Matter of Peck

Matter of Peck (2021 NY Slip Op 01007)

Matter of Peck

2021 NY Slip Op 01007

Decided on February 16, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 16, 2021
Before: Manzanet-Daniels, J.P., Webber, Oing, Kennedy, JJ.

File No. 1617/16A 1617/16B Appeal No. 13152 Case No. 2019-04713

[*1]In the Matter of the Estate of Norman L. Peck, Deceased. _

Liliane Peck, etc., Plaintiff-Respondent,



Ian S. Peck et al, Defendants-Appellants.

Press Koral LLP, New York (Matthew J. Press of counsel), for appellants.

Farrell Fritz, P.C., Uniondale (Eric W. Penzer of counsel), for respondent.

Order, Surrogate's Court, New York County (Nora S. Anderson, S.), entered on or about September 30, 2019, which granted plaintiff's motions to confirm the report of the Special Referee dated May 29, 2018, and for summary judgment in lieu of complaint, unanimously reversed, on the law, with costs, and the motions denied.

Plaintiff failed to establish her entitlement to summary judgment in lieu of complaint (CPLR 3213) (see Weissman v Sinorm Deli , 88 NY2d 437, 444 [1996]). The right to payment could not be ascertained solely from the face of the debt instruments. The 2014 and 2015 Notes and Guaranty set forth more than the simple promise to repay the loans, in that they referred to other documents with regard to events of default, such as the Pledge and Security Agreement and mortgage, and imposed other obligations on Ian Peck. Further, there is a triable issue of fact as to whether the manner of enforcement of the Notes and Guaranty was inextricably tied to decedent's testamentary plan and whether plaintiff violated his testamentary intent by filing the actions.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 16, 2021