Court Looks at Will Construction

September 1, 2015,

A New York Probate Lawyer said the two subscribing witnesses testified to the due execution of decedent's holographic will and to her testamentary capacity at the time of the execution; that the last page of the instrument, the only one they saw, bore no additional writings below their signatures.

A New York Estate Lawyer said the changes in the street numbers of the addresses of the legatees under items 13 and 14 are immaterial, as well as the interlineation of the amount of the legacy of item 13, as the amount thereof was increased by figures immediately above it and that in turn was interlined and the original amount reinstated with the initials of the decedent above it; the amount of item 16 was interlined, and a lesser sum substituted therefor immediately above it, which in turn was likewise interlined and the original amount restored. Equally immaterial is the phrase in item 15 which reads in payment of money ($500) she gave my sister Mae and for which I thank her. Those interlineations and additions being fair upon their face and unexplained by any evidence to the contrary must be presumed to have been made before the execution of the will. Crossman v. Crossman, 95 N.Y. 145, 153.

The Court finds that the following legacies were originally written in the following sums: item 6--$1,000; item 17--$100; item 18--$100; item 19-$50; and item 20-$200, which sums were interlined and other sums substituted in their places; the interlineations were made either in pencil or ink and the substituted sums in ink, which ink interlineations and substitutions are in different color ink than the original legacies, wherefore it is found that such interlineations and substitutions of different sums were made subsequent to the execution of the will. Matter of Ross' Will, 177 App.Div. 719, 164 N.Y.S. 884.

Queens Probate Lawyers said legacy item 7 is apparently in the sum of $2,000. A cursory examination of it discloses however that the figure 2 apparently has been superimposed over the figure 1, a portion of which figure is still visible beneath the lower loop of the figure 2, which lower loop is darker in shade than the upper loop. While there is no proof, however, that the propounded instrument was in the possession of the legatee who would benefit by such change, the burden is upon the party who seeks to derive an advantage from an alteration in a will to adduce some evidence from which it may be inferred that the alteration was made before the will was executed. Matter of Ross' Will, supra. This the legatee has failed to do, wherefore the Court holds that this legacy was altered from the sum of $1,000 to $2,000 subsequent to the execution of the will.

The specific bequest to Anne Hankinson and Marguerite McConnell at the bottom of page 4, and that portion of the bequest to Margaret Wahlstrom on page 5, through which interlineations appear in the phrase and radio in small foyer hall which phrase is followed by the same phrase in pencil; and that portion of the bequest to Rose Beatty on page 5, limited to the words towels and linens, and that portion of the bequest to MM, at the bottom of page 5 and the top of page 6, limited to the words floor lamp--lamp on large table in living room, lamp on nest of tables twin lamps in living' appear in different color ink from the rest of the writing on those sheets, and from their position it is evident that such changes and additions were apparently afterthoughts of the decedent and therefore the Court finds that they were made subsequent to the execution of the will.

Long Island Probate Lawyers said the propounded instrument will be admitted to probate with all of that portion below the witnesses' signatures on the last page eliminated, as well as the specific bequests which have been determined to have been made subsequent to execution; and, in addition, the said will shall set forth the amounts of the money legacies in the sums determined to have been originally given. The decree to be submitted will incorporate the instrument as admitted to probate.

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Court Discusses Outcome of Contested Probate Proceeding

August 31, 2015,

A New York Probate Lawyer in a contested probate proceeding, the objectant appeals, as limited by her brief, from so much of a decree of the Surrogate's Court, Kings County, dated April 11, 1986, as, upon a ruling made after close of all the evidence at a jury trial dismissing all her objections as a matter of law, dismissed her third objection alleging that the will was procured by the undue influence of the petitioner, admitted the will to probate and awarded letters testamentary to the petitioner.

A New York Estate Lawyer said the testimony at the trial established that the decedent MB had executed a will in 1977 which would have distributed her estate equally to her two sisters, who were then living, and the proponent of the will in question, PH, the surviving son of a third sister. In the event either of MB's two sisters predeceased her, their shares would go to the objectant, LM, the daughter of one of those sisters. In December 1977MB fractured a hip bone and PH came to her aid and assisted her in getting to the hospital. A few days after MB's accident, PH ended his employment as a tenured college professor and devoted his energies to assisting his aunt in her affairs, primarily acting as her financial advisor.

A Nassau County Probate Lawyer said specifically, MB executed a power of attorney in favor of PH; MB's securities were removed from her safe deposit box by PH and he transferred them to a box in his name; MB's bank accounts were transferred by PH into an account in the joint names of MB and PH, and PH signed MB's name on the account application at her request; PH arranged for the dividend checks from MB's securities to be deposited directly into another joint account which was opened in a similar fashion; and the bank statements from the joint accounts were sent to PH's home although the proxy materials were sent to MB. In addition, PH assisted MB in finding various nursing homes wherein she resided after her 1977 accident and until her death in 1984.

In 1981, PH drafted and typed a new will for MB which named PH as the sole beneficiary and executor of her estate. Although by that time MB's two sisters had died, no provision was made in the new will for LM.

At the trial, a Staten Island Probate Lawyer said PH explained that he had opened the joint accounts, transferred the securities to his safe deposit box and prepared the second will, all at the request of his aunt. He thought MB had changed her will because he had rescued her after her 1977 accident and he was the only relative who visited her and cared for her while she was in the nursing homes; albeit, PH admitted that MB's other relatives visited her infrequently.

On appeal, the objectant LM's sole argument is that the trial court should have submitted to the jury the issue of whether PH had unduly influenced MB in naming him as sole beneficiary of her estate. We agree. Undue influence can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influence, the opportunity and disposition of the person to wield it, and the acts and declarations of such person (Matter of Anna, 248 N.Y. 421, 424, 162 N.E. 473, quoting from Rollwagen v. Rollwagen, 63 N.Y. 504, 519). Although the burden of establishing that there has been undue influence in a particular case rests upon the objectant and does not shift, where there is a confidential relationship between the decedent and the beneficiary/drafter of the will, the mere fact of the bequest, standing alone, permits an inference of undue influence, and the drafter then has the burden of offering an explanation, alternative to his influence, for the contested will (Matter of Collins, 124 A.D.2d 48, 54, 510 N.Y.S.2d 940).

In this case, the jury could have found that a confidential relationship did exist between MB, a woman of advanced years, and PH, who drafted her will, in which he was named as sole beneficiary. Specifically, the evidence showed that PH had control over all of MB's assets and was managing her financial affairs. Although PH had offered an explanation as to why MB had executed a will in his sole favor, such testimony merely created a question of fact for the jury as to whether the proffered explanation was adequate (Matter of Burke, 82 A.D.2d 260, 274, 441 N.Y.S.2d 542; Matter of Elmore, 42 A.D.2d 240, 241, 346 N.Y.S.2d 182).

Since the court erred in removing the question of undue influence by the proponent from the consideration of the jury, the decree must be reversed insofar as appealed from and a new trial held on this issue only.

Accordingly, it is ordered that the decree is reversed insofar as appealed from, on the law, the words and was not under restraint are stricken from the first decretal paragraph thereof and a provision dismissing the appellant's first and second objections is substituted therefor, the second and third decretal paragraphs thereof are stricken, and the matter is remitted to the Surrogate's Court, Kings County, for a new trial on the appellant's third objection consistent herewith, with costs to abide the event payable out of the estate.

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Contestant Files Applilcation for Order Vacating Demand for Bill of Particulars

August 30, 2015,

A New York Estate Lawyer said that the contestant has made application to the Court for an order vacating and setting aside the proponent's demand for a bill of particulars, or in the alternative, modifying said demand, and for such other, further and different relief as to the Court may seem necessary and proper. The proponent's demand for a bill of particulars is directed to the allegations of fraud and undue influence in paragraph 3 of the contestant's objections.

A New York Estate Lawyer said the application will be treated as though the proponent were seeking a bill by motion in the first instance, since it calls upon the Court to determine the nature and extent of the items, if any, which the contestant should furnish to the proponent.
It is too well settled to require citation of authority, that the proponent in a contested probate may properly require the particularization of the charges of fraud and undue influence asserted to defeat the probate.

The real controversy here revolves around the extent to which such particulars ought to be furnished.

Brooklyn Probate Lawyers said an examination of the proponent's demand, and of the contestant's moving papers, and a full consideration of the arguments and authorities cited by their counsel, demonstrate that the proponent seeks specific particularization beyond that granted in Matter of Mullin's Estate, 143 Misc. 256, 256 N.Y.S. 519, while the contestant would limit the bill to general statements in accordance with Matter of Martin's Estate, 151 Misc. 93, 273 N.Y.S. 122.

No proper decision can be arrived at without noting the difference between the two rules promulgated in the two cases above cited and so well stated by Surrogate Wingate in Matter of Van Riper's Will, 171 Misc. 178, 179, 11 N.Y.S.2d 975, 977, in this language:
The distinction between the Mullin rule and that applied in Matter of Martin's Estate is that in the former the contestant is required to state the specific actor acts or course of conduct alleged to have constituted and effected such undue influence and the particular false statements, suppressions of fact, misrepresentations, or other fraudulent acts alleged to have been practiced upon the decedent which are claimed to have amounted to the asserted fraud.
Under the Martin rule all that may be required of the contestant is that he set forth in general terms the acts, course of conduct, false statements, suppressions of fact and misrepresentations alleged to have been used in the fraud and in the practice of undue influence upon decedent.

Bronx Probate Lawyers said in a word, the Mullin requirement compels the pleading of the basic essential facts from which a legal inference of undue influence or fraud is asserted to flow, whereas the Martin rule permits a more or less considerable degree of latitude in purely conclusory allegation.

The conflict between the two rules is reflected in actual practice. In Kings County the Mullin rule controls (Matter of Van Riper, supra) while in New York County the Martin rule governs (In re Gordon's Estate, Sur., 6 N.Y.S.2d 569, not otherwise reported). Both before and after the Mullin case the practice in Nassau County accorded with that of Kings County (Matter of Carhart's Will, 168 Misc. 280, 6 N.Y.S.2d 596). In the only reported case in the Third Department, Ulster County followed the Mullin rule (Matter of Roosa's Will, 205 Misc. 628, 129 N.Y.S.2d 860). In applying the Mullin rule in Monroe County (Matter of Britton's Will, 167 Misc. 747, 4 N.Y.S.2d 715) the learned Surrogate Feely interpreted the word specific to mean ultimate facts as distinguished from evidentiary facts.

It seems from the foregoing decisions that the courts of first impression are leaning more toward the Mullin than the Martin rule.

The principles of the Mullin case have also received appellate approval in Matter of Wetterau, 2d Dept., 245App.Div. 822, 282 N.Y.S. 233; Matter of Aldridge, 4th Dept., 248 App.Div. 675, 289 N.Y.S. 923, and Matter of Carpenter's Will, 2d Dept., 252 App.Div. 885, 300 N.Y.S. 375. It has been said (In re Gordon's Estate, supra) that the Martin rule likewise received appellate approval in Matter of Lippman's Will, 1st Dept., 242 App.Div. 628, 271 N.Y.S. 1101.Surrogate Wingate, however, in Matter of Van Riper, supra, points out that in the Matter of Lippman, supra, the issue was not between the rules of the Martin and Mullin cases but rather between those of the Martin case and Matter of Ross' Estate, 115 Misc. 41, 187 N.Y.S. 558, the latter case having required less particularization than the Martin rule. His analysis of the Lippman case is as follows: Matter of Lippman's Will, 242 App.Div. 628, 271 N.Y.S. 1101, destroys the last remaining vestige of the ancient myth of the authority of Matter of Ross' Estate, 115 Misc. 41, 187 N.Y.S. 558. It, however, does no more than to determine that particularization in excess of that permitted in Matter of Ross' Estate is demandable, leaving wholly untouched the question of the quantum of such excess except to hold that the amount thereof permitted under Matter of Martin's is not too much.

Although it may be argued that the Wetterau approval of the Mullin rule stands on no firmer ground than the Lippman approval of the Martin rule, the fact remains that the Aldrich and Carpenter cases upheld the Mullin rule when directly opposed by the Martin rule.
An examination of these leading cases has persuaded this Court that the weight of authority rests with the Mullin rule, and that in the instant case the contestant should be required to plead the basic essential facts constituting the asserted fraud and undue influence, as distinguished from purely conclusory allegations. It does not follow, however, that the proponent is entitled to the particulars as demanded. In the light of the foregoing, and in lieu of the items contained in proponent's demand, the contestant will be directed to serve a verified bill of particulars as follows: 1.) The specific act or acts or course or courses of conduct claimed to have constituted and effected the undue influence practiced upon the decedent as alleged in objection designated 3. 2.) The time and times when and the place and places where such undue influence is alleged to have taken place, and the name and address of each and every person charged with practicing such undue influence. 3.) The particular false statements, suppressions of fact, misrepresentations, or other fraudulent acts, claimed to have been practiced upon the decedent as alleged in objection designated 3. 4.) The time and times when and the place and places where such false statements, suppressions of fact, misrepresentations, or other fraudulent acts are claimed to have occurred, and the name and address of each and every person alleged to have perpetrated the same. 5.) Whether any such false statements, suppressions of fact, misrepresentations or other fraudulent acts, were accompanied by any act of physical violence upon or mistreatment of or threat to the decedent, and if so, the nature thereof.

The verified bill of particulars is to be served by the contestant within ten days after the conclusion of the examinations before trial heretofore granted to her by this Court or if the examinations have been completed then ten days after service of a copy of the order entered herein.

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Petitioner Raises the Issue of Domicile in Probate Case

August 29, 2015,

The decedent ALF, died on the 9th day of January, 1961, while a patient at the Wolcott Clinic, Wolcott, New York.

A New York Probate Lawyer said that thereafter and on the 21st day of February, 1961, EGF, the son of the decedent, presented to this Court a petition praying that an instrument in writing dated February 5, 1955, and executed by the decedent purporting to be her Last Will and Testament, be admitted to probate by this Court, which petition alleged, that the said decedent at the time of her death was a resident of the Village of Red Creek, Wayne County, New York.

A New York Estate Lawyer said that thereafter and on the 11th day of July, 1961, the respondent, EKM, a niece of the decedent, a legatee under the instrument above recited, presented to this Court a petition putting in issue the domicile of the decedent ALF at the time of her death and requesting a Hearing by the Court to determine the question above stated. A Hearing was held on the 17th day of July, 1961, and both the proponent therein represented by JCS, Attorney, Wolcott, New York, and the respondent therein represented by RFZ, Attorney, Sodus, New York, produced witnesses and gave testimony to this Court relative to the above issue.

A Queens Probate Attorney said that the Court also has before it the motion of the proponent questioning the standing of the respondent to raise the issue before the Court. The matters before the Court are jurisdictional. The one going to the right of EKM petitioner to bring said petition; and the other as to whether the domicile of the decedent was within the jurisdiction of this County at the time of her death. The Court has read the following cases and treatises on the subject as well as the Statutes: Matter of Greene's Will, 186 App.Div. 903, 172 N.Y.S. 894; Matter of Wendell's Estate, 144 Misc. 467, 259 N.Y.S . 260; Matter of Daggett's Will, 255 N.Y. 243, 174 N.E. 641, 75 A.L.R. 1251; Dupuy v. Wurtz, 53 N.Y. 556; Matter of Newcomb's Estate, 192 N.Y. 238, 84 N.E. 950; Matter of Lyon's Estate, 117 Misc. 189, 191 N.Y.S. 260; Matter of Trowbridge's Estate, 266 N.Y. 283, 194 N.E. 756; Matter of Ferris' Estate, 286 App.Div. 631, 146 N.Y.S.2d 299; Matter of Timblin's Will, 6 Misc.2d 344, 162 N.Y.S.2d 783; Matter of Paris' Estate, 107 Misc. 463, 176 N.Y.S. 879; Black's Law Dictionary; United States Trust Co. of New York v. Hart, 150 App.Div. 413, 135 N.Y.S. 81; and Matter of Frick's Estate, 116 Misc. 488, 190 N.Y.S. 262.

A Long Island Probate Lawyer said the Court rules on the first point of jurisdiction that EKM, the petitioner, who is a legatee under the Will and with whom the decedent had resided for some lengthy period is an interested party under the Section cited and as such has a right to question the jurisdiction of the Court. The Court has read Matter of Martine's Estate, 11 Abb. N.C. 50 and Jessup Redfield seems to go along with the same contention which the Court now holds.

On the second and most important point raised here viz. domicile of the decedent, there does not seem to be any appreciable dispute as to the Law between either the attorney for the estate and the respondent here or the attorney for the petitioner. Both of them have set forth the statute and case law which defines jurisdiction, residence, domicile, intention, motive, all of which are clear. The Court feels that after a review of the memorandum and of the testimony presented at the Hearing that there is left solely a question of fact for the Court to decide from the evidence before it and applying the statute and case Law. Cases seem to follow that procedure and the case that appears to be strongly similar to this case would be the Matter of Ferris' Estate, 286 App.Div. 631, 146 N.Y.S.2d 299. The Court there followed the procedure which this Court is now attempting to follow and rendered its decision after weighing the evidence as it applies to the Law. Likewise, in the Matter of Timblin's Will, 6 Misc.2d 344, 162 N.Y.S.2d 783, the Court applied the Law only after considering the facts and the burden of proof on these facts and decided that the domicile of the decedent there had not been given up. Even the facts in the Ferris case were quite similar as regards the actions of the decedent in this one.

The decedent, ALF, lived in New York and she had this niece, Mrs. EMK, with whom she was on good terms and who had lived with her for some 30 years. Decedent likewise had a relative, her son, who lived in Wayne County where decedent passed away. As a matter of fact, in the Ferris case, decedent in that circumstance died in the home of her nephew in St. Lawrence County.

Evidence showed here in this case that decedent discussed from time to time of moving and getting a place in Red Creek or in Wayne County as well as discussing possibilities of coming to live with her son. In the Ferris case the decedent indicated by power of attorney and by a small bank account in St. Lawrence County that she may have had some idea of having that as her residence as well as Brooklyn.

The decedent in the present case, as the attorney for the petitioner points out, maintained an apartment in the City of New York up to her death. Of course, there was evidence by Doctor F and his wife and Mrs. DL indicating that decedent talked of making her home in Red Creek. In the Ferris case Justice Coon said, 'The law is well settled and well understood as to just what must be proven to establish domicile within any particular jurisdiction. While much has been written on the subject and different words and phraseology appear in court opinions, the ultimate result is always the same, i. e., domicile is residence coupled with an intention that such residence be permanent and not temporary. Both residence and intention must be present. No single factor is controlling. All of the acts, declarations and conduct of a person, the manner of living, connections, association, and interests must be considered, and from the over-all picture, intention must be ascertained.

'In such circumstances 'a comparison of one combination of facts with another' is required, and we must determine whether all the facts tending to show decedent's domicile to have been in Kings County overbalances all the facts tending to show her domicile to have been in St. Lawrence County. Dupuy v. Wurtz, 53 N.Y. 556; Matter of Newcomb's Estate, 192 N.Y. 238, 84 N.E. 950; Matter of Daggett's Will, 255 N.Y. 243, 174 N.E. 641, 75 A.L.R. 1251; Matter of Trowbridge's Estate, 266 N.Y. 283, 194 N.E. 756.

The Justice there further said, 'A comparison of one combination of facts with another is required, and we must determine whether all the facts tending to show decedent's domicile to have been in Kings County overbalances all the facts tending to show her domicile to have been in St. Lawrence County.

In the Ferris case, in comparison with the one before the Court, the respondent showed that decedent registered at Canton for an absentee ballot in 1946, and that she voted there in 1946 and 1947. While she was ill on August 13, 1951, she wrote to her nephew's wife to 'come and get me', and went with them to DeKalb Junction on August 30, 1951. The nephew and his wife testified that she told them, 'I want to go to DeKalb Junction and live with you and Claude the rest of my days.' There is also evidence that decedent went to DeKalb Junction because she preferred to pay the money for her care to her nephew and his wife rather than to the nursing home. She executed a power of attorney on September 26, 1951, which recited her residence as DeKalb Junction, but it was drawn, including this recitation, before the draftsman had talked with decedent. She had a small account in bank at Gourverneur, N.Y., which was opened used only by the nephew under the power of attorney.

The Court in this case has searched diligently through the facts and evidence to try and find if the weight of the evidence would substantiate a ruling by this Court that a burden of proof could be found from acts, circumstances and the entire history over a large portion of the decedent's life which would substantiate a ruling that she had actually and factually changed her domicile from New York City even though she might have been a resident of Wayne County at the time of her death. The fact remains that she still had a residency in New York City and it had been her domicile for such a length of time that the contradictory evidence presented here as to some declarations which she made about intention of changing her domicile could hardly be weighty enough to carry the burden of conclusive proof that domicile was changed at the time of her death.

It must be remembered that the testimony of the witnesses for the proponent were not disinterested witnesses. By the same token neither could Mr. and Mrs. EMK be considered disinterested witnesses. The testimony of Mrs. RT who gave testimony as to decedent's declaration of intention to return to New York City, however, could hardly be considered as being testimony given by an interested witness. She was subpoenaed and her demeanor actually indicated to the Court that she was unwilling to testify. However, she did, and her testimony can be considered favorable to the contention of the petitioner. All in all, however, this testimony alone is not sufficient to give the Court a basis for his decision. It is rather reached as the verbiage in the Ferris case said by, 'A comparison of the one combination of facts with the other.'

The Court therefore rules and determines that ALF was not domiciled in Wayne County at the time of her death and that this Court cannot therefore take jurisdiction as respects the Administration of her estate.

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Court Rules on Issues Regarding Trust Beneficiary

August 28, 2015,

A New York Probate Lawyer said that before the court is the motion of PLK, the nominated successor co-trustee of the trusts created under Paragraphs Second, Third and Sixth of the will of WM. Movant seeks summary judgment pursuant to CPLR 3213 granting his petition for appointment as successor co-trustee pursuant to SCPA 1502. In the alternative, movant asks the court to issue an order pursuant to CPLR 3126 striking the objections to his appointment which were filed by SM, a trust beneficiary, for her failure to provide discovery.

WM died on February 14, 2008, survived by his wife, SM (hereinafter, the objectant), his son, MM, and his daughter, LM. Decedent left a will dated October 27, 2004, as amended by codicil dated October 12, 2006. The will and codicil were admitted to probate by this court on April 4, 2008. In Paragraph Second of the will, decedent established a credit shelter trust for the benefit of the objectant. In Paragraph Third of the will, decedent established a generation-skipping trust for the benefit of the objectant. In Paragraph Sixth of the will, decedent created a residuary trust for the benefit of the objectant. In connection with each of the three trusts, letters of trusteeship were issued by this court on April 4, 2008, to the three nominated trustees, namely, MCA, CAL, and the objectant.

A New York Estate Lawyer said that MCA submitted his written resignation as trustee on February 2, 2010. The nominated successor trustee, SL, executed a renunciation on February 11, 2010. On May 13, 2010, MCA filed a petition with this court for permission to resign and for the appointment of PLK (hereinafter, movant), the next successor trustee nominated by the decedent in his will.

On October 13, 2010, the objectant filed objections to the petition of MCA for the appointment of movant as successor trustee of the trusts created under Paragraphs Second, Third and Sixth of decedent's will. The objectant asserts that there exists historic hostility and acrimony between the movant and SM, and that there exists an actual conflict based upon a potential malpractice action that the objectant might bring against movant. The objectant also asserts that movant exhibited a lack of candor by his alleged failure to advise WM that naming movant as a successor executor carried legal ramifications.

A Brooklyn Probate Lawyer said that MCA died on January 7, 2011 while his petition was pending. On April 13, 2011, CAL and movant jointly filed a petition for the appointment of movant as the successor trustee of the three trusts pursuant to SCPA 1502. While the objectant failed to object to this petition, the parties deemed her objections to the original petition to continue against the second petition. Objectant filed opposition to the present motion.

A Bronx Probate Lawyer that a Summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Phillips v Joseph Kantor & Co., 31 NY2d 307, 311 [1972]). The court's function on a motion for summary judgment is issue finding rather than issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), because issues of fact require a hearing for determination (Esteve v Abad, 271 App Div 725, 727 [1st Dept 1947]). Consequently, it is incumbent upon the moving party to make a prima facie showing that he is entitled to summary judgment as a matter of law (CPLR 3212 [b];Zuckerman v City of New York, 49 NY2d 557, 562 [1980];Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]);Zarr v Riccio, 180 AD2d 734, 735 [2d Dept 1992]). The papers submitted in connection with a motion for summary judgment are always viewed in the light most favorable to the non-moving party (Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610, 610 [2d Dept 1990]). If there is any doubt as to the existence of a triable issue, the motion must be denied (Hantz v Fishman, 155 AD2d 415, 416 [2d Dept 1989]).

If the moving party meets his burden, the party opposing the motion must produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact that would require a trial (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In doing so, the party opposing the motion must lay bare his proof (see Towner v Towner, 225 AD2d 614, 615 [2d Dept 1996]). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to overcome a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Prudential Home Mtge, Co., Inc. v Cermele, 226 AD2d 357, 357-358 [2d Dept 1996]).

The initial question to be addressed by the court is whether movant has made a prima facie showing that he is entitled to summary judgment as a matter of law (CPLR 3212 [b];Zuckerman v City of New York, 49 NY2d 557, 562 [1980];Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]);Zarr v Riccio, 180 AD2d 734, 735 [2d Dept 1992]). Movant maintains that there are no material facts which require a hearing, because even if all of the objections were true, they do not fall within the grounds for denying letters under SCPA 707.Pursuant to SCPA 707, the court may issue letters to an entity or an individual who is not ineligible to receive letters. Subdivisions (1) (a) through (e) list those who are deemed ineligible, and subdivision (2) provides that a person who doesn't read and write English may be deemed ineligible at the discretion of the court.

1. Persons ineligible (a) an infant. (b) an incompetent. (c) a non-domiciliary alien except one who is a foreign guardian as provided in subdivision four of section one thousand seven hundred sixteen of this chapter, or one who shall serve with one or more co-fiduciaries, at least one of whom is resident in this state. Any appointment of a non-domiciliary alien fiduciary or a New York resident fiduciary hereunder shall be made by the court in its discretion. (d) a felon. (e) one who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office. 2. Persons ineligible in court's discretion. The court may declare ineligible to act as fiduciary a person unable to read and write the English language. (SCPA 707) Movant also disputes each of the objections raised, pointing to his longstanding professional relationship with the decedent and with the objectant. Movant maintains that he has no history of hostility toward the objectant, as demonstrated by the fact that only two years ago she retained him to represent her in connection with the probate and administration in connection with the decedent's estate, which proceeded without difficulty. Movant asserts that the objections to his appointment are based upon his expressed reluctance to invade trust funds to purchase a $2,000,000.00 third home for the objectant in New York City. He indicated his belief that the proposed invasion would violate his fiduciary duty, should he be granted letters of trusteeship by the court, and he expressed this reservation to the objectant. In connection with the objectant's second assertion, that movant has a conflict because of a potential malpractice action she may bring against him for his failure to advise her of her right of election against decedent's estate, movant asserts that he did advise objectant of her right to elect against her husband's will, but that she chose not to exercise it. To date, no action has been filed by objectant against movant in connection with this issue. Lastly, movant notes that the objectant claims that movant exhibited a lack of candor by failing to advise decedent of the legal ramifications of nominating movant, who was decedent's attorney, as a successor executor under decedent's will. Movant argues that as the third nominee in succession, he neither served nor received commissions in that capacity, and that, in any event, his conversations with his client concerning the nomination of a successor executor would not impact upon his eligibility for letters of trusteeship.
A testator's wishes regarding the appointment of a fiduciary will be honored unless there are serious and bona fide allegations of misconduct or wrongdoing (Matter of Alfano, NYLJ, May 29, 2001, at 32, col 6; Matter of Schill, NYLJ, Mar. 15, 2000, at 30, col 2; Matter of Fordham, NYLJ, Dec. 16, 1998, at 22, col 6; Matter of Fruchtman, NYLJ, Nov. 28, 1997, at 35, col 1). Courts will not lightly set aside a decedent's choice of fiduciary (Matter of Mecko, 70 NYS2d 41).

Decedent's selection of a fiduciary must be given great deference and the power of the court to deny the issuance of letters to a nominated fiduciary is strictly circumscribed by statute. Courts should nullify a testator's choice only upon a clear showing of serious misconduct that endangers the safety of the estate. Unless the nominated [fiduciary] is disqualified under SCPA 707, he cannot be denied letters (Matter of Cruz, NYLJ, Sept. 15, 2009 at 38, col 2).
The only subdivision of SCPA 707 with any potential relevance to the objections raised is SCPA 707 (1) (e), which is an expansion of the grounds on which the court can deny letters to an individual (2 Warren's Heaton on Surrogate's Court Practice 33.02[6][e], 7th ed). This subdivision refers to "substance abuse, dishonesty, improvidence, want of understanding, or [an individual] who is otherwise unfit for the execution of the office" (SCPA 707 [1] [e]). These grounds all contemplate a fiduciary likely to jeopardize estate property (Turano, Practice Commentaries, Book 58A, McKinney's Consolidated Laws of New York, 707, p. 530). Moreover, the statutory grounds listed above for disqualifying an individual from receiving letters are exclusive (Matter of Shephard, 249 AD2d 748 [3d Dept 1998]).

Even if objectant can prove that: (1) movant is hostile toward the objectant; (2) movant did not advise the objectant of her right to elect against her husband's estate, and that, as a result, movant may bring a proceeding against movant; and (3) movant failed to advise the decedent of the effect of nominating movant as a successor executor, any and all of these allegations are insufficient to render movant ineligible to receive letters of trusteeship pursuant to SCPA 707.

Therefore, movant has made a prima facie showing of entitlement to summary judgment. Once that burden is met, the objectant must proffer admissible evidence to establish a material issue of fact that would require a hearing on the question of movant's eligibility for letters so as to defeat the motion for summary judgment. The objectant has failed, as a matter of law, to raise a triable issue of fact with respect to the disqualification of the nominated co-trustee. There is no need for a hearing.

The motion for summary judgment is granted. Accordingly, there is no need to address the alternate relief requested by movant. If future events indicate that movant is for any reason unfit to serve as co-trustee, the objectant may pursue a remedy under SCPA 711, which provides the bases to suspend, modify or revoke letters or to remove a fiduciary for disqualification or misconduct. Letters of trusteeship will issue to PLK upon his qualification.
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Court Discusses Power of Attorney Document

August 1, 2015,

A New York Probate Lawyer said the issue on this appeal is (1) whether a power of attorney which conferred limited realty management powers upon JSF was one relating to an interest in a decedent's estate and was therefore ineffective under EPTL 13-2.3 for failure to record it in the Surrogate's Court, and (2) whether plaintiff LC Corporation, a corporation dissolved by proclamation of the Secretary of State for nonpayment of franchise taxes in 1978, had capacity to bring this action to enforce obligations arising out of prohibited new business conducted five years after dissolution. We conclude that the power of attorney was not ineffective for failure to record in the Surrogate's Court, and that the plaintiff lacked the capacity to institute this action.

A New York Estate Lawyer said in this foreclosure action, instituted in September 1983 by service by publication upon the named defendants MM (deceased) and GG, the appellant JSF sought to vacate a default judgment of foreclosure and sale dated February 24, 1984, and an order of possession dated September 18, 1984, and to dismiss the action. His motion was denied without reaching the merits upon the ground that he lacked standing as a tenant to challenge the foreclosure. Further, a power of attorney, authorizing him to act in a limited capacity for a foreign citizen who alleged ownership of the subject premises through intestate succession, was declared void for failure to record it in the Surrogate's Court.

Appellant JSF was a long-time friend of the deceased defendant MM, and has resided at 1110 Lincoln Place in Brooklyn, the subject premises, since 1978. He is the attorney in fact for FA, a citizen and resident of Haiti, who asserts an ownership interest in the subject premises by operation of law through intestate succession.

A Westchester County Probate Lawyer said the named defendant MM is an American citizen who died in Haiti in 1979. She purchased the premises at 1110 Lincoln Place in 1960 and remained the sole owner of record until 1983, notwithstanding an intervening marriage to AA in 1971 and her death in 1979.

FA alleges that he is the brother of AA, the husband of the deceased, MM. He is JSF's principal and claims ownership of the subject premises as of 1980, as the sole heir of his brother AA who allegedly died intestate at that time.

The defendant GG is the current owner of record who took title to the premises in January 1983 from one AM. AM was not a record owner, and, according to JSF, despite his having the same surname as MM, is not related to her.

A Suffolk County Probate Lawyer said the plaintiff LC Corporation (hereinafter LC Corp.) is a dissolved corporation which took a mortgage in the amount of $31,697.07 from GG one month after the recorded conveyance from AM, notwithstanding that there was a break in the chain of title. GG immediately defaulted on the mortgage payments, and LC Corp. claims that his whereabouts are presently unknown.

Notwithstanding the facts that MM had died more than four years prior to the commencement of this action and that no representative was appointed, LC Corp. apparently named her as a party defendant based upon the contemporaneous (November 1982 and February 1983) assignment of two recorded mortgages in the amounts of $8,660 and $1,000, respectively, executed by her approximately 22 years earlier, and allegedly remaining unsatisfied.

In sum, LC Corp.'s default judgment is based upon nonpayment of one substantial mortgage taken from a mortgagor who did not have clear record title, who immediately defaulted and disappeared, and whose ownership interest is actively challenged by JSF's principal. It is further based upon two record mortgages executed by the only uncontested owner of record almost 22 years earlier and assigned by the mortgagees to LC Corp. five years after MM's death. It is asserted by JSF, and he documents his claim, that he secured a satisfaction of the $8,660 mortgage in August 1980. His possession of the premises, at the very least, raises a question as to constructive notice of the satisfaction and therefore LC Corp.'s status as a bona fide assignee.

That leaves the $1,000 mortgage executed by MM in 1960 as the only, thus far, uncontroverted foundation for LC Corp.'s foreclosure action. Curiously, by its terms, final payment on this latter obligation was due in December 1963. Thus, it might be subject to discharge of record as of December 1983 as an ancient mortgage, i.e., one which has not been discharged of record within 20 years after the debt was due, and is presumed to have been paid, in the absence of proof to the contrary. Moreover, since the record is silent as to when any payment was last made on this obligation, the six-year Statute of Limitations applicable to foreclosure actions may have run as against the estate of MM and her successors in title. It is clear that any extension agreement executed by GG would bind only GG in reviving the Statute of Limitations, and, thus, only insofar as GG may have rights in the property does the action appear to have any foundation. And, as is disturbingly apparent, for all this record discloses, both GG and LC Corp. could be interlopers whose alleged title and mortgage interest have no substance.

By order entered January 14, 1985, Special Term held that JSF was a mere tenant in the subject premises with no right to raise defenses to the underlying foreclosure action based upon his failure to record his power of attorney with the Surrogate's Court pursuant to EPTL 13-2.3. We reverse.

We hold that the power of attorney held by JSF was not governed by EPTL 13-2.3, and therefore was not ineffective for failure to record in the Surrogate's Court.

The statute further provides that the Surrogate may determine the validity of any such instrument and require proof of the amount of compensation to be charged by an attorney in fact, may determine the reasonableness of such compensation or fix such compensation, and may exact a bond or undertaking to assure the payment of funds to the principa.
On its face, EPTL 13-2.3 appears to apply only to proceedings in the Surrogate's Court and the distribution of estates through powers of attorney, as it confers upon the Surrogate the power and jurisdiction to closely supervise and regulate the conduct of attorneys in fact who represent principals with an interest in an estate. It also appears to operate as a notice statute with regard to conveyances or assignments of an interest in an estate. Since we are not concerned with a conveyance or assignment in this case, the notice purpose of the statute is not implicated here. However, the recording requirement for powers of attorney appears to have no application except in proceedings in the Surrogate's Court, as that court has proper jurisdiction over the distribution of estates.

A review of the legislative history and source of EPTL 13-2.3 and the purposes sought to be achieved confirms these conclusions. Personal Property Law § 32-a repealed in 1966 and reenacted as part of the 1966 revision of the Estates Powers & Trusts Law (EPTL 14-1.1[a] ), is the source of EPTL 13-2.3. The revisor's notes indicate that it was reenacted without substantive change. The original bill was introduced in 1935 to address notorious conditions then existing. A measure was necessary to curb abuses by persons securing powers of attorney from foreign heirs of decedents for exhorbitant fees and without rendering proper service

Thus, the legislative history and decisional law support a conclusion that EPTL 13-2.3 was intended to protect distributees in the Surrogate's Court from practices which unduly diminished their undistributed interests in estates. Accordingly, the recording requirement would serve no purpose in any but the Surrogate's Court, and the phrase every power of attorney relating to an interest in a decedent's estate in EPTL 13-2.3(a) cannot be read so broadly that it encompasses the power of attorney at bar, because in this case there never was any Surrogate's Court proceeding and the property passed by operation of law to the distributee or distributees subject only to estate transfer tax and such other encumbrances as may lawfully be asserted.

In analyzing the nature and scope of a power of attorney, the courts should look to the nature of the powers conferred and the purposes of the agency relationship. In our opinion, the power of attorney at bar was limited to the performance of realty management functions which would reasonably include the payment of mortgage debts and, necessarily, defense against unjust or satisfied claims against the property on behalf of an absentee owner who could not do so for himself. The power does not relate to an interest in a decedent's estate within the meaning of EPTL 13-2.3, as the exercise of the power could not take, alter or alienate such an interest. Therefore, JSF did have standing to challenge the judgment of foreclosure. Furthermore, the record reveals that he proffered a reasonable excuse for delay and a prima facie showing of a meritorious defense to foreclosure. Moreover, by JSF's possession of the premises LC Corp. had constructive notice of any right he could establish to the premises.

Having determined that JSF's power of attorney was not void for failure to record it in the Surrogate's Court, we now turn to his unaddressed claim at Special Term that LC Corp. lacked capacity to sue.

Upon dissolution, a corporation's legal existence terminates. This rule is qualified by statute to provide that a corporation retains a limited de jure existence for the purpose of winding up. LC Corp. acknowledges that it was dissolved in September 1978 pursuant to Tax Law § 203-a by a proclamation of the Secretary of State for nonpayment of franchise taxes. Its complaint alleged that in 1983 it first acquired rights to the mortgages in suit, four years and five months after its statutory dissolution. At Special Term, LC Corp. maintained that it acquired those mortgages in the course of winding up its corporate affairs. It has abandoned that argument on appeal. Accordingly, we consider whether a corporation, dissolved pursuant to Tax Law § 203-a, has capacity to bring suit on a claim arising out of the conduct of prohibited new business.

Statutory dissolution by proclamation of the Secretary of State pursuant to Tax Law § 203-a is intended to encourage voluntary payment of franchise taxes. After dissolution, a delinquent corporation retains a limited de jure existence solely for the purpose of winding up its affairs, and retains capacity to bring suit for that purpose. All new business is prohibited.

Accordingly, a corporation is encouraged to pay franchise taxes, as delinquency for a period of two years in either filing a franchise tax report or paying the taxes due will result in dissolution and forfeiture of the corporate charter. The statutory scheme is further designed to encourage voluntary compliance by providing that a delinquent corporation may be reinstated nunc pro tunc upon the filing of a certificate of the tax commission stating that all franchise taxes, penalties and interest charges have been paid. Payment of such preproclamation indebtedness by a corporation which has failed to cease its business activities may not be avoided by an attempt to reincorporate. It is apparent from the statutory scheme that the Legislature did not intend a delinquent corporation which has not sought reinstatement to enjoy the privileges of corporate existence, which include the right to acquire a mortgage interest and the right to bring suit in the courts of this State. LC Corp. advances several theories to avoid that result and dismissal of its case, including the doctrine of de facto corporations, estoppel theory, and the unavailability under Business Corporation Law § 203 of the ultra vires defense. We find none of LC Corp.'s arguments persuasive.

First, a delinquent corporation may not avail itself of the de facto doctrine to preclude third parties from challenging its capacity to sue. De facto recognition requires both a good faith exercise of corporate powers and colorable compliance with the enabling statute. A delinquent corporation lacks both prerequisites. There is neither a good faith exercise of corporate duties, nor compliance with statutes requiring the payment of franchise taxes for the privilege of conducting business in the corporate form (Tax Law § 209). Moreover, a corporation's de jure existence is removed for the very purpose of securing compliance with the tax statute. Recognition of de facto status would directly subvert the effectiveness of the sanctions for franchise tax delinquency, removing all incentive for a dissolved corporation to seek reinstatement.

We agree. We further acknowledge that there is some question regarding the First Department's position on this issue, and to the extent that de facto status may be recognized in that department as enabling delinquent corporations to sue or contract, we decline to follow.

We further find that LC Corp. may not assert any estoppel theory against JSF. Although one dealing with a delinquent corporation should be permitted to avoid wholly executory contracts that relate to prohibited new business activity, other considerations arise where the contract is fully or partially executed. The statute was not designed to permit parties to avoid a contract after receiving the benefits of performance. Such avoidance might result in financial detriment to the delinquent corporation, thus, impairing its ability to pay both its taxes and creditors. In such case, one who has received the benefits of performance should be estopped from instituting suit to avoid the contract. However, if the delinquent corporation is permitted to institute suit to enforce such contracts before its taxes are paid, the statute's effectiveness will be impaired. Although LC Corp. never dealt with JSF and thus could not claim that he was estopped from raising its incapacity to sue, a different matter is presented concerning another named defendant--GG. Having dealt with GG, and GG allegedly having received full performance from LC Corp., LC Corp. might argue that this action is still viable as against GG, as he would be estopped from raising LC Corp.'s incapacity to sue. As we have noted, a third party should not be able to avoid its obligations after receiving performance from a delinquent corporation. On the other hand, if a delinquent corporation, as a plaintiff, could assert an estoppel theory against such a defaulting party, the purposes of the tax statute would be subverted as no incentive for payment of taxes and reinstatement would remain. Our preferred resolution adequately addresses both concerns, as it requires the delinquent corporation to seek reinstatement before it can institute suit to prevent those with whom it has contracted from avoiding their obligations.

The greatest potential for prejudice to the delinquent corporation, as a result of its incapacity to sue, lies in the possibility that the applicable Statute of Limitations may pass in the period between the dismissal of its initial action for lack of capacity and the renewal of that action after payment of its unpaid taxes. Yet since the dismissal is not due to a voluntary discontinuance, a failure to prosecute or a final judgment on the merits, the six-month grace period of CPLR 205 is applicab to this situation and mitigates this potential for prejudice. Consequently, allowing a litigant to assert this affirmative defense against a delinquent corporation will advance the purposes of Tax Law § 203-a with minimal prejudice to the corporate plaintiff.

We note that should LC Corp. pay its back taxes as it offered to do in its papers at Special Term, and, thus, be reinstated to de jure status nunc pro tunc, its contracts entered into during the period of delinquency would be retroactively validated. By statute, the corporate powers, rights, duties and obligations are reinstated nunc pro tunc, as if such proclamation of dissolution had not been made or published. Moreover, once the delinquent corporation has paid its taxes and penalties, it serves no revenue purpose to permit avoidance of corporate contracts executed during delinquency. As noted, the fact that LC Corp. may be reinstated to viable corporate status, and thereby secure retroactive validation of its contracts, will not resolve the issues in this foreclosure action, but merely initiate consideration of the multifaceted problems that appear from the record to constitute a deficiency in its interest in the property.

We now turn our attention to the third theory offered to sustain LC Corp.'s capacity. One commentator has relied upon Business Corporation Law § 203 to advance the view that a claim arising out of the conduct of prohibited new business by a delinquent corporation should be enforceable, as the delinquent corporation enjoys a de facto status and, under Business Corporation Law § 203, the defense of ultra vires conduct is available only in specifically enumerated circumstances to shareholders and the Attorney General. First, the defense of ultra vires conduct goes to the validity of an action taken by a de jure corporation which is beyond the powers granted in its corporate charter. As such it is a substantive determination, unlike a determination of incapacity to sue which is procedural only. Moreover, a delinquent corporation has forfeited its charter, and is prohibited from conducting any new business

Finding each of LC Corp.'s arguments unpersuasive, we hold that it lacks capacity to use the courts of this State to enforce obligations arising out of the conduct of prohibited new business during the period of delinquency until it has secured retroactive de jure status by payment of delinquent franchise taxes.

In recognition that LC Corp. may wish to avail itself of retroactive reinstatement, and in order to conserve judicial resources by eliminating the need to reinstitute this suit, should LC Corp. wish to do so, the foreclosure action should be dismissed unless within 45 days after service upon it of the order to be made herein, with notice of entry, LC Corp. has paid its preproclamation franchise taxes, penalties and interest, and has secured reinstatement. Should this period of time prove insufficient to complete the necessary procedures with the tax commission and Secretary of State, LC Corp. may seek an extension from this court upon proof of payment.

Accordingly the order appealed from should be reversed, those branches of the appellant's motion which sought to vacate the default judgment of foreclosure and sale dated February 24, 1984, and the order of possession dated September 18, 1984, should be granted, the branch of the appellant's motion which sought to dismiss the action should be deemed one under CPLR 3211(a)(3) to dismiss upon the ground of the plaintiff's lack of capacity to sue, and should be granted unless within 45 days after service upon it of a copy of the order to be made hereon, with notice of entry, the plaintiff shall have secured reinstatement of its corporate status. Order of the Supreme Court, Kings County, entered January 14, 1985, reversed, on the law, with costs, those branches of the appellant's motion which sought to vacate a default judgment of foreclosure and sale of the same court, dated February 24, 1984, and an order of possession of the same court, dated September 18, 1984, granted, judgment and order vacated, and that branch of the appellant's motion which was to dismiss the action as against him granted unless within 45 days after service upon it of a copy of the order to be made hereon, with notice of entry, the plaintiff shall have secured reinstatement of its corporate status.

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Court Listens to Hearing For Bank to Recover Monies Via Default Judgment

July 21, 2015,

A New York Probate Lawyer said in this action by plaintiff JP Bank, to recover monies based upon the default of defendants S.I. Wood Furniture Corp. (Wood), Ikram Said, and Amal Said, a/k/a Amal E. Said, defendants, under a commercial line of credit and a concurrently executed personal guaranty, JP Bank moves, pursuant to CPLR 3212, for summary judgment in its favor as against defendants in the amount of $249,770, with accrued interest in the sum of $5,049.94, interest on $249,770 at its prime rate plus .50%, plus late fees in the sum of $1,935.25, and reasonable attorneys' fees and expenses.

By a Business Credit Application dated October 17, 2005, Wood applied to JP Bank for a Business Revolving Credit Line in the sum of $250,000. The Business Credit Application set forth the business information of Wood and the personal financial information of Ikram and Amal, as Wood's president and vice-president, respectively.

A New York Estate Lawyer said that under the section, entitled Authorizing Resolution, Ikram, as the president of Wood, stated that at a corporate meeting. it was resolved that Wood could complete the Business Credit Application and that Wood would then "be obliged to fulfill all of the terms and conditions of the respective note and Credit Account Agreement which it shall thereafter receive. This section of the Business Credit Application was executed by both Ikram and Amal on October 17, 2005.

Queens Probate Lawyers said on or about December 1, 2005, Wood's application was approved by JP Bank for a line of credit in the sum of $250,000. The terms and conditions of the Business Revolving Credit Line are set forth in the Business Revolving Credit Account Agreement (Credit Account Agreement).
In addition, paragraph 3 of the Credit Account Agreement provided for the recovery of attorneys' fees and expenses by stating: In addition to all principal, interest and fees owing under this Agreement, [Wood] and each guarantor agrees to pay upon demand (a) all reasonable costs and expenses incurred by [Chase] and all owners and holders of the indebtedness evidenced by this Agreement in collecting the amount owing under this Agreement through probate, reorganization, bankruptcy or any other proceeding, and (b) costs, expenses and reasonable attorneys' fees if and when this Agreement is placed in the hands of an attorney for collection or enforcement.

Long Island Probate Lawyers said that mood made all payments due through August 1, 2010. It is undisputed that Wood then failed to make the payment due on September 1, 2010, or to pay any subsequent installments that have now become due, and that such failure of Wood to make such payment due on September 1, 2010 constituted an act of default under the Credit Account Agreement. As a result, JP Bank, pursuant to paragraph 7 of the Credit Account Agreement, elected to accelerate the balance due and to declare all amounts due immediately due and payable to it. JP Bank also demanded that Ikram and Amal honor the guarantees given by them under the Personal Guarantee and Collateral Agreement section of the Business Credit Application (the Guaranties) and perform the obligations of Wood, but they ignored this demand and refused to do so.

Consequently, on February 8, 2011, JP Bank filed this action against defendants. JP Bank's complaint seeks recovery from Wood for the accelerated balance due, plus interest, late fees, and reasonable attorneys' fees based on the Credit Account Agreement, and also seeks to recover this sum from Ikram and Amal, individually, based on the Guaranties. Defendants interposed a verified answer, which contains general denials and 22 affirmative defenses.
In support of its instant motion for summary judgment, JP Bank has annexed the Business Credit Application, the Credit Account Agreement, and the sworn affidavit of Karl Reed, an assistant vice-president of its Portfolio Management Center. Mr. Reed, in his affidavit, attests that he has access to JP Bank's business records, maintained in the ordinary course of regularly conducted business activity, including the business records for and relating to Wood. He asserts that he has made his affidavit based upon his review of those records relating to Wood's loan and from his own personal knowledge of how they are kept and maintained. He explains that the loan records for Wood are maintained by JP Bank in the course of its regularly conducted business activities and are made at or near the time of the event, by or from information transmitted by a person with knowledge. He further sets forth that as to JP Bank's business records that consist of documents created by third parties, JP Bank relies on the accuracy of such records in conducting its business and collecting loans.

Mr. Reed recounts Wood's entry into the Credit Account Agreement and Ikram and Amal's execution of the Guaranties on October 17, 2005. He attests that Wood has failed to pay the sums due under the terms of the Credit Account Agreement and is in default. He annexes a copy of the payment history for the Credit Account Agreement, confirming that Wood has not made any payments on the Credit Account Agreement since August 1, 2010. The attached payment history reflects payments made, advances taken under the Credit Account Agreement, and the assessment of fees. He asserts that Ikram and Amal have failed to cure the default of Wood pursuant to the Guaranties and that they are in default under the Guaranties.

Mr. Reed sets forth that as of January 25, 2011, there is due and owing from Wood to JP Bank the principal balance of $249,770, interest of $5,049.94, which continues to accrue at the annual rate of JP Bank's prime rate plus .50%, and late fees and costs of $1,935.25. He further asserts that JP Bank has incurred attorneys' fees and legal expenses to enforce the terms of the Credit Account Agreement.

On a motion for summary judgment, the movant must make a prima facie showing, by tendering evidentiary proof in admissible form, of its entitlement to judgment as a matter of law. After the movant has made this prima facie showing, the burden shifts to the opposing party to demonstrate the existence of a genuine material triable issue of fact.

In opposition to JP Bank's motion, defendants argue that JP Bank, by its submissions, has failed to make a prima facie showing of entitlement to judgment as a matter of law, and that they also have raised defenses which give rise to material issues of disputed facts, making summary judgment inappropriate.

Defendants assert that Mr. Reed's affidavit may not be admitted into evidence because the certificate of conformity by Ms. Medina, Esq. is defective. Specifically, they maintain that the certificate of conformity failed to state the qualification of C. Hake, and show whether he/she is qualified and authorized to make such certification. They also state that JP Bank has not established that Ms. Medina, Esq. is qualified to make a certificate pursuant to Real Property Law § 239 and that she is fully acquainted with the laws of Arizona. They argue that Mr. Reed's affidavit is, therefore, inadmissible into evidence, and the remaining evidence is insufficient to establish that there is no triable issue of material fact or that JP Bank is entitled to summary judgment as a matter of law.

Defendants' argument is without merit. It is well established that an affidavit which lacks the certificate authenticating the authority of the notary who administered the oath, as required by CPLR 2309 (c), may be considered on a summary judgment motion despite this technical defect since it is not a fatal defect, but a mere defect in form which can be given nunc pro tunc effect once properly acknowledged. Moreover, it has been specifically held that when the person administering the oath for an out-of state affidavit is a notary, the affidavit does not require a certificate authenticating the notary's authority.

Here, as noted above, Mr. Reed's affidavit was, in fact, notarized, and it contains the signature and stamp of the notary public. Furthermore, the certificate of conformity by Ms. Medina, Esq. substantially complies with the requirements of CPLR 2309 (c).

In any event, defendants have not disputed the authority of the notary public or the truthfulness and accuracy of any of the statements made in Mr. Reed's affidavit, nor have they demonstrated any prejudice whatsoever resulting from the purported technical defect alleged by them.

Moreover, inasmuch as the content of the documents submitted, as opposed to their form, is what is critical to the determination of this motion, defendants cannot be permitted to seize upon any technical requirement of CPLR 2309 (c) to create delay and avoid summary judgment.
Defendants also argue that Mr. Reed's affidavit does not demonstrate his personal knowledge of the matters asserted. Defendants state that Mr. Reed does not state that he has such personal knowledge. Defendants also claim that JP Bank should have produced Shirley Herring's affidavit since she signed the Credit Account Agreement. They also state that Mr. Reed's affidavit is deficient because he has not attached or described any of the books and records that he may have reviewed, or rendered any such books and records which he may have reviewed admissible as evidence.

Defendants' argument is rejected. The affidavit of a custodian of the records based on records maintained by a corporation in the ordinary course of business may constitute admissible evidence. Furthermore, it is well settled that a business entity may admit a business record through a person without personal knowledge of the document, its history or its specific contents where that person is sufficiently familiar with the corporate records to aver that the record is what it purports to be and that it came out of the entity's files.

Here, as discussed above, Mr. Reed, is the assistant vice-president of the Portfolio Management Center of JP Bank, and he attests that he has personal knowledge of how JP Bank's business records are kept, and that his affidavit is based upon his review of JP Bank's business records which are maintained in the ordinary course of its business. He, thus, has demonstrated that he is sufficiently familiar with the business records submitted to aver that they are what they purport to be and that they came out of JP Bank's files, thereby supporting the validity and authenticity of these documents.

While defendants rely upon the case of JP Morgan JP Bank Bank, N.A. v Moto-Tex, Inc. in support of their assertion that Mr. Reed's affidavit should be rejected, such reliance is misplaced. Unlike in that case, where the affiant did not even refer to the transaction history or attach any of the records reviewed, Mr. Reed refers to the attached payment history and the attached Business Credit Application, Credit Account Agreement, and Guaranties.

Defendants additionally argue that the Business Credit Application, the Credit Account Agreement, and the Guarantee provision contained within the body of the Credit Account Agreement are not authenticated and cannot be rendered admissible as evidence. Defendants contend that they fail to contain a certificate of acknowledgment that raise a presumption of due execution. Defendants further state that CPLR 3015 (d), which provides that unless specifically denied in the pleadings each signature on a negotiable instrument is admitted, does not allow the admission of the signatures of Ikram and Amal on the Guaranties and also does not establish their signatures as that of the borrower, Wood.

This argument is unavailing. No certificate of acknowledgment is necessary to authenticate Ikram and Amal's signatures or their signatures on behalf of Wood. Neither Ikram or Amal deny signing the Business Credit Application or that they were authorized to execute it on behalf of Wood. Moreover, it has been held that even a naked denial of execution of a guarantee is insufficient to raise an issue of fact.

Therefore, defendants have failed to raise any genuine issue of fact with respect to the authenticity of the documents submitted.

Consequently, since the court thus finds that JP Bank, by its submissions, has made a prima facie showing of its entitlement to judgment as a matter of law, the burden shifted to defendants to raise a triable issue of fact with respect to their alleged defenses. A party opposing a motion for summary judgment must assemble, lay bare, and reveal its proof, and demonstrate the existence of a genuine issue of fact that requires a trial of the action. In doing so, the party must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which it rests its defense or it must demonstrate an acceptable excuse for its failure to meet this requirement. Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient for this purpose. Bare unsupported denials or averments merely stating conclusions of fact or law are insufficient to defeat a motion for summary judgment.
In attempting to raise a triable issue of fact, Ikram and Amal have submitted their own affidavits, in which they each claim that they, on behalf of Wood, completed the Business Credit Application only for the purpose of determining Wood's eligibility for a loan, but that they never agreed to personally guarantee any corporate loan. They state that they chose the loan in question on the understanding that a personal guarantee was not involved. They further state that the Business Credit Application was typed in fine print, and contained complex terms which they did not fully understand, and that they, therefore, relied on JP Bank to properly administer any resulting loan.

Such a claim by Ikram and Amal, however, is specifically belied by the express terms of the Business Credit Application, which explicitly stated that they individually and personally unconditionally guaranteed the loan to Wood by JP Bank, and that this personal guarantee was an individual personal liability.

While Ikram and Amal claim that the terms of the Business Credit Application were in fine print, this does not provide an excuse for them not to read it prior to signing it and agreeing to be bound by its terms. A defendant cannot invalidate a contract based merely on his or her failure to accurately, sufficiently, or comprehensively read its terms. Thus, any negligence by Ikram and Amal in failing to read the Business Credit Application does not relieve them of the obligations which they undertook in signing the Guaranties, which induced JP Bank to advance the sums loaned

Notably, the Court of Appeals has observed that where individual responsibility is demanded the nearly universal practice is that the officer signs twice- once as an officer and again as an individual. Here, Ikram and Amal executed the Business Credit Application twice, once in their corporate capacity and again in their individual capacities. This is consistent with their intention to be held liable as guarantors in their personal capacities as set forth in the explicit terms of the Business Credit Application. Moreover, as set forth above, and Ikram and Amal's two signatures are contained in different sections of the Business Credit Application, differentiating the corporate and individual capacities in which they signed.

While Ikram and Amal claim that they believed that they were signing the Guaranties contained in the Business Credit Applications as officers of Wood, in PNC Capital Recovery v Mechanical Parking Sys., the court noted that an interpretation that [an individual defendant] signed the Guaranty solely in his capacity as president of the corporation would compel the illogical conclusion that the purpose of the Guaranty was to provide that in case of the corporate defendant's default, the company would guaranty its own indebtedness, rendering the entire Guaranty meaningless. Such reasoning applies equally to the case here.

Moreover, Ikram and Amal's actual intent is irrelevant to the manifestation of their objective intent to enter into the Guaranties, which their signatures evidenced. A profession of contradictory personal intent is insufficient to override a physical manifestation of assent. Thus, Ikram and Amal's claim that they thought they were was signing in their corporate capacity is without effect because their signatures are sufficient manifestation of their assent to the provisions of the Guaranties. Ikram and Amal's assertion that they did not intend to personally guarantee the loan to Wood contradicts the explicit provisions of the Guaranties to which they agreed and cannot prevail over such express written agreement. Any other conclusion would countenance the retrospective invalidation of duly-executed agreements, thus undermining the integrity of all contractual agreements.

Upon executing the written Business Credit Application, defendants became conclusively bound by its terms and the terms of the Credit Account Agreement incorporated therein. Where the intention of the parties is fully determinable from the language of the agreement and an agreement is unambiguous, extrinsic evidence is inadmissible to vary its terms.

Defendants also argue that they should not be bound by the Credit Account Agreement because when they completed the Business Credit Application, it did not contain all of the terms as expected by them, and that after its submission, JP Bank supplemented it with the terms set forth within the Credit Account Agreement which was not signed by them. They point out that the Credit Account Agreement is only signed on behalf of JP Bank by the Shirley Herring, in her capacity as a first vice-president.

Defendants' argument must be rejected since the Business Credit Application expressly provided that use of the proceeds of the loan constituted full acceptance of the terms specified in the Credit Account Agreement which they would receive, and it is undisputed that Wood used the proceeds of the loan pursuant to the Credit Account Agreement for nearly five years prior to its default. Thus, the fact that the Credit Account Agreement does not contain defendants' signatures is of no moment since the Business Credit Application, which expressly incorporated and assented to the terms of the Credit Account Agreement, does contain their signatures.
Ikram and Amal further assert that they never received a letter from JP Bank notifying them in their alleged capacity as guarantors of any alleged defaults and that it would be accelerating the loan. They argue that they did not have a meaningful opportunity to cure Wood's default. This argument is unavailing. As discussed above, Ikram and Amal, in the Business Credit Application, specifically agreed that upon Wood's breach of any terms of the Credit Account Agreement, all obligations would become immediately due without notice or demand by JP Bank.

Defendants additionally argue that they never agreed that in the event of a default, JP Bank could accelerate the maturity of the loan. They assert that this was not a term within the Business Credit Application, and that even if this term was in the Credit Account Agreement, they never signed the Credit Account Agreement and were not bound by it.

This argument is rejected. As set forth above, paragraph 7 of the Credit Account Agreement specifically gave JP Bank the right to accelerate the loans without notice of acceleration and defendants expressly waived the right to such notice. While defendants claim that this right to accelerate was not contained in the Business Credit Application, as previously noted, the Business Credit Application expressly incorporated and assented to the terms of the Credit Account Agreement, does contain their signatures.

Ikram and Amal also assert that JP Bank extended credit to Wood even though Wood's finances would render it unable to repay the loan. They state that JP Bank was not concerned about Wood's financial ability to repay the loan since it intended to hold them liable as personal guarantors even though their intentions were clear that they did not desire to be guarantors. They contend that JP Bank knew or should have known that Wood was not financially sound. They argue that under these circumstances, Wood had an obligation not to extend the credit, and by extending such credit, it breached this obligation.

This argument is unavailing. Wood applied for and accepted the benefits of the loan by JP Bank for nearly five years. A challenge by defendants of their own creditworthiness is thus an improper basis for denial of JP Bank's motion for summary judgment.

Thus, defendants, in response to JP Bank's motion, have submitted no evidence to dispute their entry into the Credit Account Agreement and the Guaranties, the validity of the documents submitted, the amount of the debt owed, and their failure to make payment of the amount claimed to be due. Facts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted. No admissible competent evidence is submitted by defendants indicating that the allegations set forth in the verified complaint and Mr. Reed's affidavit are incorrect.

Therefore, the court concludes that defendants have failed to raise any triable issue of fact refuting JP Bank's prima facie showing of Wood's default under the Credit Account Agreement and Ikram and Amal's obligation to perform pursuant to the Guaranties. Defendants have completely failed to come forward with a single competent or admissible fact to support their conclusory denial that they are in default of the line of credit extended to JP Bank by Wood. Furthermore, while defendants' answer alleges 22 affirmative defenses, defendant, in their opposition papers, do not attempt to support any of these alleged defenses other than the defenses discussed above, which the court has found to be completely lacking in merit.
Defendants do not dispute that Wood has defaulted under the terms of the Credit Account Agreement, which renders it liable to JP Bank for all amount due thereunder. In addition, where a creditor seeks summary judgment upon a written guaranty, the creditor need prove no more than an absolute and unconditional guaranty, the underlying debt, and the guarantor's failure to perform under the guarantee. Here, the Guaranties are unconditional and explicit in their terms providing that Ikram and Amal are absolutely liable for the full performance of all monetary obligations incurred by Wood.

Thus, JP Bank is entitled to recover as against Wood, as the obligor, and Ikram and Amal, as guarantors, the amount of $249,770, plus accrued interest, late fees in the amount of $1,935.25, and its reasonable attorneys' fees and expenses pursuant to paragraph 3 of the Credit Account Agreement. Summary judgment in JP Bank's favor is, therefore, mandated.

The court notes that defendants also contend that JP Bank's motion for summary judgment is premature because discovery is necessary to determine what financial documentation JP Bank demanded to determine whether to extend the loan and what JP Bank's process was in monitoring and administering the loan. Defendants claim that discovery is also necessary to determine which books and records Mr. Reed may have reviewed and to determine which loan terms were agreed upon by the parties upon the execution of the Business Credit Application. They state that documents, such as statements, payment history, and recorded conversations should be produced by JP Bank. There is no claim, however, that JP Bank's records are inaccurate or that defendants have made payments that are not accounted for.

CPLR 3212 (f) provides that if it appears from affidavits submitted in opposition to the motion for summary judgment that facts essential to justify opposition may exist but cannot be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just. However, mere hope and speculation that additional discovery might uncover evidence sufficient to raise a triable issue of fact is not sufficient to warrant denial of a motion for summary judgment. The granting of a summary judgment motion should not be postponed to allow for discovery where the proponent of the additional discovery has failed to demonstrate that the discovery sought would produce relevant evidence.

A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence. A party's mere hope that further discovery will reveal the existence of triable issues of fact is insufficient to delay determination on the issue of summary judgment.

Here, defendants have failed to show how any such discovery could provide evidence relevant to any viable defense. Thus, postponement of JP Bank's motion, pending discovery pursuant to CPLR 3212 (f) is not warranted.

Finally, defendants argue that JP Bank failed to serve them with the Request for Judicial Intervention along with its motion and that this warrants denial of JP Bank's motion. While pursuant to Uniform Rules for Trial Courts (22 NYCRR) 202.6 (a), a request for judicial intervention must be submitted, in duplicate, on a form authorized by the Chief Administrator of the Courts, with proof of service on the other parties to the action except where the application is ex parte, such a technical defect, which has not prejudiced defendants in any way, does not preclude the granting of JP Bank's motion for summary judgment.

Accordingly, JP Bank's motion for summary judgment in its favor is granted for the principal amount of $249,770 and late fees in the amount of $1,935.25, plus accrued interest and reasonable attorneys' fees and expenses incurred in this litigation, which amounts shall be determined by the court upon further affidavits and documentation, which are to be submitted by JP Bank on notice together with a proposed judgment.

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This Case Involves the Enforcement of a Sister State Divorce Judgement

July 19, 2015,

A New York Probate Lawyer said this case involves the enforcement of a sister-state divorce judgment, with respect to arrears in alimony and support payments, pursuant to the Uniform Enforcement of Foreign Judgments Act (article 54 of the CPLR).

In Junuary 1973, the plaintiff-wife commenced an action for divorce in the Superior Court of the State of Connecticut where she was then living and has continued to reside with her two minor children. While the action was pending, the parties executed a separation agreement on April 16, 1973. The agreement provided, Inter alia, for semimonthly payments to the plaintiff for alimony and child support. Thereafter on August 16, 1973, the plaintiff was granted a judgment of absolute divorce by the Connecticut court, specifically incorporating the terms of the separation agreement, the agreement surviving and not merging into the decree.

From the papers it appears that the defendant resided in Manhattan when the separation agreement was executed, and in Brooklyn when the divorce judgment was granted. There is no question of the defendant appearing in and being represented by counsel in the divorce action. Defendant currently lives in Brooklyn and is a practicing veterinarian. Plaintiff alleges that she is a housewife with part-time employment as a teacher in Stamford, Connecticut where her gross annual pay is $3,000.

The New York Estate Lawyer said the initial task of this court is to determine the applicability of the Uniform Enforcement of Foreign Judgments Act, for if article 54 has been improperly invoked, the plaintiff's motion must be denied in its entirety and the second branch of defendant's cross motion granted.

Nassau County Probate Lawyers said that the court will therefore first consider these two questions: 1. May article 54 be used to enforce the financial provisions of a matrimonial judgment or decree of a sister state? 2. If so, was article 54 properly availed of under the facts in this case, both as to the divorce and as to the contempt judgments?

If the answers to '1' and '2' are both yes, then the court will deal with the multiple relief requested by the plaintiff and the objections raised thereto by the defendant.

1. Article 54 applies to 'foreign judgments' as defined in CPLR 5401. With three exceptions, as hereafter discussed, the term foreign judgment refers to 'Any judgment, decree or order' of a sister state The quoted language appears to be clear and unambiguous and perhaps leads to the conclusion that article 54 is intended to cover All judgments, and that it makes no difference whether the foreign judgment requires the payment of money, or orders or restrains the doing as an act, or declares rights or duties of any other character in law or quoted, in probate, guardianship, receivership or any other type of proceedings. However, it is not necessary for the court to rule whether article 54 applies to All judgments, but within the confines of this case it suffices for this court to find that article 54 may be used to enforce the financial provisions of a sister-state divorce judgment or decree, provided none of the exceptions set forth in CPLR 5401 apply.

A Staten Island Probate Lawyer said the first exception, as stated in the affirmative, is that the sister-state judgment, decree or order must be 'entitled to full faith and credit in this state within the meaning of Article IV, Section 1 of the United States Constitution which mandates that Full Faith and Credit shall be given in each State to the judicial proceedings of every other State. The second and third exceptions exclude judgments 'obtained by default in appearance, or by confession of judgment.

2. (a) There being no question as to the applicability of the second and third exceptions above to plaintiff's Connecticut divorce judgment, the court will focus on whether the alimony and support arrears resulting therefrom are entitled to enforcement in this state under the full faith and credit clause. The law is well settled that a sister-state decree for alimony and support will be accredited full faith and credit as to any arrears if the right to the unpaid installments becomes absolute and 'vested' as they become due, provided no modification of the decree has been made prior to the maturity of the installments. But where the foreign court which rendered the divorce judgment has the discretion to modify outstanding arrears retrospectively, then such arrears are not considered absolute and vested and the decree for alimony and support is therefore not entitled to full faith and credit with respect thereto.

Which of these principles apply in the State of Connecticut? The court is empowered by the provisions of CPLR 4511 to take judicial notice of any statute or law of a sister state and pass upon its validity and effect. The parties have sought to aid the court in this regard by citing authorities in their accompanying affidavits. The defendant relies on Connecticut General Statutes Annotated (C.G.S.A.), section 46--54 and on Connecticut Practice Book Annotated, Superior Court Rules, section 381 in support of its position that alimony awards are subject to modification in Connecticut.

While there is some question as to whether this provision is even applicable here in view of the section's effective date being subsequent to the date of the divorce decree, nevertheless the court concludes that this statute as well as its predecessor which provides: Any order for the payment of alimony from income may, at any time thereafter, be set aside or altered by such court, does not on its face empower the Connecticut courts to modify Accrued unpaid installments of alimony or support. The same conclusion is reached as to section 381 of the Rules for the Superior Court as this section merely gives the court discretion to determine whether a modification of future payments should be ordered prior to the defendant's payment of any arrears.

The statutes being of no assistance, the court must turn to Connecticut case law. The plaintiff cites but one Connecticut decision--and research has failed to reveal any others--DeGolyer v. DeGolyer which held at page 342 that: 'Under the law of New York, As under our own law, a decree providing for periodic alimony payments is subject to modification as to future payments. Past due payments, on the other hand constitute vested property rights not subject to modification, and it is only such payments which are enforceable in another jurisdiction. While the reference to New York law is erroneous as to arrears, this court, in the absence of any authority to the contrary, accepts the case as expressing the law of the State of Connecticut. It is so cited in the Annotations following C.G.S.A., section 46--21 and was relied upon in the New York case, Rosmini v. Rosmini.

Consequently, the court holds that the plaintiff's rights to the unpaid installments of alimony and support become vested as they become due and a Fortiori that the Connecticut divorce judgment must be given full faith and credit as to any arrears. Accordingly, the court finds that the Connecticut divorce decree meets the definition of a 'foreign judgment' entitled to be filed in this state pursuant to article 54. There being no procedural objections by defendant as to the filing, and the court being presumptively satisfied that the requirements of CPLR 5402(a), 5403 and 5405 have been met, the Connecticut divorce decree has been validly filed and the court will thereby regard it and enforce it as though it were a judgment of this court (CPLR 5402(b)).
(b) The court is unable to reach the same conclusion with respect to the Connecticut contempt judgment. Defendant claims that this judgment cannot be registered pursuant to article 54 as it was obtained by defendant's 'default in appearance.

Although the plaintiff, in her affidavit accompanying the filing, stated perfunctorily that the judgment was not so obtained, the defendant has established to the satisfaction of the court that he did not appear in the contempt proceeding, to wit, he did not serve an answer or a notice of appearance. The allegation that he may have had notice of the proceeding is of no import if in fact the defendant did not 'appear.'

Thus, unlike the divorce decree, the Connecticut contempt order does not constitute a foreign judgment subject to enforcement under article 54 and plaintiff's attempt to file this judgment in New York pursuant to CPLR 5402 is invalid.

3. Having concluded that the Connecticut divorce judgment was properly filed under article 54, the court will new examine the relief requested by the plaintiff.

A. Section 244 of the Domestic Relations Law provides that where the husband in an action for divorce, etc., makes default in paying any sum of money as required by the judgment or order directing the payment thereof, the court, in its discretion may make an order directing the entry of judgment in the amount of such arrears. Plaintiff seeks this relief with respect to the $3,165 in alimony and support arrears owing by defendant for the period November 1, 1975 through January 16, 1976.

Section 244 is deemed the exclusive remedy for the entry of such a judgment and that section require only an application to the court and not an independent action as suggested by the defendant. Since the Connecticut divorce judgment is now to be regarded as a domestic judgment, plaintiff has properly applied for this relief.

There being no other defense or objections raised by the defendant, the court grants this part of plaintiff's motion in the full amount requested of $3,165.

B. Plaintiff also seeks entry of judgment as to arrears in the sum of $3,493 covering the period July 16, 1975 through October 16, 1975, and as to the $350 counsel fees awarded by the Connecticut court in the contempt judgment. Since plaintiff bases this relief solely on the filing of the Connecticut contempt judgment pursuant to article 54, which filing this court has already held invalid, the court must now decide whether to dismiss this branch of plaintiff's motion pursuant to defendant's cross motion or grant the relief on some other ground.

The court is not disposed to deny plaintiff this relief, inasmuch as the fact and the amount of these arrears are not in dispute and the underlying divorce judgment has been validly filed in accordance with the provisions of the Uniform Enforcement of Foreign Judgments Act. If the plaintiff's affidavit accompanying this filing had made reference to the unpaid amount of $3,493, in addition to the $3,165 in arrears already set forth therein, the court would readily have granted entry of judgment as to both sums and the aborted filing of the contempt judgment would have been of no consequence except as to the counsel fees. Should the omission from the affidavit of the $3,493 in arrears be fatal on this motion to plaintiff's request for relief as to same?
Under the circumstances of this case, the court thinks not. The court sees no need of subjecting the parties or the court to the burden and expense of a second proceeding at this time whereunder the plaintiff files a new affidavit, making reference to the already filed contempt judgment and setting forth the arrears of $3,493, and thereafter brings on another petition for entry of judgment as to this amount.

Rather, the court finds that there has been substantial compliance with article 54 as regards the arrears of $3,493. The underlying foreign judgment has been filed, the accompanying affidavit is in proper form except for the amount of the arrears and this minor defect has been cured, in the court's opinion, by virtue of the notice otherwise given to the difendant as to these arrears. Accordingly, the court directs entry of judgment as to an additional $3,493 in arrears, but denies the relief as to the $350 counsel fees which award was not granted in the divorce judgment.
C. Plaintiff's next two requests for relief--wage attachment and posting of security--appear to be sought only as to future payments of alimony and support and not as to the arrears. The court observes, however, that both remedies would be available, if plaintiff had so requested them, in enforcing the payment of arrears. The Connecticut divorce decree, having been properly filed pursuant to article 54 of the CPLR, is now to be considered as a domestic judgment for all purposes and may be enforced in the same manner as a domestic judgment.

Wage deduction pursuant to Personal Property Law, Section 49--b and posting of security pursuant to DRL Section 243 are two such enforcement devices. Both remedies are, however, discretionary with the court, whether being imposed as to arrears or as to future payments.
In view of the fact that defendant had been making full payments for over two years, that his reduced one-half payments are of recent origin albeit continuous, that defendant is a professional man with an alleged substantial practice and that this matter is before this or any New York court for the first time, the court, in its discretion, is not convinced that resort to wage deduction or posting of security is now necessary.

Accordingly, the court denies these branches of plaintiff's motion, conditioned, however, upon (1) immediate resumption by defendant of full payments of alimony and support and (2) payment of all arrears involved in this motion, including counsel fees awarded in the Connecticut contempt judgment and which may be awarded on this motion, within sixty (60) days after service of a copy of the order to be settled herein. In the event the defendant fails to honor either or both of these conditions, the plaintiff is granted leave to renew her motion for a wage deduction and the posting of security.

D. For like reasons, and because of the relief granted above as to the arrears, the court in its discretion also denies that branch of the order to show cause seeking to hold the defendant in contempt, but without prejudice to its renewal by the plaintiff in the event the other relief proves unavailing.

None of the constitutional infirmities denying the debtor-husband his due process rights in Darbonne were present in Walker. Quoting from the last paragraph in Walker: Here, the appellant received all of the due process rights which were denied to the plaintiff in Vail. He had been previously imprisoned for violation of the alimony judgment, he was served with proper process bringing on this proceeding and he was represented by counsel who appeared and argued on his behalf. Thus, all of the alleged infirmities in the statutes held unconstitutional in Vail are not here applicable. The court there was dealing with a defaulting, impecunious debtor who did not appear at the statutorily guaranteed hearing, who was without any knowledge of the possible consequences to him and who had no counsel. The facts here are the opposite.'
By way of contrast, the debtor-husband in Darbonne was not represented by counsel and defaulted in appearing in the contempt action so the court was unable to determine from the order to show cause whether he had been previously imprisoned for violation of a prior court order and divorce judgment, or whether he had been served with proper process, or whether he had adequate notice that the proceeding might result in possible imprisonment, or whether he had adequate notice that he could perhaps avoid incarceration by asserting, pursuant to DRL section 246, his financial inability to pay as a defense. Thus in Darbonn, as in many of the contempt proceedings which have come before me, the court was dealing with a defaulting, possibly impecunious debtor who did not appear at the statutorily guaranteed hearing, who was without any knowledge of the possible consequences to him and who had no counsel.
The clear implication of Walker is that a debtor-husband in a Darbonne type of situation would be denied his due process rights in a contempt proceeding pursuant to DRL section 245. Consequently, while this court will no longer regard DRL section 245 as constitutionally invalid, it will, nevertheless, refuse to grant a motion for contempt pursuant thereto where the due process rights of the debtor-husband are found wanting. There must be full compliance with the requirements discussed in Walker and set out in Darbonne and reiterated above.

As an aid to the bar in meeting these requirements, it may be wise to conspicuously include the following statements on the face of the order to show cause to punish the husband for contempt for non-payment of alimony, support, maintenance or counsel fees.

To avoid the possibility that the defendant may evade or delay the consequences of a motion to punish for contempt by his non-appearance, it may also be wise for the petitioner to serve the defendant with a subpoena simultaneously with the order to show cause.

E. The last branch of plaintiff's relief concerns a request for counsel fees in connection with the instant application. Defendant argues that this proceeding is not one of the enumerated instances in DRL section 237 in which counsel fees may be awarded. The court disagrees.
Section 237(b) specifically provides that counsel fees are available upon any application by order to show cause concerning custody, visitation or Maintenance of a child. Clearly, the instant motion to enforce the payment of arrears, relating in part to child support, concerns the 'maintenance of a child.

Furthermore, DRL section 238 provides that in any proceeding pursuant to DRL 244, Inter alia, the court may in its discretion require the husband to pay the wife's expenses in bringing, carrying on or defending such action or proceeding. The Appellate Division, Second Department, cited this section as supporting an award of counsel fees in a proceeding by a wife to enter judgment for alimony arrears which is precisely the case here.

Accordingly, the court grants the plaintiff reasonable counsel fees in the sum of $850.In view of the above disposition of plaintiff's various claims for relief, the defendant's cross-motion for dismissal of this proceeding for lack of jurisdiction over the subject matter is denied. This proceeding is properly before the court pursuant to article 54 of the CPLR.

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Court Hears Motion by Executrix Requesting Surrogate to Fix Estate Tax

July 18, 2015,

New York Probate Lawyers said this is a motion by the executrix requesting the Surrogate to fix the New York estate tax (Tax Law § 249--w).

The papers allege that the executrix made a motion to fix the tax returnable on March 16, 1972. Although the State Tax Commission (Commission) was duly served, no order fixing the tax has, 2 years and 9 months later, been submitted to the Surrogate. The executrix requests the Surrogate to act in his judicial, rather than administrative capacity, and to fix the tax (Tax Law § 249--w).

A New York Estate Lawyer said the Commission has appeared but has made no response, formal or informal, to the relief requested by the taxpayer. For the nature of the Commission's objections, the Court must rely on the information imparted to it by the moving papers. It is there stated that the taxpayer was informed by the Commission that its decision in this and other cases is awaiting determination of pending appeals on related issues.

A Westchester Count Probate Lawyer said this Court is sympathetic with the Commission's desire to protect state revenues. However, none of the case in which appeals are pending are relevant to the issue in this case.

This tax problem, like so many in other areas of the law, is created by a joint will. The Commission, depending on the outcome of some pending appeals, purposes to deny to the taxpayer a marital deduction of $60,800 on the ground that under the terms of the will the interest passing to the surviving spouse is a terminable interest. In simple terms, the Commission contends that although the disposition to Mrs. Tatkow, the surviving spouse, is of all property absolutely and forever, an interest which concededly would be entitled to the marital deduction, a later disposition passes such property contractually and irrevocably on Mrs. Tatkow's death to the couple's children. Since the children will possess or enjoy such interest in property upon Mrs. Tatkow's death, it is contended by the Commission that the interest passing to her from the decedent, Mr. Tatkow, is terminable.

To establish its contention that Mr. Tatkow's will contractually and irrevocably disposes of the same interest passing absolutely to Mrs. Tatkow to third party beneficiaries, the Commission relies on a few decisions of our Appellate Courts construing joint wills on issues which have no relation to the availability of the marital deduction, and where equitable rather than legal principles control the conclusion. This same mistake is evident elsewhere.

Preliminarily we mention briefly the pending appeals referred to in the moving papers. It is observed with regard to the appeals in Matter of Tricarico and Matter of Kahn that both Surrogate Laurino and this Court agreed with the Commission that the wills there in issue were contractual in nature. We both allowed the marital deduction on alternative grounds not relevant to the issue in this proceeding. In the third case this Court did find the will to be non-contractual. However, it is axiomatic that no two wills are alike: the will here under consideration is distinguishable from the Gold will. And, parenthetically, it is observed that even when there are similarities in the dispositive language employed, extrinsic circumstances surrounding execution of a joint will are as often determinative as the provisions of the will itself. Otherwise it would be impossible to reconcile many of our high court decisions. The point made is that nothing in the pending appeals will be dispositive of the issue raised in this proceeding.

Because the tax issue raised by the Commission has been raised in other cases, some general principles are mentioned.

As observed, the I.R.S. has allowed the marital deduction tothe taxpayer. Indeed where there is a federal disallowance, the issue is invariably determined administratively or judicially under Federal jurisdiction. It is only when there has been a final federal determination in favor of the taxpayer that a State judicial determination may be required. However, our Tax Law, section 961(a)(3) provides that a final federal determination determines the same issue for purposes of the tax under this article unless such final federal determination is shown by a preponderance of the evidence to be erroneous.

When the federal tax authorities have allowed a deduction, the statute places the burden of proof and the burden of producing evidence on the Commission. As this Court observed in Matter of Kahn Supra the Surrogate is often required to rule for the taxpayer when in a first instance submission it might very well rule for the Commission. This was a consequence of the enactment of section 961 recognized by the Commission yet recommended as desirable to assure conformity with federal law in the estate tax area where conformity was deemed essential. It is pointless after a final federal determination for the Commission to rest its contention on the provisions of a will such as is in issue in this case without offering extrinsic evidence to establish the federal determination to be erroneous.

The I.R.S. very properly regards the marital deduction as merely a postponement of the tax. The general policy, as expressed by Congress, is to allow the deduction in the estate of the first spouse to die when the same interest in property, if unconsumed, will be taxable in the estate of the surviving spouse. Thus if the interest is in trust or legal life estate with remainder over to designated remaindermen, the marital deduction will be disallowed because the interest in property will escape taxation in the estate of the surviving spouse. Where, however, as in the instant case, the interest in property passing to the surviving spouse is of all property absolutely and forever, to deny the marital deduction in the estate of the first to die will result in double taxation for inevitably the same interest will be taxed in the estate of the surviving spouse.
Congress has also expressed its concern that the marital deduction will not be lost to a taxpayer because of inept will draftsmanship. The marital deduction statute makes provision for disclaimers by third party beneficiaries when a disposition over to such beneficiaries upon the death of the surviving spouse, places the availability of the marital deduction in question.
With respect, it is observed that the Commission has failed to consider a basic distinction between a tax issue and other issues arising from joint wills. Tax issues are rare--indeed none in this State appears to have reached an Appellate Court. Other issues recur with greater frequency and many--some 40 odd--have been decided by our Appellate Courts. The Commission seeks to apply the legal principles applicable to the latter class of cases, to a tax issue.

A tax issue, one almost invariably involving the availability of the marital deduction, can arise only in the estate of the First of the joint will makers to die.

Other issues in joint will cases, those which recur frequently, almost invariably arise in the estate of the Last survivor of the joint will makers to die. And, these will arise only if and when the survivor has in his lifetime, made a new and different will contrary to a binding contract between the spouses. A few decisions consider also the right of the survivor to make inter vivos gifts contrary to the agreement. In determining in such joint will cases whether a survivor is contractually and irrevocably bound with respect to the gift over to third party beneficiaries, the Courts have applied equitable principles not at all applicable to tax issues.

A first equitable principle is that the survivor having made a contract with the first to die not to revoke the joint will, And having gained the benefit of such a contract, may not contrary to such an agreement, divert the property to others than the intended third party beneficiaries. The Courts must therefore determine in the first instance whether or not the spouses are contractually bound Inter se. However, in a tax issue, it does not matter in the least whether the spouses, as between themselves, are contractually bound or not contractually bound. Whether the interest in property passes to the survivor voluntarily or pursuant to a contract, the estate of the first to die is entitled to the marital deduction.

A second principle applied is to determine whether the survivor has breached the contract by failing to perform. The Courts search the provisions of the will to determine whether the survivor was contractually bound to leave the property to the third party beneficiaries--and if found to be so, will compel his executors to perform. A decision whether to specifically enforce the contract turns on the existence of an intention of the joint will makers at the time of execution to contractually bind the survivor. However, in a tax issue, there is no need to search for the intention of the joint will makers. It may be presumed that when the spouses leave all property to the survivor absolutely and forever they do intent to obtain the benefit of the marital deduction. Nor do the third party beneficiaries ever contest the right of the estate of the first to die to obtain the benefit of the marital deduction--there is no decision on record where this has been done.
The point is that in a tax case, where the issue is the availability of the marital deduction to the estate of the first to die, there has been no breach of a contract, no unjust enrichment, no division of assets and no 'mockery of justice' to require the intervention of a Court of equity or the application of equitable principles.

The distinction here made, while not articulated, is evident from the few cases which have considered the marital deduction problem arising from joint wills.

That such distinction exists may reasonably be inferred from the decisions which hold that a tax decision allowing the marital deduction would not be Res judicata in any subsequent proceeding by the third party beneficiaries to compel performance of the contract by the executors of the last of the spouses to die.

Some practical considerations are mentioned. Whenever articulated to their draftsmen, the reasons most often expressed by the spouses for making a joint will, is to save the survivor the trouble and expense of making a new will.

No doubt, at least at the time of execution, they have the then intention of leaving to the survivor of them their individually owned property. Often this will be expressed by the use of the words agree or agreement. Whether they intend the joint will to be irrevocable inter se depends on whether the terms used represent their actual intention or merely the draftsman's mannerisms. But as discussed, when the issue is the availability of the marital deduction it does not matter in the least whether the spouses intended that they would be contractually bound Inter se or not so bound.

When the joint will contains also a further disposition over to third party beneficiaries, there is also little question but that at the time of execution they intend that their property upon the death of the survivor shall pass to these intended beneficiaries.

Whether or not they also intend irrevocably to bind the survivor to the ultimate disposition over is rarely expressed in explicit terms in the will itself although occasionally it is so expressed by separate written agreement outside the will.

In those cases where the third party beneficiaries seek the intervention of a Court of equity to compel the executor of the survivor to perform the contract, the issues for the Court are: Did the joint makers intend that the disposition over should be contractually and irrevocably binding upon the survivor? Or were the joint makers merely expressing their present, and therefore revocable, intention ultimately to pass their property to the objects of their mutual concern and bounty?
A will is by nature ambulatory and to remain so must of necessity be revocable. Social events such as death or marriages or economic changes in the circumstances of the survivor or the intended third party beneficiaries will often require changes in the will. As the decisions, discussed Infra, hold, the presumption is that revocability was intended unless irrevocability is clearly and convincingly expressed in unambiguous terms.

Suffolk County Probate Lawyers said we put aside the distinction discussed between tax cases and those in which the equitable intervention of the court is sought by the beneficiaries to enforce a contract. Apart from the provision of paragraph Fourth which cuts down the absolute interest given to the survivor under paragraph Third, the only evidence of an enforcible contract is in the provision of the exordium expressing an intention to make an agreement for the distribution of our property after the death of either of us and After the death of our survivor.

The quality of proof required to establish a contract enforcible in equity is discussed in: As a will an instrument is revocable at pleasure, but as a contract, if supported by adequate consideration, it is enforcible in equity. The evidence required to show a contract by one deceased, to dispose of his property in a certain manner after his death, must be clear and convincing, or it will not be regarded as sufficient. The agreement depended upon for the award of the relief demanded must be clearly and definitely established by full and satisfactory proof. To attribute to a will the quality of irrevocability demands the most indisputable evidence of the agreement, which is relied upon to change its ambulatory nature, and that presumptions will not, and should not, take the place of proof.

In cases, other than above cited, the courts have determined that the quality of proof viz. clear, convincing, indisputable, to establish that irrevocability was intended was lacking.
To put it another way, there is simply no decision on record in this State, in which a court has specifically enforced a disposition over to third party beneficiaries in a joint will, where the disposition between the joint makers was in terms of all property absolutely and forever.

The same general principle is expressed in single will cases in Matter of Ithaca Trust Co.,: A remainder cannot be limited upon an absolute estate in fee. Where a gift is provided by will and such gift is intended to be Absolute, a gift over is repugnant to such absolute gift and void, and the purported gift over must be treated as a mere expression of a wish or desire regarding the distribution of such part of the gift as may remain undisposed of at the death of the donee.

As discussed, none of these decisions upon which the Commission relies are at all applicable to a tax issue.

The Court determines: (1) That the taxpayer is entitled to the marital deduction, the Commission having failed by a preponderance of evidence to establish that the final federal determination is erroneous. (2) That the taxpayer is entitled to the marital deduction since the interest passing to the surviving spouse is absolute and not terminable. The proof before the Court does not establish either an express or implied promise between the spouses to make their joint will irrevocable. 3) The taxpayer would be entitled to the marital deduction, even if the disposition to the surviving spouse was terminable, under the exception to the terminable interest rule since the surviving spouse receives under the joint will a beneficial power to consume and dispose of the interest in property received without restriction of any kind. The fact that the taxpayer is contractually bound under the terms of a will to leave whatever remains to third party beneficiaries does not disqualify the interest received by him from being allowed the marital deduction.

An order has been signed fixing the New York net estate tax at $584.61 without interest or penalties since the delay in payment is the fault of the Commission.

If you have any problems regarding estate tax, contact Stephen Bilkis and Associates. Our experts Kings County Estate Lawyer in coordination with Kings County Estate Administration Attorney will help you resolve issues regarding estates left by the decedent.

Courts Discuss Notice of Pendency

July 17, 2015,

New York Probate Lawyers said that upon the foregoing papers, nonparty Geneva Alston, Administrator of the Estate of Mattie Dickens, moves by way of order to show cause for an order 1) cancelling the notice of pendency filed against the subject property on May 19, 2008 by plaintiff Citimortgage, Inc, successor in interest by merger to ABN AMRO Mortgage Group, Inc. and 2) permanently barring as a lien and discharging of record a certain mortgage on the property dated August 22, 2007 given to plaintiff's predecessor-in-interest by defendant TM, notwithstanding a recorded satisfaction of same dated December 4, 2007.

New York Estate Lawyers said Hattie Dickens was the owner of the subject property located at 748 Decatur Street in Brooklyn, having taken sole title as tenant by the entirety following the death of her husband, Pearlie Dickens. On February 9, 2006, Mattie Dickens died. The following day, TM executed a deed whereby she purportedly conveyed, as the executor of the Estate of Mattie Dickens, title to the property to herself as grantee. On July 10, 2006, TM executed a mortgage on the property in favor of Fremont Investment & Loan (Fremont) to secure a loan in the amount of $250,000.00. On August 22, 2007, TM executed a mortgage on the property in favor of plaintiff's predecessor, ABN AMRO Mortgage Group, Inc. to secure a loan in the amount of $340,000.00. According to the settlement statement for the August 22, 2007 mortgage transaction, proceeds totaling $251,237.66 were used to pay off the prior Fremont mortgage. On September 6, 2007, Mortgage Electronic Registration Systems, as nominee for Fremont, issued a satisfaction of the prior $250,000.00 mortgage. The satisfaction of the Fremont mortgage was recorded on September 17, 2007.

Nassau County Probate Lawyers said that on December 4, 2007, plaintiff issued a satisfaction of its $340,000.00 mortgage, apparently in error. The satisfaction of plaintiff's mortgage was recorded on December 11, 2007. On May 19, 2008, plaintiff filed a notice of pendency on the subject property and commenced the instant action pursuant to Article 15 of the Real Property Actions and Proceedings Law (RPAPL) to vacate the December 4, 2007 satisfaction of mortgage and to restore its mortgage lien to its priority position nunc pro tunc.
On September 8, 2008, Alston commenced an action against TM pursuant to RPAPL article 15 to vacate and discharge of record the February 10, 2006 deed purportedly conveying title to TM. In her complaint, Alston alleged that she is the sister and next of kin of Mattie Dickens, that her interest in the property accrued upon the death of Mattie Dickens and that no will of Mattie Dickens has been probated in Kings County or elsewhere. Alston alleged that in light of the foregoing, TM had no power to convey the property as executor of Mattie Dickens' estate and the February 10, 2006 deed should therefore be nullified and discharged of record. Despite the fact that it had previously filed a notice of pendency against the property, plaintiff was not named as a defendant in Alston's action. On November 14, 2008, TM filed an answer to Alston's complaint which contained general denials and no affirmative defenses. By judgment dated April 7, 2009, Alston was granted summary judgment on her complaint, the February 10, 2006 deed to TM was adjudged to be null and void, and the City Register was directed, upon presentation of a certified copy of the judgment, to cancel and discharge of record the February 10, 2006 deed.
That part of Alston's motion for cancellation of the notice of pendency filed by plaintiff in this action is denied. Under CPLR 6501, a notice of pendency may be filed where "the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property, except in a summary proceeding brought to recover the possession of real property. When the court entertains a motion to cancel a notice of pendency in its inherent power to analyze whether the pleading complies with CPLR 6501, it neither assesses the likelihood of success on the merits nor considers material beyond the pleading itself; the court's analysis is to be limited to the pleading's face. Generally, a lien affecting real estate, satisfied through mistake, may be restored to its original status and priority as a lien, provided that no one innocently relied upon the discharge and either purchased the property or made a loan thereon in reliance upon the validity of that satisfaction. In this matter, the ultimate relief demanded by plaintiff, to wit, the cancellation of the satisfaction and the resuscitation of its mortgage lien as of record, clearly would affect the title to the subject property. Indeed, absent the filing of a notice of pendency, plaintiff would run the risk of losing its potential mortgage lien to a bona fide purchaser. It was therefore proper for plaintiff to file the notice of pendency in this matter.

Under CPLR 6514, a motion by a defendant to cancel a properly filed notice of pendency may be granted under the following circumstances: (a) Mandatory cancellation. The court, upon motion of any person aggrieved and upon such notice as it may require, shall direct any county clerk to cancel a notice of pendency, if service of a summons has not been completed within the time limited by section 6512; or if the action has been settled, discontinued or abated; or if the time to appeal from a final judgment against the plaintiff has expired; or if enforcement of a final judgment against the plaintiff has not been stayed pursuant to section 5519.

(b) Discretionary cancellation. The court, upon motion of any person aggrieved and upon such notice as it may require, may direct any county clerk to cancel a notice of pendency, if the plaintiff has not commenced or prosecuted the action in good faith.

Alston does not demonstrate that any of the above grounds are presently applicable to this matter.

Staten Island Probate Lawyers said that Alston further seeks to bar plaintiff from asserting any mortgage lien against the property based on the April 7, 2009 judgment nullifying the deed to TM. Alston argues, in essence, that since TM was adjudged thereby to have never had a valid interest in the property, she had no power to execute the mortgage in favor of plaintiff's predecessor. However, there is no dispute that Alston commenced her action subsequent to plaintiff's filing of the notice of pendency in this action, yet failed to join plaintiff as a party defendant. Considerations of due process prohibit personally binding a party by the results of an action in which that party has never been afforded an opportunity to be heard. As plaintiff was not named as party in Alston's action, plaintiff is not, as matter of due process, affected by the judgment rendered therein, and any mortgage it may have acquired cannot be voided as a lien against the property solely by reason of the judgment against TM.

There are several issues which, if presented in the Alston litigation, could have led to a finding that the mortgage signed by TM on August 22, 2007 constitutes a valid lien on the subject property. A putative mortgagor must have a mortgageable interest in the property sought to be charged as security (Boyarsky v Froccaro, 125 Misc 2d 352 [1984]). Therefore, any mortgage based on a deed which is forged or made under false pretenses is void ab initio as the purported grantee under the void deed was never vested with a mortgagable interest in the property (First Nat. Bank of Nevada v Williams, 74 AD3d 740 [2010];Filowick v Long, 201 AD2d 893 [1994]). The gravamen of Alston's complaint is that TM had no authority as an executor to issue the February 10, 2006 deed to herself nor did TM have any other interest in the subject property as a relative or heir of Mattie Dickens. However, title to real property devised under the will of a decedent vests in the beneficiary at the moment of the testator's death and not at the time of probate (Matter of Seviroli, 31 AD3d 452, 454 [2006];DiSanto v Wellcraft Mar. Corp., 149 AD2d 560, 562 [1989], appeal denied 75 NY2d 703 [1990]).

In opposition to Alston's motion, plaintiff submits a copy of a purported last will and testament of Mattie Dickens, dated February 16, 2004, which provides, in part: THIRD: I direct my Executor to pay out of my estate as an expense of administration, without apportionment, all estate, death, transfer, succession, inheritance, legacy and similar taxes by whatever name called, including interest and penalties thereon, which may be assessed or imposed under the laws of any jurisdiction by reason of my death, upon or with respect to any property passing under this my last will and testament.

fourth: All the rest, residue and remainder of my property and estate, real, personal or mixed of whatever kind and nature, wherever the same may be situated or located, of which I may die seized or possessed or to which I may in any way be entitled at the time of my death, I give, devise and bequeath to my granddaughter Tameeka D. TM, residing at 748 Decatur Street, Brooklyn, New York.

Thus, there is a possible issue as to whether TM, despite any impropriety in her issuing an executor's deed to herself, nonetheless acquired a mortgageable interest in the property as the testamentary beneficiary following the death of Mattie Dickens.

Moreover, there is no dispute that the funds secured by plaintiff's mortgage were used to satisfy the prior Fremont mortgage in full. As it appears from the records of the City Register, the subject property was encumbered by a $40,000.00 mortgage in favor of Elsie B. Reznick at the time of Mattie Dickens' death. This mortgage was satisfied as evidenced by satisfaction of mortgage dated July 15, 2006 and recorded September 12, 2006. According to the HUD-1 settlement statement generated for the Fremont mortgage transaction, the sum of $112,597.00 from the Fremont loan was disbursed to Bruce S. Reznick, P.C. The satisfaction of mortgage dated July 15, 2006 was issued by Merle L. Rickles and Bruce S. Reznick as the sole heirs at law of Elsie B. Reznick. Thus, an additional question exists as to whether, notwithstanding any infirmities in the title of TM, plaintiff's lien may be equitably subrogated to the lien of Elsie B. Reznick to the extent of the amount of funds from the Fremont loan which were used to satisfy and discharge her mortgage (Surace v Stewart, 58 AD3d 715 [2009];LaSalle Bank Nat. Assn. v Ally, 39 AD3d 597 [2007]).

Accordingly, that part of Alston's motion for an order discharging, cancelling or barring the assertion of any mortgage lien in favor of plaintiff is denied.

For legal concerns on estate left by the decedent, contact Stephen Bilkis and Associates. Our Kings County Estate Attorney works hand in hand with Kings County Probate Lawyer who are experts and experienced in the field estate laws and probate proceedings. Visit our offices located around New York Metropolitan for free legal consultation.

Probate Court Discusses Recent Bequests of Stock

July 15, 2015,

New York Probate Lawyers said this is the first New York decision to consider the effect of the recent AT & T divestiture on a bequest of AT & T stock. This is a proceeding brought by GB, co-administratrix c.t.a., for a construction of article "SECOND" of the testatrix's last will and testament. The testatrix died on September 13, 1985 at the approximate age of 89. The last will and testament of the testatrix, dated February 6, 1982 and a codicil thereto, dated September 27, 1984, were admitted to probate by this court on December 2, 1986. Letters of administration c.t.a. were issued to the petitioner and LP, the respondent.

Under the aforementioned codicil, the testatrix deleted CD as a residuary legatee, she having died, and in her place named LP, the respondent who was a friend of the testatrix. This replacement was the only change made, and in all other respects, the will was approved, ratified and confirmed.

New York Estate Lawyers said the value of the testatrix's gross estate is approximately $600,000 comprised primarily of stocks, valued at approximately $350,000.00, a house and property, valued between $175,000 to $225,000, jewelry and miscellaneous items, valued at approximately $9,500.00 and two bank accounts, in the amount of approximately $15,000. The testatrix's closest relatives are four first cousins, once removed, of which only one receives a bequest under the will.

The need for a construction arises as a result of the reorganization of AT & T, which occurred between the date of the execution of the will, February 6, 1982, and the date of the testatrix's death, September 13, 1985.

A Westchester County Probate Lawyer said until 1982, AT & T had a monopoly over the U.S. telecommunications industry, providing both local and long distance telephone service and severely curtailing competition in this industry. As a result, the U.S. Government instituted two antitrust actions against AT & T and Western Electric Co. Inc., requesting, amongst other relief, the divestiture from AT & T of its holdings in twenty-two operating companies, i.e. subsidiaries, and thereby stripping AT & T of its local telephone functions. As of 1980 AT & T owned all of the outstanding stock of the operating companies, with minor exceptions. Under the terms of a judicially approved consent decree, and a judicially implemented plan of reorganization incorporated thereto, AT & T agreed to combine its twenty-two operating companies into seven regional holding companies (hereinafter referred to as RHCs), and AT & T was to divest itself of its holdings therein. Under the terms of the plan of reorganization, AT & T would transfer to each RHC, in exchange for the latter's voting stock, the stock of the appropriate operating company and other assets. In turn, AT & T would distribute to its stockholders, one share of each of the seven RHC's for every ten shares of AT & T stock owned by AT & T stockholders. Fractional shares would not be issued but would be aggregated and sold and the cash proceeds distributed to the stockholders. The divestiture was effective as of January 1, 1984, and according to the petitioner, shareholders were issued stock certificates for the seven RHCs on February 15, 1984.

Suffolk County Probate Lawyers said as previously mentioned, the testatrix owned 2,262 shares of AT & T stock at the time of her death, which had a date of death value of $47,366.00. Further, at the time of her death, the testatrix owned 226 shares of stock in six of the RHCs and 678 shares in Bell South, an RHC which split three for one on May 7, 1984. The total date of death value of the shares held in the seven RHCs was $115,697.00.

On the date the will was executed, February 5, 1982, AT & T stock was listed on the NYSE at 57 3/4. On the date the codicil was executed, September 27, 1984, AT & T was listed at 20, and the shares in the seven RHCs ranged between 63 3/8 to 77 1/8, with the exception of Bell South, listed at 32 3/8 because of the three-for-one split. On the date of death, September 13, 1985, AT & T was listed at 20 7/8. Therefore, as a result of the divestiture, the value of AT & T stock was significantly diminished.

The issue before the court is whether the preresiduary legatees of the AT & T shares under Article "SECOND" are entitled to a proportionate interest in the additional shares in the RHCs or whether those additional shares pass under the residuary clause. The petitioner, who receives 350 shares of AT & T stock, in addition to a 1/5 share in the residue, argues that the legatees under Article SECOND are entitled to a proportionate interest in the shares of the seven RHCs in light of the diminished value of the AT & T stock between the date of execution and the date of death. The respondent, a residuary legatee, contends that the language of Article SECOND, wherein the decedent disposed of her AT & T stock owned by her "at the time of her death", reveals an intent to limit the disposition to only the AT & T stock owned at the time of her death, and does not include the shares of stock in the RHCs.

As a result of the divestiture and the issuance of additional shares, the subject matter of the stock bequests has become ambiguous. Where a latent ambiguity exists, the general rule is to ascertain the testator's intent. Although the courts uniformly state that intent controls, where a stock bequest is involved, they differ as to the appropriate principles to apply in ascertaining the testator's intent. Specifically, the decisions suggest that the courts have been applying ademption or abatement principles or labels where in strictness there is no ademption or abatement issue present. The problem is exacerbated by another general rule that the utilization of ademption principles has nothing to do with intent, and often works to frustrate the testator's intent. Under ademption principles, the court first defines the bequest as specific or general, and generally, if specific, the bequest is said to have adeemed unless the additional stocks are the result of a mere change in form rather than substance. Where stock splits or stock rights are involved, the courts generally hold that if the bequest is specific, there is no ademption since the additional stocks represent a change in form, not substance. Recognizing that ademption principles often produce a result contrary to the testator's intent, the courts, under the guise of applying these principles, come to result-oriented constructions, based on the testator's intent, and, in effect, disregard these principles. Therefore, this court would be inclined to peremptorily disregard ademption principles and resolve the instant matter by ascertaining the testatrix's intent, if it were not for the fact that the only New York case which has considered the effect of a divestiture on a stock bequest in the context of a will construction proceeding was decided by the Court of Appeals in Matter of Brann, supra, wherein Justice Cardozo resorted to ademption principles where admittedly there was no ademption issue present.

In Matter of Brann, the testatrix bequeathed the 30 shares of stock of the Standard Oil Co. owned by me, to a brother and upon his death to two charities, with the remainder of the estate to a friend. Three years after execution the brother died and in the same year Standard Oil was judicially compelled to divest itself of its holdings in 39 subsidiary companies. As a consequence of this mandate, Standard Oil opted to distribute its holdings among its stockholders by issuing to them its shares in the subsidiaries. Subsequently, the testatrix executed a codicil wherein she made additional monetary bequests totaling $1700, but in all other respects, the will was ratified and confirmed.

At the time of her death, the testatrix still owned the original shares in Standard Oil but in addition, she owned shares in the 39 subsidiaries which had a date of death value exceeding the value of the shares in the parent company. Justice Cardozo conceded that in strictness there was no ademption issue since the original thirty-shares existed, but determined that the principles of ademption would be useful since the subsidiary shares, while held by the parent company, helped to give the primary shares their value. Under the theory of ademption, only specific bequests adeem, and the test utilized in Brann, the so called identity doctrine, is whether there is a substantial identity between the additional shares and the original shares from which they came. Although a mere change in form rather than substance would not result in ademption, such as where Standard Oil would have reorganized and issued shares in lieu of the original shares, here, the court determined, that to permit these additional shares to pass with the original shares would have constituted a change in substance, so as to result in ademption. Justice Cardozo concluded that the additional shares were nothing more than extraordinary dividends, independent from the original shares, and therefore pass to the residuary legatees.

Despite Justice Cardozo's apparent reliance on ademption principles, a careful reading of the decision reveals that the Justice's conclusion was based on the testatrix's intent as derived from the provisions of the will and codicil, and the circumstances then known to her, prompted by a desire to avoid an inequitable result. The court deemed significant the fact that the value of the original shares had not drastically declined after the divestiture. Moreover, the court concluded that since the testatrix's brother had died, she may have felt that the primary shares would be sufficient for the charities. Further, the monetary bequests added under the codicil would have failed if the additional shares passed to the original stock legatees. Significantly, since the court deemed the additional shares to be independent from the original shares, the court concluded that the testatrix must also have considered them to be separate from the original shares, and, therefore, the failure of the testatrix to mention the additional shares in the codicil evidenced an intent to exclude the shares from the stock bequests. The effect of the court's decision was to benefit the testatrix's friends over two charities.

This court is of the opinion that where there is no ademption issue, as in the instant case, there is no need to rely on the ademption principles referred to in Matter of Brann, supra, where the testator's intent is manifested by the langua of the will itself and the circumstances surrounding the execution of the will and the codicil. Further, upon review of the facts presented, the distinctions with Brann will become evident and significant, rendering Brann inapplicable here. It should be noted that at least one court has expressly determined the Brann substantial identity test to be of doubtful assistance in resolving a matter almost identical to the instant case.

The court, therefore, must determine the testatrix's intent from the language of the will and the circumstances surrounding execution of the will and codicil.

Under the terms of her will, the testatrix bequeathed 1,625 shares of AT & T stock owned by me at the time of my death. The respondent argues that the above quoted language somehow should operate as to limit the bequest to only the shares of AT & T stock. The court determines that the only significance to be placed on that language would be in determining whether the bequest was specific or general, were the court to resort to such labels. As stated in Matter of Volckening, where the court addressed the issue of stock splits in an abatement matter: The theory is that if the disposition is general, testator is expressing his intention as of the date of death; the disposition therefore carries with it only the number of shares specified in the will. On the other hand, if the disposition is specific, testator is expressing his intention as of the date of execution of the will, it therefore carries with it all stock splits occurring thereafter. For the aforementioned reasons and specifically, those stated by Surrogate Sobel in Matter of Kotcher, namely, that these labels are only applicable in ademption cases or where statutorily prescribed, the court holds that this language has no relevance in determining the testatrix's intent.

Of significance, however, is the fact that the bequeathed AT & T stock was valued at 57 3/4 a share on the date of execution, decreasing to 17 3/4 (when issued) on the date of the divestiture, and only 20 7/8 on the date of death. This suggests that AT & T's holdings in the subsidiaries formed an inherent part of the value of the AT & T shares. Further, the stockholders were entitled to the additional shares solely by virtue of their ownership of AT & T stock. The additional shares in the seven RHCs represented AT & T holdings, and the shares were given to AT & T and distributed by AT & T. Cf. duPont v. duPont, supra, 208 A.2d at 512.

Additionally, the IRS and the U.S. Tax Court have ruled that AT & T did not recognize a gain or loss when it acquired the additional shares in the RHCs, nor did the stockholders recognize income, a gain or a loss. Therefore, at least for tax purposes, the additional shares were not treated as extraordinary dividends. Where additional shares combined with the original shares are deemed to be equivalent in value to the original shares alone, the courts determine that the original stock legatee is entitled to the additional shares. Such is the underlying rationale for holding the stock legatee entitled to the benefit of stock splits.

Under the terms of the will, there are 17 stock legatees who share 1,625 shares of AT & T stock and only 5 residuary legatees, who share 617 shares of AT & T stock. It cannot be convincingly argued that the testatrix intended to give these five legatees an additional $115,697.00 worth of stock where they were to receive significantly less AT & T stock than the preresiduary stock legatees. Further, the residuary legatees share a substantial estate exclusive of the AT & T stock and the shares in the RHCs. The court is not confronted with the situation that existed in Matter of Brann, where there was no residuary estate and therefore no funds from which to pay the monetary bequests, had the court found that the additional shares were not to pass under the residuary clause.

The fact that the testatrix executed a codicil subsequent to the issuance of the additional shares does not dictate a contrary result. The only clear purpose of the codicil was to replace a deceased residuary legatee. The testatrix did not add any additional bequests where as in Brann, the testatrix added bequests which could not have been satisfied unless the additional shares were deemed part of the residuary.

The court, therefore, holds that the testatrix intended the seventeen preresiduary legatees of AT & T stock to have a proportionate amount of the shares in the seven Regional Holding Companies.

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Estate Alleges Undue Influence in Will Signing

July 14, 2015,

New York Probate Lawyers said that an RN (Decedent) died on January 22, 2008 survived by a son, EN, a daughter, CS, and six grandchildren. The Decedent's Last Will and Testament, dated June 27, 2000 was admitted to probate, and Letters Testamentary were issued to his two children on March 3, 2008. The Will left each of the Decedent's six grandchildren $25,000.00, and named his two children equal residuary beneficiaries. Due to the Decedent's Alzheimer's disease and advanced dementia that ultimately caused his death, CS was appointed Guardian of the person and property pursuant to Mental Hygiene Law Article 81 in New York State Supreme Court in the Fall of 2007. The Decedent had been a successful business man during his life, operating a sole proprietorship known as RN, Inc. until May 1, 2006. SS was his long time secretary and bookkeeper. Mrs. SS retired from RN, Inc. on June 25, 2005, but continued to assist the Decedent with business and personal affairs.

A New York Estate Lawyer said that on February 26, 2009, the Estate commenced a discovery proceeding against Mrs. SS alleging that she used her relationship as the Decedent's long time companion and secretary to unduly influence a series of pre-death non-probate transfers and business decisions in her favor, contrary to the Decedent's estate plan. On December 18, 2009, counsel for Mrs. SS filed an Answer. The parties thereafter conducted discovery. After a number of court conferences, the parties ultimately failed to reach a settlement, and a hearing pursuant to SCPA 2103 and 2104 was held in May, 2011 relative to Mrs. SS's undue influence upon the Decedent, and the Decedent's capacity to make the non-probate transfers and decisions in dispute.

The disputed transfers occurred between 2005 and 2008, and consisted of the following: loans made to an individual named JT which were assigned to Mrs. SS pursuant to a Memorandum of Understanding dated July 1, 2005; loans to JT which were conditionally assigned to Mrs. SS, CS and EN by Agreement and Memorandum of Understanding dated May 11, 2006; various corporate debts assigned to Mrs. SS commencing May 1, 2006; accounts and an annuity naming Mrs. SS a 1/3 transfer-on-death beneficiary along with the Decedent's two children; a Prudential Whole Life Insurance Policy for which Mrs. SS was made the designated beneficiary as a result of a corporate resolution signed by Mrs. SS as Secretary of the Decedent's corporation on January 7, 2008; corporate checks made payable to cash signed by Mrs. SS; and bank accounts of the Decedent held jointly with Mrs. SS. It is alleged that the value of the disputed transactions had a value of approximately $195,000.00 on the date of the Decedent's death.

Manhattan Probate Lawyers said that throughout the pendency of this proceeding, including the hearing, both Petitioner and Respondent largely dealt with the various disputed transfers as one central dispute. However, different law and burdens of proof apply, and therefore they must be evaluated separately in three groups: (1) the loan and debt assignments, and account beneficiary designation; (2) the life insurance beneficiary designation and corporate checks signed by Mrs. SS; and (3) the joint bank accounts.

New York City Probate Lawyers said that at the hearing, two of the Decedent's physicians testified as to the Decedent's capacity: CD, M.D., and JV, M.D. Dr. CD stated that the Decedent had been diagnosed with Mild Cognitive Impairment, and that he was unable to state with a reasonable degree of medical certainty that the Decedent would have been unable to understand the nature of the transactions in question at the time of his signing of the documents. However, medical records were introduced into evidence that showed that on October 22, 2003, Dr. CD recommended that the Decedent contact an elder care attorney, about dissolving his business and settling his affairs appropriately, based on ongoing complaints of the Decedent regarding his memory issues and confusion.

Dr. JV testified that he had personally witnessed the rapid deterioration of the Decedent's condition. A letter from Dr. JV dated November 9, 2007 was admitted into evidence in which Dr. JV voiced his support for CS's petition for Article 81 guardianship due to the Decedent's incapacity to make financial and medical decisions himself.

A report was also submitted from Dr. RM, the Co-Director of the TAUB Institute of Research on Alzheimer's Disease and the Aging Brain at Columbia University. Dr. RM evaluated the Decedent as part of a 2004 study, and found the Decedent to have trouble handling money, and that his ability to recall information was significantly impaired, and that he had difficult performing even simple calculations.

The Court Evaluator appointed during the Article 81 Guardianship proceeding in 2007, Cynthia Snodgrass, Esq. stated that she could not testify as to the Decedent's capacity prior to December 19, 2007, but when she met with the Decedent on that date, she found him to be incapable of putting together a coherent sentence.

The Decedent's business associate, JT testified that the purpose of the 2005 agreement assigning the payments on existing notes held by the Decedent to Mrs. SS was to augment Mrs. SS's compensation due to a lack of cash flow in the business. Mr. JT also hypothesized that this arrangement also may have been motivated by a desire on the Decedent's part to evade employment taxes. Mr. JT's testimony regarding the 2006 agreement assigning loans to Mrs. SS and the Decedent's children was less direct, but he did state that Mrs. SS was against it. Mr. JT stated that he only noticed the Decedent ever appearing confused after his wife's death in 2005 and after a knee replacement surgery, but did not notice major confusion or the Decedent acting in an unusual way.

SS testified as well. She stated that the Decedent continued to live alone at his home until his final hospitalization on October 16, 2007. She acknowledged that the Decedent's driver's license was revoked in September, 2006, but insisted that he continued to be involved in his business and personal affairs. She testified that she and the Decedent were close, but insisted that she was just his secretary, and that the Decedent had always taken good care of her.

Generally, SCPA 2104 places the burden of proving the estate's right to disputed property upon the estate. It is undisputed that the Decedent was diagnosed with Alzheimer's disease and dementia, and that at some point between 2001 and his death, the Decedent became incapacitated. He first reported concerns of memory loss and confusion in 2001, and ultimately died of complications relating to his advanced dementia in early 2008. However, there is no presumption that a person suffering from Alzheimer's disease and dementia is wholly incompetent. Rather, it must be demonstrated that, because of the affliction, the individual was incompetent at the time of the challenged transaction.
In order for a transaction to be set aside due to a person's mental incompetence, it must be shown that the person's mind was, so affected as to render him wholly and absolutely incompetent to comprehend and understand the nature of the transaction.

When the issue of undue influence based upon a confidential relationship is raised, the initial burden is on the party seeking to invalidate the disputed transaction to make the requisite showing that a confidential relationship existed between the transferor and beneficiary.If a confidential relationship is found to have existed, the burden then shifts to the beneficiary to establish that the transaction was fair and free from undue influence.

Some relationships, such as attorney and client or parent and child, are deemed confidential as a matter of law. Where, as here, the relationship is not confidential as a matter of law, the party seeking to set aside the transfer must prove that a fiduciary relationship existed between the parties, giving one a controlling influence over the conduct and interests of the other. For a relationship to be deemed confidential, the proof must show that the decedent was dependent on the beneficiary of the transfer, and that the beneficiary intruded upon the decedent's freedom of action. A confidential relationship exists when one person is dependent on and subject to the control of the other . Such a relationship exists where one party reasonably relies on the other's superior expertise or knowledge.

While the existence of a confidential relationship increases the possibility that the grantor was unduly influenced by that relationship, much more must still be shown. It must be shown that the beneficiary had motive, an opportunity, and that undue influence was actually exercised. No inference of undue influence may be drawn from the fact that proponents had the opportunity and motive, absent evidence that such influence was actually utilized.

The Court of Appeals has defined undue influence as: influence exercised that amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist. It must not be the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity, or by a silent resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear.

Mrs. SS was a close friend of the Decedent; the medical records reflecting the Decedent's visits to Dr. JV are replete with mentions of his girl friend, long time friend, secretary, and partner. SS accompanied the Decedent to his appointments and provided him with assistance at home and with remembering his medication. On November 18, 2004, the Decedent confessed to Dr. JV that he was becoming more dependent on another person. On September 30, 2005, the Decedent told his doctor that he had a girlfriend. However, based on the evidence presented, it is the opinion of this Court that Mrs. SS's relationship with the Decedent cannot be deemed confidential as it is defined by case law. The two had worked and spent time together for years, and the Decedent presumably trusted her a great deal. However, there is no evidence that she possessed the requisite level of control and dominion over his will and conduct.

Mrs. SS was the Decedent's long-time employee and partner, and at least in later life, his companion, but there is no indication that the Decedent trusted her above himself with respect to business and financial decisions. To the contrary, he was a successful business man who continued to express confidence in his remaining business dealings to his doctor even while complaining of trouble remembering how to drive to the doctor's office.

Further, even assuming arguendo, that the relationship could be deemed confidential, there is insufficient evidence that undue influence was exercised by Ms. SS at the time of the execution of the disputed transactions. There was no testimony by the physicians or court evaluator as to the Decedent's mental condition at the time any of the disputed transactions took place. As there is no direct proof that the Decedent was not lucid at the time of the transactions, the dual burdens of assuming capacity and against the use of undue influence have not been overcome.

Circumstantial evidence can be used to find that undue influence was exercised. However, there is no such evidence in this case. The Decedent was in a pattern of giving Mrs. SS money, and compensating her in non-traditional ways for her work for the corporation. It is reasonable to assume that he thought of her as something like a business partner, to be included in both the work and the profits of his business. The disputed assignments that the Decedent was involved in do not mark a significant departure in his behavior. Influence arising from gratitude, affection or esteem is not undue influence.

Therefore, the proceeds of the loan and debt assignments and account beneficiary designations challenged by the Estate shall remain in the possession of Mrs. SS. The Court finds that insufficient evidence exists to invalidate these transactions on the basis of capacity or undue influence.

With regard to the joint accounts held by the Decedent and Mrs. SS, it is well settled that the establishment of a joint bank account creates a presumption that the depositors intended to create a joint tenancy with rights of survivorship. This presumption places the burden on the party challenging the title of the survivor to establish fraud, undue influence, or lack of capacity. As specified in Banking Law Section 675, the disputed accounts did provide for a right of survivorship. Therefore, for the reasons discussed above, the Estate's burden with regard to undue influence has not been met, and title to the funds in the joint accounts held by Mrs. SS and the Decedent shall remain with Mrs. SS.

Regarding the actions taken by Mrs. SS alone, the Court must come to a different conclusion. Mrs. SS made no claim and submitted no evidence suggesting that the corporate checks written to cash and signed by Mrs. SS were intended as gifts from the Decedent, and therefore, the issue of the Decedent's capacity to make such gifts is irrelevant. Mrs. SS claims that she cashed these checks and gave the money to the Decedent, as was their customary practice. While this seems feasible, there is absolutely no evidence that this took place. It is unknown to the Court what the purpose or ultimate disposition of the funds negotiated by those checks was, and therefore, the amount must be charged against Mrs. SS.

Similarly, the death benefit proceeds of the Prudential Whole Life Insurance Policy transferred to Mrs. SS by corporate resolution dated January 7, 2008 must be invalidated. The Decedent was in the hospital at the time, and there is no evidence that he was present at the alleged Board of Directors meeting, or involved in the Request for Ownership Change paperwork completed on that day. Further, as the Decedent did take a previous loan from the policy, and pay the proceeds to Mrs. SS in 2001, it can be assumed that he was familiar with the terms of the policy and would have elected to cash out the policy or change the beneficiary or ownership as of that date had he intended to. The Decedent's capacity to gift is not relevant to this transaction, as there is insufficient evidence that the Decedent was involved in the transfer. Mrs. SS did not meet her burden to establish that the Decedent has the requisite donative intent to make a gift of the policy, or that he was involved in its delivery to Mrs. SS.

Therefore, in accordance with the above decision, it is hereby ordered, adjudged and decreed, that SS is directed to deliver to EN and CS, as executors of the Last Will and Testament of RN, the following property: the proceeds of identified checks drawn from the accounts of RN, Inc. made payable to cash, and signed by SS, alleged to be valued at approximately $9,400.00 as of the date of the hearing; and the death benefit proceeds of Prudential Whole Life Insurance Policy Number 74551334, valued at approximately $34,952.57 as of January 31, 2008; it is further ordered, adjudged and decreed that SS, Respondent herein, is the owner and entitled to possession of all other property described in the Petition.
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