You are here: / EVEN THOUGH THE PROCEEDS OF A TRUST HAD BEEN DISTRIBUTED TO DECEDENT BEFORE...

Search Results

/

EVEN THOUGH THE PROCEEDS OF A TRUST HAD BEEN DISTRIBUTED TO DECEDENT BEFORE HIS DEATH, THERE WAS A QUESTION OF FACT WHETHER DECEDENT RETAINED THE PROCEEDS AT THE TIME OF DEATH; IF SO, PURSUANT TO THE WILL, THE BEQUEST DID NOT LAPSE AND THE PROCEEDS WOULD BE DISTRIBUTED TO THE NAMED BENEFICIARIES (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined there was a question of fact whether the decedent possessed the proceeds of a trust at the time of his death. If so, pursuant to the will, those proceeds would pass to the named beneficiaries:

“A specific disposition is a disposition of a specified or identified item of the testator’s property” (EPTL 1-2.17). “[U]nless the subject of a specific legacy exists, unchanged in substance, at the date of the will, there results an ademption, complete or partial according to the facts” … . A specific bequest fails if the article specifically bequeathed has been given away, lost or destroyed during the testator’s lifetime … . “A conveyance, settlement or other act of a testator by which an estate in his property, previously disposed of by will, is altered but not wholly divested does not revoke such disposition, but the estate in the property that remains in the testator passes to the beneficiaries pursuant to the disposition. However, any such conveyance, settlement or other act of the testator which is wholly inconsistent with such previous testamentary disposition revokes it” (EPTL 3-4.3).

Here, the subject bequest to the objectants, namely, the net proceeds received by the decedent under the trust, was a specific disposition … , subject to whole or partial ademption … . However, questions of fact exist, inter alia, as to whether at the time of his death the decedent retained the property distributed to him upon the termination of the trust, such that it passes to the objectants pursuant to Paragraph THIRD of the will. Matter of Johnson, 2022 NY Slip Op 00425, Second Dept 1-26-22

 

/ , , ,

PETITIONER FAILED TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES AFTER THE APPLICATION FOR A BUILIDING PERMIT WAS DENIED BY APPEALING TO THE ZONING BOARD OF APPEALS; THE FAILURE WAS NOT EXCUSED ON THE GROUND THAT A CONSTITUTIONAL ISSUE WAS AT STAKE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner did not exhaust the available administrative remedies before bringing an Article 78 proceeding. Petitioner’s application for a building permit, apparently for a gas station, was denied by the village building inspector. Supreme Court, pursuant to the Article 78, granted the petition. The Second Department held that petitioner’s failure to appeal the building inspector’s ruling to the zoning board of appeals rendered the petition abandoned. Petitioner’s argument that the failure to exhaust administrative remedies should be excused because a constitutional issue was at stake was rejected:

“The exhaustion rule … is not an inflexible one. It is subject to important qualifications. It need not be followed, for example, when an agency’s action is challenged as either unconstitutional or wholly beyond its grant of power, or when resort to an administrative remedy would be futile or when its pursuit would cause irreparable injury” … . …

 “‘A constitutional claim that hinges upon factual issues reviewable at the administrative level must first be addressed to the agency so that a necessary factual record can be established'” … . “Further, the mere assertion that a constitutional right is involved will not excuse the failure to pursue established administrative remedies that can provide the required relief” … . Matter of 5055 N. Blvd., LLC v Incorporated Vil. of Old Brookville, 2022 NY Slip Op 00424, Second Dept 1-26-22

 

/ ,

THE NOTICE OF CLAIM ACT DOES NOT APPLY TO THE PORT AUTHORITY, WHICH IS A BISTATE ENTITY (NEW YORK AND NEW JERSEY) CREATED BY COMPACT (FIRST DEPT).

The Frist Department, reversing Supreme Court, determined the action against the Port Authority was time-barred pursuant to New York and New Jersey law, noting that the Notice of Claim Act does not apply:

… [N]either CPLR 217-a nor New York Unconsolidated Laws § 6412-a — both of which were enacted as part of the Uniform Notice of Claim Act … — extends the time in which an action may be commenced against the Port Authority. CPLR 217-a does not apply to the Port Authority because it is not a “political subdivision of the state, . . . instrumentality or agency of the state or a political subdivision, . . . public authority[,] or . . . public benefit corporation entitled to receive a notice of claim as a condition precedent to commencement of an action” within the meaning of the statute; rather, it is a bistate agency … . What is more, New Jersey has not enacted identical legislation … . and bistate entities created by compact are not subject to the unilateral control of any one state … . McKenzie v Port Auth. of N.Y. & N.J., 2022 NY Slip Op 00378, First Dept 1-25-22

 

/ , ,

AN APPELLATE COURT CANNOT DETERMINE A SUPPRESSION MOTION BASED ON TRIAL EVIDENCE; THE TRIAL EVIDENCE REVEALED THE SEARCH OF DEFENDANT’S APARTMENT MAY HAVE BEEN UNLAWFUL; BASED UPON THE LIMITED INFORMATION AVAILABLE TO DEFENDANT WHEN THE SUPPRESSION MOTION WAS MADE, THE ALLEGATION THE POLICE DID NOT HAVE PERMISSION TO ENTER WAS ENOUGH TO WARRANT A PROBABLE CAUSE HEARING; MATTER REMITTED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Pitt, reversing Supreme Court’s denial of a probable cause hearing, determined the evidence revealed for the first time at trial called into serious question whether the search of defendant’s apartment was unlawful. Prior to trial the information provided to defendant gave the impression the apartment was entered and searched pursuant to a warrant. At trial the police testified they entered the apartment two hours before the search warrant was issued. The defendant was convicted of drug possession. The suppression motion stated the police entered the apartment without defendant’s permission. Given the limited and misleading information available to the defendant at the time the suppression motion was made, the allegations in the motion were sufficient to warrant a probable cause hearing. The appeal was held in abeyance and the matter was sent back for the hearing:

… [T]he Appellate Division “may not make its own finding of an independent source based upon trial testimony” … . Thus, we cannot hold that the denial of the Mapp/Dunaway hearing was proper, and the claim unpreserved, due to legal arguments pertaining to the lawfulness of the search and based on evidence adduced at trial, well after the lower court ruled on the motion to suppress.

… [H]ere, the trial testimony is being used solely to determine the context of defendant’s motion, the extent of her lack of access to information …, and the extent of information withheld from the motion court prior to making its decision to summarily deny defendant’s motion. … [W]e find that defendant’s motion should not have been summarily denied pursuant to CPL 710.60, and a hearing should have been conducted to make the necessary findings of fact. People v Esperanza, 2022 NY Slip Op 00383, First Dept 1-25-22

 

/ ,

PETITIONERS DID NOT TAKE STEPS TO PRESERVE THE STATUS QUO AS THEY SOUGHT TO VACATE A CONSTRUCTION CONTRACT; THE CONSTRUCTION PROGRESSED TO THE POINT WHERE THE COURT MUST DISMISS THE APPEAL AS MOOT (THIRD DEPT).

The Third Department determined the petitioners’ appeal of the denial of a declaratory judgment seeking to vacate the award of a construction contract by the Office of State Comptroller (OSC) must be dismissed as moot. The petitioners did not seek to maintain the status quo by injunction and the work had progressed too far:

… [T]he doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy” … . Where a change in circumstances involves the substantial completion of construction, “courts must consider several factors, including whether the challengers sought preliminary injunctive relief or otherwise attempted to preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation”… . Although injunctive relief is theoretically available, as a project can be dismantled, courts consider how far the work has progressed toward completion in determining mootness … . Matter of Bothar Constr., LLC v Dominguez, 2022 NY Slip Op 00346, Third Dept 1-20-22

 

/ , ,

SUNY ALBANY NOT PROTECTED BY GOVERNMENT IMMUNITY IN THIS CASE BROUGHT BY A STUDENT WHO ALLEGED SHE WAS ASSAULTED IN HER DORM ROOM BY A PERSON NOT AUTHORIZED TO BE IN THE DORM; THERE WERE QUESTIONS OF FACT ABOUT THE ADEQUACY OF SECURITY AND THE FORESEEABILITY OF THE ASSAULT (THIRD DEPT). ​

The Third Department determined defendant SUNY Albany’s motion for summary judgment in this inadequate-security case was properly denied. Claimant was assaulted in her dorm room by a person who was not authorized to be in the dormitory. The Court of Claims held the school was not protected by government immunity because building security was a proprietary function (akin to a landlord’s duty), as opposed to a governmental function, and therefore government immunity did not apply. There was evidence the lock on the dormitory door was not adequate and the sexual assault by an intruder was foreseeable:

As the Court of Appeals has recognized, “[a] governmental entity’s conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions” and “any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the [governmental entity’s] alleged negligent action falls into, either a proprietary or governmental capacity” (Miller v State of New York, 62 NY2d 506, 511-512 [1984]). In Miller, a student at a state university was raped by an intruder in the laundry room in her dormitory. The Court of Appeals permitted the claim of negligence — stemming from the defendant’s failure to lock the entrance doors to the dormitory — to go forward in the defendant’s proprietary capacity as a landlord. As in Miller, claimant’s allegations that defendants failed to, among other things, install proper security devices, including locks, clearly implicate defendants’ proprietary function as a landlord, and the Court of Claims therefore correctly rejected defendants’ claim of governmental immunity. …

“Landlords have a common-law duty to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person” … . Criminal conduct is foreseeable if it is “reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location” … . P.R.B. v State of New York, 2022 NY Slip Op 00348, Third Dept 1-20-22

 

/ ,

GIVEN THE INITIAL LACK OF DISCLOSURE BY THE PEOPLE AND DEFENDANT’S RESPONSES ONCE THE PEOPLE DISCLOSED THE TRANSMISSION WHICH LED TO HIS ARREST, DEFENDANT ALLEGED SUFFICIENT FACTS TO WARRANT A MAPP/DUNAWAY HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant had alleged sufficient facts to warrant a hearing on whether the police had probable cause to arrest him:

… [D]efendant’s motion challenged the constitutional adequacy of “any transmitted description on which the seizing officers relied in detaining and arresting the defendant.”

Defendant’s access to information was limited, because … the People … did not disclose “by either voluntary discovery or otherwise, . . . the description radioed by the purchasing officer to the arresting officer” … . Indeed, … the People did not even specifically aver that such a communication occurred. … [T]he absence of factual allegations regarding the content of a transmission from the undercover to the arresting officer did not render defendant’s motion deficient. …

[D]efendant made allegations of facts within his knowledge that … were pertinent to defendant’s argument that probable cause to arrest him was lacking. … [D]efendant described his own appearance at the time of arrest to the extent of stating that he was a 44-year-old black man, and that there was nothing “particularly distinctive about his appearance” that would tend to “preclude the possibility of misidentification.” This description allowed for a comparison between defendant’s self-description and the transmitted description, once that description was disclosed. People v Fleming, 2022 NY Slip Op 00360, First Dept 1-20-22

 

/

THE PLAINTIFFS’ REQUEST TO PROCEED ANONYMOUSLY IN THIS CHILD VICTIMS ACT CASE WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE OF ANY HARM WHICH WOULD RESULT FROM USING PLAINTIFFS’ LEGAL NAMES IN THE CAPTION (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the plaintiffs in this Child Victims Act action should not have been allowed to proceed anonymously. The request was not supported by sufficient evidence of harm which would result from using plaintiff’s legal names in the caption:

Several New York courts “have addressed the legislature’s intent in enacting the CVA [Child Victims Act] with respect to the use of pseudonyms and concluded that the legislature ‘left it up to each alleged victim to determine whether to seek anonymity’ . . . [and] ‘left it to the courts to assess each individual case'” … . This Court has held that permission to use a pseudonym will not be granted automatically and has noted that the motion court “should exercise its discretion to limit the public nature of judicial proceedings sparingly and then, only when unusual circumstances necessitate it” … . In determining whether to grant a plaintiff’s request to proceed anonymously, the motion court must “‘use its discretion in balancing plaintiff’s privacy interest against the presumption in favor of open trials and against any potential prejudice to defendant'”… . A plaintiff seeking permission to proceed anonymously by employing a pseudonym must provide facts specific to the plaintiff that will allow the motion court to exercise its discretion in an informed manner … .

Here, plaintiffs’ motion to allow 33 unnamed plaintiffs to proceed anonymously should have been denied because plaintiffs failed to submit sufficient evidence to support the relief requested. Plaintiffs only submitted a short attorney affirmation, which merely repeated the relief requested in the order to show cause and made a single vague statement that plaintiffs might suffer further mental harm should their identities be revealed. Plaintiffs failed to provide any specific evidence as to why each unnamed plaintiff should be entitled to proceed anonymously … . Twersky v Yeshiva Univ., 2022 NY Slip Op 00366, First Dept 1-20-22

 

/ , ,

IN THIS ELEVATOR-ACCIDENT CASE, THE BUILDING OWNERS WERE ENTITLED TO A CONDITIONAL JUDGMENT ON CONTRACTUAL INDEMNIFICATION AGAINST THE ELEVATOR-MAINTENANCE COMPANY BEFORE THE PRIMARY ACTION IS DETERMINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property owner in this elevator accident case was entitled to a conditional judgment (pending determination of the primary action) against the elevator maintenance company (Otis) for contractual indemnification:

“A court may render a conditional judgment on the issue of indemnity pending determination of the primary action in order that the indemnitee may obtain the earliest possible determination as to the extent to which he or she may expect to be reimbursed” … . To obtain conditional relief on a claim for contractual indemnification, “the one seeking indemnity need only establish that it was free from any negligence and [may be] held liable solely by virtue of . . . statutory [or vicarious] liability” … .

… [The building-owner] defendants established their … entitlement to judgment as a matter of law by showing that they did not have notice of the alleged defect in the subject elevator … , and Otis did not notify the [them] when repairs and/or maintenance was performed on the elevators in the building. Winter v ESRT Empire State Bldg., LLC, 2022 NY Slip Op 00333, Second Dept 1-19-22

 

/ ,

PLAINTIFF AND DEFENDANTS OWN ADJOINING LOTS ORIGINALLY CONVEYED BY THE SAME GRANTOR WITH A RESTRICTION ALLOWING ONLY ONE RESIDENCE PER LOT; PLAINTIFF HAD THE REQUISITE “VERTICAL PRIVITY” TO ENFORCE THE RESTRICTION WHEN DEFENDANTS SOUGHT TO SUBDIVIDE THEIR LOT; DEFENDANTS RAISED A QUESTION OF FACT WHETHER THE COVENANT WAS UNENFORCEABLE DUE TO RPAPL 1951 BECAUSE THE AREA HAD CHANGED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined: (1) plaintiff had “vertical privity” which allowed plaintiff to enforce a covenant in the deed from the original grantor of both plaintiff’s and defendants’ neighboring lots; and (2) defendants raised a triable issue of fact whether the covenant was unenforceable pursuant to RPAPL 1951 due to changes in the area. The covenant restricted each lot one residence. Defendants sough to subdivide their lot:

… [P]laintiff has the requisite vertical privity to enforce the restrictive covenants … . The plaintiff derived title to Lot 5 from the grantor, who subdivided the Lilac Farm subdivision. By deed dated June 4, 1929, the grantor burdened Lot 6, the property conveyed to the defendants’ predecessor in title, by subjecting the conveyance to the restrictive covenants in question, and which accrued to the benefit of the property retained by the grantor, including Lot 5, which was conveyed to the plaintiff’s predecessors in title by deed dated September 20, 1929. The defendants do not allege that the succession of conveyances from the grantor to the plaintiff was not continuous and lawful. Therefore, the plaintiff has the requisite vertical privity and did not need to demonstrate a common plan or scheme for the entire subdivision … . …

… [T]he defendants raised a triable issue of fact as to whether the restrictive covenant prohibiting subdivision of the parcel is unenforceable pursuant to RPAPL 1951 due to changes in the area since the imposition of such covenant … . Shehan v Commisso, 2022 NY Slip Op 00328, Second Dept 1-19-22

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy