests either to the one who survived the decedent. It is difficult to see any basis for the first claim. Concededly the limitation over, if one there be, was to them as individuals, and not as trustees. Whatever title vested in them on decedent's death vested in them as tenants in common. Such an expectant estate is descendible and alienable. But, unless some estate did in fact vest in one or both, we need not discuss their respective rights. The gift to the hose company is absolute in its terms. As we have seen, it creates no trust. It is true the principal is to be kept intact, but the income is to be used for fire purposes. We cannot find that such a gift has ever been held to impose a condition.

As to the conflicting claims of the members of the hose company, to whom the Special Term awarded the fund, and the city, to whom it was given by the Appellate Division in trust to be used for the protection of its inhabitants against fire. Holding as we do, that this was a bequest for a charitable purpose to a corporation authorized by its charter to receive bequests for that purpose, the answer to this problem is clear. Upon the dissolution of such a corporation, personal property bequeathed to it, dedicated to public and charitable purposes, was disposed of by the state with due regard to the objects to which it was dedicated. It was not the property of the corporation to be divided among its members as would be the property of a purely private or business corporation. It held the property in trust-not a trust imposed by the donor, but by the charter which required the corporation to perpetually devote its funds to such purposes. To hold otherwise would be to permit the destruction of the greater part of the charitable bequests made in this state during the last century.

In this state jurisdiction on its behalf to supervise the due administration of corporations has been confided in the Supreme Court. To it was given power to prevent the dissipation of their funds. When dissolution came it either appointed officers to see that those funds were properly distributed, or itself provided for such distribution. In the case of a charitable corporation it would require the personal property to be applied to such charitable purposes as the state might direct. In 1893, however, by the so-called Tilden Acts, greater power was conferred upon it. These acts (now section 12 of the Personal Property Law and section 113 of the Real Property Law) did more than make applicable to this state the doctrine of charitable uses. The court itself is authorized to apply the cy pres rule not only where a trust existed, but where property had been devised or bequeathed to a corporation authorized to take and hold it for charitable purposes. If circumstances have so changed that a literal compliance with the terms of the gift is impracticable, then it may order the gift to be administered so as best to accomplish its purpose. Over such gifts it is given general control, and, while it is said the court may make such an order ‘on the application of the trustee or the person or corporation having the custody of the property,’ the language should not be construed as limiting the power of the court to act only when application is so made. It may act on information by the state. It may act of its own motion.

The situation in the case at bar asked to award this fund to individuals, the court has refused so to do. It has held that it is impressed with a public trust. It has said that it results from a gift for charity. It has determined that to award it to the city, to be held in trust for fire protection, will most effectually accomplish the general purpose of the bequest under which the fund was created. The exercise of the cy pres doctrine always involves a large measure of discretion. Nothing in the record before us shows the improper exercise of that discretion. The judgment appealed from should be affirmed.

Stephen Bilkis & Associates, with offices throughout New York, employ the services of its experienced Richmond County Estate Litigation Attorneys or its seasoned New York Estate Lawyers in matters involving estate administration, probate, and those relating to the estate. If you find yourself in such situation or in a situation similar to the instant case, consult with your legal counsel to avail of the proper legal remedies. Any person who has an interest over any action should protect his rights.

Court Resolves Dispute Between Two Businesses

December 7, 2014,

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.

Defending party move for an Order, pursuant to CPLR sections 510(1) and 510(3), and Business Corporation Law ("BCL") section 1112, 1) dismissing this action; or, alternatively, 2) transferring this matter to the Supreme Court of Richmond County, New York. The complainant opposed the motion.

Brooklyn Probate Lawyers said the Court ruled that, CPLR section 503(a) provides that, 'Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; or, if none of the parties then resided in the state, in any county designated by the plaintiff. A party resident in more than one county shall be deemed a resident of each such county.'

Business Corporation Law section 1112 provides that, 'An action or special proceeding under this article for dissolution shall be brought in the supreme court in the judicial district in which the office of the corporation is located at the time of the service on the corporation of a summons in such action or of the presentation to the court of the petition in such special proceeding.'

CPLR sections 510(1)-(3) provide that the Court, upon motion, may change the place of trial of an action where: 1. the county designated for that purpose is not a proper county; or 2. there is reason to believe that an impartial trial cannot be had in the proper county; or 3. the convenience of material witnesses and the ends of justice will be promoted by the change.

A Bronx Probate Lawyer said that preliminarily, the Court rejects Defending party's argument that this action is, in effect, an application for dissolution of the Businesses. The Complaint does not seek that relief, and the Orders issued in the related Lawsuits do not discuss dissolution. Moreover, even assuming, that the Court were to conclude that the relief that complainant seeks includes dissolution, the Court is guided by the reasoning in Tashenberg v. Breslin, in which the Appellate Division affirmed the trial court's denial of respondent's motion for a change of venue. In affirming the trial court's decision, the Appellate Division held: “If this were simply a special proceeding for a judicial dissolution, venue would lie in the judicial district in which the office of the corporation is located, that location being the one designated in the certificate of incorporation. Here, however, inasmuch as the petitioner essentially seeks various other types of relief on his own behalf as a stockholder, director and officer, his county of residence is proper for purposes of venue. Accordingly, since this matter involves a joinder of claims with conflicting venue provisions, the trial court exercised its discretion and designated petitioner's county of residence as the place of trial.”

The Court concludes that it is not bound by the venue provisions of BCL section 1112 because complainant is not seeking dissolution of the Businesses. Even if the Court were to construe the Complaint as seeking that relief, the Complaint clearly seeks other non-dissolution relief, and the Court may properly apply the venue provisions of the CPLR rather than the BCL.

In light of the facts that 1) complainant resides in Nassau County; 2) his son, a potential witness, resides in Nassau County; 3) Defending party have been litigating the Lawsuits in Nassau County without objection; and 4) Defending party have failed to provide specific facts in support of their claim that factors, including the convenience of witnesses, support venue in Richmond County, the Court concludes that venue in Nassau County is appropriate, and that dismissal of this action is not warranted. Accordingly, the Court denies Defendants' motion in its entirety. All matters not decided herein are hereby denied. This constitutes the decision and order of the Court.

Estate proceedings, estate administration, will contest and the likes are common cases faced by individuals. Sometimes, this kinds of proceedings can be complicated due to other issues relating to the estate and different applicable laws, and jurisdictional issues. If you are faced with such situations or one such as the instant case, secure the services of your legal team. Stephen Bilkis & Associates, with offices throughout New York, provides the services of its Richmond County Estate Lawyers, or its New York Estate Litigation Attorneys who are all well trained and experienced in their respective fields of practice. Always protect your rights in any proceeding before the courts, and never hesitate in consulting and securing the best legal assistance in defending your rights in a particular case.

court Decides Whether or Not Sale of Property Should be Affirmed

December 6, 2014,

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.

A New York City Probate Lawyer said that Section 2749 of the Code of Civil Procedure authorizes a sale of the real property of a decedent for the payment of his debts and funeral expenses, or for the payment of judgment liens existing thereon at his death, ‘except where it is devised, expressly charged with the payment of debts or funeral expenses, or is exempted from levy and sale by virtue of an execution, as prescribed in title second of chapter thirteen of this act.’

It is contended on the part of the appellant that this provision operates as a limitation upon the power of the surrogate to sell the real property of the decedent, and that, the mill property having been devised by the decedent, charged with the payment of the debts contracted on account of the mill, the appellant's claim is brought within this exception, and that the bank has the right to have the mill property reserved for the payment of its claim, and not sold for the benefit of the general creditors. We cannot adopt this construction.

In this case the devise of the mill property was subject to the payment of certain specified debts, and not all of the debts of the testator. The debts or funeral expenses referred to in the provision undoubtedly mean all of the debts of the testator, and not a part thereof. A testator may provide for the payment of all of his debts and funeral expenses. He may make the same a charge upon his real estate, and give to his executor a power of sale for that purpose. He may devise his real estate upon condition that his debts be paid, and if his devisee accepts the bequest he becomes liable therefor. If provision be made by will for the payment of debts, such provision should be followed, instead of the statute. That this is the meaning of the provision is evident from an examination of section 2759, subd. 4, which, among other things, provides that the decree for a sale can only be made when the property ‘was not effectually devised, expressly charged with the payment of debts or funeral expenses, and is not subject to a valid power of sale for the payment thereof; or, if so devised or subject, that it is not practicable to enforce the charge, or to execute the power, and that the creditor has effectually relinquished the same,’-manifestly intending that, if a testator has devised his property upon condition that his debts be paid, they should be paid as the will directs; but this requirement is not absolute; for, if the power of sale is void, or payment as directed is impracticable, resort may still be had to proceedings before the surrogate under the statute.

Applying these provisions to the case under consideration, having its claim expressly charged upon a specified parcel of real estate by the testator's will, could not apply to the surrogate's court for a sale, but would be left to its remedy under the will, unless it could show that the power of sale was not valid, or that it was not practicable to execute the power, etc. But we do not understand that these provisions have any application to the petitioning creditors whose claims have not been specifically charged by the devise upon the whole or any part of the testator's real estate. The order should be affirmed.

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