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In re Berk

March 16, 2010

IN THE MATTER OF IRVING BERK, DECEASED.
HUA WANG, A/K/A JUDY WANG, RESPONDENT-APPELLANT;
v.
JOEL BERK, ET AL., APPELLANTS-RESPONDENTS. (FILE NO. 2488/06)



In a probate proceeding in which Hua Wang, a/k/a Judy Wang, petitioned pursuant to SCPA 1421, inter alia, to determine the validity and effect of an election pursuant to EPTL 5-1.1-A asserted by her against the estate of the decedent Irving Berk, the co-executors of the decedent's estate, Joel Berk and Harvey Berk, appeal, as limited by their brief, from (1) so much of an order of the Surrogate's Court, Kings County (Johnson, S.), dated July 3, 2008, as granted the petitioner's motion for summary judgment on the petition and directed dismissal of their counterclaims, without prejudice, and (2) so much of a decree of the same court dated August 5, 2008, as, upon the order, in effect, is in favor of the petitioner and against them granting the petition, declaring that the election was valid, and dismissing their counterclaims, without prejudice, and the petitioner cross-appeals from (1) so much of the order as, upon directing the dismissal of the counterclaims asserted by Joel Berk and Harvey Berk, did so "without prejudice," and (2) so much of the decree, as, upon the order, and upon dismissing the counterclaims, did so "without prejudice."

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.

JOSEPH COVELLO, J.P., FRED T. SANTUCCI, CHERYL E. CHAMBERS and PLUMMER E. LOTT, JJ.

DECISION & ORDER

ORDERED that the cross appeals are dismissed, as the petitioner is not aggrieved by the portions of the order and the decree cross-appealed from (see CPLR 5511); and it is further,

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the decree is reversed insofar as appealed from, on the law, the petitioner's motion for summary judgment on the petition is denied, the counterclaims are reinstated, and the order is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to Joel Berk and Harvey Berk, payable by the petitioner personally.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the decree (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the decree (see CPLR 5501[a][1]).

In 1982 Irving Berk (hereinafter the decedent), an extremely successful businessman who founded the Berk Trade and Business School (hereinafter the School), executed a will. In his will, the decedent named his two sons, Joel Berk and Harvey Berk, as the co-executors of his estate.

Over time, the decedent's health began to fail. His physical condition deteriorated to the point that he required a wheelchair to ambulate. He also suffered from memory loss, and often became confused.

In 1997 the petitioner, a then-40-year-old woman who immigrated to this country from China in 1996, was hired as the decedent's live-in caretaker. The decedent, 91 years old at the time, became totally dependent on the petitioner, who was constantly with him.

According to an associate of the decedent's, who was frequently with the petitioner and the decedent, on numerous occasions the petitioner shoved and screamed at the decedent, causing him to become "tearful." In addition, according to a friend of the decedent's, the decedent told him, in confidence, that he was "afraid" of the petitioner, as she would hit him, scratch his face, and scream at him.

In April 2005 the decedent, whose mental faculties had steadily declined in the years immediately preceding that time, and who would occasionally be unable to recognize his sons and friends, was diagnosed with dementia by a physician who examined him in connection with a contemplated guardianship proceeding. That physician opined that the decedent's mental state was such that the decedent was "incapable of . . . enter[ing] into binding contracts." In addition, the decedent's long-time primary-care physician, who examined the decedent on several occasions around this ...


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