News & Blog

Category: Trusts and Estates

Hearsay in Summary Judgment Motions Dindiyal v. Dindiyal 2017 NY Slip Op 03152 Second Department, April 2017

May 11, 2017 • Posted By Joseph A. French • Trusts and Estates

The issue of hearsay in summary judgment motions is an issue that the practitioner should be ever vigilant about when drafting and opposing summary judgment motions.             Plaintiff’s motion for summary judgment was granted, and she was declared the sole beneficiary of the life insurance policy at issue.  Plaintiff was the sister of a man who had entered into a Stipulation of Settlement regarding the marital estate he had with the defendant.  The policy was not mentioned in the Stipulation of Settlement, and plaintiff’s brother died before the judgment of divorce was entered. Read More

Tangible Personal Property

February 13, 2015 • Posted By Moira E. Casey • Trusts and Estates

During the estate proceeding process, there are typically two major types of property: Real Property and Personal Property. Real Property is generally considered immovable property, such as a house, improvements and fixtures or land. Personal Property is divided into two sub categories, Tangible Personal Property and Intangible Personal Property. Intangible personal property is something that an individual or corporation can own and transfer to another entity, but has no physical substance.

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Administration Proceeding, Estate of Anne Fishman

February 13, 2015 • Posted By Moira E. Casey • Trusts and Estates

In this matter, petitioner was entitled to limited letters of Administration for the purpose of bringing a proceeding to discover and turnover property belonging to the estate. The Nassau County Surrogate’s court held that the objectant could not commence a discovery proceeding against himself as he had a 25% interest in the decedent’s estate, and would be undoubtedly biased if the estate assets were not fully accounted for.

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February 3, 2015 • Posted By Moira E. Casey • Trusts and Estates

Living Trusts in New York present a number of beneficial options for a person’s Estate Planning.  The basic planning and advanced Directive documents begin with a Last Will, Health Care Proxy and Living Will and Power of Attorney.  However, these papers may not meet all of the needs in a particular situation.

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Stipulation of Settlement in Divorce Proceeding Causes Summary Judgment to be Denied to Both Parties

July 14, 2014 • Posted By Moira E. Casey & Emma Christman • Trusts and Estates

The primary issue in Estate of Rivera was whether it meets the standards of summary judgment. If genuine issues of fact must be resolved, then summary judgment must be denied. Carmine Castellano, the alleged surviving spouse of the decedent, motioned for summary judgment to have the Court determine what rights he has with respect to a stipulation of settlement he signed in the divorce proceeding.  The decedent’s sister filed a cross motion for summary judgment to enforce the stipulation of settlement signed by the decedent and Carmine before decedent’s death. The sister has also filed a petition to be appointed the fiduciary of the decedent’s estate, which the decedent’s children were in support of. In this case, there are issues of fact that must be determined so summary judgment must be denied.

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Beneficiary of Death Benefit Contested

July 1, 2014 • Posted By Moira E. Casey • Trusts and Estates

The Appellate Division, Second Department reversed the holding of the Surrogate’s Court, Suffolk County that dismissed the claim by the administrator of the estate petitioning for the turnover of assets by Long Island University (LIU) that allegedly belonged to the decedent’s estate. Long Island University’s motion to dismiss the petition pursuant to CPLR 3211(a) is denied.

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Legal Malpractice Suit Dismissed: Duty is to the Estate

July 1, 2014 • Posted By Moira E. Casey & Emma Christman • Trusts and Estates

In this matter, the Appellate Division, First Department, unanimously affirmed the holding of the Supreme Court, Rockland County, which granted the defendant’s motion to dismiss the complaint asserting legal malpractice and breach of fiduciary duty.  The court held that plaintiff failed to state a cause of action against defendant, the executor of the estate.

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Surviving Spouse of Decedent’s Predeceased Son is Beneficiary with Standing to Bring Removal Action

June 10, 2014 • Posted By Emma Christman • Trusts and Estates

In Estate of Fusco, an alleged beneficiary sought to revoke letters testamentary issued to one of decedent’s sons and to have the court issue temporary letters of administration to herself.  The respondent executor contested her status under the Will and therefore asserted that she did not have standing to proceed.  The petitioner is the surviving spouse of one of the decedent’s sons, Peter, who predeceased the decedent.

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Interesting New Cases in the Surrogate’s Court

June 9, 2014 • Posted By Paul J. Lee • Trusts and Estates

Matter of Defendini, 2007-3067A, Surrogate’s Court, Kings County (May 16, 2014)

Matter of Moloney, 1978P2001/A, Surrogate’s Court, Suffolk County (April 2, 2014)

In Matter of Defendini, petitioner was previously granted letters of administration for decedent’s estate and brought a turnover proceeding against decedent’s father and brother.  In 2011, the Surrogate’s Court granted petitioner’s motion for summary judgment asking respondents to turnover to the estate proceeds from the sale of decedent’s Taxi and Limousine Commission medallion and vehicle.   

In Matter of Moloney, petitioner, decedent’s grandson, alleged that respondents interfered with him obtaining his funeral director license, thereby preventing him from becoming a full time employee of family businesses.  Petitioner interpreted the relevant trust instruments as entitling any full time employee of the business, who was also one of decedent’s issue, to distributions of income during the business’ operation, and of principal upon the sale of the last business.

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The 2nd Dept Declares “As Is” Buyer Of Home Liable For Over $1.5 Million After Demand For Repairs Hinders Closing

July 16, 2013 • Posted By Victoria Kennedy • Trusts and Estates

On June 19, 2013, the Second Department reversed Judge Strauss’s (Queens County) denial of summary judgment to a seller after the buyer reneged on a stipulated agreement to purchase real estate “As Is” for approximately $1.5 million. See 111-38 Management Corp. v. Diego Benitez, Index# 4892/2011 (2d Dep’t June 19, 2013).

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