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THE TRANSFER OF REAL PROPERTY TO DECEDENT’S CHILDREN WAS A VALID EXERCISE OF THE POWER OF ATTORNEY; THE TRANSFER WAS COMPENSATION FOR CARE, NOT A GIFT; THE DISSENT ARGUED THERE WAS A QUESTION OF FACT WHETHER THE TRANSFER WAS A GIFT AND THE POWER OF ATTORNEY DID NOT AUTHORIZE GIFTS (CT APP). ​

The Court of Appeals, over a dissent, determined that the transfer of real property to decedent’s children as compensation for the care given decedent was allowed under the operative power of attorney. The power of attorney did not include the power to make gifts. The dissent argued there was a question of fact whether the property transfer was a gift. Matter of Maika, 2023 NY Slip Op 02092, CtApp 4-25-23

Practice Point: The question here was whether the transfer of decedent’s property to his children was compensation for care, which was authorized by the power of attorney, or, as argued by the dissent, a gift, which was not authorized by the power of attorney.

 

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A NONSCHEDULE AWARD AND A SCHEDULE AWARD ARE CALCULATED DIFFERENTLY; A NONSCHEDULE AWARD IS CALCULATED BASED UPON EARNING CAPACITY, WHICH OBVIOUSLY CEASES UPON DEATH; HERE, WHERE THE INJURED WORKER DIED FROM A CAUSE UNRELATED TO THE INJURY, THE BENEFICIARY IS THEREFORE NOT ENTITLED TO THE UNACCRUED PORTION OF THE NONSCHEDULE AWARD (CT APP).
PLAINTIFFS SOUGHT TO FORECLOSE ON LOANS TO THE BORROWERS WHO THEN STARTED BANKRUPTCY PROCEEDINGS; PLAINTIFFS THEN SUED DEFENDANTS, WHO ARE NOT PARTIES TO THE FORECLOSURE/BANKRUPTCY ACTIONS, FOR TORTIOUS INTERFERENCE WITH THE LOAN AGREEMENTS; THE TORTIOUS INTERFERENCE WITH CONTRACT ACTIONS ARE NOT PREEMPTED BY FEDERAL BANKRUPTCY LAW (CT APP).
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QUESTION OF FACT WHETHER LATE NOTICE DEFENSE WAIVED BY FAILURE TO RAISE THE DEFENSE IN DISCLAIMER LETTERS; MOTION TO ADD DEFENSE TO ANSWER PROPERLY GRANTED.
PROPERTY DEVELOPMENT BASED UPON AN INVALID PERMIT DOES NOT GIVE RISE TO A VESTED RIGHT IN THE DEVELOPED PROPERTY.

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