![]() ![]() The conflict between the two rules is reflected in actual practice. ‘Under the Martin rule all that may be required of the contestant is that he ‘set forth in general terms the acts, course of conduct, false statements, suppressions of fact and misrepresentations alleged to have been used in the fraud and in the practice of undue influence upon decedent.’ ‘In a word, the Mullin requirement compels the pleading of the basic essential facts from which a legal inference of undue influence or fraud is asserted to flow, whereas the Martin rule permits a more or less considerable degree of latitude in purely conclusory allegation.’ 178, 179, 11 N.Y.S.2d 975, 977, in this language: ‘The distinction between the Mullin rule and that applied in Matter of Martin’s Estate is that in the former the contestant is required to state ‘the specific actor acts or course of conduct alleged to have constituted and effected such undue influence’ and ‘the particular false statements, suppressions of fact, misrepresentations, or other fraudulent acts alleged to have been practiced upon the decedent’ which are claimed to have amounted to the asserted fraud. 122.Ī Queens Probate Lawyer said that no proper decision can be arrived at without noting the difference between the two rules promulgated in the two cases above cited and so well stated by Surrogate Wingate in Matter of Van Riper’s Will, 171 Misc. ![]() 519, while the contestant would limit the bill to ‘general’ statements in accordance with Matter of Martin’s Estate, 151 Misc. The real controversy here revolves around the extent to which such particulars ought to be furnished.Įxamination of the proponent’s demand, and of the contestant’s moving papers, and a full consideration of the arguments and authorities cited by their counsel, demonstrate that the proponent seeks ‘specific’ particularization beyond that granted in Matter of Mullin’s Estate, 143 Misc. It is too well settled to require citation of authority, that the proponent in a contested probate may properly require the particularization of the charges of fraud and undue influence asserted to defeat the probate. The proponent’s demand for a bill of particulars is directed to the allegations of fraud and undue influence in paragraph 3 of the contestant’s objections.Ī Kings County Probate Lawyer said that, the application will be treated as though the proponent were seeking a bill by motion in the first instance, since it calls upon the Court to determine the nature and extent of the items, if any, which the contestant should furnish to the proponent. Hosp.The contestant has made application to the Court for an order vacating and setting aside the proponent’s demand for a bill of particulars, or in the alternative, modifying said demand, and for such other, further and different relief as to the Court may seem necessary and proper. ![]() Even assuming, arguendo, that we agree with plaintiff that the second bill of particulars that she served prior to the motion at issue was a supplemental bill of particulars rather than an amended bill of particulars (cf. ![]() We agree with defendants on their appeal that Supreme Court abused its discretion in granting plaintiffs motion for leave to serve an amended bill of particulars. Plaintiff cross-appeals from those parts of the order denying her cross motion insofar as it sought partial summary judgment on the issues of serious injury and proximate cause. Defendants appeal, as limited by their notice of appeal, from those parts of an order granting plaintiffs motion for leave to serve an amended bill of particulars, granting plaintiffs cross motion for partial summary judgment on the issue of defendants’ negligence, and denying defendants’ motion for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury under Insurance Law § 5102 (d). Memorandum: Plaintiff commenced this action seeking dam *1339ages for injuries she allegedly sustained in a 2009 motor vehicle accident with a tractor trailer owned by defendant Tom Greenauer Development, Inc., and operated by defendant Kenneth G. ![]()
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