Our Victories in Notable Estate Litigation Cases

Albert V. Messina Jr., obtained a favorable decision for his client in a contested partition action entitled Petersen v. Fielder, in the Supreme Court of the State of New York, County of Suffolk (Farneti, A.J.S.C.).

Albert V. Messina Jr., secured an Order dated March 7, 2024 on a motion for partial summary judgment in a contested partition action on behalf of his client, Plaintiff Dawn Petersen, who sought to partition property that was held in a Trust. The Trust provided that the subject real property was to be distributed in equal 1/3 interests to the three trust beneficiaries. One of the defendants, the trustee of the Trust who was also a 1/3 beneficiary, filed a cross-motion to vacate her default in answering her complaint and for leave to file a late answer. The other beneficiary did not oppose the motion. The Supreme Court found that the Trustee’s proffered excuse for failing to the answer the complaint was conclusory and unsubstantiated. Consequently, due to the Trustee’s failure to adequately support her cross-motion to vacate her default, the Court found no need to examine whether the Trustee had a meritorious defense to the partition action. The Court further found that the other Defendant who failed to oppose the Plaintiff’s motion abandoned his defenses to the partition action. The Court agreed with the Plaintiff’s position that the Defendant’s answer should be stricken on that basis. Finally, the Court found that all of the allegations in the complaint were deemed to be true, it granted Plaintiff’s motion for partial summary judgment for partition and it appointed a referee to hear and report on the partition of the subject property.

Petersen v. Fielder, Mar. 7, 2024 (Farneti, A.J.S.C.).

The Appellate Division, Second Department in the Matter of George R. Roach, affirmed an order of the Suffolk County Surrogates Court to enforce a stipulation of settlement and denied a cross-motion to set the stipulation aside.

Albert V. Messina Jr. successfully obtained an order for the petitioner affirming denial of the objectant's attempt to set aside a stipulation of settlement entered into in open court where the objectant alleged that she was fraudulently induced to enter into the stipulation based upon the petitioner's representation that a certain deed was not signed. The Appellate Division, Second Department held that the objectant failed to establish the elements of fraud because there was no testimonial or documentary evidence in the record that the deed was ever signed despite the fact that the deed had a notary stamp upon it. The Court further held that due to the absence of any evidence to support the allegations of fraudulent inducement, the objectant failed to establish that the petitioner's representation that the deed was never signed constituted a material misrepresentation. The Court affirmed the order of the Suffolk County Surrogates Court, with costs payable by the objectant. Matter of Roach, 190 A.D.3d 978 (2d Dep=t 2021).

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.

UPDATE: April 2, 2019: Albert V. Messina Jr. secured a successful dismissal of an appeal from the March 28, 201 decision from the Appellate Division, First Department on September 25, 2018 and denial of a subsequent motion to restore the appeal on December 27, 2018 in the Matter of Fields, 2018 N.Y. Slip Op. 91518(U) (1st Dep’t 2018). On April 2, 2019, the New York State Court of Appeals denied the objectant’s application for leave to appeal as untimely. Matter of Fields, 2019 N.Y. Slip Op. 66815 (N.Y. 2019).

May 7, 2018: Albert V. Messina Jr. obtained a favorable decision for his client in the Matter of Sydney H. Fields, a contested probate proceeding, in the Surrogate’s Court of the State of New York, County of New York (Mella, Sur.).

Albert V. Messina Jr. secured a decision on March 28, 2018 granting summary judgment in a contested probate proceeding on behalf of his client, Diana Palmeri, who offered the Last Will and Testament of Sydney H. Fields dated October 6, 2014 for probate. Matter of Fields, 2018 N.Y. Slip Op. 30486(U), 3/29/ 2018 N.Y.l.J. 22 (col.5) (Sur. Ct. N.Y. County).

The Will stated that the decedent intentionally disinherited the objectant because the objectant had threatened the decedent and his wife which resulted in the objectant’s arrest and that the objectant had sued the decedent. The Surrogate’s Court dismissed objections based upon testamentary capacity, undue influence, duress, mistake, fraud and due executed. The Court found that the objectant submitted no evidence to challenge testamentary capacity. The will beneficiaries were not involved in the preparation or execution of the Will and the objectant failed to show evidence of mistake, duress or that a misrepresentation was made to the decedent to induce him to make a will he otherwise would not have made.

The fact that the decedent had some visual impairment did not raise an issue of fact with respect to the execution of the Will. The attorney-drafter testified that the decedent provided all of the dispositive terms of the Will and confirmed those terms prior to the execution ceremony. At the execution ceremony, the decedent asked the attorney-drafter to mark the signature line with an “X”. The fact that an “X” was not placed on the preceding pages where the decedent’s initials appear was “not suspicious.” The Court concluded that the decedent “wanted to be sure to execute the document correctly in spite of his visual impairment.”

The Court rejected the objectant’s submission of an opinion letter from an alleged handwriting ‘expert witness’ who “merely concludes” that the initials on the Will were forged, but did “not conclude that decedent’s signature at the end of the will is a forgery, or even that it might be.” The Court noted that all that is required is that the signature at the end of the Will be genuine, “a fact that objectant does not contest with competent evidence.” The Court found all of the objectant’s arguments to be either speculative or without merit, it granted petitioner’s motion dismissing the objections and it admitted the October 6, 2014 Will to probate.

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).

The Appellate Division, Second Department in the Matter of Sal Epstein affirmed the granting of the petition of Lawrence Eckhouse to compel Anita Taormina to make the distributions from a trust for his benefit.

Donald Novick and Albert V. Messina secured an order affirming the granting of their client’s motion for summary judgment in a proceeding to compel Anita Taormina to distribute accrued net income and on-half of the principal from their client’s trust to him. The Appellate Division, Second Department held that the Suffolk County Surrogate’s Court properly granted the motion as the petitioner made a prima facie case of entitlement to judgment as a matter of law since the Will provided for this distribution upon him reaching the age of 30 . The Court further held that Anita Taormina failed to raise an issue of fact as to whether the distributions should not be made and awarded Lawrence Eckhouse “costs payable personally by Anita Taormina.” Matter of Epstein, 155 A.D.3d 729 (2d Dep’t 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.

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.

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.

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%.

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.

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).

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).

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 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).