

Ricketts v New York Cong. Nursing Ctr., Inc. (2015 NY Slip Op 06125)





Ricketts v New York Cong. Nursing Ctr., Inc.


2015 NY Slip Op 06125


Decided on July 15, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on July 15, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
L. PRISCILLA HALL
LEONARD B. AUSTIN
SANDRA L. SGROI, JJ.


2014-05332
 (Index No. 11967/13)

[*1]Orrett. Ricketts, etc., respondent, 
vNew 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.

DECISION & ORDER
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estate of his decedent, since letters testamentary previously issued to the plaintiff by the Surrogate's Court have not been revoked by that court (see SCPA 701[3]; 703, 711).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; Matter of Allen v Fiedler, 96 AD3d 1682, 1684; Matter of Eden M. v Ines R., 97 Misc 2d 256, 259-260 [Fam Ct, Kings County]).
BALKIN, J.P., HALL, AUSTIN and SGROI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


