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Supreme Court Has the Power to Appoint a Temporary Representative to Substitute for a Defendant in a Personal Injury Action

One of the defendants in a personal injury action died.  The plaintiff moved pursuant to CPLR 1015 to have Supreme Court appoint a temporary representative of the estate, and to have the temporary representative substituted for the deceased defendant. The defendants opposed the motion arguing that Surrogate’s Court was the appropriate forum for the appointment of a temporary administrator. In finding that Supreme Court could make the appointment, the Second Department wrote:

“In most instances the personal representative of the decedent’s estate should be substituted in the action” …. However, in the event no such representative exists, an appropriate appointment should be made and that individual should be substituted in place of the decedent … . “In determining who shall be substituted for the decedent, conflict of interest questions may be raised” … .

The Second Department, however, determined that the person Supreme Court appointed, the attorney for the insurance company defending the action, had a conflict of interest because the insurance company had disclaimed coverage for the subject accident.  The matter was remitted for the appointment of a different temporary administrator.  Dieye v Royal Blue Services, Inc., 2012 NY Slip Op 01527, 2012-03428, Index No 3392/09, 2nd Dept. 3-13-13

 

Stepmother Had Right to Portion of Children’s Trust Under Spouse’s Right of Election

Petitioners were the children of the grantors of a trust and were co-beneficiaries of the trust.  The grantors of the trust were the beneficiaries’ mother and father. The mother died and respondent was the children’s stepmother.  The children moved to dismiss the objections to the trust accounting made by the respondent-stepmother on the ground she did not have standing.  In ruling the stepmother had standing pursuant to the right of election, the Third Department wrote:  …[A] revocable trust … is a testamentary substitute, subject to [the surviving spouse’s] right of election … . Where a trustee voluntarily commences judicial settlement of the account of a trust, process must be provided ‘to all persons who are entitled absolutely or contingently by the terms of the will, lifetime trust instrument or by operation of law to share in the estate’ …” .  The surviving spouse, by operation of law, was entitled to a portion of the estate, including the trust.  In the Matter of Garrasi …, 515128, 3rd Dept. 3-7-13

 

Question of Fact Existed About Whether Lost or Destroyed Will Had Been Revoked.

A question of fact precluded summary judgment denying probate where there was evidence the decedent did not intend to revoke a will that could not be found after her death.  There is a presumption that a will that was last in decedent’s possession but can not be found after death has been revoked.  But in this case there was evidence that the decedent was, close in time to her death, taking steps to dispose of her property in accordance with her will, which expressly disinherited one of her four children.  Matter of DiSiena, et al, 515209, Third Dept. 2-28-13

 

Proof Requirements for Constructive Trust.

In this case the Second Department included a clear discussion of the elements of proof necessary to create a constructive trust: “(1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment…”.  Henning vs Henning, 2011-09955, Index No. 11901/11 Second Dept. 2-20-13

 

Rights of Adopted Children.

In a full-fledged opinion by Justice Austin, the First Department determined, as a case of first impression, an adopted child of the decedent should share in trusts created by the decedent even though the decedent’s wife surrendered the child for a second adoption eight years after the adoptive father’s death and the admission of his will to probate.  The opinion includes a discussion of the rights of adopted children in this context.  Matter of Svenningsen, 2010-11057, 2010-11113, 2010-11114 Second Dept. 2-6-13

 

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