Bigaj v. Gehl

Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: The order appealed from is modified by reversing that part which denied plaintiffs motion for summary judgment dismissing defendants’ counterclaim for breach of contract and by dismissing the counterclaim. The contract for the sale of the property owned by the estate of Alvin Ashman was signed by plaintiff as executrix before letters testamentary were issued to her. Thus, at the time plaintiff signed the contract of sale, she had no power to dispose of the property (see, EPTL 11-1.3; Matter of Yarm, 119 AD2d 754) and lacked capacity to enter into the contract (see, Cohn v United States Trust Co., 127 AD2d 523). (Appeal from order of Supreme Court, Erie County, Forma, J.—summary judgment.) Present—Denman, J. P., Boomer, Pine, Balio and Lawton, JJ.