Trusts and Estates – Page 20 – New York Appellate Digest

Civil Procedure, Evidence, Foreclosure, Trusts and Estates

BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank’s motion to change the caption in this foreclosure action to substitute and new bank plaintiff (FNMA) and eliminate one of the defendants who had died should not have been granted. The motion papers did not demonstrate with admissible evidence that the note had been assigned to the new plaintiff and did not take any of the required steps to remove the deceased defendant (George Bredehorn) from the action:

Although the plaintiff submitted evidence that the mortgage was assigned to FNMA, there was no evidence in admissible form of an assignment of the note or a transfer of possession of the note to FNMA. The only evidence offered by the plaintiff that the note had in fact been transferred to FNMA was the statement in the plaintiff’s attorney’s affirmation that “based on telephonic conversations,” the attorney had been advised that FNMA was the holder of the note as of February 1, 2014. This statement is inadmissible hearsay … .

Further, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff’s motion which was to omit George Bredehorn from the caption. The plaintiff did not establish that George Bredehorn died intestate, move to substitute a representative for George Bredehorn’s estate as a defendant, move to discontinue the action insofar as asserted against him, or represent that it would not seek a deficiency judgment against his estate. In light of the plaintiff’s failure to take any one of those actions, the action against George Bredehorn was not extinguished … . Citimortgage, Inc. v Bredehorn, 2018 NY Slip Op 02595, Second Dept 4-18-18

FORECLOSURE (BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT))/TRUSTS AND ESTATES (FORECLOSURE, BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, CHANGE CAPTION, BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT))/EVIDENCE (FORECLOSURE, CHANGE CAPTION, BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT))/HEARSAY (FORECLOSURE, CHANGE CAPTION, BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT))/CPLR 1015 (FORECLOSURE, CHANGE CAPTION, BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT))

April 18, 2018

Civil Procedure, Foreclosure, Trusts and Estates

FORECLOSURE ACTION SHOULD HAVE BEEN DISMISSED AS TIME-BARRED, ALTHOUGH CPLR 210 (b) TOLLS THE STATUTE OF LIMITATIONS FOR AN ACTION AGAINST AN ESTATE, THE BANK DID NOT DEMONSTRATE DEFENDANT HUSBAND REPRESENTED HIS WIFE’S ESTATE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s foreclosure action was time-barred. Although the action would have been timely against the estate of defendant’s (Kess’s) wife because of the 18-month post-death statute of limitations toll in CPLR 210 (b), plaintiff did not demonstrate Kess was representing his wife’s estate:

…Kess demonstrated that the six-year statute of limitations (see CPLR 213[4]) began to run on May 6, 2008, when the plaintiff accelerated the mortgage debt and commenced the 2008 foreclosure action … . Since the plaintiff did not commence the instant foreclosure action until more than six years later, Kess sustained his initial burden of demonstrating, prima facie, that this action was untimely … . …

CPLR 210(b) provides that “[t]he period of eighteen months after the death . . . of a person against whom a cause of action exists is not a part of the time within which the action must be commenced against his [or her] executor or administrator.” The statute plainly is limited in scope to the executor or administrator of the decedent’s estate and does not extend to other defendants in the same action … . Consequently, CPLR 210(b) could not extend the statute of limitations period as to Kess individually. Furthermore, the plaintiff failed to establish that Kess was the administrator or executor of his deceased wife’s estate, a point which Kess denied in reply to the plaintiff’s opposition. U.S. Bank, N.A. v Kess, 2018 NY Slip Op 01498, Second Dept 3-7-18

FORECLOSURE (FORECLOSURE ACTION SHOULD HAVE BEEN DISMISSED AS TIME-BARRED, ALTHOUGH CPLR 210 (b) TOLLS THE STATUTE OF LIMITATIONS FOR AN ACTION AGAINST AN ESTATE, THE BANK DID NOT DEMONSTRATE DEFENDANT HUSBAND REPRESENTED HIS WIFE’S ESTATE (SECOND DEPT))/CIVIL PROCEDURE (FORECLOSURE, STATUTE OF LIMITATIONS, TRUSTS AND ESTATES, FORECLOSURE ACTION SHOULD HAVE BEEN DISMISSED AS TIME-BARRED, ALTHOUGH CPLR 210 (b) TOLLS THE STATUTE OF LIMITATIONS FOR AN ACTION AGAINST AN ESTATE, THE BANK DID NOT DEMONSTRATE DEFENDANT HUSBAND REPRESENTED HIS WIFE’S ESTATE (SECOND DEPT))/TRUSTS AND ESTATES (FORECLOSURE, STATUTE OF LIMITATIONS, FORECLOSURE ACTION SHOULD HAVE BEEN DISMISSED AS TIME-BARRED, ALTHOUGH CPLR 210 (b) TOLLS THE STATUTE OF LIMITATIONS FOR AN ACTION AGAINST AN ESTATE, THE BANK DID NOT DEMONSTRATE DEFENDANT HUSBAND REPRESENTED HIS WIFE’S ESTATE (SECOND DEPT))/STATUTE OF LIMITATIONS (TRUSTS AND ESTATES, ORECLOSURE ACTION SHOULD HAVE BEEN DISMISSED AS TIME-BARRED, ALTHOUGH CPLR 210 (b) TOLLS THE STATUTE OF LIMITATIONS FOR AN ACTION AGAINST AN ESTATE, THE BANK DID NOT DEMONSTRATE DEFENDANT HUSBAND REPRESENTED HIS WIFE’S ESTATE (SECOND DEPT))/CPLR 210 (b) (FORECLOSURE, STATUTE OF LIMITATIONS, TRUSTS AND ESTATES, FORECLOSURE ACTION SHOULD HAVE BEEN DISMISSED AS TIME-BARRED, ALTHOUGH CPLR 210 (b) TOLLS THE STATUTE OF LIMITATIONS FOR AN ACTION AGAINST AN ESTATE, THE BANK DID NOT DEMONSTRATE DEFENDANT HUSBAND REPRESENTED HIS WIFE’S ESTATE (SECOND DEPT))

March 7, 2018

Trusts and Estates

DESPITE PROBATE OF WILL IN FLORIDA, DECEDENT WAS A DOMICILIARY OF NEW YORK, ANCILLARY PROCEEDINGS IN NEW YORK INAPPROPRIATE, NONANCILLARY LETTERS GRANTED (FIRST DEPT).

The First Department, reversing Surrogate’s Court, determined decedent was a domiciliary of New York, despite the probate of the will in Florida:

Even if the Florida court had decided that decedent was a domiciliary of that state, “the decree of the State of original probate is not conclusive on the question of domicile or residence” … . Accordingly, this Court may make an independent inquiry into domicile … .

[Petitioner] failed to meet her burden of showing, by clear and convincing evidence, that decedent had changed her domicile from New York to Florida … . The documentation submitted by petitioner in support of her motion to renew, showed that decedent voted in New York, her driver’s license was from New York, and her passport application used her New York address… . She filed New York State tax returns … , and her will and death certificate said she was from New York … . Moreover, when decedent left New York for Florida in July 2009, she said she intended to return, but never did because of medical complications … .

Since decedent was a New York domiciliary, ancillary probate in this state is inappropriate, even though her will has already been probated in Florida … . Therefore, the grant of ancillary letters to [petitioner] is revoked, and nonancillary letters are granted to the Public Administrator. Matter of Assimakopoulos, 2018 NY Slip Op 01440, First Dept 3-6-18

TRUSTS AND ESTATES (DESPITE PROBATE OF WILL IN FLORIDA, DECEDENT WAS A DOMICILIARY OF NEW YORK, ANCILLARY PROCEEDINGS IN NEW YORK INAPPROPRIATE, NONANCILLARY LETTERS GRANTED (FIRST DEPT))/DOMICILE (TRUSTS AND ESTATES, ANCILLARY PROCEEDINGS, DESPITE PROBATE OF WILL IN FLORIDA, DECEDENT WAS A DOMICILIARY OF NEW YORK, ANCILLARY PROCEEDINGS IN NEW YORK INAPPROPRIATE, NONANCILLARY LETTERS GRANTED (FIRST DEPT))/ANCILLARY PROCEEDINGS (TRUSTS AND ESTATES, DESPITE PROBATE OF WILL IN FLORIDA, DECEDENT WAS A DOMICILIARY OF NEW YORK, ANCILLARY PROCEEDINGS IN NEW YORK INAPPROPRIATE, NONANCILLARY LETTERS GRANTED (FIRST DEPT))

March 6, 2018

Trusts and Estates

BECAUSE THERE WAS ONLY ONE ORIGINAL WILL, NOT MULTIPLE ORIGINALS, THE INABILITY TO FIND A WILL UPON DECEDENT’S DEATH DID NOT GIVE RISE TO THE PRESUMPTION OF REVOCATION BY THE DECEDENT (FOURTH DEPT).

The Fourth Department affirmed Surrogate’s Court’s finding that there was only one original will, a finding made upon remittal from the Court of Appeals. Because no will was found upon decedent’s death, and because, in the initial Surrogate’s Court proceeding, there was conflicting evidence about whether there was one will, with three copies, or four original wills, the presumption of revocation by the decedent had not been rebutted (the decedent could have possessed an original will). In the post-remittal proceeding, Surrogate’s Court determined petitioner, the sole beneficiary of the will, had proven there was only one will, not multiple original wills. Because, upon remittal, Surrogate’s Court found there was only one original will, the presumption of revocation by the decedent did not arise (because the decedent could not have possessed an original). The wills were drawn for decedent and her ex-husband. Petitioner, the ex-husband’s father, was made alternate beneficiary. When decedent and her ex-husband were divorced, the will as it related to the ex-husband was revoked by operation of law, triggering the petitioner’s alternate beneficiary status. The objectants are decedent’s parents and brothers:

Contrary to objectants’ contention, it cannot be said that the Surrogate erred in crediting the ex-husband’s testimony that he and decedent each signed one original will, one original power of attorney, and one original health care proxy, and that the attorney’s office made three photocopies of each of those estate planning documents. Despite the uncertainty with respect to the ex-husband’s testimony at the initial hearing, his testimony at the hearing upon remittal unequivocally clarified that there was only one original of each of six estate planning documents, i.e., his will, power of attorney, and health care proxy, and decedent’s will, power of attorney, and health care proxy. We conclude that the other instances of inconsistent testimony alleged by objectants have no bearing on the issue whether decedent executed only one original will and were otherwise adequately clarified by the ex-husband. Matter of Lewis, 2018 NY Slip Op 00941, Fourth Dept 2-9-18

TRUSTS AND ESTATES (BECAUSE THERE WAS ONLY ONE ORIGINAL WILL, NOT MULTIPLE ORIGINALS, THE INABILITY TO FIND A WILL UPON DECEDENT’S DEATH DID NOT GIVE RISE TO THE PRESUMPTION OF REVOCATION BY THE DECEDENT (FOURTH DEPT))/WILLS (PRESUMPTION OF REVOCATION, BECAUSE THERE WAS ONLY ONE ORIGINAL WILL, NOT MULTIPLE ORIGINALS, THE INABILITY TO FIND A WILL UPON DECEDENT’S DEATH DID NOT GIVE RISE TO THE PRESUMPTION OF REVOCATION BY THE DECEDENT (FOURTH DEPT))/REVOCATION, PRESUMPTION OF (WILLS, BECAUSE THERE WAS ONLY ONE ORIGINAL WILL, NOT MULTIPLE ORIGINALS, THE INABILITY TO FIND A WILL UPON DECEDENT’S DEATH DID NOT GIVE RISE TO THE PRESUMPTION OF REVOCATION BY THE DECEDENT (FOURTH DEPT))

February 9, 2018

Family Law, Trusts and Estates

FLAWED ACKNOWLEDGMENTS IN A PRENUPTIAL AGREEMENT, WHICH DID NOT INCLUDE THE STATEMENT THAT THE PARTIES WERE KNOWN TO THE NOTARIES, CAN BE CURED BY AFFIDAVITS SUBMITTED TO THE COURT BY THE NOTARIES (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Austin, determined Surrogate’s Court properly denied the wife’s (Irene’s) motion to dismiss the husband’s estate’s petition to invalidate Irene’s notice of spousal election. Irene and her husband who had both been married before, signed a prenuptial agreement that they would not make a claim to each other’s estates. There was no question both parties signed the agreement, but essential language was missing from the acknowledgments, taken by their respective attorneys as notaries. Both attorneys submitted affidavits stating that the signers were known to them at the time of signing, the information missing from the acknowledgments. The question came down to whether, by submitting the prenuptial agreement with the invalid acknowledgments, Irene demonstrated conclusively that the petition could not succeed. The Second Department determined the flaw in the acknowledgments can be cured, and the motion to dismiss was therefore properly denied:

In Galetta v Galetta (21 NY3d 186), the Court of Appeals left unanswered the question of whether a defective acknowledgment of a prenuptial agreement could be remedied by extrinsic proof provided by the notary public who took a party’s signature. For the reasons that follow, we conclude that such proof can remedy a defective acknowledgment. Accordingly, we affirm the order of the Surrogate’s Court, which denied the appellant’s motion to dismiss a petition to invalidate her notice of spousal election. Matter of Koegel, 2018 NY Slip Op 00833, Second Dept 2-7-18

TRUSTS AND ESTATES (FLAWED ACKNOWLEDGMENTS IN A PRENUPTIAL AGREEMENT, WHICH DID NOT INCLUDE THE STATEMENT THAT THE PARTIES WERE KNOWN TO THE NOTARIES, CAN BE CURED BY AFFIDAVITS SUBMITTED TO THE COURT BY THE NOTARIES (SECOND DEPT))/PRENUPTIAL AGREEMENTS (TRUSTS AND ESTATES, FLAWED ACKNOWLEDGMENTS IN A PRENUPTIAL AGREEMENT, WHICH DID NOT INCLUDE THE STATEMENT THAT THE PARTIES WERE KNOWN TO THE NOTARIES, CAN BE CURED BY AFFIDAVITS SUBMITTED TO THE COURT BY THE NOTARIES (SECOND DEPT))/NOTARIES (FLAWED ACKNOWLEDGMENTS IN A PRENUPTIAL AGREEMENT, WHICH DID NOT INCLUDE THE STATEMENT THAT THE PARTIES WERE KNOWN TO THE NOTARIES, CAN BE CURED BY AFFIDAVITS SUBMITTED TO THE COURT BY THE NOTARIES (SECOND DEPT))/ACKNOWLEDGMENTS (NOTARIES, TRUSTS AND ESTATES, LAWED ACKNOWLEDGMENTS IN A PRENUPTIAL AGREEMENT, WHICH DID NOT INCLUDE THE STATEMENT THAT THE PARTIES WERE KNOWN TO THE NOTARIES, CAN BE CURED BY AFFIDAVITS SUBMITTED TO THE COURT BY THE NOTARIES (SECOND DEPT))/FAMILY LAW (PRENUPTIAL AGREEMENTS, FLAWED ACKNOWLEDGMENTS IN A PRENUPTIAL AGREEMENT, WHICH DID NOT INCLUDE THE STATEMENT THAT THE PARTIES WERE KNOWN TO THE NOTARIES, CAN BE CURED BY AFFIDAVITS SUBMITTED TO THE COURT BY THE NOTARIES (SECOND DEPT))

February 7, 2018

Corporation Law, Trusts and Estates

NOT-FOR-PROFIT CORPORATION LAW PETITION TO DISINTER THE REMAINS OF ARCHBISHOP FULTON SHEEN AND MOVE THEM FROM ST PATRICK’S CATHEDRAL TO PEORIA ILLINOIS SHOULD NOT HAVE BEEN GRANTED WITHOUT A HEARING (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Richter, over a two-justice dissent, determined a hearing must be held to decide whether the remains of Archbishop Fulton Sheen should be removed from St. Patrick’s Cathedral in New York City to Peoria, Illinois, in anticipation of Archbishop Sheen’s Sainthood. The affidavits submitted by Archbishop Sheen’s relatives, stating that the Archbishop would have wanted his remains moved to Illinois, and the Archbishop’s long-time close friend, stating that the Archbishop expressed a wish that his remains be in New York, required a hearing. The petition court had granted the petition for removal of the remains to Illinois:

In June 2016, petitioner brought a proceeding pursuant to Not-For-Profit Corporation Law § 1510(e) seeking to disinter the remains of Archbishop Sheen for removal and transfer to a crypt located in St. Mary’s Cathedral in Peoria. Petitioner submitted the affidavits of her three siblings, all of whom fully support and consent to the transfer … . …

A body may be disinterred upon the consent of the cemetery owner, the owners of the lot, and certain specified relatives of the deceased (Not-For-Profit Corporation Law § 1510[e]). If such consent cannot be obtained, a court may grant permission to disinter … . There must be a showing of “[g]ood and substantial reasons” before disinterment is allowed … . Although “each case is dependent upon its own peculiar facts and circumstances” … , “[t]he paramount factor a court must consider in granting permission to disinter is the known desires of the decedent” … . “Among other factors, a court must also consider the desires of the decedent’s next of kin” … . Where issues of fact have been raised concerning the decedent’s wishes, the court should order a hearing … . Matter of Cunningham v Trustees of St. Patrick’s Cathedral, 2018 NY Slip Op 00815, First Dept 2-6-18

TRUSTS AND ESTATES (NOT-FOR-PROFIT CORPORATION LAW PETITION TO DISINTER THE REMAINS OF ARCHBISHOP FULTON SHEEN AND MOVE THEM FROM ST PATRICK’S CATHEDRAL TO PEORIA ILLINOIS SHOULD NOT HAVE BEEN GRANTED WITHOUT A HEARING (FIRST DEPT))/CORPORATION LAW (DISINTERMENT, NOT-FOR-PROFIT CORPORATION LAW PETITION TO DISINTER THE REMAINS OF ARCHBISHOP FULTON SHEEN AND MOVE THEM FROM ST PATRICK’S CATHEDRAL TO PEORIA ILLINOIS SHOULD NOT HAVE BEEN GRANTED WITHOUT A HEARING (FIRST DEPT))/NOT FOR PROFIT CORPORATION LAW (DISINTERMENT, NOT-FOR-PROFIT CORPORATION LAW PETITION TO DISINTER THE REMAINS OF ARCHBISHOP FULTON SHEEN AND MOVE THEM FROM ST PATRICK’S CATHEDRAL TO PEORIA ILLINOIS SHOULD NOT HAVE BEEN GRANTED WITHOUT A HEARING (FIRST DEPT))/DISINTERMENT (NOT-FOR-PROFIT CORPORATION LAW PETITION TO DISINTER THE REMAINS OF ARCHBISHOP FULTON SHEEN AND MOVE THEM FROM ST PATRICK’S CATHEDRAL TO PEORIA ILLINOIS SHOULD NOT HAVE BEEN GRANTED WITHOUT A HEARING (FIRST DEPT))/CEMETERIES (DISINTERMENT, NOT-FOR-PROFIT CORPORATION LAW PETITION TO DISINTER THE REMAINS OF ARCHBISHOP FULTON SHEEN AND MOVE THEM FROM ST PATRICK’S CATHEDRAL TO PEORIA ILLINOIS SHOULD NOT HAVE BEEN GRANTED WITHOUT A HEARING (FIRST DEPT))

February 6, 2018

Attorneys, Trusts and Estates

SURROGATE’S COURT, IN AWARDING ATTORNEY’S FEES FOR THE PETITION FOR JUDICIAL SETTLEMENT AND FINAL ACCOUNTING REGARDING A TRUST, DID NOT MAKE THE REQUIRED FINDINGS, MATTER REMITTED (FOURTH DEPT).

The Fourth Department remitted the matter to Surrogate’s Court for a determination of the reasonableness of the attorney’s fees Surrogate’s Court had awarded petitioner. Petitioner trustee filed a petition for judicial settlement and final accounting regarding a trust. Surrogate’s Court awarded attorney’s fees to the petitioner but did not make the required findings:

We … agree with objectants that the Surrogate erred in approving the attorneys’ fees, costs and disbursements requested by petitioner without considering the required factors. “It is well settled that, in determining the proper amount of attorneys’ fees and costs, the court should consider the time spent, the difficulties involved in the matters in which the services were rendered, the nature of the services, the amount involved, the professional standing of the counsel, and the results obtained’ ” … .Here, the Surrogate failed to make any findings with respect to the Potts factors [Matter of Potts, 213 App Div 59, 62], and we are therefore unable to review the Surrogate’s implicit determination that the attorneys’ fees, costs and disbursements are reasonable … . We therefore modify the decree by vacating the award of attorneys’ fees, costs and disbursements, and we remit the matter to Surrogate’s Court for a determination whether those fees, costs and disbursements are reasonable, following a hearing if necessary … . Matter of JPmorgan Chase Bank, N.A., 2018 NY Slip Op 00775, Fourth Dept 2-2-18

ATTORNEYS (FEES, SURROGATE’S COURT, IN AWARDING ATTORNEY’S FEES FOR THE PETITION FOR JUDICIAL SETTLEMENT AND FINAL ACCOUNTING REGARDING A TRUST DID NOT MAKE THE REQUIRED FINDINGS, MATTER REMITTED (FOURTH DEPT))/TRUSTS AND ESTATES (ATTORNEY’S FEES, SURROGATE’S COURT, IN AWARDING ATTORNEY’S FEES FOR THE PETITION FOR JUDICIAL SETTLEMENT AND FINAL ACCOUNTING REGARDING A TRUST DID NOT MAKE THE REQUIRED FINDINGS, MATTER REMITTED (FOURTH DEPT))/ATTORNEY’S FEES (SURROGATE’S COURT, IN AWARDING ATTORNEY’S FEES FOR THE PETITION FOR JUDICIAL SETTLEMENT AND FINAL ACCOUNTING REGARDING A TRUST DID NOT MAKE THE REQUIRED FINDINGS, MATTER REMITTED (FOURTH DEPT))

February 2, 2018

Civil Procedure, Trusts and Estates

DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY OF TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants in this wrongful death case were entitled to discovery of tax returns to determine whether the parents of the plaintiff-children were married. If the parents were married when mother died, the statute of limitations had passed:

Individual tax returns are generally not discoverable unless the movant makes a ” requisite showing that [the] tax returns [are] indispensable to [the] litigation and that [the] relevant information possibly contained therein [is] unavailable from other sources’ ” … . A wrongful death action has a two-year statute of limitations from the date of the decedent’s death… Where the sole distributee is an infant, the statute is tolled “until appointment of a guardian or the majority of the sole distributee, whichever is earlier”… . Where, however, the decedent is married and the surviving spouse is thus a distributee of the estate, the infancy toll does not apply because the spouse “was available both to seek appointment as the personal representative of the estate and to commence an action on behalf of the children in a timely fashion” … . Has K’Paw Mu v Lyon, 2018 NY Slip Op 00687, Fourth Dept 2-2-18

CIVIL PROCEDURE (DISCOVERY, TAX RETURNS, DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT))/DISCOVERY (TAX RETURNS, DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT))/TAX RETURNS (CIVIL PROCEDURE, DISCOVERY, DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT))/STATUTE OF LIMITATIONS (WRONGFUL DEATH, DISCOVERY, TAX RETURNS, DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT))/WRONGFUL DEATH (DISCOVERY, TAX RETURNS, DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT))/TRUSTS AND ESTATES (WRONGFUL DEATH, DISCOVERY, TAX RETURNS, DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT))

February 2, 2018

Trusts and Estates

RELEASE SIGNED BY ONE OF THE BENEFICIARIES OF THE WILL, RELEASING THE EXECUTOR FROM LIABILITY STEMMING FROM THE ADMINISTRATION OF THE ESTATE, WAS NOT VALID BECAUSE THE BENEFICIARY WAS NOT FULLY INFORMED ABOUT THE VALUE OF THE SECURITIES IN THE ESTATE, AND THE EFFECTS OF LEAVING A TRUST UNFUNDED, SURROGATE’S COURT IMPROPERLY PLACED THE BURDEN OF DEMONSTRATING THE RELEASE WAS INVALID ON THE BENEFICIARY (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, determined that a release drawn up by the initial executor, who died, was not valid because the objectant, a beneficiary of the will who signed the release, was not informed that the value of the securities in the estate had declined significantly and was not informed of the ramifications of the executor’s decision to leave a trust unfunded. Surrogate’s Court had erroneously placed the burden of demonstrating the release was invalid on the objectant:

… [T]he Surrogate improperly shifted the burden from petitioners to objectant to prove that the release was fraudulently obtained and erred in determining that the release is valid. With releases, “as in other instances of dealing between a fiduciary and the person for whom he [or she] is acting, there must be proof of full disclosure by the [executor] of the facts of the situation and the legal rights of the beneficiary” … . A release should be subject to careful scrutiny, and the executor must affirmatively demonstrate full disclosure of “material facts which he [or she] knew or should have known” … . “The mere absence of misrepresentation, fraud, or undue influence in the obtaining of a release is not sufficient to insulate the release from a subsequent attack by the beneficiaries; the fiduciary must affirmatively demonstrate that the beneficiaries were made aware of the nature and legal effect of the transaction in all its particulars” … . Here, petitioners’ burden of proving that full disclosure was provided was improperly shifted to objectant, i.e., the beneficiary who challenged the validity of the release.

Decedent’s will contemplated equal bequests to objectant and his sister (decedent’s children). There was a substantial discrepancy in the value of the properties decedent left to each child, however, and most of objectant’s inheritance was to come from the liquidation of the estate’s securities. The will also directed that the trust be funded in the maximum sum allowable to benefit decedent’s children and their descendants. Objectant and the executor were named as co-trustees of the trust. Accurate information concerning the current value of the estate’s securities and the propriety of defunding the trust in contravention of the will was therefore highly material to objectant. Matter of Alford, 2018 NY Slip Op 00752, Fourth Dept 2-2-18

TRUSTS AND ESTATES (RELEASE SIGNED BY ONE OF THE BENEFICIARIES OF THE WILL, RELEASING THE EXECUTOR FROM LIABILITY STEMMING FROM THE ADMINISTRATION OF THE ESTATE, WAS NOT VALID BECAUSE THE BENEFICIARY WAS NOT FULLY INFORMED ABOUT THE VALUE OF THE SECURITIES IN THE ESTATE, AND THE EFFECTS OF LEAVING A TRUST UNFUNDED, SURROGATE’S COURT IMPROPERLY PLACED THE BURDEN OF DEMONSTRATING THE RELEASE WAS INVALID ON THE BENEFICIARY (FOURTH DEPT))/RELEASES (TRUSTS AND ESTATES, RELEASE SIGNED BY ONE OF THE BENEFICIARIES OF THE WILL, RELEASING THE EXECUTOR FROM LIABILITY STEMMING FROM THE ADMINISTRATION OF THE ESTATE, WAS NOT VALID BECAUSE THE BENEFICIARY WAS NOT FULLY INFORMED ABOUT THE VALUE OF THE SECURITIES IN THE ESTATE, AND THE EFFECTS OF LEAVING A TRUST UNFUNDED, SURROGATE’S COURT IMPROPERLY PLACED THE BURDEN OF DEMONSTRATING THE RELEASE WAS INVALID ON THE BENEFICIARY (FOURTH DEPT))/EXECUTORS (RELEASE SIGNED BY ONE OF THE BENEFICIARIES OF THE WILL, RELEASING THE EXECUTOR FROM LIABILITY STEMMING FROM THE ADMINISTRATION OF THE ESTATE, WAS NOT VALID BECAUSE THE BENEFICIARY WAS NOT FULLY INFORMED ABOUT THE VALUE OF THE SECURITIES IN THE ESTATE, AND THE EFFECTS OF LEAVING A TRUST UNFUNDED, SURROGATE’S COURT IMPROPERLY PLACED THE BURDEN OF DEMONSTRATING THE RELEASE WAS INVALID ON THE BENEFICIARY (FOURTH DEPT))

February 2, 2018

Civil Procedure, Trusts and Estates

MOTION TO DISMISS MADE BY DECEASED DEFENDANT’S FORMER ATTORNEY PURPORTEDLY ON DECEDENT’S BEHALF WAS A NULLITY, MOTIONS TO DISMISS MADE BY OTHER DEFENDANTS ARGUING THAT PLAINTIFFS DID NOT TAKE TIMELY STEPS TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEASED DEFENDANT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined plaintiff’s failure to take timely steps to substitute a representative for a defendant who had died required the dismissal of the complaint against that defendant. A motion to dismiss made by decedent’s former attorney, purportedly on behalf of the decedent, was a nullity and should not have been granted. Motions to dismiss made by the other defendants should have been granted:

“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… . Although the determination of a motion pursuant to CPLR 1021 made by the successors or representatives of a party or by any party is an exception to a court’s lack of jurisdiction, here, one of the motions pursuant to CPLR 1021 was made by the former attorney for the decedent purportedly on behalf of the decedent. Since the former attorney lacked the authority to act, the Supreme Court lacked jurisdiction to consider that motion to dismiss … . Accordingly, so much of the order as granted the motion purportedly made on behalf of the decedent is a nullity.

Nonetheless, the Supreme Court had jurisdiction to consider the other defendants’ separate motions to dismiss pursuant to CPLR 1021 and to consider the plaintiffs’ cross motion. 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, however, such dismissal shall not be on the merits unless the court shall so indicate” … . …

Here, the Supreme Court providently exercised its discretion in determining that substitution of the decedent was not made within a reasonable time. As such, the court providently exercised its discretion in denying those branches of the plaintiffs’ cross motion which were to appoint a representative for the decedent and, upon appointment, substitute the representative for the decedent as a defendant. Given that substitution was not made within a reasonable time, dismissal of the complaint as against the decedent, “the party for whom substitution should have been made” (CPLR 1021), was proper. However, contrary to the court’s determination, CPLR 1021 did not authorize dismissal of the complaint as against any of the other defendants. Vicari v Kleinwaks, 2018 NY Slip Op 00576, Second Dept 1-31-18

CIVIL PROCEDURE (SUBSTITUTION OF REPRESENTATIVE FOR DECEASED DEFENDANT, MOTION TO DISMISS MADE BY DECEASED DEFENDANT’S FORMER ATTORNEY PURPORTEDLY ON DECEDENT’S BEHALF WAS A NULLITY, MOTIONS TO DISMISS MADE BY OTHER DEFENDANTS ARGUING THAT PLAINTIFFS DID NOT TAKE TIMELY STEPS TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEASED DEFENDANT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/SUBSTITUTION OF REPRESENTATIVE FOR DECEASED DEFENDANT MOTION TO DISMISS MADE BY DECEASED DEFENDANT’S FORMER ATTORNEY PURPORTEDLY ON DECEDENT’S BEHALF WAS A NULLITY, MOTIONS TO DISMISS MADE BY OTHER DEFENDANTS ARGUING THAT PLAINTIFFS DID NOT TAKE TIMELY STEPS TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEASED DEFENDANT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRUSTS AND ESTATES (CIVIL PROCEDURE, SUBSTITUTION OF REPRESENTATIVE FOR DECEASED DEFENDANT, MOTION TO DISMISS MADE BY DECEASED DEFENDANT’S FORMER ATTORNEY PURPORTEDLY ON DECEDENT’S BEHALF WAS A NULLITY, MOTIONS TO DISMISS MADE BY OTHER DEFENDANTS ARGUING THAT PLAINTIFFS DID NOT TAKE TIMELY STEPS TO SUBSTITUTE A REPRESENTATIVE FOR THE DECEASED DEFENDANT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

January 31, 2018

BANK’S MOTION TO CHANGE THE CAPTION IN THIS FORECLOSURE PROCEEDING SHOULD NOT HAVE BEEN GRANTED, NO ADMISSIBLE PROOF OF AN ASSIGNMENT OF THE NOTE TO A NEW PLAINTIFF, AND NO PROCEDURAL STEPS TO REMOVE A DECEASED DEFENDANT FROM THE ACTION WERE TAKEN (SECOND DEPT).

FORECLOSURE ACTION SHOULD HAVE BEEN DISMISSED AS TIME-BARRED, ALTHOUGH CPLR 210 (b) TOLLS THE STATUTE OF LIMITATIONS FOR AN ACTION AGAINST AN ESTATE, THE BANK DID NOT DEMONSTRATE DEFENDANT HUSBAND REPRESENTED HIS WIFE’S ESTATE (SECOND DEPT).

DESPITE PROBATE OF WILL IN FLORIDA, DECEDENT WAS A DOMICILIARY OF NEW YORK, ANCILLARY PROCEEDINGS IN NEW YORK INAPPROPRIATE, NONANCILLARY LETTERS GRANTED (FIRST DEPT).

BECAUSE THERE WAS ONLY ONE ORIGINAL WILL, NOT MULTIPLE ORIGINALS, THE INABILITY TO FIND A WILL UPON DECEDENT’S DEATH DID NOT GIVE RISE TO THE PRESUMPTION OF REVOCATION BY THE DECEDENT (FOURTH DEPT).

FLAWED ACKNOWLEDGMENTS IN A PRENUPTIAL AGREEMENT, WHICH DID NOT INCLUDE THE STATEMENT THAT THE PARTIES WERE KNOWN TO THE NOTARIES, CAN BE CURED BY AFFIDAVITS SUBMITTED TO THE COURT BY THE NOTARIES (SECOND DEPT).

NOT-FOR-PROFIT CORPORATION LAW PETITION TO DISINTER THE REMAINS OF ARCHBISHOP FULTON SHEEN AND MOVE THEM FROM ST PATRICK’S CATHEDRAL TO PEORIA ILLINOIS SHOULD NOT HAVE BEEN GRANTED WITHOUT A HEARING (FIRST DEPT).

SURROGATE’S COURT, IN AWARDING ATTORNEY’S FEES FOR THE PETITION FOR JUDICIAL SETTLEMENT AND FINAL ACCOUNTING REGARDING A TRUST, DID NOT MAKE THE REQUIRED FINDINGS, MATTER REMITTED (FOURTH DEPT).

DEFENDANTS IN THIS WRONGFUL DEATH CASE WERE ENTITLED TO DISCOVERY OF TAX RETURNS TO DETERMINE WHETHER THE MOTHER AND FATHER WERE MARRIED AT THE TIME OF MOTHER’S DEATH, IF SO, THE STATUTE OF LIMITATIONS HAD PASSED (FOURTH DEPT).

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