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Defendant Claims Plaintiff has No Legal Capacity to Sue


This case is being heard in the Special Term of the Supreme Court of the State of New York in Queens County. The defendant has moved to dismiss the complaint against them on the ground that the plaintiff has no legal capacity to sue and that the court lacks legal jurisdiction over the matter.

A New York Probate Lawyer said the action is for a declaratory judgment on a fire insurance policy that covers the home, its contents, a garage, and the loss of use and rental value. The defendant issued the policy in the name of the Estate as the insured. The plaintiff is a devisee of the property under the will of the decedent. The will is currently un-probated as it is being contested and has not yet been heard in the Surrogates Court of Queens County.

Case Background

The insurance policy in question contains a clause to limit any action commenced within a year of the date of the fire, which occurred on the 16th of August, 1962. The defendant did not disclaim liability under the policy until the 22nd of July, 1963.

The plaintiff and the defendants are the only children and heirs of the decedent.

The plaintiff is suing in her individual capacity, joined by her brother who is named as the executor in the will that has yet to go through probate, and her sister, who has filed objections to the will, as interested parties in order to comply with the twelve month limitation implied by the policy. The action was commenced within the one year limitation.

The plaintiff contends that the policy was intended to cover the risk of fire for the benefit of the interested persons of the estate of the decedent and the defendant knew that the will had not been probated and was aware of the plaintiffs status as an heir and the estate proceeding.

Court Discussion and Decision

During her examination the plaintiff fully disclosed her interest and the consent of all of the interested parties in the estate. The individual defendants, her sister and brother, have provided answers are looking for the same relief has the plaintiff.

The defendant brother has submitted an affidavit stating that he has received the preliminary letters testamentary for the estate of the decedent. Queens Probate Lawyers said as the preliminary executor of the estate it is his duty to protect all of the assets of the estate and this includes the property that was insured by the defendant.

When reviewing the facts that have been provided to the court the motion to add a proper plaintiff to the complaint is granted. The claim against the defendant is open to allow the plaintiffs their day in court. The motion for dismissal by the defendant is held in abeyance until further considerations can be made.

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