You are here: / Trusts and Estates
, , ,

THE DEATH OF ONE OF THE DEFENDANTS DURING THE FORECLOSURE PROCEEDINGS RENDERED THE JUDGMENT OF FORECLOSURE, WHICH INCLUDED A DEFICIENCY JUDGMENT AGAINST THE DECEASED DEFENDANT, A NULLITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judgment of foreclosure was a nullity and the court did not have jurisdiction over the appeal because one of the defendants died during the proceedings:

“‘Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent'” … . Ordinarily, any determination rendered without such a substitution is deemed a nullity … . However, under certain circumstances, where a party’s death does not affect the merits of a case, this Court has found that there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution … .

Here, the record demonstrates that as of July 2021, the plaintiff and the Supreme Court were on notice that [defendant] Trevor P. Williams had died. Nevertheless, the proceedings continued after that date, and in March 2022, the court issued the subject order and judgment of foreclosure and sale, which contains a deficiency provision applicable to Trevor P. Williams.

Given the deficiency provision contained in the order and judgment of foreclosure and sale, the demise of Trevor P. Williams affects the merits of the case … . The contention of nonparty U.S. Bank Trust, N.A., that it waived the right to seek a deficiency against Trevor P. Williams is based on evidence dehors the record and, therefore, is not properly considered on this appeal … . Therefore, under the circumstances of this case, since a proper substitution was not made as required by CPLR 1015(a), the Supreme Court was without jurisdiction, inter alia, to issue the order and judgment of foreclosure and sale. Accordingly, the order and judgment of foreclosure and sale appealed from is a nullity and must be vacated and the appeal must be dismissed, as this Court has no jurisdiction to entertain the appeal . Champion Mtge. v Williams, 2026 NY Slip Op 02960, Second Dept 5-13-28

Practice Point: If the death of a party doesn’t affect the merits of the case, sometimes the need to stay the proceeding and substitute a personal representative can be overlooked. Here, however, the judgment of foreclosure included a deficiency judgment against the deceased defendant. Therefore the death affected the merits and the proceedings were rendered a nullity.​

 

,

THE WILL BEQUEATHED THE REAL PROPERTY TO PLAINTIFF ALONE; THE DEFENDANT ADMINSTRATOR DREW UP A DEED WHICH TRANSFERRED THE PROPERTY TO PLAINTIFF AND DEFENDANT AS JOINT TENANTS; THE ISSUE WAS WHETHER THE DEED IS VOID AB INITIO OR VOIDABLE; THE SECOND DEPARTMENT DETERMINED THE DEED WAS VOIDABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Landicino, determined that the deed drawn up by defendant, the administrator of the decedent’s estate, which was inconsistent with a specific bequest in the will, was voidable, not void ab initio. The will bequeathed the real property to plaintiff alone. The defendant administrator drew up a deed which transferred the property to plaintiff and defendant as joint tenants. Supreme Court determined deed was void ab initio. The Second Department reversed and determined the deed was voidable. The opinion is complex and cannot be fairly summarized here:

The primary question presented in this appeal is whether a transfer of property by an administrator c.t.a. in a manner that is inconsistent with a specific bequest in a will is voidable or void ab initio. In our view, an administrator c.t.a. who receives letters of administration c.t.a. from the Surrogate’s Court is cloaked with apparent authority to make a transfer of property from the estate, even if that transfer is contrary to the terms of the decedent’s will. As such, the transfer is voidable, not void ab initio.

The undisputed facts of this case are as follows: On April 13, 1998, Floribel Nelson (hereinafter the decedent) died. Prior to her death, the decedent owned real property located in Brooklyn (hereinafter the subject property). In her will, the decedent bequeathed her entire estate, including the subject property, to the plaintiff, who was the decedent’s grandniece, and two other family members who had apparently predeceased the decedent. Because the will further provided that, “if any [of the named heirs] do not survive [the decedent], then his or her share shall be divided equally among the survivors, and if there is only one survivor, said survivor shall take the whole estate,” the plaintiff was the sole surviving beneficiary of the decedent’s estate at the time of the decedent’s death. Rhiney v Rhiney, 2026 NY Slip Op 02428, Second Dept 4-22-26

Practice Point: Here a deed drawn up by the administrator of the estate conveyed decedent’s real property to the administrator and the plaintiff as joint tenants. However, the will bequeathed the property to plaintiff alone. The court was asked to determine if the deed was void ab initio or voidable. The deed was deemed voidable.

 

, ,

SUMMARY JUDGMENT DISMISSING THE “UNDUE INFLUENCE” OBJECTION TO PROBATE OF A WILL SHOULD NOT HAVE BEEN GRANTED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, noted that summary judgment is rarely appropriate where a party’s undue influence on the decedent is alleged as an objection to probate of a will:

… Surrogate’s Court should not have granted that branch of the petitioners’ motion which was for summary judgment dismissing the objection based on undue influence on the part of Theodos. “To invalidate an instrument on the ground of undue influence, there must be evidence that the influence exerted amounted to a moral coercion that restrained independent action and destroyed free agency or that, by importunity that could not be resisted, constrained a person to do that which was against his or her free will and desire, but which he or she was unable to refuse or too weak to resist” … . “In general, the burden of proving undue influence rests with the party asserting its existence” … . “An inference of undue influence, requiring the beneficiary to explain the circumstances of the bequest, arises when a beneficiary under a will was in a confidential or fiduciary relationship with the testator and was involved in the drafting of the will” … . “The adequacy of the explanation presents a question of fact for the jury” … . The existence of a confidential relationship is also “ordinarily . . . a question of fact” … .

Here, the record reflects that Theodos was assisting in the management of the decedent’s finances in the years leading up to the execution of the will and that certain provisions of the will were communicated to the decedent’s attorney through Theodos. In addition, Theodos was named as one of the executors of the will and was also named as a beneficiary, receiving a bequest of $20,000. As such, an inference of undue influence arises … , and there remain triable issues of fact in that regard … . Matter of Gennarelli, 2026 NY Slip Op 01962, Second Dept 4-1-26

Practice Point: Consult this decision for an explanation of the burden of proof for an “undue influence” objection to probate and why summary judgment is usually inappropriate in this context.​

 

, ,

PURSUANT TO THE MENTAL HYGIENE LAW, THE JUDGE DID NOT HAVE THE AUTHORITY TO INVALIDATE THE INCAPACITATED PERSON’S WILL IN THIS GUARDIANSHIP PROCEEDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge in this guardianship proceeding pursuant to the Mental Hygiene Law did not have the authority to invalidate the incapacitated person’s will:

… [T]he court ,,, adjudged Vincent V. L. to be an incapacitated person within the meaning of Mental Hygiene Law article 81 and appointed an independent guardian for his person and property. At issue on this appeal … is whether the court properly directed, in the context of this Mental Hygiene Law article 81 proceeding, that the last will and testament of Vincent V. L. … , was void ab initio.

Mental Hygiene Law § 81.29(d) expressly provides, in relevant part, that “[t]he court shall not . . . invalidate or revoke a will or a codicil of an incapacitated person during the lifetime of such person” in the context of a Mental Hygiene Law article 81 proceeding. The Supreme Court thus did not have the authority to invalidate Vincent V. L.’s last will and testament in the context of this Mental Hygiene Law article 81 proceeding. Matter of Vincent V.L. (Matthew L.–Tomasine F.), 2026 NY Slip Op 01789, Second Dept 3-25-26

Practice Point: The Mental Hygiene Law prohibits the invalidation of an incapacitated person’s will in a guardianship proceeding.

 

, , ,

HERE IN THIS TRAFFIC ACCIDENT CASE THE DRIVER OF THE VEHICLE IN WHICH PLAINTIFF WAS A PASSENGER DIED DURING THE PENDENCY OF THE ACTION; PLAINTIFF PASSENGER HAD SUED DECEDENT DRIVER AND THE DEFENDANT TRUCKING COMPANY; THE ATTORNEYS FOR THE DECEDENT DRIVER DID NOT HAVE THE AUTHORITY TO MOVE TO DISMISS THE COMPLAINT AGAINST THE DECEDENT DRIVER; THE DEFENDANT TRUCKING COMPANY DID NOT GIVE THE INTERESTED PARTIES THE REQUIRED NOTICE OF ITS MOTION TO DISMISS BASED UPON THE DRIVER’S DEATH; AND PLAINTIFF PASSENGER DID NOT COMPLY WITH THE PROCEDURES FOR THE APPOINTMENT OF THE PUBLIC ADMINISTRATOR TO REPRESENT THE DECEDENT DRIVER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined (1) the attorneys for the decedent driver did not have the authority to move to dismiss plaintiff-passenger’s action against the decedent because the decedent’s death during the pendency of the action divested the court of jurisdiction, (2) the defendant’s motion to dismiss based upon the driver’s death should not have been granted because defendant did not notify the parties with an interest in decedent’s estate of the motion, and (3) plaintiff-passenger’s cross-motion to appoint the Public Administrator to represent the driver’s estate should not have been granted because plaintiff did not notify parties interested in the estate of the cross-motion and did not otherwise follow the procedures for such an appointment:

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a). Moreover, any determination rendered without such substitution will generally be deemed a nullity” … . The death of a party terminates his or her attorney’s authority to act on behalf of the deceased party … . * * *

“CPLR 1021 defines the procedural mechanisms for seeking a substitution of successor or representative parties, and for the dismissal of actions where substitutions are not timely sought” … . CPLR 1021 provides, in pertinent part, that “[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made.” Further, “a motion to dismiss pursuant to CPLR 1021 requires that notice be provided to persons interested in the decedent’s estate” … . * * *

… [T]he plaintiff failed to sufficiently demonstrate that she provided notice of her cross-motions to persons interested in [the] estate … . Moreover, the plaintiff “failed to demonstrate the steps [she] had taken to secure the appointment of a personal representative in the appropriate Surrogate’s Court or that resort to the appropriate Surrogate’s Court was otherwise unfeasible . . . and otherwise failed to adequately demonstrate why the appointment of a temporary administrator was needed to avoid undue delay and prejudice” … . Ford v Luckain, 2026 NY Slip Op 01493, Second Dept 3-18-26

Practice Point: Consult this decision for insight into the procedures which must be followed when a party in a pending traffic-accident case dies, divesting the court of jurisdiction and curtailing the authority of the decedent’s attorneys to act on decedent’s behalf.

 

, ,

THE COMPLAINT SHOULD HAVE BEEN DISMISSED BECAUSE PLAINTIFF HAD NOT YET BEEN APPOINTED ADMINISTRATOR OF PLAINTIFF’S DECEDENT’S ESTATE; PLAINTIFF IS FREE TO COMMENCE A NEW ACTION WITHIN SIX MONTHS PURSUANT TO CPLR 205 (A) UPON ISSUANCE OF LETTERS OF ADMINISTRATION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the complaint should have been dismissed because plaintiff had not yet been appointed administrator of the estate of her mother, but noted that if she obtains letters of administration within the six-month savings period under CPLR 205(a) a new action may be commenced:

“A personal representative who has received letters of administration of the estate of a decedent is the only party who is authorized to bring a survival action for personal injuries sustained by the decedent and a wrongful death action to recover the damages sustained by the decedent’s distributees on account of his or her death” … . “[T]he statutory requirement of a duly appointed administrator is in the nature of a condition precedent to the right to bring the suit” … . Thus, a “proposed administrator” who has not obtained letters of administration lacks capacity to bring an action to recover damages for personal injuries or wrongful death on behalf of a decedent’s estate … .

… [W]here, as here, a plaintiff lacks the capacity to bring an action to recover damages for personal injuries or wrongful death on behalf of a decedent’s estate because the plaintiff has not been issued letters of administration, the plaintiff may “remedy this defect by obtaining letters of administration within the six-month savings period provided under CPLR 205(a)” … . Estate of Joyce Moore v Nassau Operating Co., LLC, 2026 NY Slip Op 00241, Second Dept 1-21-26

 

, , , ,

THE STATUTE OF LIMITATIONS FOR DECLARATORY JUDGMENTS DEPENDS ON THE UNDERLYING THEORY, FRAUD IN THIS CASE; AN AGREEMENT TO ASSIGN OR OBTAIN A MORTGAGE IS A CONTRACT INVOLVING AN INTEREST IN REAL PROPERTY AND IS SUBJECT TO THE STATUTE-OF-FRAUDS WRITING-REQUIREMENT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that certain causes of action in this dispute over ownership of real property should have been dismissed as time-barred or as violative of the statute of frauds:

“Actions for declaratory judgments are not ascribed a certain limitations period. The nature of the relief sought in a declaratory judgment action dictates the applicable limitations period” … . The statute of limitations for an action based upon fraud generally is six years from the date the cause of action accrued (see CPLR 213[8]). … [T]he first and second causes of action were untimely, as the amended complaint alleged that [defendant’s] fraud in obtaining those interests occurred more than six years before the commencement of this action … .

… Causes of action to impose a constructive trust upon real property and to recover damages for unjust enrichment are governed by a six-year statute of limitations, which begins to accrue at the time of the wrongful act giving rise to the duty of restitution … . … [Defendant’s] alleged fraudulent acquisition of ownership interests … occurred more than six years before the commencement of this action.

… The statute of frauds requires any contract transferring or creating an interest in real property to be in writing (see General Obligations Law § 5-703[1] …). Here, [the] … complaint alleged [defendants] breached their agreements to assign or obtain a mortgage in favor of the plaintiffs. A mortgage constitutes an interest in real property, and the agreements to transfer or obtain mortgages in favor of the plaintiffs, therefore, were required to be in writing. Hersko v Hersko, 2026 NY Slip Op 00120, Second Dept 1-14-26

Practice Point: The statute of limitations for a declaratory judgment is that which applies to the underlying theory. Here the six-year statute for fraud applied.​

Practice Point: An agreement to assign or obtain a mortgage is subject to the statute-of-frauds because a mortgage constitutes an interest in real property.

 

, , , , ,

UNDER THE LIEN LAW, THE GENERAL CONTRACTOR IN A FAILED SOLAR ENERGY PROJECT, AS TRUSTEE OF THE SETTLEMENT FUNDS, WAS PROPERLY PRECLUDED FROM USING THE FUNDS TO PAY ITSELF FIRST; THE SUBCONTRACTORS MUST BE PAID FIRST; THERE WAS A TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, affirming Supreme Court, over a two-justice dissent, in a matter of first impression, determined the subcontractors’ motion to enjoin the general contractor from using settlement funds to pay itself for expenditures in a failed solar-energy project was properly granted. The Lien Law created a trust for the settlement funds and required the general contractor, as trustee, to pay the subcontractors before paying itself:

“Article 3-A of the Lien Law impresses with a trust any funds paid or payable to a contractor ‘under or in connection with a contract for an improvement of real property’ ” ( … Lien Law § 70 [1]). Given this statutory definition, we readily conclude that the settlement funds at issue constitute trust funds under Lien Law article 3-A … . The Court of Appeals has “repeatedly recognized that the primary purpose of [Lien Law] article 3-A . . . is to ensure that those who have directly expended labor and materials to improve real property . . . at the direction of the owner or a general contractor receive payment for the work actually performed” … . With respect to a contractor’s trust, the parties entitled to a beneficial status are expressly enumerated in Lien Law § 71 (2) (a)-(f) … Pursuant to Lien Law § 71 (2) (a), “[t]he trust assets of which a contractor . . . is trustee shall be held and applied for [enumerated] expenditures arising out of the improvement of real property,” including “payment of claims of subcontractors, architects, engineers, surveyors, laborers and materialmen” (Lien Law § 71 [2] [a] … ). The language is mandatory and does not include the “cost[s] of improvement,” which is a term specifically defined to address an owner’s costs (Lien Law § 2 [5]; see Lien §§ 70 [5]; 71 [1] …).  L.C. Whitford Co., Inc. v Babcock & Wilcox Solar Energy, Inc., 2025 NY Slip Op 07063, Third Dept 12-18-25

Practice Point: Under the Lien Law the general contractor here is the trustee of the settlement funds and must use the funds to pay the subcontractors before paying itself.

 

, , , , ,

HERE, IN SEEKING LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST A CITY HOSPITAL ALLEGING MEDICAL MALPRACTICE, THE PETITIONER DID NOT SUBMIT THE MEDICAL RECORDS; THEREFORE THE PETITIONER DID NOT SHOW THAT THE HOSPITAL HAD TIMELY KNOWLEDGE OF THE CLAIM; LEAVE TO FILE A LATE NOTICE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court and dismissing the action, determined the petition for leave to file a late notice of claim, alleging medical malpractice, negligence and violation of the Public Health Law on behalf of decedent, should not have been granted. The petitioner did not establish that the city had timely knowledge of the claim, which is the most important criterium for allowing late notice:

​”Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff” … . The petitioner’s “failure to submit evidence of the contents of the alleged records is fatal to [her] argument that the [appellant] acquired actual knowledge from the existence of such records” … . Additionally, there is no suggestion in the record that the appellant refused to produce the medical records or that the petitioner sought to compel the appellant to produce any papers necessary to the determination of the petition pursuant to CPLR 409(a) … . Matter of Giustra v New York City Health & Hosps. Corp., 2025 NY Slip Op 06862, Second Dept 12-10-25

Practice Point: The most important criterium for leave to file a late notice of claim is evidence the city had timely knowledge of the claim. Medical records, depending on their contents, can (but do not necessarily) demonstrate timely knowledge of the claim. Here petitioner did not submit the medical records and therefore did not even attempt to demonstrate the city’s timely knowledge of the nature of the medical malpractice claim. The mere existence of medical records is not enough.​

 

, , ,

GENERALLY THE DEATH OF A PARTY TO AN ACTION DIVESTS THE COURT OF JURISDICTION AND REQUIRES A STAY OF THE PROCEEDINGS; HERE IN THIS FORECLOSURE ACTION HUSBAND AND WIFE OWNED THE PROPERTY AS TENANTS BY THE ENTIRETY; THE PROPERTY THEREFORE REMAINED WHOLLY OWNED BY WIFE UPON HUSBAND’S DEATH; BECAUSE PLAINTIFF WAS NOT SEEKING A DEFICIENCY JUDGMENT AGAINST HUSBAND’S ESTATE, A STAY OF THE PROCEEDINGS WAS NOT REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the death of one of the parties in this foreclosure action did not require a stay of the proceedings. The defendant wife held the property with her husband as tenants by the entirety. When the husband died, the wife remained as the owner of the entire property. The plaintiff mortgage company, by moving to delete the husband’s name for the caption, elected not to seek a deficiency judgment against the decedent’s estate. Therefore the action should not have been stayed:

“‘Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending the substitution of a personal representative for the decedent'” … . However, “where a party’s demise does not affect the merits of the case, there is no need for strict adherence to the requirement that the proceedings be stayed pending substitution” … . “[A] mortgagor who has made an absolute conveyance of all his [or her] interest in the mortgaged premises . . . is not a necessary party to foreclosure, unless a deficiency judgment is sought” … .

… [T]he plaintiff established that, upon the decedent’s death, Janice, “as a tenant by the entirety with her husband, remained seized of the entire ownership interest in the subject property” … . Moreover, by moving to amend the caption to delete the name of the decedent and, in effect, to discontinue the action insofar as asserted against him, the plaintiff, in effect, elected not to seek a deficiency judgment against the decedent’s estate … .

By virtue of the absolute conveyance of the property from the decedent to Janice, and the plaintiff’s waiver of its right to seek a deficiency judgment against the decedent or his estate, “strict adherence to the requirement that the proceedings be stayed pending substitution was not necessary” … . Citimortgage, Inc. v Fimbel, 2025 NY Slip Op 06600, Second Dept 11-26-25

Practice Point: Here in this foreclosure action against husband and wife as tenants by the entirety, the husband’s death did not require a stay of the proceedings because the wife continued to hold the entire ownership interest in the property and plaintiff was not seeking a deficiency judgment against the estate of the husband.

 

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