Trusts and Estates – New York Appellate Digest

PROPERTY OWNED BY A LIMITED LIABILITY COMPANY AND A TRUST IS NOT ENTITLED TO THE PROTECTIONS OF THE UNIFORM PARTITION OF HEIRS PROPERTY ACT (RPAPL 993); THOSE ENTITIES ARE NOT “INDIVIDUALS” WITHIN THE MEANING OF THE ACT (SECOND DEPT).

The Second Department, reversing Supreme Court in this partition action, in a full-fledged opinion by Justice Golla, determined a limited liability company and a trust are not “individuals” within the meaning of Real Property Actions and Proceedings Law (RPAPL) section 993:

In a case of first impression before this Court, we are asked to determine whether property owned wholly by a trust and a limited liability company may constitute “heirs property” pursuant to the Uniform Partition of Heirs Property Act (RPAPL 993). That question requires a determination as to whether a trust and a limited liability company are “individual[s]” within the meaning of RPAPL 993. … [W]e find that trusts and limited liability companies are not “individual[s]” under RPAPL 993. Property wholly owned by such entities, and not owned by individuals who acquired title from a relative, cannot be “heirs property” within the meaning of the statute. * * *

Here, the brothers, after owning the subject property themselves for more than half a century, put their interests in the subject property into these sophisticated legal entities. The owners’ status as sophisticated legal entities provides its own protections from predatory parties. In any event, here, there is no outside third party who is seeking to invade a family’s right to possess real property, further demonstrating that the owners are not entitled to the protections of RPAPL 993. Flouret v Sagland, LLC, 2026 NY Slip Op 05009, Second Dept 8-19-26

August 19, 2026

Civil Procedure, Foreclosure, Judges, Real Property Actions and Proceedings Law (RPAPL), Trusts and Estates

APPARENTLY THE MORTGAGOR WAS DECEASED AT THE TIME THE FORECLOSURE ACTION WAS COMMENCED RENDERING THE FORECLOSURE ACTION A NULLITY; SUPREME COURT DID NOT HAVE JURISDICTION, SO AMENDING THE CAPTION TO ADD THE EXECUTOR DID NOT EFFECTUATE JURISDICTION OVER THE ESTATE; ECHO BAY PURCHASED THE PROPERTY FROM THE MORTGAGOR’S SUCCESSORS FOUR YEARS LATER; ECHO BAY HAD THE RIGHT TO INTERVENE, MOVE TO VACATE THE JUDGMENT OF FORECLOSURE AND SALE, AND MOVE TO DISMISS THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, granting the motion to intervene and dismissing the foreclosure complaint, apparently determined the mortgagor was deceased at the time the foreclosure action was brought rendering the action a nullity. Therefore Supreme Court did not have jurisdiction to amend the caption to add the mortgagor’s executor. For years later, Echo Bay purchased the property from the mortgagor’s successors and properly moved to intervene, to vacate the judgment of foreclosure and sale and to dismiss the complaint:

“‘A party may not commence a legal action or proceeding against a dead person'” … , and an action to foreclose a mortgage is a legal nullity insofar as asserted against a deceased mortgagor … . “A judgment or order issued without subject matter jurisdiction is void, and that defect may be raised at any time and may not be waived” … . * * *

… [T]he fact that Echo Ray obtained its interest in the property after the action was commenced and the notice of pendency was filed does not bar intervention … , and that branch of the plaintiff’s prior motion which was for leave to amend the caption to substitute the executor of [mortgagor’s] estate as a defendant in this action did not effectuate jurisdiction over her estate … . * * *

… Supreme Court should have granted those branches of the motion of Echo Ray which were pursuant to CPLR 5015(a)(4) to vacate the order and judgment of foreclosure and sale and to dismiss the complaint, as the action was a legal nullity insofar as asserted against [the mortgagor], the sole borrower and property owner as alleged in the complaint … . The owner of the property is an indispensable party to a foreclosure action (see RPAPL 1311[1] …). “The absence of an indispensable party mandates dismissal of the action, and the plaintiff cannot maintain the action as against the other defendants” … . Federal Natl. Mtge. Assn. v Jackson, 2026 NY Slip Op 04927, Second Dept 8-12-26

Practice Point: If the mortgagor is deceased when the foreclosure action is commenced, the action is a nullity and the judgment of foreclosure and sale is void. A subsequent purchaser of the property can successfully move to intervene, vacate the judgment and dismiss the foreclosure complaint.

August 12, 2026

Civil Procedure, Foreclosure, Trusts and Estates

WHERE THE PROPERTY OWNER DIES INTESTATE, AND THE PLAINTIFF IS NOT SEEKING A DEFICIENCY JUDGMENT, THE FORECLOSURE ACTION MAY BE BROUGHT DIRECTLY AGAINST THE HEIRS OF THE PROPERTY OWNER; THE ESTATE IS NOT A NECESSARY PARTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure action against the heir of the decedent property owner should not have been dismissed. Where the property owner dies intestate, and plaintiff is not seeking a deficiency judgment, the foreclosure action can proceed directly against the heirs of the property owner. The estate is not a necessary party:

… [Where] “a property owner dies intestate, title to real property is automatically vested in his or her distributees” … . “Thus, where a mortgagor/property owner dies intestate and the mortgagee does not seek a deficiency judgment, generally a foreclosure action may be commenced directly against the distributees” … . Here, because the decedent died intestate, and because the plaintiff no longer seeks a deficiency judgment, the decedent’s estate was not a necessary party, and the plaintiff could proceed directly against the distributees of the decedent’s estate … . Deutsche Bank Natl. Trust Co. v Unknown Heirs to the Estate of Jacinto Ortiz, 2026 NY Slip Op 04745, Second Dept 7-29-26

Practice Point: Where the property owner dies intestate, and plaintiff is not seeking a deficiency judgment, the foreclosure action may proceed directly against the distributees, the estate is not a necessary party.

July 29, 2026

Evidence, Judges, Trusts and Estates

THE JUDGE SHOULD NOT HAVE REMOVED RESPONDENT CO-TRUSTEE WITHOUT A HEARING, CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Surrogate’s Court, determined the respondent co-trustee should not have been removed without a hearing. Where the facts are disputed, a hearing is required:

… “[The] removal of a fiduciary pursuant to SCPA 711 [or] 719 is equivalent to ‘a judicial nullification of the [settlor’s] choice and may only be decreed when the grounds set forth in the relevant statutes have been clearly established’ ” … . Under either SCPA 711 or 719, ” ‘[t]he Surrogate may remove without a hearing only where the misconduct is established by undisputed facts or concessions [or] where the fiduciary’s in-court conduct causes such facts to be within the court’s knowledge’ ” … , and the removal of a trustee without a hearing “will constitute an abuse of discretion ‘where the facts are disputed, where conflicting inferences may be drawn therefrom . . . or where there are claimed mitigating facts that, if established, would render summary removal an inappropriate remedy’ ” … . Here, in response to the factual averments by petitioners as to his misconduct, respondent submitted, inter alia, an affidavit in which he denied having ever improperly removed Trust assets or interfering with the leasing of Trust property, explained how his actions accorded—in his view—with his powers and obligations under the Trust documents, and disputed petitioners’ underlying factual averments. Presented with the competing claims, a hearing was required inasmuch as “the Surrogate must make a credibility determination concerning those issues, and then exercise [their] discretion concerning whether respondent should be removed from [his] appointment[ ]” … . Matter of Simmons (Simmons), 2026 NY Slip Op 04675, Fourth Dept 7-24-26

Practice Point: Consult this decision for insight into when a hearing is required before a co-trustee can be removed under the Surrogate’s Court Procedure Act (SPCA).

July 24, 2026

Constitutional Law, Environmental Law, Trusts and Estates

PLAINTIFFS, RESIDENTS OF EAST BUFFALO, STATED CAUSES OF ACTION AGAINST THE STATE FOR VIOLATION OF THE PUBLIC TRUST DOCTRINE AND VIOLATION OF THE GREEN AMENDMENT TO THE NEW YORK CONSTITUTION BY THE CONSTRUCTION OF AN EXPRESSWAY (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Nowak, over an extensive dissent, determined the complaint alleging the State, in constructing an expressway, violated the public trust doctrine and the Green Amendment, should not have been dismissed:

Plaintiffs are individual residents of East Buffalo who contend that they suffered adverse health consequences due to traffic on a nearby expressway (portions of New York State Routes 33 and 198) and an unincorporated association of people who live or work near the expressway. They commenced this action alleging that defendants: (1) violated the public trust doctrine by alienating parkland comprising the former Humboldt Parkway for the construction of the expressway; and (2) are violating the Green Amendment to the New York State Constitution (NY Const, art 1, § 19) by continuing to maintain and operate the expressway. * * *

Having expressly granted authority to construct arterial highways within parks in other cities and having declined to do so with respect to Humboldt Parkway, it cannot be said as a matter of law that the legislature “plainly conferred” the alienation of Humboldt Parkway … . * * *

The Green Amendment to the New York State Constitution states that “[e]ach person shall have a right to clean air and water, and a healthful environment” (NY Const, art I, § 19 …). Plaintiffs specifically allege in the amended complaint that the Green Amendment is self-executing, and defendants did not dispute that contention below. East Side Parkways Coalition v New York State Dept. of Transp., 2026 NY Slip Op 04562, Fourth Dept 7-24-26

Practice Point: Here plaintiffs, residents of East Buffalo who live near an expressway, stated causes of action against the State stemming from the construction of the expressway on land which once served as a park.

July 24, 2026

Attorneys, Judges, Mental Hygiene Law, Trusts and Estates

PETITIONER, THE GUARDIAN OF THE PERSON AND PROPERTY OF AN INCAPACITATED PERSON SINCE 2012, WAS ASKED TO RECERTIFY THE GUARDIANSHIP BY A NEW BANK WHICH TOOK OVER THE ACCOUNTS; PETITIONER SOUGHT TO CONTINUE THE TERMS OF THE 2012 ORDER; THE JUDGE SHOULD NOT HAVE, SUA SPONTE, MODIFIED THE TERMS OF THE ORIGINAL ORDER ABSENT A REQUEST FROM A PARTY TO DO SO (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the justice presiding over this guardianship proceeding should not have “sua sponte” changed the terms of the existing guardianship absent a request from a party to do so. The appellate courts do not like “sua sponte” rulings. The petitioner was appointed guardian of the person and property of an incapacitated person in 2012. This proceeding was prompted by a new bank which took over the incapacitated person’s accounts and requested that petitioner “recertify” his guardianship status. Petitioner brought this proceeding to continue the terms of the original 2012 order:

… [P]etitioner [the contends that Supreme Court erred in modifying the terms of the guardianship. We find this contention to have merit. As petitioner was appointed guardian in 2012, there was no basis to appoint a temporary guardian (see Mental Hygiene Law § 81.23 [a]). Nor was there a basis to remove the guardian (see Mental Hygiene Law § 81.35). Although a court may terminate or modify a guardian’s powers upon a showing that, “for some other reason, . . . the guardian is no longer necessary . . . or the powers of the guardian should be modified based upon changes in the circumstances of the incapacitated person” (Mental Hygiene Law § 81.36 [a] [4]), such application cannot be made sua sponte, but must “be made by the guardian, the incapacitated person, or any person entitled to commence a proceeding under this article” (Mental Hygiene Law § 81.36 [b] …). Nevertheless, when authorizing the powers that may be exercised by a guardian of the property, courts are to employ “the least restrictive form of intervention,” taking into consideration, among other things, the incapacitated “person’s wishes, preferences, and desires with regard to managing the activities of daily living” (Mental Hygiene Law § 81.21 [a]).

Here, there was no request before Supreme Court to modify the terms of the guardianship, as petitioner moved to continue the same terms of the original order to satisfy the requests of the new banking institution — specifically, petitioner’s access to “all bank accounts, annuity payments, entitlements and other financial resources in [respondent’s] possession or payable to her.” However, the order issued by Supreme Court failed to contain this language and otherwise did not conform to the requirements of the statute (see Mental Hygiene Law §§ 81.15 [c]; 81.16). To the extent that this order is further interpreted as increasing the powers of the guardian by requiring petitioner to now pay certain monthly expenses that respondent already successfully handles on her own, we agree with petitioner that the record does not support this change as being the least restrictive form of intervention (see Mental Hygiene Law § 81.21 [a]). Accordingly, this portion of Supreme Court’s order must be reversed and vacated. Matter of Karissa W., 2026 NY Slip Op 03490, Third Dept 6-4-26

Practice Point: The decision illustrates the appellate courts’ disapproval of sua sponte rulings, i.e,, rulings which are not precipitated by a party’s motion.

June 4, 2026

Evidence, Judges, Trusts and Estates

DECEDENT’S DAUGHTER RAISED QUESTIONS OF FACT ABOUT DECEDENT’S WIFE’S FITNESS TO ADMINISTER THE ESTATE; SURROGATE’S COURT SHOULD HAVE HELD A HEARING TO DETERMINE THE FACTS (THIRD DEPT).

The Third Department, reversing Surrogate’s Court, determined the decedent’s daughter had raised questions of fact about whether decedent’s wife was fit to administer the estate. Surrogate’s Court should have held a hearing to determne the facts:

… [T]he wife, as the surviving spouse of the decedent, established prima facie entitlement to letters of administration pursuant to SCPA 1001. However, the daughter’s opposition papers raised triable issues of fact about the wife’s eligibility to serve as administrator. Her averments that the wife stole or destroyed a purported will of the decedent, neglected to pay the decedent’s bills, discarded estate property and engaged in misconduct in the administration of another estate, if credited, may constitute dishonesty or improvidence within the meaning of SCPA 707 (1). Finally, the considerable hostility between the parties, which led to an order of protection and other court proceedings, is undisputed. Viewing the evidence in the light most favorable to the daughter, and mindful that Surrogate’s Court is limited at this stage to identifying triable issues of fact, not resolving credibility or weighing the evidence, the daughter’s submissions were sufficient to create a factual dispute that required a hearing before determining the wife’s motion … . Accordingly, Surrogate’s Court erred in granting the wife’s motion for summary judgment granting her letters of administration and dismissing the daughter’s competing petition without first conducting a hearing to determine whether the wife is disqualified pursuant to SCPA 707. Matter of Kosier, 2026 NY Slip Op 03491, Third Dept 6-4-26

Practice Point: Consult this decision for a detailed explanation of the proper procedure when questions of fact about the honesty of a person seeking to be appointed administrator of an estate are raised.

June 4, 2026

Civil Procedure, Evidence, Trusts and Estates

THE JURY RENDERED A VERDICT IN FAVOR OF PLAINTIFF, FINDING THAT DEFENDANT UNDULY INFLUENCED DECEDENT TO NAME HIM AS THE SOLE BENEFICIARY OF TWO BROKERAGE ACCOUNTS; THE CONCLUSORY AND SPECULATIVE PROOF OF UNDUE INFLUENCE DID NOT SUPPORT THE VERDICT; DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant’s post-verdict motion for judgment as a matter of law (CPLR 4401) dismissing the complaint should have been granted. Plaintiff alleged defendant unduly influenced the decedent to remove plaintiff as a beneficiary of two brokerage accounts and name defendant as the sole beneficiary. The court explained the shifting burdens of proof:

“‘A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury could find in favor of the nonmoving party'” … . “In determining whether the defendant has met this burden, a court must accept the plaintiff’s evidence as true and accord the plaintiff the benefit of every reasonable inference which can reasonably be drawn from the evidence presented at trial” … .

“Generally, the burden of proving undue influence rests with the party asserting its existence” … . “Where, however, the existence of a confidential relationship is established, the burden shifts to the beneficiary of the transaction to show that the transaction is fair and free from undue influence” … . “‘In order to demonstrate the existence of a confidential relationship, there must be evidence of circumstances that demonstrate inequality or a controlling influence'” … .

… [T]he plaintiff did not establish that a confidential relationship existed between the decedent and the defendant … . * * *

As a result, the burden of proving undue influence remained upon the plaintiff … . * * *

… [P]laintiff presented only conclusory and speculative evidence that the defendant exercised undue influence over the decedent … . “‘[A] mere showing of opportunity and even of a motive to exercise undue influence does not justify a submission of that issue to the jury, unless there is in addition evidence that such influence was actually utilized'” … . Collins v Denaro, 2026 NY Slip Op 03142, Second Dept 5-20-26

Practice Point: Consult this decision for insight into the shifting burdens of proof applied to a motion for a judgment as a matter of law made by a defendant after a plaintiff’s verdict. Here the appellate court determined the conclusory and speculative evidence did not support the jury’s verdict.

May 20, 2026

Appeals, Civil Procedure, Foreclosure, 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.

May 13, 2026

Real Property Law, Trusts and Estates

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.

April 22, 2026