In Matter of Kapon v Koch, 23 NY3d 32, 38 (2014), the Court of Appeals concluded that a party seeking disclosure from a nonparty is not required to show “special circumstances”. Rather, the Court held that the statute “allow[s] for the discovery of any person who possesses material and necessary evidence[.]” Does this mean that […]
NY SCPA 302(1) expressly limits the types of pleadings allowed in Surrogate’s Court. Unless directed by the court, the only pleadings allowed are a petition, answer, objections, and an account. What about a counterclaim? Do you need permission from the court to file it? Matter of Eshaghian, 144 AD3d 1155 (2d Dept 2016) briefly addressed […]
Parties often request a constructive trust during estate litigation and family disputes over real property and other assets. This claim generally seeks to recover property from someone who has obtained it unfairly. A constructive trust is an equitable remedy “erected whenever necessary to satisfy the demands of justice” (Latham v Father Divine, 299 NY 22, […]
In Estate of Mathai Kolath George, the Appellate Division, Third Department applied the fiduciary tolling rule to a constructive trust claim in a case involving a fiduciary’s misconduct and her removal. There, after the decedent passed away, the estate’s fiduciary terminated the decedent’s contract for the purchase of a mansion and entered into a new […]
In this Mental Hygiene Law article 81 proceeding, we successfully defended the petitioner/guardian on an appeal. There, the petitioner was appointed as the guardian of James H. After extensive litigation, the petitioner applied for and received an order awarding counsel fees and compensation for guardian services pursuant to Mental Hygiene Law § 81.28 (a). In […]
“Under the general rule, attorneys’ fees and disbursements are incidents of litigation and the prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties or by statute or court rule” (A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5 [1986]). This rule limits this […]