Ricketts v. New York Congregational Nursing Center, Inc.

130 A.D.3d 801, 12 N.Y.S.3d 564

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 2015
• Docket: 2014-05332
• Status: Published

Opinion

In an action, inter alia, to recover damages for negligence, the defendant appeals from an order of the Supreme Court, Queens County (Butler, J.), entered April 7, 2014, which denied its motion pursuant to CPLR 3211 (a) (3) to dismiss the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the defendant’s motion pursuant to CPLR 3211 (a) (3) to dismiss the complaint, made on the ground that the plaintiff, a convicted felon, was ineligible to serve as executor of the estate of his decedent, since letters testamentary previously issued to the plaintiff by the Surrogate’s Court have not been revoked by that court (see SCPA 701 [3]; 703, 711). Contrary to the defendant’s contention, the Supreme Court was without power to, in effect, revoke those letters testamentary (see SCPA 701 [3]; Stolz v New York Cent. R.R. Co., 7 NY2d 269, 272-273 [1959]; Matter of Allen v Fiedler, 96 AD3d 1682, 1684 [2012]; Matter of Eden M. v Ines R., 97 Misc 2d 256, 259-260 [Fam Ct, Kings County 1978]). Balkin, J.P., Hall, Austin and Sgroi, JJ., concur.