Case Results

March 4, 2014: Founding Partner Donald Novick and Associate Kimberly A. Schechter obtained a favorable decision at trial for their client in an contested probate proceeding entitled Matter of Lubow, in the Surrogate's Court of the State of New York, County of Suffolk (Czygier, Sur.).

Novick & Associates, P.C. founding partner Donald Novick and Associate Kimberly A. Schechter secured a decision after a 5 day jury trial in favor of their client, a legatee beneficiary of the Last Will and Testament of Donna Lynn Lubow. When the decedent's brother neglected to prosecute a probate proceeding, the client filed for letters of administration c.t.a. Objections to probate were filed by the decedent's son who objected to the Will on the basis of improper execution of the Will, lack of testamentary capacity, fraud and undue influence. Following a 25 minute deliberation, the jury found that the objectant failed to carry his burden of proof on his objections to probate showing that the Will was a product of fraud or undue influence. The jury also found that the attorney-drafted and supervised Will was properly executed in all respects and that the decedent possessed the requisite testamentary capacity to execute a Will. Following the jury verdict, the court signed a decree admitting the Will to probate and awarding a bill of costs and disbursements in favor of the client.

March 4, 2014: Associate attorney Albert V. Messina, Jr. obtained summary judgment on behalf of two siblings who alleged that their father's will had been improperly executed. Due to the judgment, the document that was submitted as the decedent's will was deemed invalid by the court.

Associate attorney Albert V. Messina, Jr., of Novick & Associates, P.C., secured an order granting summary judgment from the Suffolk County Surrogate's Court in a contested probate proceeding in which the adult children of decedent George David Costello, Sr. alleged that their father's will was executed improperly in Matter of Costello, (Czygier, Sur.). Novick & Associates, P.C., represented two of the decedent's five adult children. In his clients' motion for summary judgment, the clients claimed that 1) the will execution was not attorney-supervised, and 2) the testamentary instrument submitted as their father's last will and testament for probate was six pages long, while the two people who served as witnesses for the signing of the will said they remember the document only being two pages long. The court ultimately granted summary judgment, thus invalidating the six-page will, on the basis that the spouse and the infant daughter's guardian ad litem failed to provide enough proof to refute the adult children's claims.

For additional facts about this case, please see our blog.

February 17, 2011: Founding Partner Donald Novick obtained a favorable decision at trial for his client in an contested accounting proceeding entitled Matter of Doman, in the Surrogate's Court of the State of New York, County of Suffolk (Czygier, J.).

Novick & Associates, P.C. founding partner Donald Novick secured a decision after a four day bench trial in favor of his client, the ultimate beneficiary of the Doman Qualified Personal Residence Trust, in a contested accounting proceeding. Matter of Doman, 2/17/2011 N.Y. L.J. 32 (col. 1) (Sur. Ct. Suffolk County). The Trustees filed an accounting for the Trust, to which various objections were filed, among which were the failure of the trustee to defend the trust from a challenge to its validity, the overvaluation of trust property by the trustee and a reduction in legal fees charged to the trust by the deceased trustee's attorneys. The Court found, inter alia, that based upon the evidence presented by objectant that certain trustee commissions will be disallowed for breach of fiduciary duty based upon the trustee's failure to defend the trust from proceedings seeking its invalidation rendering the commission calculation incorrect, the trustee overvalued the trust property by $400,000.00 and since the value was incorrect the charge to the trust for an appraisal was also incorrect and the legal fees charged to the trust in the amount of $182,000.00 was reduced by more than 50%.

September 28, 2010: Founding Partner Donald Novick and associate attorney Albert V. Messina Jr. obtained summary judgment on for an Estate, compelling insurer to pay to the estate the balance of an annuity dating back to October 23, 2000, plus interest, entitled Matter of DeLorenzo, in the Surrogate's Court of the State of New York, County of New York (Anderson, J.).

Novick & Associates, P.C. founding partner Donald Novick and associate Albert V. Messina Jr. successfully obtained summary judgment for their clients, the Executors of the Estate of Rita DeLorenzo, in a proceeding to compel the payment of the death benefit balance of an annuity contract purchased by the Decedent entitled Matter of DeLorenzo, in the Surrogate's Court of the State of New York, County of New York. The New York County Surrogate's Court previously denied respondent Sun Life Insurance and Annuity Co. of New York's motion for summary judgment to dismiss the petition, finding that the remaining issue was the value of the annuity. Matter of DeLorenzo, 8/11/2008 N.Y.L.J. 32 (col. 3) (Sur. Ct. N.Y. County) aff'd 67 A.D.3d 494 (1st Dep't 2009). In granting the Executor's motion, the Court held that the valuation date of the annuity was October 23, 2000 based upon the insurer's receipt of a valid election and its liquidation of the annuity account and that the Executors were entitled to the balance of the annuity in the amount of $201,038.43, plus interest from October 23, 2000.

December 16, 2009: Associate attorney Michael J. Sullivan successfully obtained summary judgment for the mother and guardian of the Decedent's infant son in a proceeding to void a deed entitled Matter of Jones, in the Surrogate's Court of the State of New York, Bronx County (Holzman, J.).

Novick & Associates, P.C. associate attorney Michael J. Sullivan successfully obtained summary judgment for the mother and guardian of the Decedent's infant son to void a deed transferring an apartment building owned by the Decedent to the Decedent's brother and daughter. The Decedent's daughter and brother, as administrators of the Decedent's Estate, represented that the Decedent's daughter was the sole distributee of the Estate despite an existing order of filiation from the Bronx County Family Court establishing paternity of the client's son. The Surrogate's Court of the State of New York, Bronx County found that the Decedent's brother and daughter fraudulently omitted the Decedent's infant son as a distributee and conveyed the premises to themselves and thereafter mortgaged the property and converted the proceeds in violation of their fiduciary duties. The Court declared the deed void and cancelled of record as the result of a fraudulent conveyance. Matter of Jones, 25 Misc.3d 1241(A) (Sur. Ct. Bronx County 2009).

December 8, 2009: Novick & Associates, P.C. congratulates founding Partner Donald Novick and associate attorney Albert V. Messina Jr. on their victory on a motion to dismiss a petition to invalidate an inter vivos trust entitled Matter of Doman in the Surrogate's Court of the State of New York, County of Suffolk. (Czygier, J.).

Novick & Associates, P.C. founding partner Donald Novick and associate Albert V. Messina Jr. obtained an order for their client, the executor of the Estate of Nicholas Doman, to dismiss the April 4, 2008 petition of the Estate of Judith Doman seeking to invalidate an inter vivos trust. According the petitioner, the August 24, 1998 Qualified Annuity Residence Trust (QPRT) was invalid because the property was not delivered to the Trust until March 4, 1999. The order of the Suffolk County Surrogate's Court was affirmed by the Appellate Division, Second Department. The Court found no support for the petitioner's contention that the trust was invalid due to the delivery of the real property to the trust six months after the trust was created. Matter of Doman, 68 A.D.3d 862 (2d Dep't 2009).

October 14, 2009: Founding Partner Donald Novick and associate attorney Albert V. Messina Jr. obtained an order denying the respondent's motion to dismiss the petition to determine the validity of a spousal right of election and declaring that the decedent's marriage void ab initio, in the Surrogate's Court of the State of New York, County of New York (Glen, J.).

This proceeding concerned the validity of a spousal right of election filed by the decedent's live-in girlfriend who had secretly married the decedent during a pending Article 81 guardianship proceeding. After the decedent's death, the judge in the Article 81 proceeding annulled the marriage, change of beneficiary of the decedent's life insurance policy and deed to the decedent's house based upon lack of capacity pursuant to Mental Hygiene Law §81.29(d). The remaining issue was whether the girlfriend was permitted to election against the Estate and receive 1/3 of the net estate due to the post mortem annulment.

The girlfriend argued that the right of election of a surviving spouse becomes fixed and unalterable upon the decedent's death and cannot be affected by the posthumous annulment. Founding Partner Donald Novick and associate attorney Albert V. Messina Jr. argued that the marriage was void ab initio and that the girlfriend was prevented from stating that she was the spouse when she misrepresented her marital status to the Court. The Court agreed and rejected the girlfriend's argument and held that a marriage revoked pursuant to Mental Hygiene Law §81.29(d) is void from inception. The Court also held that the girlfriend was equitably estopped from claiming that she was the surviving spouse based upon her fraudulent misrepresentation to the Article 81 court that she was merely a "girlfriend" and not the spouse after the secret marriage ceremony took place and that she had a duty to disclose the marriage to the court. Her failure to do was "misleading and deceptive."Matter of Kaminester, 26 Misc.3d 227 (Sur. Ct. N.Y. County 2009).

March 31, 2009: The Appellate Division, First Department in the matter of Wiener v. Spahn, affirmed the denial of defendants' motions to dismiss.

After successfully defending motions to dismiss the complaint from each defendant before the Supreme Court of the State of New York, Bronx County (Hunter, J.), founding partner Donald Novick and associate Albert V. Messina Jr. successfully obtained an order for the plaintiff, acting individually and as co-executrix of her mother's estate, affirming the denial of the motions to dismiss. The Court found that for the purposes of the motion to dismiss that defendant Spahn, plaintiff's sister, did not own an interest in property individually as a tenant in common and violated the terms of a family partnership agreement that required that she obtain consent before selling or assigning her interest in the property when she failed to do so. The Court also rejected the defendants' argument that plaintiff Wiener did not have the legal capacity to sue as co-executrix since a fiduciary has the duty to protect the interests of the estate. Wiener v. Spahn, 60 A.D.3d 586( 1st Dep't 2009).

October 21, 2008: Associate attorneys Michael J. Sullivan and Kimberly A. Schechter successfully obtained an order granting their client leave to amend objections to probate in a proceeding entitled Matter of Luca, in the Surrogate's Court of the State of New York, Richmond County (Gigante, J.)

Associate attorneys Michael J. Sullivan and Kimberly A. Schechter obtained an order for their clients granting leave to amend objections to probate. The Surrogate's Court rejected the petitioners contention that objectants were required to demonstrate a justifiable excuse, absence of wilfulness and a basis for the amendment, finding the petitioners argument to be specious and that objectants showed that a short duration in time, lack of prejudice to the petitioner and sufficiency of the proposed amendment. Matter of Luca, 21 Misc.3d 1119(A) (Sur. Ct. Richmond County).

April 28, 2005: Associate attorney John P. Graffeo succesfully obtained summary judgment dismissing objections to probate in the Matter of Braiger in the Surrogate's Court of the State of New York, New York County. (Roth, J.).

Associate attorney John P. Graffeo obtained summary judgment for the proponent of a Will dismissing objections to probate alleging that the will was not genuine and the product of undue influence. The objectants argued that the will was not genuine due to the fact that the proponent had removed the staples and faxed the will to one of the objectants on more than one occasion and that the proponent unduly influence the decedent to leave him the residuary estate, including the decedent's restaurant. The Surrogate's Court of the State of New York, New York County found that the will was genuine when compared to the conformed copy retained by the attorney draftsman. The Court also held that the will was not the product of undue influence as the will served the overriding interest of the decedent, which was to leave his restaurant in capable, knowing hands and that the decedent made his decision independently of others. Matter of Braiger, 4/28/05 N.Y.l.J. 23 (col. 1) (Sur. Ct N.Y. County) aff'd 33 A.D.3d 367 (st Dep't 2006) lv. den. 8 N.Y.3d 806 (2007).

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