Queens

Published on: March 5, 2017

Court Discusses Power of Attorney as it Relates to Estate

by Stephen Bilkis

This is an appeal brought before the Supreme Court, Appellate Division, Second Department, Kings County.

The issue here 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 LCC, 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.

The court concluded 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.

Published on: September 27, 2016

Matter of Hickey

by Stephen Bilkis

NY Slip OP 05895-August 25, 2016

The decedent died on July 14, 2016, without a plan for what would happen to his law office in the event of his passing. The local bar association, Tompkins County Bar Association(TCBA) moved for an Order to appoint a lawyer as a custodian of the files in decedent’s office in order to protect the decedent’s clients. TCBA also moves (Rules of Professional Conduct 22 NYCRR 1200.0) Rule 1.15 (g) for a lawyer to be appointed as a successor signatory for the decedent’s clients. The Lawyers Fund for Client Protection and The Committee on Professional Standards did not oppose.

The Court granted the motion and the TCBA was appointed as the custodian of the law firm (Matter of Van Zandt 53 AD 3d 982[2008]). The issue of a successor signatory for the decedent’s law firm was denied with the appropriate application made to the Supreme Court (Rules of Professional Conduct [22 NYCRR 1200] Rule 1.5 [g][2].

Published on: April 27, 2016

Plaintiff Moves for a Summary Judgment in Lieu of Complaint for Payment

by Stephen Bilkis

Plaintiff moves pursuant to CPLR § 3213 for an Order granting summary judgment in lieu of complaint for payment allegedly owed on a promissory note. “Defendants” or “the Estate”, as executors of the Estate of the decedent cross-move for summary judgment dismissing this proceeding pursuant to § 1810 of the Surrogate’s Court Procedure Act.

This case arises from a loan transaction between plaintiff and the decedent a real estate developer. Prior to his death, he was a 55% owner in Flatbush Extension, LLC (“Flatbush Extension”), which owned properties located at 67, 75, and 85 Flatbush Avenue in Brooklyn. On or about March 27, 2007, U.S. Bank and Flatbush Extension entered into a secured loan agreement (the “Loan Agreement”) pursuant to which the parties agreed that Flatbush Extension could borrow up to $50,000,000 in connection with the development of a luxury condominium project (“Flatbush Extension Project”).

Published on: April 18, 2016

Legatee Petitions Court to Compel Payment of Legacy

by Stephen Bilkis

In a probate proceeding in which legatee petitioned pursuant to SCPA to compel the payment of a legacy, nonparty appeals, by permission, from so much of an order of the Surrogate’s Court, Kings County, dated December 4, 2008, as, sua sponte, disqualified his law firm, and all members and associates of that firm, from appearing as the petitioner’s attorney.

The appellant was employed for many years as chief court attorney of the law department of the Surrogate’s Court, Kings County (hereinafter the Law Department). In February 2008, shortly after retiring from government service, he joined the Rubenstein firm, a small law firm specializing in estate practice. Prior to his association, the Rubenstein firm was composed of only two other attorneys. In late November or early December 2006, before appellant left his employment as chief court attorney, the firm was retained to represent the petitioner in this Surrogate’s Court proceeding.

Published on: November 22, 2015

Court Discusses Concept of Possession

by Stephen Bilkis

When indicted for multiple counts of handgun possession and a single count of possession of weapons with intent to sell, the defendant, waived a jury and the case was tried by the court. Decision was reserved pending submission of briefs. This is the decision and its reasoning. The case could have been tried on an agreed statement of facts; the only issue for the court to decide and upon which my decision turns is the defendant’s state of mind during the time he purchased and stored the handguns.

On April 15, 1985, pursuant to a search warrant, officers of the New York City Police Department searched the defendant’s room in a YMCA and recovered 14 handguns and a quantity of ammunition. The defendant had been employed as a cab driver and hoped to open a sporting goods store; the weapons had been purchased as stock for the yet to be opened store. The police learned of his cache through his procurement of the necessary federal licenses to make the initial wholesale purchases.

On March 25, 1985, a federal inspector visited his room at the “Y” to conduct an administrative inspection of the premises listed on the defendant’s federal firearm’s license; two citations resulted. Defendant contested the citations in the form of a “Notice of disagreement” wherein he argued that since he was not presently conducting a retail business in his YMCA room, he was not in violation of the particular regulations; he served the notice upon both the federal agency and the Police License Bureau. The visit of April 15 was the official response.

Published on: November 21, 2015

Defendant Files Objections to Probate Accounting

by Stephen Bilkis

The decedent died in May 2004, leaving a will which was admitted to probate. The decedent was survived by his four children. The will makes pre-residuary cash bequests of $45,000.00 to each of the children. The will further provides that the decedent’s residuary estate be divided equally among his four children. Letters testamentary issued to petitioner in July 2004.

The Petitioner originally filed a First and Final Accounting of his proceedings covering the period May 2004 through January 2008. Thereafter, he filed a First Interim Account of the Estate of the decedent. This document covers the period from May 2004 to January 2008, the same period covered by the First and Final Accounting. The Interim Account was verified by Petitioner in February 2009, nearly one year after the First and Final Account.

The brother filed objections to the accounting. The parties stipulated at trial that the estate had the burden of proof on the issue of whether the decedent made a loan to the brother. In addition, the parties acknowledged that petitioner took an advance payment of commissions in the amount of $10,0000.00, without prior court order and repaid the sum of $10,000.00 to the estate.

Published on: November 19, 2015

Plaintiff Appeals Decision Denying Request for Constructive Trust

by Stephen Bilkis

In this action for a declaratory judgment, plaintiffs appeal from a judgment where, following a trial on stipulated facts, the court dismissed the complaint. Plaintiffs are the only children of the husband and wife, both now deceased. The wife died first and the husband thereafter. Defendant is the second wife and the other defendant is the executor of the last will and testament of said husband.

Upon the death of the husband, plaintiffs commenced the within action seeking a declaration of their rights with respect to the husband’s estate. The complaint consisted of four causes of action, as follows: (1) To impress a constructive trust upon certain real property located at 141 Forest Green, Staten Island; (2) To void the right of election filed by defendant second wife under section 5-1.1 of the Estates, Powers and Trusts Law as surviving widow of the husband; (3) To impress a constructive trust upon the proceeds of a pension plan of the deceased husband had with the City of New York, which were paid to Anne as designated beneficiary at the husband’s death.; (4) To impress a constructive trust upon funds which prior to the death of the first wife had been in savings and/or checking accounts in the joint or individual names of the husband and wife, and upon other personal property which had been in the joint and/or individual names of the husband and wife prior to the wife’s death, which the husband thereafter transferred to himself and the second wife as joint tenants.

On October 17, 1967 the husband and wife had executed a joint will which provides, in pertinent part, as follows: We, in consideration of the agreement of each of us to dispose of our property as hereinafter set forth, do hereby make, publish and declare this to be our joint Last Will and Testament. First: We give to the survivor of us all our property, both real and personal. Second: After the death of the survivor of either of us, all our property, both real and personal, we give devise and bequeath unto our children (plaintiffs herein). The wife died on September 27, 1971 and the joint will, insofar as her estate was concerned, was admitted to probate in Kings County. At the time of her death, the husband and wife owned as tenants by the entirety, two parcels of real estate, one at 3722 Clarendon Road and the other at Avenue D, in Kings County, and had a bank account in their joint names in a Brooklyn bank.

Published on: November 18, 2015

Court Listens to Hold Over Landlord Tenant Proceeding

by Stephen Bilkis

This is a holdover Landlord-Tenant summary proceeding. The tenant has moved to dismiss the petition pursuant to RPAPL 721 and 741 asserting that the petitioner, as a preliminary executrix, lacks the power to prosecute a holdover proceeding on behalf of the decedent’s estate.

This case was originally returnable on September 13, 2012. Attorneys for both sides appeared. Tenant’s attorney asked that the case be dismissed and, upon the Court’s reluctance to do so without a record, requested a motion schedule. The Court set the schedule to require that the motion be filed by September 20 with answering papers due September 23 and set October 4 as a control date. Despite this schedule, tenant made no request for any extension of time and made no motion until filing papers on September 28.

The issue in this case is whether petitioner’s motion to dismiss the holdover Landlord-Tenant petition pursuant to RPAPL 721 and 741 on the ground that the petitioner, as a preliminary executrix, lacks the power to prosecute a holdover proceeding on behalf of the decedent’s estate.

Published on: September 1, 2014

Court Determines Fees for Guardian ad Litem can be Paid with Trust Assets

by Stephen Bilkis

A New York Probate Lawyer said this is a proceeding submitted for decision wherein the issue is the source of payment for fees awarded to a guardian ad litem. In this probate proceeding, the will “pours over” into an inter vivos trust. The court is tasked to decide whether trust assets can be used to pay all or part of the fee under SCPA 405(1).

The court finds that the fee may be paid from trust assets.

Queens Probate Attorneys said that on 24 January 2006, F died a resident of Nassau County. On 24 October 2003, he had created the “F Revocable Trust U/A dated 24 October 2003.” At that time, F also executed his will, the instrument that is offered for probate. Both instruments were drafted by the decedent’s long-time attorney who also supervised the execution of both documents. As is customary with estate plans of this sort, the bulk of the decedent’s assets were transferred to the trust while he was alive. As a result, the will was designed to be a “catch all” so that any stray assets left in the decedent’s estate would be captured and distributed in accord with the terms of the trust. The probate petition reflects a probate estate of less than $10,000.00 while the trust holds assets close to $1,000,000.00.

Published on: June 18, 2014

Petitioner Contends Undue Influence

by Stephen Bilkis

A New York Probate Lawyer said in this Will Contest proceeding, the decedent died in May 2006, survived by his wife and their two children, the proponent and the objectant. The wife suffers from Alzheimer’s disease. Her cousin and an attorney, were appointed her guardians pursuant to Article 81 of the Mental Hygiene Law and they have appeared for her in this proceeding. They filed a notice of election on her behalf.

Queens Probate Lawyers said that the proponent filed the petition for probate in June 2006 and jurisdiction was obtained over all necessary parties in August 2006. The propounded will leaves nothing to objectant, allegedly because the decedent believed that she had converted assets worth $3 million from him and from the wife by use of a power of attorney they had given her. In fact, he pressed criminal charges against her which resulted in her plea of guilty to a Class A misdemeanor. The objectant filed objections to probate; however, she never appeared for her deposition in this proceeding, nor did she ever produce any documents demanded by petitioner. Her initial reason for seeking to delay her deposition was that doing so would violate her Fifth Amendment right against self-incrimination. However, she never appeared for deposition even after the conclusion of the criminal matter when she no longer had a claim of constitutional privilege. She then averred that she was suffering from a psychological condition which prevented her from being deposed. Being unconvinced of that contention, the court, by decision and order, granted the summary judgment motion to the extent that objectant’s objections of fraud and undue influence, upon which the objectant bears the burden of proof, were dismissed.

A New York Will lawyer said regarding petitioner’s motion for summary judgment, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Summary judgment in contested probate proceedings is appropriate where a contestant fails to raise any issues of fact regarding execution of the Will, testamentary capacity, undue influence or fraud.