The Case

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

Examination

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

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

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

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

Results

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

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About the Case

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

Case Facts and Findings

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

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

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

Court Rulings

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

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History

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

Results

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

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

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

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

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

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History

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

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

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

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

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

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

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

Results

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

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History

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

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

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

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

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

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

Results

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

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This happened five months after the death of his cousin, he did a waiver and consent; however, an attorney appeared for him a month after, and this is also the return date of the citation in this proceeding, and indicated that he wanted to withdraw his consent for the legal processing of validation of the will. The assets consists of personal property valued more than a million.

The instruction was done when his cousin was about 95 years old. The single page, two-sided tool is a downloadable legal form and does not appear to be attorney supervised. The opposite side of the form shows his shaky and weak signature, and the signature of the two witnesses. One of those witnesses now serves as a primary person appointed to perform the will and formerly served as one of legal guardians. Apparently, the other witness was an aide at the facility where she resided at the time she signed the instruction.

A New York Probate Lawyer said the man served objections to attest on all parties except the guardian, but the objections were not accepted for filing due to his waiver and consent to process the validation of his cousins will. Those proposed objections says that his cousin is lacked of capacity to make a will, the instruction made was not freely and voluntarily done. The signature, the instruction and its publication were obtained by fraud and unjustified influence, and the requirements about the law of appointment of guardian were not complied with at the time of implementation.

In his motion papers, he state that he is legally blind, possesses lower educational attainment and is ignorant of the law. He urges that he never received the letter containing the waiver and consent to attest and affidavit of heirship that was mailed to him by counsel to the primary representative, and that attorney never advised him of various rights or the import of the waiver and consent. He contends that at the time he did the waiver and consent, he was unaware that his mother's property was a share of his cousins belongings, he lacked any understanding of the procedure or consequences of the legal processing of validation, such as his right to object to the will and his right to counsel, and he did not understand that by executing the waiver and consent, he would forfeit the potential right of his mother's properties. Queens Probate Lawyers said that based on his conversations with counsel, at the time he received the waiver and consent, he believed that he was signing that document in order to expedite the process.

The primary representative oppose the motion asserting that, upon his receipt of the waiver and consent, the man called to discuss the family tree and the forms he received, and he never advised their attorney that he was blind or that anything was missing from the envelope mailed to him. The letter states that if the man had no objection to the processing of the distribution of the properties, it would expedite the process. Staten Island Probate Lawyers said the representative note that the man executed both the waiver and consent and the affidavit of heirship as requested.

The charities also oppose the motion stating that there is no clear and convincing evidence that the waiver and consent was the result of fraud, overreaching, misrepresentation or misconduct or that there is any other basis for revocation, at the time that the man executed the waiver and consent, he was acting as the legally appointee of his mother's assets and should have known that the document he done would have a legal and binding effect.

In reply, the man annexes various documents and state that due to his blindness, he follows a strict procedure upon his receipt of documents, which is to scan them into his computer and use a closed circuit television to magnify their contents. As his computer does not contain a scanned citation, he did not receive it, and he only learned of it when his subsequently retained attorney obtained a copy. His attorney stressed that the waiver and consent was obtained through improper overreaching and misrepresentation and, in any event, it should be
suspend for good cause in the interests of justice.

Based on records, in legal processing of validation of will. It may not be admitted unless the court is satisfied that its implementation was valid, even if no interested party files objections to its validity. Thus, where a person who applies for a motion with reasonable expedition seeks to withdraw a waiver and consent to attest, the application may be granted where the petitioner demonstrates some merit to the objection, a reasonable probability of success and the absence of prejudice to the other parties. Furthermore, the courts are more liberal in granting these applications where other parties have already filed objections, or it is apparent that they tend to file objections, or where the application is made very soon after the execution of the waiver and consent.

The proof on the motion and court filings demonstrate that the attest was served by mail on the man, and his waiver and consent was executed, the same date that preliminary letters issued. The court does not find any wrongdoing by the proponents' counsel in obtaining the waiver and consent. Nonetheless, the letter sent to the man by counsel indicates only that the process would be expedited as a result of his execution of the waiver and consent. In view of the man’s blindness and limited education, and the fact that he was not represented by counsel at the time he did the waiver and consent, the court credits his contention that he failed to fully understand the legal impact. Thereafter, he expeditiously obtained an attorney and sought to withdraw his waiver and consent prior to the admission of the will to verify. Without in any way passing on the ultimate outcome of a will contest, the documents annexed by the man and in court files demonstrate that, at this time, his proposed objections have merit and a reasonable probability of success. The proposed objections are similar or identical to the issues raised by the Public Administrator in the proceeding. As it appears that the Public Administrator will file objections in any event, this also militates in favor of granting the motion, and allowing the interposition of the man's objections creates no prejudice to the representative and the charities, which are in the same position they were in. Moreover, the court's paramount concern is to admit only valid wills to attest. Where, as here in a pre-probate context, one interested party as well as another non-interested party expresses genuine concern as to the validity of the instructions and its execution, as demonstrated by the documents submitted, the withdrawal of a waiver and consent to allow the interposition of objections must be permitted.

Accordingly, the motion is granted. The man shall serve and file his objections within 10 days after the entry of the order to be settled here on.

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Background

A New York Probate Lawyer said in 1972, Roxbury Run Corporation proposed to build a 500-unit townhouse development in Delaware County. A declaration was drawn up which laid out the rights and responsibilities of the owners who would purchase units in the development, as well as the property owners' association. The Roxbury Run Village Association was created for the express purpose of building and looking after the various common areas, including recreational areas, which would be utilized by the members of the development. Two types of members were included in the association. Class A were owners of improved property. Class A members received a vote for every improved unit. Roxbury Run, on the other hand, was entitled to three votes as a Class B member for every property they owned. By December of 1979, all Class B memberships were to cease, after an amendment was made to the original agreement moving that date back from 1982.

RRVA operated by charging special charges and maintenance fees. Roxbury Run only had to pay 15% of those maintenance fees, but full price on special assessments. 2/3rds of the class A members and the class B member had to agree on a vote to increase the costs of anything more than 5%. In 1982, the total size of the development was reduced to 250 total units, and Roxbury Run agreed to only have two directors on the board of the RRVA. Roxbury Run also agreed to only ever be entitled to 99 votes no matter the actual votes they should be allowed. Bronx Probate Lawyers said the Roxrun Estates then purchased 130 of the unimproved lots as long as they only had to pay either 15% or $6.06 for maintenance costs.

Problems arose when the maintenance cost was increased to $85 on each unit. A special assessment was also levied at the cost of $750 on each unit. Roxrun Estates had a member present, but was not allowed to vote with the 99 votes; instead, he only had 1 vote and was told that Roxrun would be obliged to pay the full amount as other owners.

Several actions commenced, the conclusion of which was that RRVA was granted a summary judgment in favor of foreclosure and Roxrun estates filed for bankruptcy. This stayed the foreclosure sale, but eventually, Bankruptcy Court allowed the RRVA to purchase the lots that were previously owned by Roxrun Estates.

A problem emerged because bankruptcy court did not examine whether or not the lien on the property was actually valid. Brooklyn Probate Lawyers said the problem revolves around the fact that the validity of the voting rights that Roxrun Estates asserts needs to be established, because if they were correct in their claim of voting rights, the liens based on the assessments for would never be levied because Roxrun would have been able to vote down those fees.

Results

Upon further examination, Roxrun Estates was a Class A member. Class A members, and henceforth, Roxrun Estates, were really only allowed to cast a single vote at the meeting which increased the costs that would be paid for maintaining the units. Therefore, the validity of the lien and the bankruptcy hearing were valid.

However, it is also important to note that RRVA claimed that the Supreme Court should not have allowed Roxrun Estates to only be liable for 15% of the maintenance fees. The problem is that a provision in the original agreements states that fees should be assessed in the same way but didn't have to be equal. Therefore, Roxrun Estates was entitled to pay less for maintenance because it costs less to maintain an unimproved lot.

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