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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).

Associate attorney Albert V. Messina Jr. successfully opposed an extraordinary application to the United States Supreme Court. Following the denial of his multiple applications to the New York State Court of Appeals, the objectant sought an Extraordinary Writ of Mandamus from the United State Supreme Court seeking an order directing the New York State Court of Appeals to review the matter and reverse the Decree of the New York County Surrogate’s Court. The United States Supreme Court rejected the objectant’s unfounded accusations and denied the petition for an Extraordinary Writ of Mandamus thereby affirming the admission of the Will to probate. In re Richard J. Fields, 140 S. Ct. 630 (2019)

Donald Novick, Michael J. Sullivan and Albert V. Messina Jr.
successfully defended the Executors’ appeal of the July 14, 2017 decision. (See the August 29, 2017 entry below). In Matter of Mendelson, 2019 NY Slip Op 01514, the Appellate Division, First Department held that the Surrogate’s Court properly granted our motion and denied the Executors’ request for commissions on the value of the apartment because the executors’ services could have been performed by our firm’s client.

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.

The Appellate Division, Second Department in the Matter of Sal Epstein, affirmed the denial of the appellant’s applications to revoke letters testamentary and letters of trusteeship and to compel the return of alleged excess distributions.

After successfully defending several motions for summary judgment before the Surrogate’s Court of the State of New York, Suffolk County, Donald Novick and Albert V. Messina Jr. successfully obtained an order on appeal for their clients, affirming the denial of the motions for summary judgment filed by Anita Taormina to revoke letters testamentary and letters of trusteeship issued to Elena Eckhouse and to direct Brian Eckhouse and Lawrence Eckhouse to return alleged excess distributions made to them to the estate. The Court found that Appellant Taormina “failed to establish, prima facie, that the grandchildren and their trusts ‘received assets in excess of the amount determined on [a] settlement of the account to be due to [them and their trusts]’ ” (citing SPCA §2215(3)). The Court further held that Anita Taormina’s motion to revoke letters testamentary and letters of trusteeship issued to Elena Eckhouse was properly denied on the same ground. The Court affirmed the several orders and awarded a bill of costs “payable by Anita Taormina personally.” Matter of Epstein, 155 A.D.3d 726 (2d Dep’t 2017).

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.