Articles Posted in Queens

A Probate Lawyer said that, in an action, inter alia, to recover damages for breach of fiduciary duty and legal malpractice, the defendant appeals from an order of the Supreme Court, Kings County, dated June 21, 2005, which denied his motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the amended complaint for failure to state a cause of action and on the ground that a defense was founded upon documentary evidence.

A Kings Probate Lawyer said that, the plaintiff and her young daughter were beneficiaries of the estate of the plaintiff’s mother. The defendant, an attorney, was retained by the plaintiff’s brother, as the executor of the estate, to probate the will and collect the assets of the estate. In November 2004 the plaintiff commenced this action to recover damages for breach of fiduciary duty, legal malpractice, and negligent misrepresentation. In a vague and mostly conclusory amended complaint, the plaintiff asserted three causes of action against the defendant. The first cause of action alleged that in December 2001 the defendant, acting as a fiduciary, was negligent in securing the sum of $297,000, which was intended for the plaintiff and her child, by not giving the money to the plaintiff. The second cause of action alleged that the defendant “negligently represented to the plaintiff that he was her attorney” and that he negligently “drafted a will, deed, and several other documents” to the plaintiff’s detriment. The third cause of action did not recite any theory of recovery but simply sought an award of an attorney’s fee. The amended complaint also requested punitive damages. The defendant moved to dismiss the amended complaint pursuant to CPLR 3211 (a) (1) and (7) for failure to state a cause of action and on the ground that a defense was founded upon documentary evidence. The Supreme Court erred in denying the motion.

The issue in this case is whether plaintiff is entitled to recover damages for breach of fiduciary duty, legal malpractice, and negligent misrepresentation.

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A Probate Lawyer said that, in a malpractice action brought against an attorney-at-law by a named devisee, who was allegedly deprived of his devise as a result of defendant’s negligence in causing plaintiff to act as an attesting witness to the execution of the will, defendant moves for judgment under Rule 107, subd. 5, Rules of Practice, upon the ground that the cause of action did not accrue within the time limited by law for the commencement of an action thereon. Since the argument of the motion the plaintiff has served an amended complaint. By consent of the parties it is the amended complaint, now alleging three causes of action instead of one, which the court presently has under consideration.

A Kings Probate Lawyer said that, the first and second causes of action are grounded in negligence, while the third seeks to allege an action in fraud. The facts are simply stated in the complaint. In January 1953 the plaintiff and his mother engaged the professional services of the defendant to prepare a last will and testament for the plaintiff’s mother. The said will included a devise of specific real property to the plaintiff. The defendant ‘negligently requested the plaintiff to be an attesting witness to the will.’ Presumably at about the same time as the hiring, plaintiff did act as one of two attesting witnesses to the execution of the will. The defendant retained possession of the will thereafter, though for what purpose is not revealed. Plaintiff also alleges as negligence, in his second cause of action, that ‘holding the will and not informing the plaintiff or the plaintiff’s mother’ that the devise to the plaintiff was void by virtue of plaintiff’s having acted as a witness thereto. About seven years later, in December 1959, the mother died. The will was thereafter, in January 1960, filed for probate in the Surrogate’s Court. It was then that plaintiff allegedly discovered that the devise to him had been voided by having acted as an attesting witness. As a third cause of action the complaint alleges, without other supporting evidentiary facts, that the plaintiff was damaged ‘by reason of the deceit of the defendant in connection with the possession of the will from the time of the execution of the will to the time of the filing of the will and the defendant’s actions prior to and subsequent to the death of the plaintiff’s mother.’ Under the foregoing ‘deceit’ allegation, plaintiff demands treble damages pursuant to Section 273 of the Penal Law.

A New York Estate Lawyer said in this motion plaintiff argues that no actionable wrong was committed at the time the will was drawn. He claims that ‘the cause of action accrued only when the plaintiff suffered the actual damage,’ and that ‘injury was not produced until the death of the testatrix and the filing of the will’. Plaintiff contends, that a cause of action ‘accrues only when the forces wrongfully put in motion produce injury.’ Plaintiff’s principal argument appears to be that defendant was under a duty during the seven-year period, when he had possession of the will, ‘to contact the testatrix or the plaintiff and advise either of them that the will was defective,’ ‘that the negligence of the defendant continued during the period,’ and the ‘defendant’s failure to avert danger to the plaintiff’s property constituted further and continuing negligence.’

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Defendant moves, pursuant to subdivision 8 of Rule 107 of the Rules of Civil Practice, to dismiss plaintiff’s complaint on the ground that the cause of action cannot accrue against the infant defendant because of his infancy.

Probate Lawyers said the action is brought by the infant plaintiff against the infant defendant for a separation on the ground of alleged cruel and inhuman treatment. It appears from the papers before the court that both of the parties are under 21 years of age. Before instituting this action, plaintiff applied for and secured the appointment of a guardian ad litem. Thereafter, the summons and complaint were served upon both the infant defendant and his father with whom he resided. Defendant now asserts that plaintiff should have applied for the appointment of a guardian ad litem for the defendant before making service of the summons and complaint herein.

A New York Estate Lawyer said the issue before the court is whether it is the obligation of the plaintiff to apply for and secure the appointment of a guardian ad litem for the defendant prior to the service of process, or whether it is the obligation of the defendant, after having been served with the summons and complaint, to himself apply for such relief.

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Probate Lawyers said this is a proceeding to construe Article Sixth of testator’s will which was admitted to probate on March 9, 1961. By said article testator bequeathed his residuary estate in trust, to invest and reinvest ‘and to pay to my beloved wife so much of the income therefrom as she may require for her proper maintenance and support during her lifetime. It is my purpose and intent that my said beloved wife shall at all times have sufficient income paid to her regularly so that she may properly maintain herself in comfort. Testator then directed his trustees to resort to the principal of the trust should the income be less than $6,000 per year or in the event his said wife shall because of her personal health require hospitalization or medical care so that the $6,000 per annum is not sufficient to support her. Said Article Sixth then concludes as follows:

This provision for the benefit of my said wife is made and intended to be in lieu of any statutory or other rights in my estate conferred upon her by the laws of the State of New York. In the event that my said beloved wife shall be dissatisfied with the provision made for her hereunder and seek to contest this will, or refuse to accept the provision made hereunder under her statutory rights, in such event she shall be entitled to her statutory share of my estate and to no more, which statutory share of my estate is to be received by her in lieu of the provision made hereunder.

A New York Estate Lawyer said on May 12, 1966 testator’s wife served a notice upon the executors herein wherein she states among other things that she is dissatisfied with the provisions made for me therein (in Article Sixth) and refuse to accept same, and demand that I be paid in lieu thereof an amount equal to a statutory share, in an amount equal to one-third of the net estate together with such amount and property to which I am entitled under section 200 of the Surrogate’s Court Act.

Probate Lawyers said the issue before this court appears to be one of first impression. The question presented is does an order of temporary support cease if the matrimonial action abates? Stated slightly differently, may a pendente lite child support order be enforced after the underlying matrimonial action has abated and, if enforceable, who may enforce it?

In this application, a non-party, the non-parent legal guardian of one of the children of the parties, seeks to enforce a temporary order of child support granted to the mother of the child. The temporary child support order was issued as part of a matrimonial action. The mother is now deceased. A factual review of this matter is necessary prior to the court determining the questions presented.

New York Estate Lawyers said in 1987 plaintiff-wife, BF commenced this matrimonial action. By order entered February 6, 1989, defendant-husband, AEF, was ordered to pay plaintiff $200 per week as pendente lite child support for KF (the parties’ only unemancipated child) and $200 per week as pendente lite maintenance. Defendant was at that time a retired employee of the New York City Department of Corrections. In an order, dated November 29, 1989, the court permitted the enforcement of the pendente lite order of child support and maintenance by way of a $400 per week income deduction from defendant’s pension payment. The pension was from the New York City Pension System which was then in pay-out status. Pursuant to the income execution plaintiff started to receive payments from the New York City Pension System equivalent to $400 per week.

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Probate Lawyers said that an action for partition of real property, plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County, dated December 5, 1983, as, after a nonjury trial, declared that defendant was the owner in fee simple of the subject premises located at 16th Avenue in Brooklyn, New York. Judgment affirmed insofar as appealed from, with costs.

The parties are brother and sister. Upon the death of their father on February 16, 1977, and the admission of his will to probate, plaintiff and defendant and their brother, L, each inherited an undivided one-third interest in three parcels of real property. These consisted of a two-family house on 66th Street in Brooklyn which was plaintiff’s residence; a three-family house on 16th Avenue in Brooklyn where defendant had resided for more than 20 years; and a parcel of land in Shirley, New York.

A New York Estate Lawyer said that the father also left money in bank accounts in trust for defendant and for her son, V, and it appears that there was a falling-out between defendant and her brothers when defendant failed to share that money with them. Nevertheless, plaintiff and defendant continued to have conversations concerning the transfer to each other of their interests in the two Brooklyn properties.

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A Probate Lawyer said that according to sources, both cases involved issues as to the estate. In the first case, as an incident to an account by trustees of the trust for the benefit of testator’s daughter, which terminated by her death, a construction is sought of the validity of the attempted exercise of a power of appointment of the corpus of the trust under the will of testator’s other daughter. By article ‘Second’ testator created a trust of his residuary estate, the income of which was to be paid to his wife during her life. Upon the latter’s death one-third of the corpus of such trust was continued for the life of testator’s daughter, with the income payable to her during her life. On her death the principal was payable to her issue per stirpes, and in default of issue, the principal was payable to another daughter. The will further provided that if the other daughter predeceased her sister, the principal of said trust was payable to such person or persons as said other daughter directed or appointed by her will. If not effectively appointed, distribution was to be made to next of kin of the other daughter in proportions provided under the statute of distribution in effect at her death.

A New York Estate Lawyer said the daughter, the secondary life beneficiary died leaving no issue. Another daughter, predeceased her sister leaving a will which was admitted to probate. Under the third article of the will of the other daughter, her appointive power was exercised by creating further trusts for the benefit of her children, the principal payment to each child being deferred until they attained respective ages of 35, 40, 45 and 50 years. The Court holds that the appointment made under the will of the other daughter is invalid as violating the rule against perpetuities, in effect at the time of its exercise . The trust created thereunder suspended unlawfully the trust created under the testator’s will. The principal of the trust must therefore be distributed equally to said children of the said other daughter living at her death as the alternative beneficiaries under the testator’s will.

A Nassau County Probate Lawyer said that on the second case, Proceedings were brought to contest the probate of an alleged will. The Surrogate’s Court, entered a decree granting in part the proponents’ motion for summary judgment which directed specific performance of an agreement of compromise made in open court and denied contestants’ cross motion to dismiss the petition. The Appellate Division reversed on ground that it was an improvident exercise of discretion to direct testatrix’ daughters to specifically perform agreement of compromise allegedly made and recorded in open court, and an appeal was taken. Motion to dismiss the appeal granted upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the constitution.

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