August 29, 2017: Donald Novick and Michael J. Sullivan obtained a favorable
decision for their client in an contested accounting proceeding entitled
Matter of Mendelson, in the Surrogate's Court of the State of New
York, County of New York (Mella, Sur.).
Donald Novick and Michael J. Sullivan secured a decision dated July 14,
2017 on a motion for partial summary judgment in a contested accounting
proceeding on behalf of their client, Jonathan Mendelson, who objected
to the Executors’ attempt to charge him for legal fees that his
brother incurred in a related proceeding.
Matter of Mendelson, 2017 N.Y. Slip Op. 31497(U), 8/28/2017 N.Y.L.J. 24 (Sur. Ct. N.Y. County).
The Surrogate’s Court found that the Executors’ position had
no support in fact or law and that the brother’s legal fees should
not be shifted to the estate or to any other interested party when the
services rendered by the brother’s attorney provided no value to
the Estate. The Executors also attempted to allocate estate taxes to the
value of the cooperative apartment received by Jonathan at the highest
marginal estate tax rate rather than on a proportional basis. The Court
agreed with the objectant’s position and found that the intention
as expressed in the Decedent’s Last Will and Testament was to calculate
the estate tax as proposed by Jonathan Mendelson and as set forth in EPTL
§2-1.8. The Court also denied the Executor’s attempt to collect
commissions on the proceeds from the sale of the apartment since the Will
did not impose any duty upon the Executors in relation to the apartment
and no grounds exist upon which commissions may be granted on a specific
bequest in a Will.
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
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
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
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
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.
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)
33 A.D.3d 367 (st Dep't 2006) lv. den.
8 N.Y.3d 806 (2007).