From Casetext: Smarter Legal Research

Schnabel v. Huggins

Appellate Division of the Supreme Court of New York, Second Department
Mar 15, 2004
5 A.D.3d 583 (N.Y. App. Div. 2004)

Opinion

2003-07851.

Decided March 15, 2004.

In an action, inter alia, to recover damages for trespass, the defendant appeals from so much of an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated August 15, 2003, as denied her motion to dismiss the complaint.

Stuart M. Mitchell, Nyack, N.Y., for appellant.

Philip H. Schnabel, Chester, N.Y., for respondents.

Before: DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, STEPHEN G. CRANE, REINALDO E. RIVERA, JJ.


DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

With respect to that branch of her motion which was to dismiss the complaint insofar as asserted against the estate of Carl Shultz, the defendant asserted that the action was untimely pursuant to SCPA 1810 because it was not commenced within 60 days of the denial by the fiduciary of the estate of the plaintiffs' claim for the same damages ( see Lazan v. City of New York, 213 A.D.2d 381). However, in support of that branch of her motion, the defendant failed to proffer competent evidence in admissible form that such a claim was made and denied within the meaning of SCPA article 18 ( see SCPA §§ 1803, 1806; Lazan v. City of New York, supra).

In support of that branch of her motion which was to dismiss the complaint insofar as asserted against the estate of Margaret Schultz, the defendant failed to proffer competent evidence in admissible form that she was not a personal representative of that estate ( see EPTL 11-3.1, 11-3.2; Matter of Outing v. Mathis, 304 A.D.2d 670; Waldman v. Mechanical Sys., 294 A.D.2d 354).

RITTER, J.P., GOLDSTEIN, CRANE and RIVERA, JJ., concur.


Summaries of

Schnabel v. Huggins

Appellate Division of the Supreme Court of New York, Second Department
Mar 15, 2004
5 A.D.3d 583 (N.Y. App. Div. 2004)
Case details for

Schnabel v. Huggins

Case Details

Full title:RUTH K. SCHNABEL, ET AL., respondents, v. CAROL SCHULTZ HUGGINS, ETC.…

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

Date published: Mar 15, 2004

Citations

5 A.D.3d 583 (N.Y. App. Div. 2004)
772 N.Y.S.2d 861

Citing Cases

VNB N.Y., LLC v. Y.M. Intercontinental Gem Corp.

However, the plaintiff never presented a notice of claim to the fiduciary of the estate, as required by SCPA…