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  1. #1
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    Apr 2020
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    Default Pleadings vs. Motion

    My question involves court procedures for the state of: New York
    I tried to file a motion for an order to have all legal fees chargeable to one party's share in an estate in a surrogate proceeding. The clerk said that it must be done by a pleading or pleadings. What is it I am supposed to file instead?

  2. #2
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    Jul 2018
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    Default Re: Pleadings vs. Motion

    There's no conceivable way for anyone here to tell you what was wrong with the document(s) that you tried to file without seeing those document(s).

    That said, it might be useful if you gave us a slightly more detailed explanation of what you're trying to accomplish. For example: "In [month] [year] my [relation of deceased person to you] died. The will says, ____. So-and-so was appointed executor of the estate. [Someone] is incurring attorneys' fees for [some reason], and I want those to be chargeable against [someone's] share of the estate proceeds (after payment of estate debt) because [reasons]."

  3. #3
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    Default Re: Pleadings vs. Motion

    Quote Quoting pg1067
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    it might be useful if you gave us a slightly more detailed explanation of what you're trying to accomplish."
    Four heirs are sharing the estate of a person who died as a result of gross negligence by a business entity. One of these heirs was appointed by the court as Administrator of the estate. I am an heir. Admin filed a petition asking the court to allow him to settle a civil action he was prosecuting against that business, and to distribute the balance to the heirs including himself after all expenses are paid. One of the docs attached to the petition as being a payable expense was automatically recognized by all three other heirs to be fraudulent. We, the other heirs, objected to this document. Seeing that Admin had enough guts to make that claim, we became suspicious of the amount of the settlement being very low, so we objected to that also. Amending his petition, Admin asked the court to charge all legal fees against our shares. We objected stating simply that the reason we are litigating was caused by Admin having filed a fraudulent doc, otherwise, everything would have concluded without any action on our part. After having gathered some evidence to support our claim over the document, we filed a motion asking the court to declare the doc invalid. Before any response on the motion, we asked the clerk if we could amend the motion so we can also ask the court to have Admin pay all legal fees from his share, not his fee. The clerk said this cannot be done by motion, it must be done by pleading. Legal fees are incurred by Admin chargeable to the estate at this point, but since Admin has two attributes here (Admin and heir), we used the same case law that he used to justify his request that we pay the legal fees from our shares.

    So, again the question is what document can we file now so we are not told later on that we only objected to Admin request that we pay all legal fees, but we did not counter request that he pays the legal fees?

  4. #4
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    Sep 2018
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    Default Re: Pleadings vs. Motion

    Karl, it seems the clerk is acting outside her/his legal authority. If the filing is improperly titled/captioned, that is up to the court to address, not the clerk's. If not accepted as titled, ask to speak to another person.

  5. #5
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    Default Re: Pleadings vs. Motion

    The answer is you need to hire an attorney. I doubt that anyone here is a lawyer who handles probate litigation in New York. Doing this yourself, without a lawyer, will virtually guarantee that you'll screw something up.

  6. #6
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    Default Re: Pleadings vs. Motion

    Quote Quoting RJR
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    Karl, it seems the clerk is acting outside her/his legal authority. If the filing is improperly titled/captioned, that is up to the court to address, not the clerk's. If not accepted as titled, ask to speak to another person.
    It might not have been outside the clerk's authority. In at least some courts the court clerk may refuse to accept for filing those documents that are clearly not in proper form.

  7. #7
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    Default Re: Pleadings vs. Motion

    Quote Quoting Taxing Matters
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    It might not have been outside the clerk's authority. In at least some courts the court clerk may refuse to accept for filing those documents that are clearly not in proper form.
    How does a clerk know what should be a proper pleading/application caption. I would think that would include other things that do not comply with the local/county rules of court, proper size legal paper, paragraph separation, etc.

  8. #8
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    Default Re: Pleadings vs. Motion

    Quote Quoting RJR
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    How does a clerk know what should be a proper pleading/application caption.
    Well, I think most obvious answer to that is that the clerks are trained as to what to look for when they accept filings and what to reject. While the clerks generally cannot reject filings based on the substance of the filing, e.g. a clerk cannot say that the lawsuit lacks merit, they can reject them based on form. And form can include a filing that clearly must be done in a pleading rather than by motion. In my experience courts vary significantly as to the scope of the review the clerks do and to what extent they may reject filings. For that reason I don't reject outright that the clerks in this court would be able to reject it because it wasn't done as a pleading. One would need to know the particular limits on clerks in that particular court.

  9. #9
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    Default Re: Pleadings vs. Motion

    Quote Quoting Taxing Matters
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    e.g. a clerk... can reject [a filing] based on form. And form can include a filing that clearly must be done in a pleading rather than by motion.
    This takes me back to my initial dilemma: I wanted to amend the motion to include a request that all legal fees be charged against the Administrator's share. The clerk said it must done in a pleading, indirectly telling me that I cannot amend the motion. How do I make a pleading? is it a matter of just changing the title/caption to include some specific words? Can someone point me to some example showing me what needs to be included in a pleading? I cannot wait to find a lawyer first... this is not an easy task now... a lawyer can always amend the filing if need be...

  10. #10
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    Default Re: Pleadings vs. Motion

    Quote Quoting karl3712
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    How do I make a pleading? is it a matter of just changing the title/caption to include some specific words? Can someone point me to some example showing me what needs to be included in a pleading? I cannot wait to find a lawyer first... this is not an easy task now... a lawyer can always amend the filing if need be...
    Only someone who practices this particular type of law in the surrogate's courts in New York will be able to provide you with a useful answer to this question. To the best of my knowledge, no such person follows these boards regularly.

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