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SUMMARY JUDGMENT PROPERLY GRANTED IN ACTIONS AGAINST EXECUTOR FOR BREACH OF FIDUCIARY DUTY AND NEGLIGENCE.

The Second Department determined summary judgment was properly granted in the objectants’ actions against the executor (Mahler) for breach of fiduciary duty and negligence.  The executor sold the estate asset (real property) to an acquaintance for half of its value. The acquaintance sold the property for nearly double the purchase price:

A fiduciary acting on behalf of an estate is required to employ such diligence and prudence to the care and management of the estate assets and affairs as would prudent persons of discretion and intelligence in their own like affairs … . “[A] fiduciary owes a duty of undivided and undiluted loyalty to those whose interests the fiduciary is to protect” … . In performing his fiduciary duty as the executor of the decedent’s estate, Mahler was required to use good business judgment … . To the extent that the sale of the property does not meet this standard, the beneficiaries of the estate may seek to surcharge him … . “To obtain such a surcharge, it is not enough for the contestants to show that the representatives of the estate did not get the highest price obtainable; it must be shown that they acted negligently, and with an absence of diligence and prudence which an ordinary [person] would exercise in his [or her] own affairs” … . Matter of Billmyer, 2016 NY Slip Op 05994, 2nd Dept 9-14-16

TRUSTS AND ESTATES (SUMMARY JUDGMENT PROPERLY GRANTED IN ACTIONS AGAINST EXECUTOR FOR BREACH OF FIDUCIARY DUTY AND NEGLIGENCE)/FIDUCIARY DUTY, BREACH OF (SUMMARY JUDGMENT PROPERLY GRANTED IN ACTIONS AGAINST EXECUTOR FOR BREACH OF FIDUCIARY DUTY AND NEGLIGENCE)/EXECUTORS (SUMMARY JUDGMENT PROPERLY GRANTED IN ACTIONS AGAINST EXECUTOR FOR BREACH OF FIDUCIARY DUTY AND NEGLIGENCE)

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​ DEFENDANT DID NOT DEMONSTRATE IT DID NOT CREATE THE DANGEROUS CONDITION OR DID NOT HAVE CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF’S DECEDENT WAS FOUND AT THE BOTTOM OF STAIRS; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED BECAUSE THE CAUSE OF THE FALL WAS UNKNOWN; IN ADDITION, THE NOSEWORTHY DOCTRINE DID NOT APPLY (SECOND DEPT).
HOMEOWNER’S EXEMPTION TO LABOR LAW 241(6) APPLIED, NO EVIDENCE HOMEOWNERS SUPERVISED PLAINTIFF’S WORK, HOMEOWNERS’ MOTION FOR SUMMARY JUDGMENT PROPERLY GRANTED (SECOND DEPT).
DEFENDANT MADE TWO UNEQUIVOCAL REQUESTS FOR COUNSEL, HIS STATEMENT AND A BUCCAL SWAB SHOULD HAVE BEEN SUPPRESSED, ERROR NEED NOT BE PRESERVED FOR APPEAL, ERROR HARMLESS HOWEVER (SECOND DEPT).
DEFENDANT PROPERTY OWNER DEMONSTRATED THERE HAD BEEN NO CRIMINAL ACTIVITY ON THE PROPERTY IN THE PAST AND PLAINTIFF FAILED TO RAISE A QUESTION OF FACT WHETHER THE FAILURE TO SECURE THE ALLEYWAY WAS A PROXIMATE CAUSE OF THE THIRD-PARTY ASSAULT; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF FELL FROM A SCAFFOLD THAT DID NOT HAVE SAFETY RAILINGS, SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION PROPERLY GRANTED (SECOND DEPT),
PLAINTIFF DEEMED TO HAVE READ AND UNDERSTOOD THE SETTLEMENT DOCUMENT BEFORE SIGNING, LEGAL MALPRACTICE COMPLAINT AGAINST HER ATTORNEYS PROPERLY DISMISSED.

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