From Casetext: Smarter Legal Research

Matter of Thoens

Appellate Division of the Supreme Court of New York, First Department
Feb 2, 1976
51 A.D.2d 691 (N.Y. App. Div. 1976)

Opinion

February 2, 1976


Order, Surrogate's Court, New York County, entered on March 20, 1975, affirmed on opinion of Di Falco, S. Respondents shall recover of appellant one bill of $60 costs and disbursements of this appeal.

Concur — Murphy, Lupiano, Silverman and Yesawich, JJ.; Kupferman, J., dissents in the following memorandum: At this early stage, with the application by the preliminary executors to dismiss on the ground of the statute of frauds this claim to one half of an estate, the motion should have been denied. The claim is based on an alleged oral agreement, and the memorandum alleged to remove the bar of the Statute of Frauds is a will executed January 18, 1965, which will has many times since been superseded. There are also several deeds with respect to the real property involved, all of which shows a serious basis for the claimant's contention. (See Matter of Levin, 302 N.Y. 535 [4 to 3 decision].) While ultimately the claim may not be successful, cf. Phillips v Kantor Co. ( 31 N.Y.2d 307), he should be permitted an opportunity to attempt to substantiate it through pretrial proceedings.

Concur — Kupferman, J.P., Murphy, Lupiano, Silverman and Yesawich, JJ.


Summaries of

Matter of Thoens

Appellate Division of the Supreme Court of New York, First Department
Feb 2, 1976
51 A.D.2d 691 (N.Y. App. Div. 1976)
Case details for

Matter of Thoens

Case Details

Full title:In the Matter of the Estate of BESS THOENS, Also Known as BESSIE THOENS…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 2, 1976

Citations

51 A.D.2d 691 (N.Y. App. Div. 1976)

Citing Cases

Matter of Riconda

Because the approach and result of neither lower court is entirely satisfactory as to the application of the…

Matter of Drogin

Claimant also contends that if, as here determined, EPTL 13-2.1 applies to his claim then Mrs. Drogin's prior…