Articles Posted in Probate & Estate Litigation

The Facts of the Case:

On 2 October 2005, a resident of Sands Point died with a will dated 6 June 1996. He is survived by his wife, his children, A, B and C, and his granddaughter, X, the infant daughter of a predeceased son, D. On 21 September 2006, the will was submitted for probate (will contest proceeding) and letters testamentary issued to the decedent’s wife, the decedent’s daughter, A, and the decedent’s brother. On 23 April 2008, A and the decedent’s brother filed their account, which was subsequently amended and supplemented. Thereafter, a guardian ad litem was appointed by the court to represent the interests of X. The administration and the account reflect ongoing discord between the wife and the decedent’s other fiduciaries, A and the brother, dominated by conflict over the computation of the wife’s elective share. Ultimately, the parties executed a stipulation, receipt, release and refunding agreement which resolves all of the disputed issues other than the legal fee paid from estate assets to an attorney, who provided legal services to A and the brother at the onset of the administration but whom they later replaced. The stipulation provides that for purposes of calculating the wife’s elective share, the gross estate is valued at $2,115,942.00; that the expenses paid to date, plus the amount reimbursable to the wife for administration expenses which she incurred, total $438,817.00. The parties agreed that the fees of their current attorneys and that of the guardian ad litem be fixed by the court.

The Issues of the Case:

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.

Long Island Probate 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.

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