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Court Hears Action to Set Aside Conveyance of Real Property


In an action, inter alia, to set aside a conveyance of certain real property, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County as granted the plaintiffs’ cross motion to disqualify the law firm from representing him in the action.

The court ordered that the order is reversed insofar as appealed from, on the law, with costs, and the cross motion is denied.

The defendant correctly contends that the Supreme Court erred in disqualifying the law firm from representing him in this action. The disqualification was based on an alleged conflict of interest arising from the law firm’s previous representation of the deceased aunt of the plaintiff in a real property transaction with the defendant.

“[A] party seeking disqualification of [his or her] adversary’s lawyer must prove: (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse” The plaintiffs failed to satisfy the first of the foregoing criteria, since the law firm never represented them in any matter and, therefore, they lacked standing to seek the law firm’s disqualification. In this regard, the plaintiffs’ reliance on the law firm’s previous representation of the decedent as a basis for their standing is misplaced, since a determination dated November 19, 2009, in a probate proceeding entitled Matter of Ruoti, pending in the Surrogate’s Court, Kings County, under File No. 2294/08, of which we take judicial notice, demonstrates that the plaintiffs are not the duly appointed representatives of the decedent’s estate. Additionally, the plaintiffs failed to establish that the interests of the defendant and of the decedent’s estate are materially adverse. Accordingly, the plaintiffs’ conclusory and speculative assertions regarding a conflict of interest were insufficient to warrant the disqualification of the law firm.

Similarly unavailing are the plaintiffs’ contentions that disqualification was necessary, based on their conclusory assertions of a misuse of client confidences or because it would be necessary for a member of the law firm to testify at trial.

In another case, This is a case where the State Tax Commission appealed from the order of Supreme Court, Appellate Division, Second Department which order affirmed an order of the Surrogate which on appeal affirmed a pro forma taxing order fixing and assessing the estate tax pursuant to article 10-C of the Tax Law, upon the estate of a decedent.

The decedent died a resident of the State of New York, leaving a will which was admitted to probate, letters testamentary having been issued to three (3) executors. An estate tax appraiser was appointed pursuant to provisions of section 249-m et seq. of the Tax Law who made appraisal and filed report with the Surrogate of Kings County. The report showed that decedent owned stocks, bonds and other property valued at more than $184,000 which constituted his entire estate. The decedent also carried life insurance, proceeds of which in the sum of $372,385.49 were payable to designated beneficiaries other than executors.

Debts and administration expenses amounted to more than $336,000. Charitable, public and similar gifts and bequests amounted to 10,000. Exemptions pursuant to section 249-q of the Tax Law were allowed in the sum of $100,000. The pro forma taxing order provided for a total tax of $726.58. The ground of appeal from such taxing order was that portion of debts of estate had been deducted from proceeds of insurance policies payable to beneficiaries other than executors and that such deduction was erroneous.

The issue was whether in making deduction specified in statute, appraiser must allow all permissible deductions from value of whole gross estate as unit or must allow such deductions only to extent of value of each separate item of such gross estate out of which such deductions will or may be paid.

The Court affirmed the Order, with costs.

Probate proceedings should be entrusted to lawyers, who, by reason of the number of years in law practice, had become an expert in litigation. We have attorneys here in Stephen Bilkis and Associates, who are always willing to render their services. We are always available to serve you.

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