estate claim in New York

2025The executor's personal collection of rent generated by the estate was a violation of her fiduciary duty, which harmed the decedent's estate ( see Cooper v Jones , 78 AD2d 423, 428 ; see also Matter of Steward , 193 AD3d at 943 ).

2025The executor's personal collection of rent generated by the estate was a violation of her fiduciary duty, which harmed the decedent's estate ( see Cooper v Jones , 78 AD2d 423, 428 ; see also Matter of Steward , 193 AD3d at 943 ).

2025Discussion After considering the evidence admitted, and in particular the Amended Account, as modified by Petitioner during trial to withdraw her request for reimbursement of her loan to the estate and her claim for commissions, and after assessing Petitioner's credibility, the court finds that Petitioner met her initial burden to establish that she accounted for all estate assets (see 7 [* 7] Matter ofSchnare, 191 AD2d at 860 ; Matter of Rudin, 34 AD3d 3 71, 372 [1st Dept 2006) [accounting fiduciary establishes prima facie case by submitting to the court the account and supporting affidavit])

2025Discussion After considering the evidence admitted, and in particular the Amended Account, as modified by Petitioner during trial to withdraw her request for reimbursement of her loan to the estate and her claim for commissions, and after assessing Petitioner's credibility, the court finds that Petitioner met her initial burden to establish that she accounted for all estate assets (see 7 [* 7] Matter ofSchnare, 191 AD2d at 860; Matter of Rudin, 34 AD3d 3 71, 372 [1st Dept 2006) [accounting fiduciary establishes prima facie case by submitting to the court the account and supporting affidavit]).

2019Here, in support of the Estate's motion, the Estate's counsel proffered the excuse that he was "on vacation when the motion arrived and returned a few days before the return date." The Estate's counsel stated that he attempted to contact opposing counsel to request an adjournment but received no response, and that he intended to appear at the calendar call for the motion and seek an adjournment but "had car problems" on his way to court "and spent the afternoon at A & A Auto Clinic in White Plains." Counsel's failure to contact the Supreme Court prior to the return date, or on the day of the c

2019A party seeking to vacate an order entered upon its failure to oppose a motion is required to demonstrate, through the submission of supporting facts in evidentiary form, both a reasonable excuse for the default and the existence of a potentially meritorious opposition to the motion ( see Kondrota-Williams v Westbridge Enters., Inc. , 170 AD3d 983 , 985; see also CPLR 5015[a][1]; Soto v Chelsea W26, LLC , 166 AD3d 1048 , 1049; Bhuiyan v New York City Health & Hosps.

2017The claims against the Estate and its executor, based on the same attorneys’ letter, were correctly dismissed as barred by the doctrine of collateral estoppel (Alamo v McDaniel, 44 AD3d 149, 153 [1st Dept 2007]).

2015Whether the Estate Consistently Acted in Good Faith Next, a denial of summary judgment is similarly warranted because questions of fact exist regarding whether the Estate breached the covenant of good faith and fair dealing, implied in all New York contracts (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 153 [2002]), when it submitted the May plan to plaintiff and sought to set a closing date.

2013We agree with the Appellate Division that the Estate failed to establish the affirmative defense of laches, which requires a showing “that the museum failed to exercise reasonable diligence to locate the tablet and that such failure prejudiced the [E]state” (95 AD3d at 1320, citing Solomon R.

2012Inasmuch as the parties’ contract did not demonstrate that the Estate properly canceled the contract according to its terms and, thus, did not “ ‘conclusively establish[ ] a defense to the asserted claims as a matter of law,’ ” the Estate was not entitled to dismissal of the complaint pursuant to CPLR 3211 (a) (1) (Ofman v Katz, 89 AD3d 909, 910 [2011], quoting Leon v Martinez, 84 NY2d 83, 88 [1994]).

2012Inasmuch as the parties’ contract did not demonstrate that the Estate properly canceled the contract according to its terms and, thus, did not “ ‘conclusively establish[ ] a defense to the asserted claims as a matter of law,’ ” the Estate was not entitled to dismissal of the complaint pursuant to CPLR 3211 (a) (1) (Ofman v Katz, 89 AD3d 909, 910 [2011], quoting Leon v Martinez, 84 NY2d 83, 88 [1994]).

2012Thus, this Court will apply, with respect to the Estate’s motion, the standards applicable to a motion to dismiss pursuant to CPLR 3211 (a) (1) and (7) (see Velez v Captain Luna’s Mar., 74 AD3d at 1191; Garner v China Natural Gas, Inc., 71 AD3d at 826 ).

2010Trust Co. v International Inst. for Packaging Educ. ( 38 NY2d 493, 498 [1976]).

2009In support of its motion to dismiss the proceeding, Orra demonstrated that the issues of ownership of and entitlement to the assets in question were raised, necessarily decided, and material in the prior action (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; Matter of Hee K.

2001Additionally, given plaintiffs status as representative of the estate, her testimony cannot be deemed to have been given against the estate in violation of the Dead Man’s Statute (see, Brezinski v Brezinski, 84 AD2d 464, 468 [testimony of defendants who were called by plaintiff not barred by Dead Man’s Statute since their interests were adverse to plaintiff and not adverse to the interests of the deceased]).

1992The law is well settled that a testator’s selection of a fiduciary must be given great deference and that the Surrogate’s power to refuse to grant letters is limited by statute (see, Matter of Flood, 236 NY 408 ; Matter of Leland, 219 NY 387 ; see also, Matter of Marsh, 179 AD2d 578 ).

1980(Matter of Leopold, supra, p 277.) The Leopold case involved a dispute between coadministrators as to the advisability of a proposed compromise, and the Court of Appeals held that the Surrogate had unquestioned power to compel payment out of the estate of a claim in the amount for which it had been compromised, notwithstanding the opposition of one of the coadministrators.