Matter of Fernandez

Appellate Division of the Supreme Court of New York

Matter of Fernandez

127 A.D.3d 584, 8 N.Y.S.3d 108

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

DecidedApril 21, 2015

Docket500088/02 -14890 14889 14888

StatusPublished

This text of 127 A.D.3d 584 (Matter of Fernandez) 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

Matter of Fernandez, 127 A.D.3d 584, 8 N.Y.S.3d 108 (N.Y. Ct. App. 2015).

Pincite

Opinion

Order, Supreme Court, New York County (Lottie E. Wilkins, J.), entered June 25, 2013, which, among other things, granted respondent guardian’s motion to confirm a referee’s report, dismissed appellant executor’s objections to the report, and awarded the guardian commissions, fees and disbursements, unanimously affirmed, with costs. Orders, same court and Justice, entered January 22, 2014, which granted the guardian’s motions for attorneys’ fees and bookkeeping fees, unanimously affirmed, with costs.

The court had jurisdiction to determine and resolve the outstanding guardianship and estate issues after the death of the incapacitated person (see Acito v Acito, 72 AD3d 493, 494 [1st Dept 2010]; see also Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d 332, 339 [1993]).

We reject the executor’s contention that the discovery permitted by this Court in Matter of Salvati (Fernandez) (90 AD3d 406 [1st Dept 2011], lv dismissed 19 NY3d 939 [2012]) was improperly “truncated.” The record shows that the executor and his counsel consented to the discovery schedule, and there is no showing that the executor had insufficient time to review the materials related to the accounts at issue.

The Referee’s conclusions are supported by the record, and there is no basis for disturbing the Referee’s credibility determinations (see Kardanis v Velis, 90 AD2d 727, 727 [1st Dept 1982]). The record does not support the executor’s claims of due process violations, bias against him by the Referee, or misconduct by the guardian. The record shows that the Referee carefully reviewed all of the executor’s claims and that the executor had a full and fair opportunity to present his objections to the court.

We have considered the executor’s remaining arguments, including his request for additional time to file a reply brief, and find them unavailing.

Concur — Acosta, J.R, Saxe, Richter, Gische and Kapnick, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, New York County (Lottie E. Wilkins, J.), entered June 25, 2013, which, among other things, granted respondent guardian’s motion to confirm a referee’s report, dismissed appellant executor’s objections to the report, and awarded the guardian commissions, fees and disbursements, unanimously affirmed, with costs. Orders, same court and Justice, entered January 22, 2014, which granted the guardian’s motions for attorneys’ fees and bookkeeping fees, unanimously affirmed, with costs.

The court had jurisdiction to determine and resolve the outstanding guardianship and estate issues after the death of the incapacitated person (see Acito v Acito, 72 AD3d 493, 494 [1st Dept 2010]; see also Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d 332, 339 [1993]).

We reject the executor’s contention that the discovery permitted by this Court in Matter of Salvati (Fernandez) (90 AD3d 406 [1st Dept 2011], lv dismissed 19 NY3d 939 [2012]) was improperly “truncated.” The record shows that the executor and his counsel consented to the discovery schedule, and there is no showing that the executor had insufficient time to review the materials related to the accounts at issue.

The Referee’s conclusions are supported by the record, and there is no basis for disturbing the Referee’s credibility determinations (see Kardanis v Velis, 90 AD2d 727, 727 [1st Dept 1982]). The record does not support the executor’s claims of due process violations, bias against him by the Referee, or misconduct by the guardian. The record shows that the Referee carefully reviewed all of the executor’s claims and that the executor had a full and fair opportunity to present his objections to the court.

We have considered the executor’s remaining arguments, including his request for additional time to file a reply brief, and find them unavailing.

Concur — Acosta, J.R, Saxe, Richter, Gische and Kapnick, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

127 A.D.3d 584, 8 N.Y.S.3d 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-fernandez-nyappdiv-2015.

Opinion

Related

Cite This Page — Counsel Stack