In re the Estate of Mittendorf

Appellate Division of the Supreme Court of New York

In re the Estate of Mittendorf

195 A.D.2d 468, 600 N.Y.S.2d 122, 1993 N.Y. App. Div. LEXIS 6960

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 6, 1993

StatusPublished

Cited by1 cases

This text of 195 A.D.2d 468 (In re the Estate of Mittendorf) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Mittendorf, 195 A.D.2d 468, 600 N.Y.S.2d 122, 1993 N.Y. App. Div. LEXIS 6960 (N.Y. Ct. App. 1993).

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Opinion

In a proceeding to revoke letters of [469]*469administration, the former administrator, Robert Mittendorf, appeals from a decree of the Surrogate’s Court, Queens County (Laurino, S.), dated February 11, 1991, which revoked letters of administration previously issued to him and granted letters of administration to the petitioner.

Ordered that the order is affirmed, with costs payable by the appellant personally.

The decedent, Elizabeth Mittendorf, gave birth to a son in May 1987, and subsequently gave the child up for adoption to the petitioner. While the adoption proceedings were pending, Elizabeth Mittendorf suffered serious injuries, resulting in her death in December 1987. The final order of adoption was signed on March 22, 1988. On June 24, 1988, the appellant who is the decedent’s brother, was appointed administrator of her estate.

Since the final order of adoption was not signed until three months after her death, Elizabeth Mittendorfs son, now known as Robert Anthony Kmetz, was her sole distributee at the time of her death (see, Matter of Mazzeo, 95 AD2d 91; Dennis T. v Joseph C., 82 AD2d 125). Where a decedent’s infant child is adopted after the decedent’s death, his or her vested property right in the benefits of a cause of action for a natural parent’s wrongful death will not be affected by the termination of his or her rights of inheritance and succession from and through the natural parents upon the making of an order of adoption (see, Alberino v Long Is. Jewish-Hillside Med. Ctr., 87 AD2d 217). The letters of administration previously issued to the appellant were, therefore, properly revoked and new letters of administration were properly granted to the petitioner, as Robert Anthony Kmetz’s legal guardian (see, SCPA 1001 [2]). Sullivan, J. P., Lawrence, Eiber and Ritter, JJ., concur.

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In a proceeding to revoke letters of [469]*469administration, the former administrator, Robert Mittendorf, appeals from a decree of the Surrogate’s Court, Queens County (Laurino, S.), dated February 11, 1991, which revoked letters of administration previously issued to him and granted letters of administration to the petitioner.

Ordered that the order is affirmed, with costs payable by the appellant personally.

The decedent, Elizabeth Mittendorf, gave birth to a son in May 1987, and subsequently gave the child up for adoption to the petitioner. While the adoption proceedings were pending, Elizabeth Mittendorf suffered serious injuries, resulting in her death in December 1987. The final order of adoption was signed on March 22, 1988. On June 24, 1988, the appellant who is the decedent’s brother, was appointed administrator of her estate.

Since the final order of adoption was not signed until three months after her death, Elizabeth Mittendorfs son, now known as Robert Anthony Kmetz, was her sole distributee at the time of her death (see, Matter of Mazzeo, 95 AD2d 91; Dennis T. v Joseph C., 82 AD2d 125). Where a decedent’s infant child is adopted after the decedent’s death, his or her vested property right in the benefits of a cause of action for a natural parent’s wrongful death will not be affected by the termination of his or her rights of inheritance and succession from and through the natural parents upon the making of an order of adoption (see, Alberino v Long Is. Jewish-Hillside Med. Ctr., 87 AD2d 217). The letters of administration previously issued to the appellant were, therefore, properly revoked and new letters of administration were properly granted to the petitioner, as Robert Anthony Kmetz’s legal guardian (see, SCPA 1001 [2]). Sullivan, J. P., Lawrence, Eiber and Ritter, JJ., concur.

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Bluebook (online)

195 A.D.2d 468, 600 N.Y.S.2d 122, 1993 N.Y. App. Div. LEXIS 6960, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-mittendorf-nyappdiv-1993.

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