ESTATE OF CARMELA KERN, Deceased

ESTATE OF CARMELA KERN, Deceased (12/346/C) — This is a proceeding transferred from the Richmond County Supreme Court to this Court, wherein petitioner, Ann Marie Kern as executor, had commenced an action to recover monies owed to the estate by Patricia Mangan, respondent. On June 16, 2016, this court heard oral argument pertaining to a pending motion for summary judgment and a request for the granting of an Order of Attachment and/or preliminary injunction.

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ESTATE OF CARMELA KERN, Deceased (12/346/C) — This is a proceeding transferred from the Richmond County Supreme Court to this Court, wherein petitioner, Ann Marie Kern as executor, had commenced an action to recover monies owed to the estate by Patricia Mangan, respondent. On June 16, 2016, this court heard oral argument pertaining to a pending motion for summary judgment and a request for the granting of an Order of Attachment and/or preliminary injunction.

Petitioner alleges that prior to the death of Carmela Kern, respondent by use of an invalid power of attorney (dated April 12, 2011) wrongfully took money from Carmela Kern’s Investment account at Merrill Lynch. It was further alleged that part of the funds taken was thereafter used to buy an annuity made payable to the respondent. As part of their proof, petitioner submits affidavits signed by respondent and her prior attorney within the underlying probate proceeding. The affidavits withdrawing respondent’s probate petition indicated that respondent’s own expert opined that Carmela Kern did not have the mental capacity to execute a Will on April 12, 2011, the same date of the power of attorney. Petitioner further argues that respondent’s actions of making a partial repayment to the estate in the amount of $218,702.31 and producing monthly statements from a MetLife account are indicative of the absence of any material issue of fact requiring a trial, and therefore, summary judgment should be granted. Finally, petitioner notes that respondent’s opposition papers consisted solely of an affirmation by respondent’s attorney unsupported by any admissible evidence demonstrating the existence of a factual issue and accordingly is incapable of defeating petitioner’s summary judgment motion.

ESTATE OF CARMELA KERN, Deceased

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