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Petitioner Moves for Summary Judgment


A New York Probate Lawyer said in an action transferred to the court from Supreme Court, Nassau County, one of several defendants, a Home Loan corporation, moves the court for an order dismissing the complaint against it. Plaintiffs opposed such motion and cross-move for summary judgment dismissing the answer, or, in the alternative, striking its fourth and seventh affirmative defenses.

A New York Will Lawyer said that this action emanates from a foreclosure proceeding involving property located at Hempstead, New York. That property was owned by decedent, who died intestate in July 1986. Her brother administered her estate as voluntary administrator pursuant to SCPA Article 13. It appears, although it is not entirely clear, that he was the sole distributee and that the subject property vested in him immediately upon his sister’s death.

Manhattan Probate Lawyers said the distribute brother then died testate in June 1994. Herein petitioner was appointed the voluntary administrator of the brother’s estate. The court’s file contains original will which devises and bequeaths all of his property to his cousin. The latter died in August 2000. There was no deed executed from the estate of the decedent sister to the brother, nor was there a deed from the estate of the brother to the petitioner. Although the brother’s original will was filed in the court by petitioner incident to the voluntary administration of the estate of the brother, the will was never offered for, or admitted to, probate. The plaintiffs are the non-marital children of the petitioner, the administrators of his estate, and claim to be his only distributees.

New York City Probate Lawyers said with regard to the plaintiffs’ cross-motion for summary judgment dismissing defendant’s answer, 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.

Here, plaintiffs have failed to establish that they are entitled to judgment, let alone judgment as a matter of law. Even assuming that either the plaintiffs, individually, or the estate of the petitioner were, at the time of the foreclosure action, the fee owners of the property, the issue is whether the notice given to the administrator of the estate was “reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”. Nassau County Administrative Code § 5-51.0 requires that notice be sent to, among others, “the occupant, owner in fee and the heirs, legal representatives and assigns of any of either of them appearing of record on the premises affected by such sale. The words `appearing on the record’ shall be construed to refer to any person on whom a notice is hereby required to be served, the nature and degree of whose interest appears from the records kept by the County Clerk, County Treasurer, Surrogate of the County and receiver of taxes for the town or city in which the property is located.”

The uncertainty regarding the plaintiffs’ claim to the property is further revealed in the affirmation of one of their attorneys, in his affirmation in support of the plaintiffs’ cross-motion for summary judgment. In paragraph 6 of his affirmation he avers that he was unable to come to a definite legal conclusion whether or not the ownership interests of petitioner in the Property had been properly extinguished in the foreclosure action. The court is similarly unable to reach a conclusion on the state of the record as it now stands. Since the plaintiffs have failed to establish their right to summary judgment dismissing the answer as a matter of law, the court need not consider the sufficiency of the opposing papers. Accordingly, the cross-motion to dismiss the answer is denied.

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