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Action Dismissed Against the Insured on Preliminary Motion to Dismiss

This claim involved a dispute over monies from a reverse mortgage loan given by the client’s insured. The loan was obtained by the borrower, now deceased, through her attorney-in-fact, also now deceased. Upon the death of the borrower, the insured commenced a foreclosure action to recover monies owed on the loan. This action was brought by cousins of the deceased borrower, as the alleged “sole heirs” of the borrower’s estate. The cousins alleged that the attorney-in-fact, in procuring the reverse mortgage for the borrower, engaged in conduct designed to deplete the borrower’s estate, and, therefore, sought to have the mortgage indebtedness owed to the insured declared void, with no obligation to pay on the part of the estate. The client hired Adam Leitman Bailey, P.C. to protect the interests of the insured.

After an initial review of the claim, Adam Leitman Bailey, P.C. took the position that the action can be dismissed based on a lack of standing, as, in the state of New York, mere heirs of a decedent cannot commence an action in favor of the decedent for injury to person or property, as only the personal representative of the decedent’s estate has the legal capacity to commence an action on behalf of the estate.

In order to prevail on this motion, Adam Leitman Bailey, P.C. strategically elicited admissions from the plaintiffs during discovery that they were not the personal representatives of the estate. With enough support to prevail on a motion for dismissal, Adam Leitman Bailey, P.C. successfully prevailed in having the action dismissed in its entirety, thereby wholly protecting the interests of the insureds.

Jackie Halpern drafted and argued the winning motion to dismiss in New York Supreme Court, Queens County, and Colin E. Kaufman was the managing partner on the claim.


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