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Petitioner Requests an Accounting Regarding Real Estate Holdings


A New York Probate Lawyer said this action for an accounting was commenced on August 14, 2009. In the first cause of action, the complainant seeks an accounting with respect to the affairs of a chain of stores. In the second cause of action, the complainant seeks an accounting with respect to the affairs of the real estate company. In the third cause of action, the complainant seeks a declaratory judgment that the mediation settlement agreement does not cover her claims for an accounting.

A New York Will Lawyer said the defendant woman moves to dismiss the complaint for lack of personal jurisdiction. She argues that the estate has no contacts with New York. Civil Practice Law Rules (CPLR) provides that a court may exercise personal jurisdiction over any non-domiciliary, or his executor or estate administrator, who in person or through an agent, transacts any business within the state as to a cause of action arising from the transaction of business. Prior to his demise, the decedent was involved in the management of all six of the partnerships. The complainants’ causes of action for an accounting relate to the properties located in Queens. Thus, the complainants’ causes of action for an accounting arise from activity carried on by the decedent in New York State. Moreover, the decedent had additional contact with New York by virtue of having received letters testamentary from the Nassau Surrogate’s Court. Since the decedent transacted business in New York, the court may exercise personal jurisdiction over his executrix with respect to a cause of action arising from the transaction. The defendant woman’s motion to dismiss for lack of personal jurisdiction is denied.

Brooklyn Probate Lawyers said the defendant woman argues that any claim asserted by the complainant pursuant to the receipt, release, and refunding agreement is barred by the one year time limit applicable to claims against the decedent’s estates in Massachusetts probate proceedings.

Long Island Probate Lawyers said the court notes that Surrogate’s Court Procedure Act (SCPA), the corresponding provision in New York probate proceedings, is not a statute of limitations. The defendant has not established that the Massachusetts provision is a statute of limitations. CPLR provides that an action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply. The complainant is a New York resident. Moreover, the cause of action for an accounting with respect to New York real property accrued in New York. The defendant woman’s motion to dismiss the complaint based upon the Massachusetts statute of limitations is denied.

The complainant moves pursuant to CPLR for a default judgment against the defendant woman with respect to the third cause of action for a declaratory judgment based upon her failure to appear or plead. The granting of a default judgment pursuant to CPLR is subject to the court’s discretion. Because the defendant woman moved to dismiss the complaint for lack of personal jurisdiction, she did not default in appearing in the action. The complainant’s motion for a default judgment against the defendant woman is denied. The defendant woman shall serve her answer within 15 days of service of a copy of the order. The defendant woman’s motion to be relieved of her default in appearing is denied as academic.

The defendants chain stores and realty company move to dismiss the complaint pursuant to CPLR on the ground of another action pending, the Massachusetts federal court case. The federal court granted a motion by the complainants in the federal action for enforcement of the mediation settlement agreement. A motion by another woman to vacate the federal court order granting enforcement of the settlement agreement is pending.

CPLR provides that a party may move for judgment dismissing a cause of action asserted against him on the ground that there is another action pending between the same parties for the same cause of action in a court of any state or the United States. The court need not dismiss upon this ground but may make such order as justice requires. A court has broad discretion as to the disposition of an action when another action is pending. The court may dismiss an action pursuant to this section where there is substantial identity of parties for the same cause of action. The two actions must be sufficiently similar, and the relief sought must be the same or substantially the same.

The issue of the enforceability of the mediation settlement agreement is before the Massachusetts federal court. However, the mediation settlement does not cover the complainants’ claims for an accounting which are before the court. Stipulations of settlement are to be construed like any other contracts, in accordance with the parties’ intent which is generally discerned from the four corners of the document itself. The court notes that the Massachusetts federal action brought by the chain of stores and the realty company is based upon financial irregularities which occurred while the decedent was the managing partner of those partnerships. The woman was not a defendant in that action and was brought into the other federal action only as a third party defendant. Despite the broad language in the settlement referring to any and all claims, the court construes the settlement as referring to the partnerships’ claims against the decedent’s estate, and the decedent’s estate’s claims against the partnerships, rather than the complainants’ claims against the chain of stores and the realty company for an accounting. Indeed, the mutual release terminating the federal action specifically excludes the proceeding in the Surrogate’s Court to determine the complainants’ rights under the agreement. Moreover, the federal court settlement agreement provides that the woman and a Trust will be paid their distributions which were sequestered by the partnerships. Because the claims in the Massachusetts federal action and the present case are not sufficiently similar, defendants’ motion to dismiss the complaint for another action pending is denied. The defendants’ motion for a stay is similarly denied.

The defendants move to disqualify the complainants’ counsel on the ground that the decedent, during his lifetime, hired the said counsel to provide legal services with respect to the partnerships. Rule of the partnership provides that a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. The defendants also assert that the decedent’s counsel will divulge confidential information if allowed to represent the complainant.

The counsel denies having previously represented the partnerships and denies having acquired any information protected by the attorney-client privilege in his representation of the decedent with regard to the partnerships. Under the predecessor disciplinary rule, a party seeking disqualification of its adversary’s lawyer was required to prove that there was an attorney-client relationship between the moving party and opposing counsel, the matters involved in both representations are substantially related, and the interests of the present client and former client are materially adverse. Although the counsel previously represented the decedent, the moving defendants have failed to establish an attorney client relationship with the said counsel. The defendants’ motion to disqualify the decedent’s counsel as the complainants’ counsel is denied.

Probate proceedings oftentimes become messy and could lead to break up of relationships. If you want to win your probate dispute, hire the Nassau County Probate Lawyers together with the Nassau County Estate Administration Attorney from Stephen Bilkis and Associates. You can also approach the Nassau County Will Contest Lawyers if you need one.

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