Opinion
2015-07-15
Orrett V. RICKETTS, etc., respondent, v. NEW YORK CONGREGATIONAL NURSING CENTER, INC., appellant.
Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Nicholas R. Napoli of counsel), for appellant. Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), for respondent.
Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Nicholas R. Napoli of counsel), for appellant. Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), for respondent.
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estate of his decedent, since letters testamentary previously issued to the plaintiff by the Surrogate's Court have not been revoked by that court ( seeSCPA 701[3]; 703, 711). Contrary to the defendant's contention, the Supreme Court was without power to, in effect, revoke those letters testamentary ( seeSCPA 701 [3]; Stolz v. New York Cent. R.R. Co., 7 N.Y.2d 269, 272–273, 196 N.Y.S.2d 969, 164 N.E.2d 849; Matter of Allen v. Fiedler, 96 A.D.3d 1682, 1684, 947 N.Y.S.2d 863; Matter of Eden M. v. Ines R., 97 Misc.2d 256, 259–260, 410 N.Y.S.2d 997 [Fam.Ct., Kings County] ).