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Plaintiff Seeks to Set Aside Property Transfer


This case is being heard in the Second Department, Appellate Division of the Supreme Court of the State of New York. The appellant in the case is John Oggioni. The respondents in the case are Ellen Oggioni, et al. The plaintiff is appealing an order to set aside a deed on the ground of fraud. The original order was made by the Suffolk County Supreme Court and was dated the 9th of January, 2006. The order granted a cross motion made by the defendant that dismissed the complaint as time barred and denied the plaintiff’s motion for a joining trial of this action with another proceeding of an entitled probate proceeding of the will of Frank Oggioni pending the decision made in the Surrogate Court of Suffolk County.

Case Background

At some time in 1995, the plaintiff and his father, Frank Oggioni, became estranged. On the 30th of December, 1996, the father executed a will that left his property, both real and personal and mixed to his daughters, the defendants Ellen and Florence Oggioni in equal shares. There was not testamentary disposition made to the plaintiff.

When the father was in the hospital on the 8th of May of 1997, he was diagnosed with senile dementia and found to be mentally incompetent as to making his own medical decisions. On the same day the father executed a deed that transferred his home in Kings Park, New York to Ellen Oggioni. He also issued a durable power of attorney to the defendants on this day. The father passed away on the 20th of September, 1998.

According to a New York Probate Lawyer, on the 11th of September, 2000, the plaintiff petitioned the Surrogate’s Court for appointment as the administrator of his father’s estate. In the petition the plaintiff listed the subject property as an asset of the estate. In December of 2000, the defendants offered their fathers will for probate in the Surrogates Court. The defendants requested letters testamentary at this time as well. In the petition provided to the Surrogates Court for probate the defendants indicated that there was no real property of the estate.

Case Discussion and Decision

Queens Probate Lawyers said that during this appeal the plaintiff withdrew his objections to the probate of his father’s will. This action means that the rest of the motion made by the plaintiff should be denied as being academic.

For these reasons, it is now ordered that the appeal from the January 9th, 2006 order is denied as academic. Long Island Probate Lawyers said the motion for a joint trial of this action along with the probate proceeding of the will of Frank Oggioni is dismissed as academic as well. It is further ordered that the appeal from the other order made in March of 2006 is dismissed without costs or disbursements so there is no appeal for an order of re- argument.

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