IN RE: Marvin LEOPOLD

Reset A A Font size: Print

Supreme Court, Appellate Division, Second Department, New York.

IN RE: Marvin LEOPOLD, Deceased. Estate of Marvin Leopold, etc., Appellant; Allison Kyle Leopold, Respondent.

Decided: October 29, 2001

MYRIAM J. ALTMAN, J.P., LEO F. McGINITY, HOWARD MILLER and SANDRA J. FEUERSTEIN, JJ. Shaw Pittman, New York, N.Y. (Charles G. Berry of counsel), for appellant. Thomas F. Cohen, New York, N.Y., for respondent.

In a contested probate proceeding, the Estate of Marvin Leopold appeals, as limited by its brief, from so much of an order of the Surrogate's Court, Suffolk County (Prudenti, S.), dated November 9, 1999, as denied that branch of its cross motion which was to enjoin the respondent Allison Kyle Leopold from commencing any further litigation and granted that branch of the motion of Allison Kyle Leopold which was, in effect, to compel it to distribute to the beneficiaries the sum it held as a litigation reserve.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 Contrary to the estate's contention, the Surrogate properly determined that the money maintained as a reserve by the estate should be distributed to the distributees.   The stipulation between Allison Kyle Leopold and the estate provided for the establishment of a reserve fund to be retained “to pay for attorneys' fees, accounting fees or other expenses, claims or liabilities reasonably anticipated but unpaid at the time of distribution”.   The Surrogate properly found that the parties did not intend for such reserve to be maintained indefinitely and that it should be distributed (see, Wolstencroft v. Sassower, 212 A.D.2d 598, 623 N.Y.S.2d 7).

 Public policy generally mandates free access to the courts (see, Sassower v. Signorelli, 99 A.D.2d 358, 359, 472 N.Y.S.2d 702;  Matter of Shreve v. Shreve, 229 A.D.2d 1005, 645 N.Y.S.2d 198).   The denial of an injunction enjoining the respondent Allison Kyle Leopold from instituting any additional litigation was appropriate under these circumstances (see, Berson v. Berson, 265 A.D.2d 439, 696 N.Y.S.2d 81;  Braten v. Finkelstein, 235 A.D.2d 513, 514, 652 N.Y.S.2d 769;  Matter of Shreve v. Shreve, supra;   Sassower v. Signorelli, supra).

Copied to clipboard