Probate & Estate Litigation

Published on: December 27, 2012

Court Decides Whether Illegal Alien is Barred from Recovering Damages

by Stephen Bilkis

A New York Probate Lawyer said the plaintiff, an undocumented alien from Ecuador, immigrated to the United States in 2000, and was hired as a construction worker by the third-party defendant, City Wide Building Corp. Plaintiff was working on a construction project in which town houses were being built by the defendant Wildflower Estate Developers, Inc., the owner of the property, which acted as its own general contractor. Wildflower had hired City Wide to do carpentry work, and had hired the defendant Classic Construction to do roofing work. The plaintiff was performing his work while standing on a makeshift scaffold, which consisted of two layers of 2-inch-by-10-inch boards, supported at the ends by beams which were part of the structure being built. A bundle of shingles weighing roughly 80 pounds, which had been left on the sloped roof near an opening that had been created for a skylight, fell through the opening and struck the plaintiff in the back. The impact caused the boards on which the plaintiff was standing to break, and the plaintiff fell approximately 25 feet to the basement floor. The plaintiff sustained severe injuries, which rendered him a paraplegic.

A New York Estate Litigation Lawyer said that, the plaintiff commenced this action against Wildflower and Classic, asserting causes of action based on common-law negligence and violations of Labor Law §§ 200, 240 (1) and § 241 (6). The defendants asserted cross claims for indemnification against each other. Wildflower commenced a third-party action for indemnification against City Wide, and City Wide asserted a counterclaim against Wildflower and a cross claim against Classic.

The plaintiff moved for summary judgment on the issue of the defendants’ liability pursuant to Labor Law § 240 (1). Wildflower cross-moved for summary judgment on its cross claims against Classic, on its third-party cause of action against City Wide, and dismissing the complaint insofar as it sought damages for lost wages.

Published on: December 26, 2012

Court Interprets Labor Law Sect. 240(1)

by Stephen Bilkis

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Whelan, J.), entered September 2, 2009, which, upon a jury verdict, and upon the granting of the motion of the defendant Swiss Ranch Estates, Ltd., in effect, pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1), upon the denial, in effect, of his motion pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on that cause of action, and upon the denial of his motion pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law or, in the alternative, to set aside the jury verdict as contrary to the weight of the evidence, is in favor of the defendant Swiss Ranch Estate, Ltd., dismissing the complaint insofar as asserted against that defendant.

A New York Probate Lawyer said the plaintiff, who was preparing to install insulation at a home being constructed on property owned by the defendant, Swiss Ranch Estate, Ltd. (hereinafter Swiss Ranch), fell and was injured when a set of stairs connecting the first floor of the home to the garage collapsed beneath him as he stepped onto it.

A Suffolk Estate Litigation lawyer said that, the plaintiff commenced the instant action alleging, inter alia, violations of Labor Law §§ 240(1) and 241(6). At trial, the Supreme Court granted Swiss Ranch’s motion, in effect, pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1), and denied, in effect, the plaintiff’s motion pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on that cause of action. The jury returned a verdict in favor of Swiss Ranch on the remaining cause of action, which alleged a violation of Labor Law § 241(6). The plaintiff moved to set aside the verdict and the Supreme Court denied his motion. A judgment was entered in favor of Swiss Ranch and against the plaintiff, dismissing the complaint insofar as asserted against it. The plaintiff appealed.

Published on: December 25, 2012

Court Discusses Liberal Interpretation of Lien Law

by Stephen Bilkis

Defendant Neptune Estates, LLC (“Neptune”), owner of 380 Neptune Avenue, Brooklyn,, NY (“Property”), entered a contractor’s agreement with defendant Big Poll Construction, Inc. (“Big Poll”) whereby Big Poll would act as the general contractor on a construction project on the Property (“Project”). In February 2009, plaintiff entered two subcontractor agreements with Big Poll whereby plaintiff agreed to perform the structural steel work, masonry, and concrete slabs on the Project.

A New York Probate Lawyer said that Neptune alleges that on or about February 22, 2009, Neptune removed Big Poll for cause and hired non-party Future City Plus, Inc. (“Future City”) to act as the new general contractor on the Project. A construction contract between Neptune and Future City was executed. On March 15, 2009, plaintiff entered two subcontractor agreements with Future City whereby plaintiff was to be paid $181,000 and $191,000, respectively, for the structural steel and masonry and concrete slabs on the Project. Neptune alleges that Future City subsequently terminated these subcontracts with plaintiff for cause on December 15, 2009.

A Kings Estate Litigation lawyer said that, exactly nine months after Future City entered the contractor agreement with Neptune, plaintiff filed a mechanic’s lien (“January Lien”) against the Property and, pursuant to Lien Law § 9(3), plaintiff identified the person with whom the contract was made as “Big Poll & Son Construction, LLC and Future City Plus, Inc.”. After Neptune moved to discharge the January Lien, Justice Bunyan vacated the January Lien without prejudice in a short form order with the consent of the parties. The order indicated that “a new Mechanic’s Lien may be filed in a timely manner. This is without costs to any party.” On April 1, 2010, plaintiff filed a second mechanic’s lien (“Lien”) and identified the person with whom the contract was made as “Big Poll & Son Construction, LLC. There may be a claim against the successor on the project, Future City Plus, Inc., if this company agreed to assume the obligation of its predecessor.” This is the only substantive change from the January Lien other than the identity of the plaintiff’s attorney and the signatories to the Lien.

Published on: December 23, 2012

Court Rules on Complex Estate Litigation Matter

by Stephen Bilkis

The plaintiff, an undocumented alien from Ecuador, immigrated to the United States in 2000, and was hired as a construction worker by the third-party defendant, City Wide Building Corp. Plaintiff was working on a construction project in which town houses were being built by the defendant Wildflower Estate Developers, Inc., the owner of the property, which acted as its own general contractor. Wildflower had hired City Wide to do carpentry work, and had hired the defendant Classic Construction to do roofing work. A New York Probate Lawyer said the plaintiff was performing his work while standing on a makeshift scaffold, which consisted of two layers of 2-inch-by-10-inch boards, supported at the ends by beams which were part of the structure being built. A bundle of shingles weighing roughly 80 pounds, which had been left on the sloped roof near an opening that had been created for a skylight, fell through the opening and struck the plaintiff in the back. The impact caused the boards on which the plaintiff was standing to break, and the plaintiff fell approximately 25 feet to the basement floor. The plaintiff sustained severe injuries, which rendered him a paraplegic.

A New York Estate Litigation Lawyer said that, the plaintiff commenced this action against Wildflower and Classic, asserting causes of action based on common-law negligence and violations of Labor Law §§ 200, 240 (1) and § 241 (6). The defendants asserted cross claims for indemnification against each other. Wildflower commenced a third-party action for indemnification against City Wide, and City Wide asserted a counterclaim against Wildflower and a cross claim against Classic.

Brooklyn Probate Lawyers said the plaintiff moved for summary judgment on the issue of the defendants’ liability pursuant to Labor Law § 240 (1). Wildflower cross-moved for summary judgment on its cross claims against Classic, on its third-party cause of action against City Wide, and dismissing the complaint insofar as it sought damages for lost wages.

Published on: December 18, 2012

Court Rules on Violation of Labor Law Section 240

by Stephen Bilkis

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Whelan, J.), entered September 2, 2009, which, upon a jury verdict, and upon the granting of the motion of the defendant Swiss Ranch Estates, Ltd., in effect, pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1), upon the denial, in effect, of his motion pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on that cause of action, and upon the denial of his motion pursuant to CPLR 4404(a) to set aside the jury verdict and for judgment as a matter of law or, in the alternative, to set aside the jury verdict as contrary to the weight of the evidence, is in favor of the defendant Swiss Ranch Estate, Ltd., dismissing the complaint insofar as asserted against that defendant.

The plaintiff, who was preparing to install insulation at a home being constructed on property owned by the defendant, Swiss Ranch Estate, Ltd. (hereinafter Swiss Ranch), fell and was injured when a set of stairs connecting the first floor of the home to the garage collapsed beneath him as he stepped onto it.

A New York Probate Lawyer said the plaintiff commenced the instant action alleging, inter alia, violations of Labor Law §§ 240(1) and 241(6). At trial, the Supreme Court granted Swiss Ranch’s motion, in effect, pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1), and denied, in effect, the plaintiff’s motion pursuant to CPLR 4401, made at the close of the evidence, for judgment as a matter of law on that cause of action. The jury returned a verdict in favor of Swiss Ranch on the remaining cause of action, which alleged a violation of Labor Law § 241(6). The plaintiff moved to set aside the verdict and the Supreme Court denied his motion. A judgment was entered in favor of Swiss Ranch and against the plaintiff, dismissing the complaint insofar as asserted against it. The plaintiff appealed.

Published on: December 17, 2012

Court Determines the First and Final Account for the Administrator

by Stephen Bilkis

The Facts of the Case:

On 22 February 2004, a resident of Hicksville died with a will dated 6 November 2002, months after a guardian was appointed on her behalf under Mental Health Law Article 81. The decedent left all of her property, other than a $15,000.00 bequest to a corporation, to “A”, to the exclusion of her family members. The will named “X” as executor and after he offered the will for probate it was revealed that he had a felony record, making him ineligible to serve as a fiduciary. Thus, on 2 May 2005, “X” renounced his appointment. The nominated successor to the named executor had previously renounced her appointment as well.

On 4 May 2005, “A” petitioned the court for letters of administration, for estate administration (estate litigation). However, “A” also had a felony record and was ineligible to serve. Therefore, on 9 June 2005, the court appointed the Public Administrator of Nassau County as temporary administrator. A New York Probate Lawyer said that the decedent’s distributees appeared and filed objections to the probate of the will, and notices of appearance were filed on behalf of “A”, the New York State Attorney General and the aforementioned corporation. On 22 November 2005, all of the interested parties entered into a stipulation of settlement. On 1 February 2006, the will, as reformed and restated by the settlement agreement, was admitted to probate, and full letters of administration, were issued to the Public Administrator. Under the terms of the stipulation, articles second and fifth of decedent’s will were reformed so that three of the decedent’s distributes will share in 2/3 of the decedent’s real property and her residuary estate; the remaining 1/3 will pass to “A”; that the decedent’s real property will pass to these parties in kind, so as not to be subject to a commission, and that the property would be sold and the proceeds held in an attorney’s escrow account; and that before any distributions are made to the interested parties from the escrow account, the sales proceeds will be used to pay the bequest to the aforesaid corporations, the commission of the Public Administrator, and all debts, fees and estate administration expenses of the estate.

Published on: December 16, 2012

Co-Executors File Motion for Eviction in Estate Litigation

by Stephen Bilkis

The Facts of the Case:

On 30 December 2006, the decedent died a resident of Nassau County leaving a last will and testament dated 13 July 2006. On 19 March 2007, the will was admitted to probate and letters issued to A and B as co-executors and co-trustees. After making some specific bequests, the decedent left her residuary estate to her four daughters, A, B, C, and D, in equal shares; and placed C’s share in a Supplemental Needs Trust under her name created pursuant to Article Fourth of the will. Under the will, the trustees were given discretion in distributing income and principal to C; that at C’s death, the remainder of the trust, if any, will pass to C’s son, CC; and D is the named successor fiduciary. The estate contains approximately $125,000.00 in personal property and three homes, which are valued in the aggregate at $1,285,000.00.

Thereafter, five miscellaneous proceedings were filed with the court in connection with the estate administration and that of the trust. On 10 December 2008, some of the issues raised were resolved in a stipulation of partial settlement entered into by all the interested parties, viz: that A and B, as co-trustees of the supplemental needs trust, would enter into a contract for the purchase of property-two which C and CC agreed to use as their long-term primary residence; that C and CC, who were residing in decedent’s real property, property-one, would vacate that property and move to property-two; and that the fiduciaries are obliged to put property-one up for sale within 90 days after respondents move out. Pursuant to the agreement, the co-executors purchased property-two and made it available to respondents as of 16 March 2009.

Published on: December 15, 2012

Petitioners Request Withdrawl of Probate Petition and Move for Issuance of Letters of Administration

by Stephen Bilkis

The Facts of the Case:

On 26 October 2000, a decedent died with a Last Will and Testament dated 23 March 1995. Under the will, the decedent left her estate to her two sisters, A and B, or the survivor; named A as executor and B as successor. A predeceased the decedent without issue, thus, the entire estate passed to B.

Sometime in 2005, B petitioned for the appointment of a guardian of her property. The court, finding that B had a history of poor judgment with regard to her real and personal property management, appointed the petitioners, X, a niece, and Y, Esq., as guardians of B’s property. Consequently, in May of 2007, the judge authorized petitioners to petition to probate the 1995 will. By this time, the original could not be located and the petitioners petitioned to probate a copy of the 1995 will as a lost will. A New York Probate Lawyer said the affidavit of X stated that she located the copy among the decedent’s important papers after her death; that while the decedent must have had the original will, her house had been sold and the purchaser threw away all of her papers. The affirmation of Y also stated that after the decedent’s death, her home was taken over by a former handyman of B, who threw away all of the decedent’s papers. Allegedly, the instrument was prepared by an attorney, who supervised its execution and was a subscribing witness, and has filed an affirmation of due execution. However, the second subscribing witness cannot be located. Thus, the petitioners now move to withdraw their probate petition and ask that the Court issue letters of administration to them (for the purposes of estate administration in an estate litigation). They allege that they are unable to probate the instrument because of the unavailability of the second subscribing witness; and that the distributees have executed agreements waiving their intestate rights so as to mirror the testamentary plan set forth in the subject Last Will & Testament.

Published on: December 14, 2012

Petitioner Alleges Fraud in Will Contest Proceeding

by Stephen Bilkis

The Facts of the Case:

On 8 January 2006, the decedent died with a will dated 31 December 1993. On 26 April 2007, the decedent’s will was admitted for probate (will contest proceeding) by the court and a decree was thereafter issued, and letters testamentary also issued to the decedent’s wife as executor of the estate of her husband, the decedent (for estate administration as may be determined in estate litigation). At the time of the decedent’s death, he owns a surveying business. On 12 December 2007, an Asset Purchase Agreement was entered into between the decedent’s wife and “A” where “A” agreed to purchase the decedent’s business and all of the assets used in connection with the business. The purchase price was $375,000.00. On 14 December 2007, “A” executed a promissory note in the sum of $200,000.00. The note was guaranteed by a Land Surveyor company, “X”. The terms of the promissory note provide that “A” will pay the sum of $200,000.00, together with interest thereon at the rate of 5% per annum, in sixty consecutive monthly payments of principal and interest, each of which, except the last, was required to be in the sum of $3,774.25, the first payment to be made before 14 January 2008. Thereafter, on 14 December 2007, a bill of sale was executed by the decedent’s wife in favor of “A” where she was represented in the sale and in post-closing disputes concerning the sale by lawyer-two. However, no payment was ever made. Thus, on 25 January 2008, by written notice, the wife exercised her option to declare the unpaid principal balance of the promissory note to become immediately due, plus interest. The wife hired lawyer-one, and lawyer-two to act as co-counsel.

In opposition, respondent “A” alleges that the wife breached their agreement by failing to provide adequate documentation to allow him to collect on the accounts receivable; that the wife fraudulently misrepresented the value of the accounts receivable, either by intentionally keeping the necessary documentation from him or by misrepresenting that said documentation ever existed; that the wife fraudulently misrepresented that “A” would be receiving as part of the sale business assets such as cars, documents and files and other significant assets of the business; that, as a result, “A” has refused to make payment on the note. Moreover, “A” argues that lawyer-two should be disqualified from serving as the wife’s co-counsel on the grounds of the advocate-witness rule because he is a material and necessary witness; because he served as the wife’s attorney throughout the negotiation and sale of the business; that lawyer-two has intimate knowledge regarding the assets of the business and what was promised to “A” as part of the sale; that lawyer-two will be deposed and questioned as to the existence of the accounts receivable and his role in furnishing the necessary documents to allow “A” to collect on those accounts; that lawyer-two is a material and necessary witness because he was involved in negotiations, meetings and drafting of documents in connection with the sale. Furthermore, “A” also asks for leave of court to amend his answer to add two affirmative defenses, one alleging mutual mistake concerning the disputed invoices and the value of the accounts receivable and one alleging unilateral mistake by “A” caused by fraudulent conduct on the part of the wife, since the wife’s counsel has declined to stipulate to allow the amendment; that the amendment does not create any prejudice or cause any surprise to the wife; that these defenses arise out of the same set of facts previously set forth in the petition; and that the case is still in the early stages of discovery where no depositions have yet taken place, and the wife will still have the opportunity to seek discovery on these new defenses.

Published on: December 13, 2012

Petitioner Claims Undue Influence in Estate Litigation Case

by Stephen Bilkis

The Facts of the Case:

On 18 October 2007, a decedent died and is survived by his daughter-one and his granddaughters, A and B, the children of predeceased daughter-two, as his sole distributes. The decedent’s wife had predeceased him in September 2003. After the death of the decedent, the petitioner instituted an SCPA 2103 discovery proceeding. The petitioner is granddaughter B, who resides in Florida and to whom limited letters of administration (for estate administration purposes in an estate litigation) issued for the sole purpose of prosecuting the discovery proceeding and the respondent is daughter-one, who resides in Selden, Suffolk County. The property, subject of the proceeding, is a parcel of real property in Massapequa Park, Nassau County, and three bank accounts. Apparently, the real property was conveyed by the decedent to the respondent by deed dated 26 August 2004 and recorded 7 September 2004. The deed purported to convey all of the decedent’s right, title and interest in the property, except that it reserved a life estate in the decedent. At the time of decedent’s death, the bank accounts were held either jointly between decedent and respondent or solely by respondent.

In the SCPA 2103 proceeding, petitioner alleges that respondent was in a confidential relationship with the decedent and used that relationship to exert undue influence upon the decedent to convey the real property and change the title and/or beneficiary designations on the subject accounts. In opposition, respondent denies petitioner’s allegations and contends that all the transactions reflect the exercise of the decedent’s own free will. A New York Probate Lawyer said the respondent now moves for a summary judgment and for an order dismissing the petition and canceling a notice of pendency filed against the decedent’s former residence.