Petitioner Moves to Amend Final Accounting

January 14, 2015,

Probate Lawyers said that in this contested accounting proceeding, the petitioner moves for an order permitting him to amend the final accounting to include trustee's commissions to which he alleges he is entitled. Respondent opposes the motion. For the reasons that follow, the motion is granted

A Kings County Estate lawyer said that the decedent died on May 6, 1979, a resident of Nassau County. His will and a codicil thereto were admitted to probate by decree dated May 25, 1979. The will nominates the decedent's two daughters and his grandson as co-executors and co-trustees of the trust created under Article FIFTH of the will. Letters testamentary and letters of trusteeship issued to them. The income beneficiaries of the Article FIFTH trust are the decedent's two daughters and the decedent's spouse, who died only a few months after the decedent. The remaindermen of the trust are the decedent's grandchildren. On the other hand, the Oppositor fled objections to the account.

An Estate Lawyer said that according to his attorney, the co-executor is seeking leave to amend the account to include two-thirds trustee's commissions chargeable to principal due to co-executor for the period of the account as shown on the amended affidavit sworn to on June 17, 2009. The total amount of these commissions is claimed to be $183,602.00.

The oppositor’s counsel correctly points out that the co-executor's moving papers do not contain a copy of the proposed amended petition as is required in a motion made pursuant to CPLR 3025 (b) regarding amendments to pleadings with leave of court. However, it is this court's practice to allow petitions for accountings to be amended by affidavit, and a copy of the amended affidavit amending accounting is annexed to the co-executor's moving papers. The affidavit provides the oppositor with all of the pertinent information that would be contained in an amended petition.

"Motions for leave to amend pleadings should be freely granted absent prejudice or surprise to the opposing party, unless the proposed amendment is devoid of merit or palpably insufficient". Neither is the case here. The fact that the co-executor did not ask for the commissions at issue in the petition or account does not constitute a waiver of them. "A waiver is an intentional abandonment or relinquishment of a known right. It is essentially a matter of intention. Negligence, oversight or thoughtlessness does not create it". Even if the co-executors were deemed to have voluntarily waived these commissions, such a waiver may be withdrawn.

Long Island Probate Lawyers said that the oppositor's attorney also argues that the motion to amend should be denied because the co-executor did not include an affidavit by anyone with knowledge of the facts. The oppositor even asserts that the co-executor did not provide an affidavit because he waived annual trustee's commissions in an agreement of receipt and release that the co-executor executed on November 15, 2006. Annexed to the oppositor's papers in opposition to the motion is a copy of an agreement of receipt and release executed by the co-executor on November 15, 2006.

Queens Probate Attorneys said that paragraph 4 of the agreement states, "The Executors and Trustees waive all executor and trustees fees for the Accounting Period except for the executors fees paid to the lawyer as set forth in the Accounting." The copy of the agreement is signed by the co-executor, as executor, trustee and remainderman, and by another of the accounting parties, the income beneficiary, executor and trustee. However, the copy is not signed by the other co-executors specifically avers that he never signed the agreement.

The agreement states that it is made to settle the account without the need for a formal judicial proceeding. Since not all of the interested parties signed the agreement, the co-executor and his co-trustees had to commence a proceeding to have the account judicially settled, and when they did, the Oppositor filed objections to its settlement. Under these circumstances, his argument that the co-executor should be held to the terms of the agreement for which he received no consideration is unavailing.

The Objectant/oppositor also asserts that the co-executor is not entitled to seek trustee's commissions because he failed to provide to the beneficiaries on an annual basis the statement required by SCPA 2309 (4), and the objectant has filed an affidavit from the other executors that states that she never received annual statements from Bruce or from any other person in connection with the subject trust. However, the co-executor is not seeking the commissions chargeable to the income beneficiaries' income interest.

Finally, the objectant argues that the court should exercise its equitable powers and estop the co-executor from seeking receiving trustee's commissions The court finds no basis upon which to estop the co-executor from seeking commissions on a motion to amend.

Supplemental citation to issue or additional waivers must be filed with specific reference to the claim for commissions. This constitutes the decision and order of the court.

If a last will and testament was brought to the court for probate and you are a party in interest, whose rights was deprived because of its execution, our Kings County Will Contest Attorneys here in Stephen Bilkis and Associates will represent you before the court and file your opposition. On the other hand, if you seek to draft your last will and testament, our Kings County Estate Lawyers will draft the same for you.

Court Reviews Previous Account with Regard to Double Commissions

January 13, 2015,

A Probate Lawyer said the deceased died May 24, 1905, leaving a last will and testament which was duly admitted to probate in June, 1905. The testator left a widow and one child. The provisions of the will called the attention of the Court by the appellants.

A Kings County Probate lawyer said that in 1906 the executors of the will filed in the Surrogate's Court an account of their proceedings to November 30, 1906. On the latter date a decree was entered in effect that the executors had accounted for all the money and property of the estate which had come to their hands as executors and judicially settling and allowing the account as filed. The decree further provided that the balance of cash and personal property in the possession of the executors was the sum of $11,392,724.22; that out of the balance in the hands of the executors they retain and pay over to each executor his or her statutory commission on the said property and estate for receiving, administering, and paying over the same, the sum of $149,494.39 to each, and one-half thereon to each for receiving the same as trustees; that the executors should pay over to and transfer to themselves as trustees the balance of cash and personal property then remaining in their hands to be held and administered by them under the trusts created by the will; that they should thereafter continue to perform their duties and exercise their powers as executors under the said will in all matters of administration, sale of real property, or anything else remaining to be done, and that said executors be and they hereby are discharged and released from all liability in respect of all matters and on account of all other acts and doing embraced in the said accounting and this order and decree.

Nassau County Probate Lawyers said from year to year thereafter down to and including the year 1911 separate accounts were filed by the parties, covering their proceedings as executors and also as trustees. As executors they accounted for the proceeds of the sale of real estate and for the rents and income of the property of the estate, both real and personal. Decrees were duly made by the Surrogate's Court settling such separate accounts, and, although they do not appear in the record, the briefs contain a statement that in each instance the decrees directed them as executors to turn over to themselves as trustees the proceeds of the sales of the real estate made by them as executors in each year, and they were therein allowed one-half the statutory commission for receiving the proceeds of the sales of real estate, one-half commissions for paying the same out as executors to themselves as trustees, and one-half commissions as trustees for receiving the same.

A Staten Island Probate Lawyer said at the time of the first accounting, the son was 15 years of age. In the accounting proceedings referred to, special guardians were appointed to represent him, and no appeal was taken from any of the decrees made therein. When the son turned 21, he instituted a proceeding to secure the payment to him of the accumulated net income which, under the terms of the will, was to be kept with the corpus until he arrived at the age of 21 years. The executors appeared in the proceeding and filed an account. The two proceedings were consolidated by order of the Surrogate's Court and after a hearing, about August 21, 1913, a form of decree was submitted.

The only question presented by the present appeal relates to the accounting of 1913, and the decree entered thereon, particularly with reference to double commissions.

The principle of law applicable to an allowance of double commissions was succinctly stated by Judge Finch in an early decision made by this court, as follows: ‘That the same person may be entitled to compensation as executor, and also as trustee, in respect to the same estate, or some part thereof, is undoubtedly true, but does not follow in every instance where trust duties are imposed upon an executor. Where, by the terms or true construction of the will, the two functions with their corresponding duties coexist, and run from the death of the testator to the final discharge, interwoven, inseparable and blended together, so that no point of time is fixed or contemplated in the testamentary intention at which one function should end and the other begin, double commissions or compensation in both capacities cannot be properly allowed.’
Recourse must be had to the will of the decedent to determine whether the two functions of executors and trustees with their corresponding duties coexisted, and whether the testator contemplated that the parties named by him should exercise the joint functions as one office.
By the first clause of the will the testator gave to six individuals annuities of $2,400 each, payable quarterly each year during their respective lives. In the second clause of the will he gave to his widow, the use of certain real estate, household furnishings, horses, carriages, etc., during her lifetime, and by the third clause of the will was given an annuity of $50,000 annually during her life, payable semi-annually. In addition the executors were to pay all of her necessary household expenses, repairs, taxes, and assessments on real estate bequeathed to her and expenses of the house, stable, etc. By the fourth clause of the will the provision made for the deceased was to be in lieu of dower.

Though the testator made provision for the payment of annuities annually in the aggregate of $64,000, and in addition for the charges enumerated, he did not provide a fund from which such payments should be made, save in the sixth clause of the will.

By the fifth clause of the will the testator gave to the son, all of the rest and residue of the estate, subject to the provisions of the sixth clause.

That circumstance is significant when considered in connection with additional language employed by the testator in a specific enumeration of the duties imposed by him upon the three executors who should qualify and upon his son as a coexecutor when he should attain the age of 21 years. Immediately following the appointment of executors the testator proceeded to define their duties.

‘They shall take, care for and invest my estate in safe securities, collect all the rents and incomes, pay out of the same all necessary charges and expenses, and all annuities or sums given by this will, and also for the support and education of my son William what may be necessary.’

By the language quoted, the testator provided a fund for the payment of the annuities and charges under the earlier clauses of the will, and then provided that the executors should ‘take, care for and invest’ his estate, collect all moneys, and make all payments therefrom. The payment of annuities was to continue during seven several lives, the payment of charges during one life, and ‘they,’ the executors, were to make such payments from year to year from the income of investments made by them.

as that the executors named should take the entire estate, invest the same, and retain after the payments directed to be made therefrom all income until the son attained his twenty-first year; that the corpus of the estate was to be held intact by them until his son attained the age stated in the clause quoted, at all times to be kept invested by the executors, of whom his son would be one, and qualified to act upon reaching the age of twenty-one years. The ordinary duty of the executors to turn the estate into money was coupled with the direction to take, invest, and care for the estate, and make payments of the bequests stated in the will at the times fixed therein which time the testator anticipated would continue for a number of years.

The duty thus imposed upon the parties named commenced upon the day they qualified as executors, and such additional duty was inseparable from their function under the will. The Court was unable to find in the will in question any evidence of intention of the testator to impose trust duties separate and distinct from the functions of executors upon the parties named as executors in said will.

The power of sale of real estate granted to the executors by the will was conditioned upon the consent of the testator's wife during her lifetime, and also of his son after he attained the age of 21 years. Such authority does not in any manner militate against the construction I have placed on the will when read in connection with the remaining clauses of the will, and especially with the seventh clause thereof, which authorized the executors to leave his estate invested in the properties, stocks, bonds and mortgages, etc., ‘in which I may leave it.’

From an examination of the will in this case I am led to the conclusion that it was the intention of the testator that the parties named should act as executors and trustees in a single capacity until the final closing of the estate; that he did not contemplate a period of time when the function of executors would terminate and the function of trustees should commence. The decrees entered in the Surrogate's Court upon the accountings prior to the one under consideration, and to which the son was a party, are conclusive upon him as to any payments embraced in such accounts upon which a decree was entered, but do not constitute a bar to the decision of the question under consideration on this appeal. Future accountings will of necessity be determined in accordance with the decision of this case.

The Trust Company, as executor of the estate of the testator, appeals from the order of the Appellate Division which modified the order of the Surrogate's Court by Striking therefrom an allowance to the estate of the deceased as commissions for paying over as executors to themselves as trustees the net balance of new principal derived from the sales of real property to November 30, 1912, and commissions to said estate upon payment of balance of net income directed to be made by said decree.

Thereafter, the surrogate had reached a determination on the questions presented on the accounting. In August, 1913, a form of decree was presented at the surrogate's office, and, as stated in the brief, the surrogate was absent on vacation. The testator died September 10, 1913, before any decree was signed or entered. Thereafter, by order of the surrogate, the representatives of the testator were made parties to the proceeding. The decree in question was made and entered May 1, 1914. The form of decree first presented at the surrogate's office was assented to by the attorneys for the son, but that proposed decree was not signed or entered. The decree in question here was not assented to by the son. At the time of the deceased's death the account of the executors had not been settled or any decree made for distribution. The surrogate held, in substance, that payments directed to be made under a decree entered eight months after the death of one of several executors justified an allowance of commissions for making such payments to the estate of the deceased executor.

The Appellate Division held to the contrary. The decisions of the courts and the language of section 2730 of the Code of Civil Procedure are to the contrary. The result of such allowance to the estate of the deceased would also be in conflict with the views expressed in this opinion.
The order of the Appellate Division should be affirmed, with costs.

Here in Stephen Bilkis and Associates, our Kings County Estate Lawyers will provide you quality advice as regards cases involving proper disposition of an estate of a deceased individual. We also have Kings County Probate Attorneys, who will file a petition before the court for the probate of the will of a testator.

Court Appoints Temporary Administrator in Probate Proceeding

January 12, 2015,

A Probate Lawyer said the plaintiffs motion pursuant to CPLR § 1015 seeking to substitute the law firm of K&K as temporary Administrator for the Estate of Mrs. C is denied. Instead the Public Administrator of Richmond County is hereby appointed as the Temporary Administrator of the Estate of Mrs. C.

On October 7, 2006, defendant Mrs. Z died. Mrs. Z's attorneys K&K became aware of the passing of their client on or about October 13, 2006 and thereafter notified the court and all parties. K&K contacted Mrs. Z's surviving family members in an attempt to ascertain the name of the Estate's Administrator and obtain a certified copy of Mrs. Z's death certificate. Mrs. Z's surviving family informed K&K that no administrator would be appointed. Mrs. Z's family did not cooperate in turning over a certified copy of the death certificate until October 2, 2007. On that same day K&K sent a copy of decedent's death certificate to plaintiffs' attorney via overnight mail.

An Estate Lawyer said the plaintiffs now move the court to have K&K appointed Temporary Administrator for the Estate of Mrs. Z for the purpose of defending the personal injury claims brought against Mrs. Z.

The New York State Constitution confers general original jurisdiction in law and equity to the Supreme Court. The legislature defined the general jurisdiction of the court in Judiciary Law § 140-b, wherein it states: “The general jurisdiction in law and equity which the supreme court possesses under the provisions of the constitution includes all the jurisdiction which was possessed and exercised by the supreme court of the colony of New York at any time, and by the court of chancery in England on the fourth day of July, seventeen hundred seventy-six, with the exceptions, additions and limitations created and imposed by the constitution and laws of the state. Subject to those exceptions and limitations the supreme court of the state has all the powers and authority of each of those courts and may exercise them in like manner.”

Westchester County Probate Lawyers said the Appellate Division, First Department specifically recognized that the Supreme Court has jurisdiction to entertain applications for the appointment of temporary administrators. Therefore, it is without question that this court has concurrent authority with the Surrogate's Court to grant temporary letters of administration.

Suffolk County Probate Lawyers said that upon the death of a party to an action, the CPLR § 1015 directs the court to substitute a proper party. The statute, in relevant part states that: “if a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties.”

The procedure governing substitution of parties is found in CPLR § 1021. That statute states in pertinent part that: “a motion for substitution may be made by the successors or representatives of a party or by any party. If a person who should be substituted does not appear voluntarily he may be made a party defendant.”

Plaintiffs argue that the holding in Harding v. Noble Taxi Corp. is controlling in this case. However, Harding is distinguishable from the facts presented before this court. In Harding the Appellate Division overturned the ruling of the Supreme Court that improperly denied a motion for the substitution and appointment of a temporary administrator, and instead suasponte ordered the severance of the plaintiff's cause of action, and all the cross claims against the deceased on the eve of trial.

Here, plaintiffs make no representation that this case is on the eve of trial. In addition, the decision in Harding is silent with respect to who plaintiff sought to be substituted and named temporary administrator of the Estate. Instead, plaintiffs argue that K&K had the responsibility to have an administrator appointed.

In Wisdom v. Wisdom, the Appellate Division, First Department, stated: “just as the death of a principal ordinarily revokes the authority of the agent, so the death of a party to an action revokes the power of the attorney. Where a party to an action dies, any surviving interest in the action passes from the decedent to his or her representative who may well have unique interests. The new party cannot be required to rely on decedent's counsel, no matter how capable.

K&K's authority to act on behalf of Mrs. Z ceased on her death. Furthermore, plaintiffs' argument that K&K would be the likely choice as counsel to the Estate is without any basis. K&K is a member of XXX's Staff Counsel Office which handles insurance defense. Mrs. Z was insured by XXX Insurance Company. This relationship differs from other attorney client relationships. The Supreme Court in Castrovinci v. Edwards, acknowledged that where a liability insurance carrier retains an attorney to defend an insured the usual personal attorney-client relationship does not exist.

Plaintiffs further rely on the Appellate Division, First Department's decision in Vanarthros v. St. Francis Hosp. to advance their position that a law firm may be substituted and appointed as a temporary administrator of an estate. In that case, the trial court granted plaintiffs' motion to appoint a temporary administrator for the estate of Dr. "John Doe" and appointed the law firm of W, E, M, E & D as guardian to act as temporary administrator of the estate of the defendant Dr. "John Doe" for purposes of defending the action. The Appellate Division did not reach a decision with respect to the propriety of the appointment of W, E, M, E & D to act as guardian and temporary administrator. Instead, the Appellate Division found that the appellant St. Francis Hospital lacked standing to complain about the representation of the estate of "John Doe".
The laws controlling the appointment of an administrator of an estate are found in Surrogate's Court Procedure Act §§ 1001 and 1002. Plaintiffs have not supported their application for the appointment of a temporary administrator with any of the appropriate authorities as set out in those statutes. The Supreme Court, although a court of general jurisdiction, must enforce the applicable laws relating to the administration of estates.

The plaintiff in this action have failed to base their selection of a temporary administrator in accordance with the laws as set forth in Surrogate's Court Procedure Act §§ 1001 and 1002. The Supreme Court is not without the authority to appoint a temporary administrator and herein appoints the Public Administrator of Richmond County. Accordingly it is further ORDERED, that plaintiff’s motion to substitute K&K as temporary Administrator of the Estate of Mrs. Z is denied in its entirety; and it is further ORDERED, that the Public Administrator of Richmond County located at 130 Stuyvesant Place, Staten Island, NY 10301, is hereby appointed as Temporary Administrator of the Estate of Mrs. Z; and it is further ORDERED, that the Public Administrator and the State of New York shall be held harmless for any proceeds possibly recovered by the plaintiffs beyond the insurance coverage maintained by the decedent, Mrs. Z.

If you have any question concerning the estate of your deceased loved one, the Richmond County Estate Lawyers of Stephen Bilkis & Associates can give you a detailed advice to the most common as well as the complex issues involving real property of a dead person.
When it comes to the management of your property of that of a deceased person, you will need the legal services of our Richmond County Estate Administration Attorneys. To answer your legal queries, call us for free consultation.

Court Looks at Jurisdiction Issue in Probate Case

January 11, 2015,

Plaintiffs motion pursuant to CPLR § 1015 seeking to substitute the law firm of K&K as temporary Administrator for the Estate of Mrs. C is denied. A Probate Lawyer said that instead the Public Administrator of Richmond County is hereby appointed as the Temporary Administrator of the Estate of Mrs. C.

On October 7, 2006, defendant Mrs. Z died. Mrs. Z's attorneys K&K became aware of the passing of their client on or about October 13, 2006 and thereafter notified the court and all parties. K&K contacted Mrs. Z's surviving family members in an attempt to ascertain the name of the Estate's Administrator and obtain a certified copy of Mrs. Z's death certificate. Mrs. Z's surviving family informed K&K that no administrator would be appointed. Mrs. Z's family did not cooperate in turning over a certified copy of the death certificate until October 2, 2007. On that same day K&K sent a copy of decedent's death certificate to plaintiffs' attorney via overnight mail.

An Estate Lawyer said the plaintiffs now move the court to have K&K appointed Temporary Administrator for the Estate of Mrs. Z for the purpose of defending the personal injury claims brought against Mrs. Z.

Manhattan Probate Lawyers said the New York State Constitution confers general original jurisdiction in law and equity to the Supreme Court. The legislature defined the general jurisdiction of the court in Judiciary Law § 140-b, wherein it states: “The general jurisdiction in law and equity which the supreme court possesses under the provisions of the constitution includes all the jurisdiction which was possessed and exercised by the supreme court of the colony of New York at any time, and by the court of chancery in England on the fourth day of July, seventeen hundred seventy-six, with the exceptions, additions and limitations created and imposed by the constitution and laws of the state. Subject to those exceptions and limitations the supreme court of the state has all the powers and authority of each of those courts and may exercise them in like manner.”

New York City Probate Lawyers said the Appellate Division, First Department specifically recognized that the Supreme Court has jurisdiction to entertain applications for the appointment of temporary administrators. Therefore, it is without question that this court has concurrent authority with the Surrogate's Court to grant temporary letters of administration.

Upon the death of a party to an action, the CPLR § 1015 directs the court to substitute a proper party. The statute, in relevant part states that: “if a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties.”

The procedure governing substitution of parties is found in CPLR § 1021. That statute states in pertinent part that: “a motion for substitution may be made by the successors or representatives of a party or by any party. If a person who should be substituted does not appear voluntarily he may be made a party defendant.”

Plaintiffs argue that the holding in Harding v. Noble Taxi Corp. is controlling in this case. However, Harding is distinguishable from the facts presented before this court. In Harding the Appellate Division overturned the ruling of the Supreme Court that improperly denied a motion for the substitution and appointment of a temporary administrator, and instead suasponte ordered the severance of the plaintiff's cause of action, and all the cross claims against the deceased on the eve of trial.

Here, plaintiffs make no representation that this case is on the eve of trial. In addition, the decision in Harding is silent with respect to who plaintiff sought to be substituted and named temporary administrator of the Estate. Instead, plaintiffs argue that K&K had the responsibility to have an administrator appointed.

In Wisdom v. Wisdom, the Appellate Division, First Department, stated: “just as the death of a principal ordinarily revokes the authority of the agent, so the death of a party to an action revokes the power of the attorney. Where a party to an action dies, any surviving interest in the action passes from the decedent to his or her representative who may well have unique interests. The new party cannot be required to rely on decedent's counsel, no matter how capable.

K&K's authority to act on behalf of Mrs. Z ceased on her death. Furthermore, plaintiffs' argument that K&K would be the likely choice as counsel to the Estate is without any basis. K&K is a member of XXX's Staff Counsel Office which handles insurance defense. Mrs. Z was insured by XXX Insurance Company. This relationship differs from other attorney client relationships. The Supreme Court in Castrovinci v. Edwards, acknowledged that where a liability insurance carrier retains an attorney to defend an insured the usual personal attorney-client relationship does not exist.

Plaintiffs further rely on the Appellate Division, First Department's decision in Vanarthros v. St. Francis Hosp. to advance their position that a law firm may be substituted and appointed as a temporary administrator of an estate. In that case, the trial court granted plaintiffs' motion to appoint a temporary administrator for the estate of Dr. "John Doe" and appointed the law firm of W, E, M, E & D as guardian to act as temporary administrator of the estate of the defendant Dr. "John Doe" for purposes of defending the action. The Appellate Division did not reach a decision with respect to the propriety of the appointment of W, E, M, E & D to act as guardian and temporary administrator. Instead, the Appellate Division found that the appellant St. Francis Hospital lacked standing to complain about the representation of the estate of "John Doe".
The laws controlling the appointment of an administrator of an estate are found in Surrogate's Court Procedure Act §§ 1001 and 1002. Plaintiffs have not supported their application for the appointment of a temporary administrator with any of the appropriate authorities as set out in those statutes. The Supreme Court, although a court of general jurisdiction, must enforce the applicable laws relating to the administration of estates.

The plaintiff in this action have failed to base their selection of a temporary administrator in accordance with the laws as set forth in Surrogate's Court Procedure Act §§ 1001 and 1002. The Supreme Court is not without the authority to appoint a temporary administrator and herein appoints the Public Administrator of Richmond County. Accordingly it is further ORDERED, that plaintiff’s motion to substitute K&K as temporary Administrator of the Estate of Mrs. Z is denied in its entirety; and it is further ORDERED, that the Public Administrator of Richmond County located at 130 Stuyvesant Place, Staten Island, NY 10301, is hereby appointed as Temporary Administrator of the Estate of Mrs. Z; and it is further ORDERED, that the Public Administrator and the State of New York shall be held harmless for any proceeds possibly recovered by the plaintiffs beyond the insurance coverage maintained by the decedent, Mrs. Z.

If you have any question concerning the estate of your deceased loved one, the Richmond County Estate Lawyers of Stephen Bilkis & Associates can give you a detailed advice to the most common as well as the complex issues involving real property of a dead person.

When it comes to the management of your property of that of a deceased person, you will need the legal services of our Richmond County Estate Administration Attorneys. To answer your legal queries, call us for free consultation.

Court Rules on Notice of Pendency

January 10, 2015,

A Probate Lawyer said the plaintiffs, TM Inc. and Mr. D commenced this action against the defendants, Mr. and Mr. X alleging that the defendants failed to pay a real estate brokerage commission. The file reveals that after commencing this action, the plaintiffs filed with the Richmond County Clerk a "Notice of Pendency" against the defendants' real property located at 1XX Winant Avenue, Staten Island, New York in order to secure payment of the real estate broker's commission claimed due in this matter. The notice of pendency was dated on April 25, 2005 the same date of the summons and complaint. The plaintiffs' filing of the notice of pendency with the County Clerk on April 26, 2005 necessitated the defendants seeking an order to show cause to cancel the lispendens (Annotation at the back of the title as to the pending issue involving the said property) of record. A hearing on the issue resulted in an order dated May 6, 2005 canceling the notice of pendency.

The court made a finding that plaintiffs' complaint is for breach of contract and it is not one that seeks a judgment which would "affect the title to, or possession, use or enjoyment of, real property" as required by CPLR 6501 as a basis for filing a notice of pendency.

Defendants have asserted two counterclaims; one alleges that the plaintiffs have violated the Federal Debt Collection Practice Act (FDCPA) and the second alleges that the plaintiffs improperly filed the notice of pendency. Plaintiffs also seek to dismiss two affirmative defenses of the defendants, one alleging a failure of documentary evidence while the second asserts the equitable defense of unclean hands. The defendants have opposed the motion by filing a cross-motion seeking dismissal of the complaint.

A. The Legality of the Notice of Pendency.

An Estate Lawyer said that the court below correctly determined that the plaintiffs were not entitled to file a notice of pendency in this action. What troubles the Court is that the plaintiffs somehow thought they could record such a document against the defendants' real property. However, as a licensed real estate broker defendants are charged with a certain level of expertise and training. Real estate brokers in New York are regulated by the Department of State. They are required to have a certain amount of training, pass a written examination and attend continuing education programs to retain their licenses.

Brooklyn Probate Lawyers said this being the situation, the plaintiffs and their counsel, should have been aware that there is no statutory authority giving real estate brokers the right to file a lispendens in regard to the sale of residential real estate. In fact, the clerk is to note upon the broker's affidavit that such notice does not constitute a lien nor shall it invalidate any transfer or lease. It should also be pointed out that real estate brokerage contracts are not mentioned as a type of contract that may be recorded as an executory contract pursuant to RPL 294. Case law has consistently held that a lispendens is not proper in an action for the recovery of a real estate broker's commission. Yet plaintiffs herein did not file an RPL 294-b affidavit; they filed a lispendens.

The actions of the plaintiffs were wrongful and designed to force the defendants to pay a broker's commission to which the plaintiff's entitlement was in dispute. The sole purpose of the filing of the lispendens was to compel the defendants to pay the plaintiffs or risk losing the purchaser.

Bronx Probate Lawyers said that the plaintiffs' motion to dismiss defendants' second counterclaim alleging an improper filing of the notice of pendency is denied. Defendants' cross-motion for summary judgment on this cause of action is granted on the issue of liability. The matter will be set down for a trial on the issue of the damages suffered by the defendants as a result of the plaintiffs' actions.

B. The Defense of Documentary Evidence

Defendants have raised as an affirmative defense that the plaintiffs have not established by documentary evidence that they are entitled to the broker's commission. Plaintiffs have moved to dismiss this defense. The parties are seeking to decide by motion what are the essential factual issues of this case; that is, the license status of the plaintiff and its salespersons, the facts and circumstances surrounding the execution of the listing agreement, and whether the plaintiffs produced a buyer ready, willing and able to purchase the premises on the terms and conditions being offered by the defendants so that a commission has been earned. It should be pointed out that plaintiffs have not provided any evidence that the listing salesperson was licensed at the time he allegedly took the listing; a fatal defect to recovery on plaintiff's claim.
Plaintiffs' motion to dismiss this affirmative defense is denied. These issues raise questions of fact to be decided at trial.

On the other hand, it is clear that the evidence establishes that the claim of the plaintiffs is totally without merit. Plaintiffs argue that the listing agreement created an "exclusive right to sell" relationship between the parties. The listing agreement defines this agency relationship as one which provides that if you, as owner of the property find a buyer for your house, or if another broker finds a buyer, you must pay the agreed commission to the present broker. The intent of this clause is to guarantee that the listing broker is not deprived of earning a commission by the actions of the home owner and that the broker be given the opportunity to perform the services for which it was hired.

The language of the clause and the agreement contemplate that the broker will be compensated during the term of the agreement and for a period of sixty days after the termination of the agreement if the property is sold to a buyer introduced to the property during the term of the agreement. The plaintiffs' case fails because the buyer of the property was not introduced to the property during the term of the agreement. The evidence established that the buyer of the property was a neighbor of the defendants who entered into a handwritten binder agreement on January 10, 2005, one month before the listing agreement was signed on February 8, 2005. Therefore the buyers were neither introduced to the property during the term of the agreement nor through the efforts of the plaintiffs.

We still live in a society where in order to be paid you must either perform the work you agreed to perform, or be prevented from doing the work by the actions of the defendants; neither is the case here. Plaintiffs did nothing to bring about the sale. Plaintiffs did not produce a ready, willing and able buyer nor were their actions the procuring cause of the sale. In fact, plaintiffs' actions sought to prevent the sale. Plaintiffs seek to capitalize on the efforts of the defendants. Had the neighbors come along and signed the binder after the date of the listing agreement or even waited until after the listing expired, plaintiffs might have a viable claim under the terms of the agreement. This did not occur so the claim must fail.

Plaintiffs' complaint is dismissed on the merits. Defendants' cross-motion is granted to the extent of awarding the defendants' a judgment arising from the plaintiffs' baseless recording of a notice of pendency against plaintiffs' real property. Defendants' motion to dismiss plaintiffs' complaint is granted. The matter will be set down for a trial on the issue of the damages sustained by the defendants arising from the improper recording of the lispendens.

Unscrupulous people often take advantage to the innocence of ordinary. To protect your property rights always seek the advice of expert real property lawyers.

Here at Stephen Bilkis & Associates we have Richmond County Estate Lawyers and Richmond County Estate Administration Attorneys eager to protect and advance your property rights against corrupt and dishonest people who know nothing but to take advantage with the unacquainted.

Plaintiff Moves to Vacate Prior Court Order Regarding Settlement of Proceeds

January 9, 2015,

A Probate Lawyer said this matter arises out of a fatal, three-vehicle accident which occurred on September 25, 2006 on Interstate 87 in Ulster County, New York. At the time of the accident, the decedent was a front seat passenger in a vehicle being operated by defendant AS which, at the time in question, was proceeding north on I-87 near the Kingston exit. At this point in time, AS was allegedly cut-off by a pick- up truck towing a horse trailer (owned and operated by defendants L and RRs, respectively) which attempted to make a U-turn from the northbound shoulder of I-87, purportedly ten feet in front of the AS vehicle. After contact with the pick-up truck, AS's Jeep was apparently propelled into the southbound lanes of I-87, where it was struck by a vehicle owned by defendant Y and operated by defendant LJ.

There is no dispute that Mr. V died as a result of the massive injuries which he sustained in this accident. However, as shall presently appear, a dispute has arisen as to the accuracy of AS's claim that the decedent was asleep at the time of the initial impact and, therefore, incapable of experiencing any degree of pre-impact terror or conscious pain and suffering in the above accident.

An Estate Lawyer said that on his motion for leave to intervene pursuant to CPLR 1012, 1013, CX contends that the Order of this Court, dated August 10, 2009, should be vacated pursuant to CPLR 5015, and the matter removed or transferred to the Surrogate's Court, Richmond County, for further proceedings to judicially account for the settlement proceeds. The order in question provides, in relevant part, for the settlement of plaintiffs' cause of action for wrongful death for the sum of $300,000.00 and the voluntary discontinuance, with prejudice, of decedent's personal injury action. In support of his motion, CX maintains that this court's allocation order is invalid since all of the interested parties who might be adversely effected were not joined in the compromise proceeding.

Queens Probate Lawyers said that more particularly, CX argues that as a potential estate creditor by virtue of his pending claim for personal injuries, this action should not have been brought before the Court for final settlement approval without providing him with notice and an opportunity to be heard. In this regard, CX asserts that since the recovery of damages in wrongful death belong exclusively to the decedent's distributees as monetary compensation for their pecuniary loss as a result of decedent's death, the allocation of the settlement proceeds exclusively to plaintiffs' wrongful death action operates to deprive any creditors of the Estate of access to that portion of the recovery which might otherwise have been allocated to the decedent's conscious pain and suffering, which is an Estate asset against which they would be entitled to proceed.

Long Island Probate Lawyers said that in opposition, plaintiffs (Administrator of the estate of Mr. V) assert that CX has no standing to intervene since his "claim" against the Estate for, e.g., assault and battery, amounts to nothing more than a series of accusations based on events wholly unrelated to the September 25, 2006 accident. Moreover, plaintiffs argue that no pain and suffering was experienced by the deceased, since the only eyewitness to the event (AS) maintains that CX was sound asleep at the time of the accident and was killed instantly.

Finally, plaintiffs maintain that CX was not entitled to notification of the submission of the compromise order to this Court inasmuch as the compromise of a wrongful death action by a Justice of the Supreme Court pursuant to EPTL 5-4.6 does not require the participation of any party other than those named as plaintiffs or defendants in the action. Finally, CX is claimed to be incapable of producing and has failed to present any factual support for the reallocation of any portion of the settlement money to the decedent's conscious pain and suffering. As a result, plaintiffs' contend that the proposed intervenor has presented no legitimate legal challenge to the way in which this Court compromised the action.

To the extent relevant, EPTL 5-4.6 paragraph (a) subparagraph (1) was amended in 1992 to direct the Supreme Court, except for good cause shown, to transfer any action for wrongful death to the surrogate's court which issued the letters of administration for determination of the issues of allocation and distribution of the proceeds and related matters after a compromise has been approved in the Supreme Court. Although the amended statute was subsequently construed by the Court of Appeals to render the above transfer wholly discretionary, it was nevertheless recognized that the nature of the amendment was expressive of a Legislative determination that Surrogate's Court was the preferred forum for the allocation and distribution of damages following the settlement of the action in the Supreme Court. This, the Court noted, was the apparent intent of the amendment, i.e., to remove the allocation and distribution of an approved settlement of the substantive causes of action to a single forum in which all of the interested parties including potential creditors, could be joined.

Consonant with the "permissive" nature of the transfer approved in Pollicina, this Court must reject movant's contention that the order of this Court dated August 10, 2009 was in any way unauthorized or invalid, nor was movant entitled to intervene in this action as a matter of right under CPLR 1012. Nevertheless, it is the determination of this Court that the movant be permitted to intervene to the limited extent previously noted, and to vacate the allocation of damages contained in its August 10, 2009 Order in deference to the aforementioned Legislative preference.

this decision to vacate that portion of its August 10, 2009 Order which allocated the settlement proceeds entirely to plaintiffs' wrongful death action, this Court finds persuasive the rationale expressed in somewhat similar circumstances by Surrogate Holzman of the Bronx in Matter of Torres. As therein observed, "As a general rule, where the compromise of an action is contemplated, the defendant is concerned only about the total amount that is to be paid to settle all of the causes of action alleged in the complaint and could not care less about the allocation of the settlement proceeds between the wrongful death and personal injury causes of action. As a result, where, as here, the complaint alleges causes of action for both wrongful death and personal injury.

On this view of the case, since it is undisputed that CX heretofore was afforded no opportunity to be heard in this case on the issue of the allocation of the settlement proceeds between plaintiffs' wrongful death and personal injury causes of action, it is believed that the interests of justice will best be served by vacating the allocation portion of this Court's August 10, 2009 Order authorizing the settlement of the wrongful death cause of action for the total sum of THREE HUNDRED THOUSAND ($300,000.00) DOLLARS, and substituting therefor a provision (1) authorizing the settlement of plaintiffs' action for, e.g., personal injury and wrongful death, for the total sum of THREE HUNDRED THOUSAND ($300,000.00) DOLLARS and (2) referring the administration of the proceeds of the approved settlement to the Surrogate's Court, Richmond County for further proceedings to determine the issues of allocation and distribution of proceeds and related matters. It is hereby ORDERED, that the proposed intervenor, CX, shall settle an order on notice.

The settlement of an estate may involve difficult question to resolve especially when claims by third party arises. However, the situation may be simplified through the help of Richmond County Estate Lawyers, expert in the field.

The Richmond County Estate Attorneys of Stephen Bilkis & Associates can advice and settle your property concerns. The earlier you raise your issue the easier for it to be resolved. Call us now to prevent delay and complication of issues.

Court Decides if Plaintiff has Standing to Bring Case

January 6, 2015,

An Probate Lawyer said that the records reflect that a mortgagor executed a note and mortgage in favor of a company. in the principal amount of $167,475.00, secured by the premises located in New York. As alleged in the affidavit, the Vice President of Loan Documentation of the mortgagee's Bank, the note and mortgage fell into default upon the mortgagor's failure to make the required payment due on August 1, 2010 and thereafter. Insofar as it appears, the borrower had died intestate. Letters of Administration for the Estate of the deceased borrower were subsequently issued by the Surrogate's Court, naming one of the decedent's two sons in taking charge of Estate Administration. The company commenced an action to foreclose the mortgage in the County, where the property is located.The two sons answered, denying the material allegations in the complaint and asserting several affirmative defenses, including the company's purported lack of standing.

The court ruled that it is well settled that on a motion for summary judgment in an action to foreclosure a mortgage, a plaintiff/mortgagee, as here, establishes its prima facie right to judgment as a matter of law through the production of the relevant mortgage, the unpaid note and an affidavit attesting to the mortgagor's default. However, where standing has been drawn into question, it is incumbent upon a plaintiff/mortgagee to prove its standing in order to be entitled to any relief. "A plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced".

A Westchester County Probate Lawyer said that in the case at bar, the primary affidavit in support of summary judgment is subscribed by a Vice President of Loan Documentation of the Bank, who affirms, based on unstated sources of personal knowledge and a review of "the books and records maintained in the ordinary course of business in serving this loan, that the Bank, is in possession of the promissory note, endorsed in blank and confirms that the mortgagee was in possession of the promissory note prior to the commencement of this action. While the foregoing, in and of itself, is lacking in sufficient factual detail to establish standing prior to the commencement of this action, the various exhibits submitted therewith include a copy of the subject note indorsed by the company to the order of the corporation., and then, in blank, by the latter. Moreover, although neither indorsement is dated, these papers also contain a written assignment of the mortgage by the original lender to the corporation, and recorded in the County prior to the commencement of this action. More important, however, on the issue of standing is the fact that this assignment of mortgage also provides for an assignment of "the notes therein described or referred to, the money due and to become due thereon with interest, and all rights accrued or to accrue under said Real Estate Mortgage". Since it is undisputed that the Bank, is the successor by merger of the corporation, the documents constitute prima facie evidence that the Bank, was the lawful owner of both the note and mortgage at the time that the action was commenced.

A Suffolk County Probate Lawyer in another case, the issue presented to be determined by the court is whether or not there exists a valid assignment of the subject note and mortgage. The Judicial Hearing Officer (JHO) failed to determine the application of the original assignee, in effect, for a determination that the assignment was valid. The JHO should have considered the import of the purported "original assignment" not merely as an explanation of the alteration of the assignment, but as to whether, in view of the testimony of the employee servicing the loan, such circumstances were sufficient to establish that the original assignor owned the subject note and mortgage subsequent to the time it brought the instant motion, and in view of such circumstance, it had acquired standing to make the motion to be added as a party plaintiff. We note that prior to referring the matter to the JHO, the Supreme Court had already determined that since private parties had appeared in the action and waived all defenses, they had no viable defense of statute of limitations. Moreover, they never alleged any circumstances in which the identity of the ultimate assignee had any legal significance to them. In view of these circumstances, the matter must be remitted to the Supreme Court, for a determination of the outstanding issue of whether the original assignor eventually acquired a valid assignment capable of conveyance to the appellant and, thereafter, for a new determination of the motion to extend the duration of the notice of pendency.

Stephen Bilkis & Associates, with offices located throughout New York, has legal team who are adept and seasoned in cases involving estate administration, probate, will contest and the likes. Its Richmond County Estate Attorneys, or its New York Estate Litigation Lawyers can aid you the legal assistance you require especially in matters relating to the estate.

Court Determines if Charging Lien Exists if Favor of Former Lawyer

January 5, 2015,

A Probate Lawyer said that from the records, the genesis of this litigation arose when a lawyer was representing a corporation in regard to its purchase of the premises pursuant to a written contract. The contract was dated and was an "all cash deal." The court notes that unlike contracts in another County, the real estate contract is actually dated. The transaction was scheduled on a specific date but did not when allegedly the seller became disenchanted with the terms and upset that the lawyer was representing his sister in regard to her interest in this transaction and their mother's estate. The owner's sister, sometime later apparently issued a power of attorney in favor of the lawyer. Why this was relevant is a mystery in that the seller is the owner individually and not an estate. Also the seller had his own independent counsel in negotiating the contract of sale to the corporation. In any case it is conceded that the seller refused to close title as scheduled. A litigation commenced to compel specific performance. This resulted in the order of the Supreme Court, directing the seller to honor the contract and close title within thirty days of the order. In spite of achieving the legal goal for which the lawyer had been directed to commence the litigation, for some reason the corporation did not seek to enforce the judgment and compel the seller to close.

As Estate Lawyer said that later on, the corporation notified the lawyer that his services would no longer be needed to complete the closing with the seller. A second lawyer became the attorney for the corporation in regard to the purchase. At the closing of title, a written escrow agreement was entered into between the former lawyer and the principal of the corporation. The agreement directed the second lawyer to hold the sum of $10,000.00 in escrow pending resolution of the former lawyer's claim for the legal fees incurred in representing the corporation in the contract negotiations and subsequent litigation. The agreement recites that Schwartz is asserting a "charging lien" in regard to the services he rendered on behalf of the corporation.

A Nassau County Probate Lawyer said the issues presented are; whether or not a Charging Lien Exist in Favor of the former lawyer? Whether or not retainer agreement is required?

The law recognizes two categories of liens that an attorney may assert. There is a general or retaining lien which arose at common law and applied to papers or property of the client in the possession of the attorney. A retaining lien applies to any amount due the attorney for professional services rendered to the client with respect to any matter. For instance, the former lawyer might have been able to assert a retaining lien in regard to the contract, closing, the subsequent litigation and any other files of the corporation on which he was working. However, he did not. A charging lien applies only to the proceeds obtained from a particular piece of litigation and may be enforced to obtain the reasonable value of the legal services and disbursements incurred in that lawsuit.

A Staten Island Probate Lawyer said the escrow agreement and the Supreme Court action filed by the former lawyer both refer to his only asserting a "charging lien" and not a "retaining lien." Charging liens are recognized by statute. Judiciary Law section 475 "attorney's lien in action, special or proceeding" provides; “From the commencement of an action, special or other proceeding in any court, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict,report, determination, decision, judgment or final order in his client's favor, and the proceeds thereof in whatever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment, final order or determination. The court upon the petition of the client or attorney may determine and enforce the lien.”

Because the former lawyer commenced an action for specific performance in Supreme Court, and was successful in obtaining that relief, the statute would seem to permit him to assert a "charging lien" in regard to the litigation only. No charging lien would exist for the fees claimed due in regard to negotiating the purchase of the real property as that is not work performed in regard to the litigation. It should be noted in that Supreme Court action that the lawyer only sought specific performance and did not seek the alternative relief of money damages.

The above being said, there is a major problem with claiming a statutory charging lien. There is no money awarded in an action for specific performance. The theory supporting the existence of the charging lien is that the lawyer's labor created a fund from which the client will be compensated by the defendant or some third party. "In other worlds, the litigation or settlement must result in more than the mere entry of a judgment on behalf of a client; there must be proceeds from the litigation upon which the lien can affix." That there is no fund generated in this specific performance litigation against which to assert the charging lien is further supported by the fact that the corporation was the purchaser seeking to compel transfer of title to it and would be paying the seller monies to complete the transaction and not receiving any funds. However, the parties by agreement created a "charging lien" where none existed in favor of Schwartz for his work in obtaining a judgment of specific performance.

As to the issue of retainer agreement, the court held that the former lawyer was not required to have a written retainer with the corporation for either the real estate transaction or the subsequent litigation. He is entitled to prove his allegation that he is entitled to legal fees based on "quantum meruit." In order to recover on a theory of quantum meruit, he, as the attorney, must establish (1) the services were performed in good faith; (2) the corporation as the person to whom they were rendered accepted the services; (3) there was an expectation of compensation by the attorney; and (4) the reasonable value of the services allegedly rendered.

Applying the Rules of Professional Conduct to the facts of this case, it must be concluded that no engagement letter or written retainer was required for the work the lawyer performed for the corporation in regard to the subject transactions. That work fell within exceptions (a) and (b) of Rule section 1215.2 in that the anticipated fee for the real estate transaction is based on past dealings of the parties and, based on the testimony of the parties. Further, the terms and conditions of the relationship had been established by the parties over a several year period involving numerous other real estate purchases and sales. It is uncontroverted that the transaction did not close and that the reasons were the actions of the seller and not the corporation. The lawyer is not entitled to be paid for any services in regard to the real estate transaction aspect of the purchase by the corporation.

As noted, the Rules of Professional Conduct do not provide for any financial penalty for failure to have an engagement letter or written retainer with the client. This means the lawyer is entitled to be paid based on quantum meruit for his litigation services.

If you are in need of legal assistance with matters relating to estate, estate administration, probate and the likes, Stephen Bilkis & Associates, with offices throughout New York, offers the services of its Richmond County Estate Litigation Lawyers, or its New York Estate Attorneys who can aid you and are willing to defend your rights.

Court Questions if Venue is Proper in Case

January 4, 2015,

In this action for medical malpractice, the claimants are represented by the executor of their estate.

A Probate Lawyer said the records show that one of the accused has moved the medical malpractice action to change venue pursuant to CPLR section 510(1), claiming that claimants improperly placed venue based on the current New York residence of a co-accused doctor, rather than on his residence in another county at the time of the alleged negligence. The complainant opposes, arguing that the doctor's current residence is a proper basis for placing venue in New York County.

Hence, the issue is whether or not the venue in this action is improperly laid.

The Court held that, venue was Properly Placed in New York County. In New York, the place of trial shall be in the county designated by the complainant unless the court orders a change in response to accused's motion or both parties agree to change venue. If venue is based on residence, "the place of trial shall be in the county in which one of the parties resided when it commenced" which, in the case of an individually-owned business, includes any county in which the business maintains its principal office.

An Estate Lawyer said that pursuant to CPLR section 510, 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; (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.

According to accused, venue in New York County is improper under CPLR section 510(1) because it is based on the current business residence of co-accused in New York, rather than on his business residence at the time of the alleged malpractice in another County.

Queens Probate Lawyers said that wholly without merit is his argument that venue should be based on a party's residence at the time the action arose. Complainant correctly asserts that what is relevant for placement of venue is the residence of a party on the date the action commenced and not at the time of the alleged negligence. Indeed, the statute expressly states 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 commenced." Accused's reliance on outdated case law for the proposition that transitory actions, venue should be in the county in which the action arose is misplaced, as both the governing statute and case law are clear.

Since venue was properly placed in New York County based on the current residence of co-accused, CPLR section 510(1) cannot serve as a basis to change venue, and accused may only seek discretionary relief. The Court further ruled that the Burden of Showing Witness Inconvenience has not Been Met. Although accused does not cite CPLR section 510(3) as grounds for relief, he argues that the convenience of material witnesses, including himself, would be served by a change of venue to the County, where the treatment at issue was provided.

Long Island Probate Lawyers said that when moving for a discretionary change of venue based on witness inconvenience, the moving party bears the burden of making a detailed evidentiary showing that the convenience of material witnesses would be better served by the change in venue. This showing must include: (1) the identity of the proposed witnesses; (2) the manner in which they will be inconvenienced by a trial in the county in which the action was commenced; (3) that the witnesses have been contacted and are available and willing to testify for the movant; and (4) the nature of the anticipated testimony and the manner in which it is material to the issues raised in the case. Only after such a detailed showing that material witnesses would in fact be inconvenienced will a change of venue be granted.

In the instant case, accused has failed to satisfy even the most basic of these factors. To meet his burden, he would have to provide affidavits from identified non-party witnesses. Instead, he simply proffers his own affidavit, in which he claims that a trial in New York County will inconvenience him because he has various commitments in another County where he maintains an office and practices medicine. His affidavit is wholly insufficient as it fails to identify even a single non-party material witness who would be inconvenienced. Moreover, his assertions regarding his own inconvenience are irrelevant because convenience to a party is not a factor in considering a discretionary motion to change venue. What is more, it cannot be said that travel from another County to New York is burdensome. The accused, in relying on generalized and conclusory assertions regarding potential witnesses, falls substantially short of meeting his evidentiary burden. Hence, the motion to change venue was denied.

Matters relating to estate, estate litigation, will contest and the likes are some of the many cases filed by anyone whose rights and interest over his/her estate are affected by claims such as those of creditors and others. In such situations, consult the services of a counsel to aid you. Stephen Bilkis & Associates, with offices located throughout New York, has its Richmond County Estate Administration Attorneys, or its New York Estate Lawyers, who will ensure that your rights will not be prejudiced by common mistakes committed by careless lawyers in handling cases.

Court Determines if Courts Prior Jury Verdict was Proper

January 3, 2015,

A Probate Lawyer said that the four motions made by all of the parties to set aside the jury verdict of March 22, 2008 and to enter judgments as a matter of law pursuant to CPLR §4404(a) are denied in part and granted in part.

This case arose from a July 1, 2000 motor vehicle accident where a 1998 Ford Explorer, a sport utility vehicle ("SUV") rolled over, three and three quarter times resulting in two deaths and serious injuries to three other passengers. The vehicle was manufactured and designed by the defendant, Ford Motor Company. Ford Motor Credit Co. was the owner and lessor of the SUV. The driver and lessee, SM, died in the accident. The front seat passenger, G, was SM's son. He sustained physical and serious emotional injuries as a result of the accident. Two of the rear seated passengers were SM's grandsons, who were also G's sons: B, who died one day after the accident, and E, who survived with physical and extreme emotional distress as a result of the accident. The third rear seated passenger, S, sustained serious physical, head and psychiatric injuries and settled with Ford Motor Credit Company on June 19, 2007, prior to trial for the amount of $1,750,000. S discontinued his products liability actions against Ford Motor Company.

An Estate Lawyer said that after three weeks of testimony, the jury found that the roof support system of the 1998 Ford Explorer SUV was defectively designed and found Ford liable in strict liability and negligent design, both of which were substantial factors in causing the driver, SM's death. The jury found that the acceleration cable of the speed control system was not defective. The jury found that the two children, E and B, were not wearing their seatbelts and therefore concluded that the rear seat belts were not defectively designed causing them to unlatch upon a sustained impact, as plaintiffs demonstrated.

Brooklyn Probate Lawyers said the jury found that G, S, EV and the Estate of BM were not entitled to any compensation. However, the jury awarded EN $5,000,000 for the total amount of economic loss for the death of her husband, SM. The jury also awarded the Estate of SM $1,500,000 for the loss of earnings.

In considering a party's post-trial motion to set aside the verdict, the court must consider whether the jury verdict is contrary to the weight of the credible evidence. Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors. In seeking the motion, the movant has the heavy burden of establishing that there was no rational basis on which a jury could have found for the non-moving party, the non-moving party being entitled to every inference, which could reasonably be drawn from the evidence submitted by them.

A Bronx Probate Lawyer said the first claims that this court should grant their motion to set aside the jury verdict because plaintiffs failed to make out a prima facie case on the strict products liability claim involving the design of the vehicle's roof.

Here, this court finds that plaintiffs did make a prima facie case of strict liability. Plaintiffs' expert testified that the 1998 Ford Explorer was not reasonably safe to protect occupants in foreseeable rollover collisions because the Explorer's roof would deform inward on the driver's side in a passenger side leading roll over. Furthermore, defendant's own expert testified that the likelihood that an occupant of a 1998 Explorer would sustain fatal injuries in the subject roll-over accident was 100%, regardless of whether the roof was deformed. This testimony presents a basis for the jury to conclude that occupants in the vehicle were almost certain to have injuries and that the injuries would be severe or fatal.

Second, Ford claims that plaintiffs failed to make a prima facie case for negligence because no evidence was presented about Ford's decision to put the vehicle into the market. For a case in negligence rather than strict products liability, the focus is on whether the manufacturer was aware of that condition and chose to market the product anyway. Here, Plaintiff’s expert testified that he had reviewed Ford's documents pertaining to the design of the Explorer from 1992 to 1998. He explained that the Explorer had undergone three design changes during this period and the 1998 Explorer was known as the third generation Explorer. Based on the numbers in Ford's documents, he explained that the 1998 Explorer's roof was weaker than the second generation, which was weaker than the first generation. Ford's documents also revealed that a steel beam was removed from the 1998 Explorer, which allowed the jury to conclude that Ford was aware of other available designs and was negligent in the design choices made for the 1998 Explorer and that this negligence lead to the death of SM. Therefore, this court concludes that plaintiffs' did make out a prima facie case under the negligent design theory.

Third, Ford claims that plaintiffs failed to present a prima facie case under the "second collision doctrine." Under the second collision doctrine, a plaintiff must prove that the injuries were more severe than they would have been had the product been properly designed. New York establishes a three prong test requiring plaintiff to sustain his or her claim: (1) that the design in question was defective and that an alternative safer design was practicable under the circumstances; (2) what injuries, if any, would have resulted had the alternative, safer design been used; and (3) establishing, through some viable method, the extent of enhanced injuries attributable to the defective design.

This court does not find the testimony of defendant defeats plaintiffs' prima facie case under the second collision doctrine. As discussed previously, plaintiffs' expert testified that SM would not have suffered fatal injuries if the roof had not been deformed. In acknowledging that it is possible that a driver can still suffer fatal head injuries without any roof deformation does not diminish the plaintiffs' case that SM would not have suffered a fatal injury, but for the roof deformation. Accordingly, plaintiffs did present a prima facie case and have satisfied the "second collision doctrine."

Fourth, Ford claims that they are entitled to a new trial on the issue of the vehicle's roof structure because the verdict was against the weight of the evidence, and because the court allowed highly prejudicial evidence to be admitted along with the jury's inconsistent finding with regard to the driver's lack of culpability.

As to the issue of whether the verdict was against the weight of the evidence, Ford makes the same arguments discussed and rejected above claiming plaintiffs had not made their prima facie case. As to Ford's claim that this court made highly prejudicial evidentiary rulings, Ford claims that the court should not have allowed plaintiffs' expert to testify. Dr. C (Plaintiff’s Expert) is a biomechanical engineer and accident reconstructionist. He is the Principle Consulting Scientist and Biomedical Engineer of XXX Scientific, LLC in Tallahassee, Florida, specializing in the analysis of accidents. After hearing Ford's arguments, this court, in an order dated February 25, 2008, allowed Dr. C to testify about body movement within the vehicle and the observations as to the performance of the vehicle with reference to passenger safety. When Dr. C testified regarding the Explorer's roof structure, this was not in contravention of the court's own earlier rulings as Ford argues. Rather, this court exercised its reasonable discretion as a trial court and found his testimony to be within the ambit of his expertise and notice to the defendants.
Ford's last argument is that the $5,000,000 damages awarded to EN, the widow of SM, was excessive, as was the jury award of $1,500,000 in loss of earnings to the Estate of SM. Ford claims that the $1,500,000 awarded to the Estate was excessive in light of testimony of plaintiffs' economic expert who only estimated a loss of earnings of $1,327,000, resulting in a difference of $173,000. Since there was no other evidence to support the jury's verdict of $1,500,000, it is speculative. Accordingly, the award of $1,500,000 for loss earnings to the Estate of SM will be reduced by $173,000 to $1,327,000.

As to Ford's argument that the $5,000,000 awarded to the widow, EN, was duplicative, this court finds that the amount should only be reduced by $1,327,000, the amount of the loss of earnings to the Estate of SM. The Court of Appeals held in Gonzalez v New York City Housing Authority that "pecuniary injuries" caused by a wage earner's death may be calculated, in part, from factors relevant to the decedent's earning potential, such as present and future earnings, potential for advancement and probability of means to support heirs, as well as factors pertaining to the decedent's age, character and condition, and the circumstances of the distributees.

However, this court finds that the amount should be reduced by $1,327,000 to reflect the loss of wages awarded to the Estate of SM wherein EN was the sole heir. Hence, the award to the Estate would be duplicative. Accordingly, the amount awarded to EN will be reduced by $1,327,000 to $3,673,000 and the Estate of SM will be reduced to $1,327,000.

After much consideration and deliberation the Court made the following rulings.

Ford Motor Company's motion to set aside the verdict, is granted, in part; that the damages to the Estate of SM be reduced from $1,500,000 to $1,327,000; and it is further ORDERED, that the damages to EN be reduced from $ 5,000,000 to $3,673,000.

Plaintiffs motion to set aside the verdict is granted, in part, as to G finding that he is entitled to an award of $529,027 for future prescriptions and medications and $2,160,028 for future psychiatric care over 43.86 years, and $250,000 for past pain and suffering for extreme emotional distress and $250,000 for future pain and suffering for future extreme emotional distress for 43.86 years; and it is further ORDERED, that S is entitled to an award for loss of services of G in the amount of $150,000; and it is further ORDERED, that EV is entitled to an award of $1,558,440 for future prescriptions and medications and $3,149,500 for future psychiatric treatment expenses over 62.8 years and $250,000 for past pain and suffering for extreme emotional distress and $500,000 for future pain and suffering for extreme emotional distress for 62.8 years.

Ford Motor Credit Company's motion to set aside the verdict, is denied, and it is further ORDERED, that the Richmond County Clerk shall enter money judgments in accordance with the above decision in favor of the following plaintiffs in the following amounts: EV an infant, in the sum of $5,457,940; G the sum of $3,189,055; S the sum of $150,000; Estate of SM, the sum of $3,673,000, and EN, the sum of 1,327,000 totaling $13,796,995 plus statutory interest as to each award and costs and disbursements as to each case.

The loss of a loved one brings deep grief to the whole family. Although we cannot bring their life back, the law has set some pecuniary and economic help in favor of the surviving relatives. Claims for damages for the death of a loved one due to the wrongful act or negligence of another person may require legal expertise and with the assistance of a good counsel, your claims will be at hand.

The Stephen Bilkis & Associates together with its Richmond County Estate Litigation Attorneys and Richmond County Estate Lawyers can help during this time of difficult situation. Give us a call for a free legal consultation.

Court Determines if Prior Contract Existed

January 2, 2015,

A Probate Lawyer said the plaintiff-Claimant, Mr. W, commenced this day small claims action against defendant, RAL, alleging that owing to the defendant improperly listing the premises claimant purchased as having city sewers when it did not, claimant was forced to incur the cost of installing a sewer line after closing.

Claimant testified that he was induced to initially look at, and then eventually purchase, the premises because the house was listed as having city sewers. Defendant is a licensed real estate broker and was the listing broker on the sale. Claimant stated that he was only interested in homes that had a city sewer and was shown the house by another real estate brokerage firm. Claimant asserts that after he closed on the house in March 2013, he learned that the property did not have city sewers but in fact had a septic tank system. Because the City of New York installed sewers in Woodrow Road at that time, claimant was required to spend $4,200.00 to run a sewer line from the city line in the street to his house.

A New York Estate Lawyer said that there are several problems with the claimant's allegations. First, he testified that he worked for the New York City Department of Environmental Protection and does sewer maintenance as part of his job. Second, both he and the defendant broker's witness testified that there were contractors installing sewer lines in the Woodrow Road area when the house was listed and when the claimant visited the premises on more than one occasion. Yet no one thought to make inquires to why the streets were being dug up. Third, claimant hired a structural engineer to prepare a report prior to entering into the contract. That report was not put into evidence. Fourth, claimant did not produce the contract of sale which he entered into with the seller which may have had a representation as to the existence of city sewers, private sewers, septic tanks or cesspools. Fifth, claimant did not produce his title report which if done in the standard manner as prepared in Richmond County, would have included municipal searches marked for information only disclosing any city related water and sewer charges assessed against the property. The lack of this information in the title report should have triggered an inquiry by all parties to the transaction. A certificate of occupancy search which may have contained information in that regard, is also a customary document provided by a municipal search.

Manhattan Probate Lawyers said that this court is well aware that the real estate industry locally, if not statewide, continues to assert that real estate brokerage is a profession requiring training, skill and expertise in all areas of real property activities. Brokers are constantly seeking to be granted the authority draft contracts for the sale of real property, if not other documents usually prepared by attorneys at law. Although not classified as a profession regulated by the Education Law or the Judiciary Law, the Department of State has continued to monitor and enforce the requirements for becoming a licensed real estate broker or salesperson. The Real Property Law (RPL) requires an applicant to show trustworthiness and the competency to transact the business of real estate broker in such a manner as to safeguard the interests of the public. That section provides that any applicant must furnish proof of completing one hundred twenty hours of approved real estate related courses and demonstrated knowledge of the legal effect of deeds, mortgages, land contracts of sale, and leases. In order to maintain a license, continuing real estate education courses must be completed every two years.

New York City Probate Lawyers said that RPL §443 sets forth the form containing the disclosures a broker is required to deliver to either the seller or the buyer in a transaction. Defendant as the seller's agent is required in dealings with the buyer, a seller's agent should (a) exercise reasonable skill and care in performance of the agent's duties; (b) deal honestly, fairly and in good faith; and (c) disclose all facts known to the agent materially affecting the value or desirability of property except as otherwise provided by law.

Here, however, neither party has placed into evidence a copy of the signed contract between the claimant and the seller. Although an argument could be made that the defendant as the real estate broker would not necessarily have a copy of the contract, the rules of the Division of Licensing Services of the Department of State does require licensed real estate brokers to maintain certain records of each transaction. One of the records that a broker has the option of maintaining is a copy of the contract of sale, so it is possible that the defendant had a copy as part of its records even if there were alternate methods of keeping information.

The existence of the entire contract would clarify whether the claimant actually knew that there was no city sewers at the premises prior to signing the agreement based on representations of the seller; whether an adjustment was made in the purchase price because of the lack of sewers; whether upon receiving either the home inspection report or the title report this fact was revealed to the claimant and if the contract was renegotiated because of that information.
The claimant did not produce the title report he received. The title report should have a municipal search showing open water and sewer charges. If the report showed no sewer charges, then a bell should have gone off with claimant's attorney, and even seller's attorney, if either of them or both of them were operating under the assumption that there was a city sewer servicing the premises because the contract was prepared based on information provided either by the seller or by either real estate broker. If there was no sewer charge in the municipal search, it should have triggered inquiry by claimant's counsel as to why that was the case if there was a city sewer.

Taking all of the above into account, it is apparent that anytime after the defendant took the listing, the defendant could have checked the public records and determined that the property did not have city sewers. Likewise, claimant, his broker, his structural engineer, and his attorney anytime before the contract was entered into could have checked the public record especially in light of the importance of this issue to the claimant as he articulated at the trial. Even after the contract was entered into, claimant and his counsel could have addressed this issue when the title report with the municipal searches was received. Apparently this was not done, or more accurately, there is no evidence that anyone made even a minimum investigation into the accuracy of the listing information provided by the seller.

Although claimant's alleged of lack of knowledge, borders on being less than credible, taking into account all of the facts, the primary responsibility for discovering the inaccurate information must fall on the defendant as the listing broker. Had defendant as a licensed real estate broker compared the information available in the public record to the data provided by the seller, the defendant could have corrected the listing before interested purchasers began calling, and allegedly the claimant would not have even looked at this house. Any damages that have occurred flow from defendant's actions.

Claimant has proven his prima facie case. Defendant did not accurately list the facts concerning the existence of the septic system rather than city sewers and this induced the defendant to enter into the contract to and to purchase the premises. Hence, judgment for claimant in the amount of $4,200.00, the cost of hooking the premises into the city sewer line, with interest from the date of decision, costs and disbursements.

To avoid the inconvenience experienced above, it is always wise to consult a learned Richmond County Estate Attorney when it comes to acquisition of property or any transactions related to real estate property.

The Stephen Bilkis & Associates has a roll of Richmond County Estate Lawyers who can help you with your property issues. Do not assume to know all the necessary things attached to your properties, always consult an expert legal representative.

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.

Here in Stephen Bilkis and Associates, we hill help you with your legal issues. For probate actions, you can consult our Richmond County Estate Attorneys, who will advise you with your concerns. If you are deprived of your inheritance through a last will and testament, our Richmond County Will Contest Lawyers will help you file a case in court.