Ricketts v. New York Congregational Nursing Center, Inc.

Appellate Division of the Supreme Court of New York

Ricketts v. New York Congregational Nursing Center, Inc.

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

Appellate Division of the Supreme Court of the State of New York·Decided July 15, 2015·No. 2014-05332·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 *802 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estate of his decedent, since letters testamentary previously issued to the plaintiff by the Surrogate’s Court have not been revoked by that court (see SCPA 701 [3]; 703, 711).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.

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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 *802 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estate of his decedent, since letters testamentary previously issued to the plaintiff by the Surrogate’s Court have not been revoked by that court (see SCPA 701 [3]; 703, 711).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.

Ricketts v. New York Congregational Nursing Center, Inc., 130 A.D.3d 801, 12 N.Y.S.3d 564 (N.Y. Ct. App. 2015).

Pincite

130 A.D.3d 801 (Ricketts v. New York Congregational Nursing Center, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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