On April 3, 2013, the Brooklyn Bar As-sociation paid tribute to the members ofthe Judiciary of Kings County by hostingits annual Judiciary Night in the MainMeeting Room at 123 Remsen Street. Itwas a full house — standing room only —and presented a great opportunity for themembers of the bar to meet and informal-ly mingle with the many distinguishedmembers of the Judiciary in attendance.Much of the credit for the excellent turnout and for the success of the evening goesto Andrew M. Fallek, Chairman of theBBA Judiciary Committee and, for sever-al years running, the master of ceremoniesfor the event.
BBA President Domenick Napoletanoopened the evening by introducingNYSBA President Seymour James. It wasan honor to have Mr. James attend thisevent. Although his law practice is basedin Manhattan he shared with the crowdthat he was born in Brooklyn, lives in
Brooklyn and was a Brooklyn Dodgersfan. He thanked the Judiciary, “for thechallenging and important work they do.”
President Napoletano then introducedAndrew Fallek who briefly commented onthe work the BBA Judiciary Committee didthis past year, including screening 17 judi-cial candidates. Mr. Fallek then introducedHon. Randall T. Eng, Presiding Justice, Ap-pellate Division, Second Department. Pre-siding Justice Eng talked about his roots inBrooklyn and paid a compliment to BBAPast president, Diana Schochet, current As-sistant Deputy Chief Appellate Court Attor-ney for the Appellate Division, Second De-partment. Judge Eng said that Diana wasthe Second Department’s “go to person fordisciplinary matters.”
The floor was next turned over to JudgeHon. Michael L. Pesce, Presiding Justice,Appellate Term, Second and Eleventh Judi-cial Districts, who always delights thecrowd with his humor and insight, and thento Hon. Barry Kamins, AdministrativeJudge for Criminal Matters, Second Judi-cial District and the Criminal Courts of theCity of New York. Judge Kamins was in-troduced by Andrew Fallek as, “Mr. Judi-ciary Night” and Judge Kamins’ participa-tion in this BBA tradition is always appre-ciated and enjoyed by those in attendance.
Hon Lawrence Knipel, recently ap-pointed as Administrative Judge for CivilMatters, Second Judicial District nextshared some thoughts with those in atten-dance, including thanking the BrooklynBar Association and “its firm partnershipwith the Judiciary, without which justicecould not be firmly administered.” Henoted the present burden on the KingsCounty Supreme Court which is currentlydown three judges but with an increase of2% in caseload. Under these circum-stances, Justice Knipel certainly has hiswork cut out for him but, as many know,he has the temperament and determinationto succeed at his new position.
Please turn to page 12
Judiciary Night 2013 at the BBABy Glen Verchick, Esq. .................................Pg. 1The DocketCompiled by Louise Feldman ...................Pg. 2New Members, March 2013 ................Pg. 2Legal BriefsBy Avery Eli Okin, Esq., CAE ......................Pg. 2Respectfully SubmittedBy Domenick Napoletano, Esq. ...................Pg. 3The State of EstatesBy Hon. Bruce M. Balter andPaul S. Forster, Esq. .....................................Pg. 4Second Department Tort Law UpdateBy Shana DeCaro, Esq.. ..............................Pg. 5Protecting Reparation PaymentsBy Anthony J. Lamberti, Esq. ...............Pg. 10Across My DeskBy: Barton L. Slavin, Esq. .....................................Pg. 11
What’s InsideBy: Glenn Verchick, Esq.
Front row from left-to-right: Hon. JeanSchneider, Hon. Lisa Ottley, Hon.Lawrence Knipel, BBA presidentDomenick Napoletano, Hon. DianaA. Johnson, and NYSBA presidentSeymour James. Back row from left-to-right: Andrew M. Fallek, Hon.Jeannette Ruiz, Hon. Barry Kamins,Hon. Michael Yavinsky, Hon. Ran-dall T. Eng, Hon. Margarita LopezTorres, and Hon. Michael L. Pesce.
Barrister photo by Mario Belluomo
Report of The 2013Nominating Committee
Deborah Lashly
Page 2, BROOKLYN BARRISTER APRIL, 2013
THE DOCKET
IFYOU HAVE ITEMS FOR INCLUSION IN THE DOCKET, PLEASE MAILOR FAXOR EMAILTHEM TO LOUISE FELDMAN, BROOKLYN BAR ASSOCIATION,
BROOKLYN BAR ASSOCIATION 2012-2013Domenick Napoletano, PresidentAndrew M. Fallek, President-ElectRebecca Woodland, First Vice-President
Arthur L. Aidala, Second Vice PresidentHon. Frank R. Seddio, SecretaryAimee L. Richter, Treasurer
Avery Eli Okin, Esq., CAE: Executive Director
CLASS OF 2013David M. ChidekelArmena D. GayleSteven Jeffrey HarkavyRichard KlassAnthony J. LambertiHemalee J. PatelIsaac N. Tuchman
CLASS OF 2014Theresa CiccottoJoseph R. CostelloPamela ElisofonFern FinkelDewey GolkinDino MastropietroSteven H. Richman
CLASS OF 2015Frank V. CaroneFidel F. Del ValleLara GenovesiRichard S. GoldbergJaime LathropAnthony W. Vaughn, Jr.Glenn Verchick
Roger Bennet AdlerVivian H. AgressAndrea E. BoninaRoss M. BrancaRose Ann C. BrandaGregory T. CerchioneMaurice ChaytSteven D. CohnHon. Miriam CyrulnikLawrence F. DiGiovanna
David J. Doyaga, Sr.Joseph H. FarrellAndrew S. FisherEthan B. GerberDominic GordanoPaul A. GolinskiGregory X. HesterbergHon. Barry KaminsMarshall G. KaplanAllen Lashley
Mark A. LongoJohn. E. MurphyJohn LonuzziManuel A. RomeroHon. Harold RosenbaumBarton L. SlavinHon. Jeffrey S. SunshineHon. Nancy T. SunshineDiana J. Szochet
TRUSTEES COUNCIL (Past Presidents)
TRUSTEES
NEW MEMBERSMONTH MARCH 2013
Amy AltmanMaria Aragona
Lauren Plant ArteseAdam Bevelacqua
Andrew Borrok
Ernest DuBoseDesiree ClaudioEran Grossman
Renee Kameko HasmanJames Kaplan
David M. Kasel lDmiutriy Kheyfits
Michael James MaloneyKait l in Ashley Morris
Gregg Pinto
Richard RosenzweigShei la Buchholtz Scharfman
Clifford ShapiroArthur Torkiver
Anyj Vaidya
STUDENT MEMBERSJessica Badt
Trevor CooperKevin Dwarka
Lisa HowellYonit RosengartenSandra Stanfield
Anthony Varbero
LEGAL BRIEFSIncluded below are events which have been scheduled for the period
April 16, 2013 through June 28, 2013Compiled by Louise Feldman
April 16, 2013 Tuesday CLE Employment Law & Social MediaAuditorium, 6:00 PM
Pro Bono Committee MeetingCenter Conference Room, 6:00 PM
April 17, 2013 Wednesday CLE CPLR UpdateAuditorium, 6:00 PM
April 18, 2013 Thursday CLE The (Not So) Basics of MedicaidAuditorium, 6:00 PM
April 22, 2013 Monday CLE Appellate FilingAuditorium, 6:00 PM
April 23, 2013 Tuesday Inns of Court MeetingAuditorium, 6:00 PM
April 24, 2013 Wednesday BWBA Board MeetingBoard of Trustees Room, 5:00 PM
BWBA Annual MeetingAuditorium, 6:00 PM
April 25, 2013 Thursday 18B Family Court Screening Committee Rear Conference Room, 1:00 PM
CLE 1031 Tax informationAuditorium, 6:00 PM
April 29, 2013 Monday First Annual Hon. Theodore T. Jones, Jr. Memorial Golf Outing Colonia Country Club
VLP CLARO TrainingAuditorium, 6:00 PM
April 30, 2013 Tuesday CLE Starting Your Own Law FirmAuditorium, 6:00 PM
Foundation Public Education ProgramBoard of Trustees Room, 6:00 PM
May 6, 2013 Monday VLP CLEAuditorium, 6:00 PM
May 8, 2013 Wednesday BBA/Foundation Board MeetingsBoard of Trustees Room, 5:15 PM
BBA Annual MeetingAuditorium, 6:00 PM
May 9, 2013 Thursday CLE EASLAuditorium, 6:00 PM
May 13, 2013 Monday BWBA Spring ReceptionAuditorium, 6:00 PM
May 20, 2013 Monday CLE Matrimonial LawAuditorium, 6:00 PM
May 21, 2013 Tuesday 18B Family Court CommitteeRear Conference Room, 1:00 PM
CLE How to Become a JudgeAuditorium, 6:00 PM
May 22, 2013 Wednesday BWBA Board MeetingBoard of Trustees Room6:00 PM
CLE Fee ArbitrationAuditorium, 6:00 PM
May 23, 2013 Thursday KCCBA Board MeetingBoard of Trustees Room, 5:00 PM
KCCBA Meeting/CLEAuditorium, 6:00 PM
May 27, 2013 Monday In observance of Memorial Day, the Brooklyn Bar Association Building, the VLP, the LRS and the BBA Library will be closed.
May 28, 2013 Tuesday VLP Board MeetingBoard of Trustees Room, 5:30 PMInns of Court MeetingAuditorium, 6:00 PM
June 6, 2013 Thursday CLE Ipads for LawyersAuditorium, 12:00 PM
CLE Ipads for LawyersAuditorium, 5:00 PM
June 12, 2013 Wednesday BBA Board & Foundation MeetingsBrooklyn Borough Hall, 5:15 PM
BBA Induction of Officers & TrusteesBrooklyn Borough Hall, 6:00 PM
June 19, 2013 Wednesday 18B Family Court CommitteeRear Conference Room, 1:00 PM
CLE Nuts & Bolts of Real Estate ContractsAuditorium, 6:00 PM
June 20, 2013 Thursday BWBA Induction of Officers & DirectorsAuditorium, 6:00 PM
JUDICIAL RECOGNITIONCongratulations to Brooklyn Bar Association
member Hon. Marsha Steinhardt, who hasbeen chosen to receive the Lifetime Achieve-ment Award at the Ninety-Fifth Annual Dinner ofthe Brooklyn Women’s Bar Association whichwill be held on Wednesday May 29, 2013 at 6:00pm at The Brooklyn Botanic Garden.
Congratulations as well to Brooklyn Bar As-sociation member Hon. Joanne D. Quinoneswho has been selected by the Brooklyn Women’sBar Association as the recipient of the 2013 SybilHart Kooper Award.
Also being recognized at the May 29, 2013BWBAAnnual Dinner is Brooklyn Bar Associa-tion former trustee Elaine N. Avery, who will bepresented with the Beatrice M. Judge Recogni-tion Award.
Congratulations to Brooklyn Bar Associationmember, Appellate Division Associate JusticeWilliam F. Mastro, who is being honored by theRichmond County Bar Association at their An-nual Dinner at the Hilton Garden Inn on Thurs-day, May 9, 2013. For further information con-tact Elisa F. Lefkowitz at 718-442-4500.
KUDOS ANDPROFESSIONAL RECOGNITIONCongratulations to Brooklyn Bar Association
member Abayomi Ajaiyeoba who has beennamed as the Deputy Managing Attorney of theBrooklyn OATH/ECB tribunal. Previously shehad served as the Deputy Managing Attorney ofthe Manhattan office. A member of the BBAAdministrative Law Committee AbayomiAjaiyeoba is the immediate past president of theNigerian Lawyers Association and is a VicePresident of Black Women Attorneys.
Congratulations to Brooklyn Bar Associa-tion Past President Manuel A. Romero whowas a team leader and lecturer on trial tech-niques at the New York State Bar Association’sTrial Academy program held on March 20th atCornell Law School. Earlier this year PastPresident Manuel A. Romero was re-electedas the Vice President for the Second District ofthe NYSBA as well as being appointed to theCommittee to Review Judicial Nominations.
PROFESSIONAL ANNOUNCEMENTSWord has reached the Brooklyn Bar Associ-
ation that Edwin Lambert, formerly a partnerwith Barry, McTiernan and Moore has joinedJeffrey Miller & Associates, P.C. located at 32Broadway, 13th floor in Manhattan. The tele-phone number is 212-227-4200.
Word has reached the Brooklyn Bar Associ-ation that Richard Rosenzweig, the son of
Sonny Rosenzweig of Klein and Rosenzweighas joined Wenig Saltiel, LLP as an associateattorney. With over twenty year of litigationexperience in commercial, banking and real es-tate law he can be reached at 718-797-5700 orat [email protected].
Schpoont & Cavallo, LLP is pleased to an-nounce that effective January 18, 2013 their of-fice will be located at 2 Rector Street, Suite 1502,New York, NY 10006. The telephone number212-792-6070 remains the same.
HEARD ON THE STREETBrooklyn Bar Association member Jay H.
Schwitzman, President of the Kings CountyCriminal Bar Association has announced thatthe KCCBAAnnual Dinner will be held on Sat-urday April 13, 2013 at Russo’s on the Bay inHoward Beach.
Laura L. Smith, Esq. the Executive Direc-tor of the Judicial Campaign Ethics Center ofthe Office of Court Administration has in-formed the bar that “all attorneys involved injudicial campaigns and all judicial candidates”that “individuals who are seeking state-paidelective judicial office must complete a judicialethics training program” which is available forviewing online. To register for the training youmay call the Judicial Ethics Campaign EthicsCenter at 1-888-600-5232.
The New Jersey Supreme Court has senta reminder to all licensed attorneys in thatjurisdiction to the effect that the “AttorneyOnline Registration and Payment Center isnow open” and that payment is required byApril 26, 2013. Further information is avail-able at www.njcourts.com/attyreg.
BEREAVEMENTSThe Brooklyn Bar Association extends its
deepest sympathy to the Warren Family on thepassing of Harold Warren, at the age of 95, onMarch 23, 2013. An active practitioner forover 70 years he had joined the Brooklyn BarAssociation during World War II and had re-tired only last year.
•••The Brooklyn Bar Associaiton extends its
deepest sympathy to Hon. Robert J. Millerand family on the passing of his mother,Yolanda Miller on April 2, 2013.___________________________________
Legal Briefs is compiled and written by Avery EliOkin, Esq., CAE, the Executive Director of the BrooklynBar Association and its Foundation. Items for inclusion in“Legal Briefs” should be sent to [email protected],faxed to 718-797-1713 or mailed to 123 Remsen Street,Brooklyn, New York 11201-4212.
APRIL, 2013 BROOKLYN BARRISTER, Page 3
Brooklyn Barrister is published by Everything Brooklyn Media, LLC, under the auspices of the Brooklyn Bar Association. For advertising information call (718) 422-7410. Mailing address 16 Court Street, Suite 1208, Brooklyn, New York 11241.Vol. 65 No. 7 April 2013. The Brooklyn Barrister (ISSN 007-232 USPS 066880) is published monthly except in August and December by the Brooklyn Bar Association. Office of publication is: Brooklyn Bar Association, 123 Remsen Street, Brooklyn,New York 11201-4212. Telephone No. (718) 624-0675. Periodical postage is paid in Brooklyn, New York and at additional mailing offices. Subscription price is $11.00 per year. POSTMASTER: Send address changes to the Brooklyn Barrister, 123 Rem-sen Street, Brooklyn, NY 11201-4212.
Cecilia N. AnekweHon. Bruce M. BalterJaime J. BorerMark DiamondJason EldridgePaul S. ForsterJason D. Friedman
Anthony LambertiHemalee J. PatelRobert P. SantoriellaMichael TreybichAlexis VigilanteShelly WerbelGregory Zenon
“The greatness of a nation and itsmoral progress can be judged by the wayits animals are treated.”
With these poignant words, echoed byMahatma Gandhi, former Kings CountySupreme Court Justice Virginia E.Yancey and her husband, retired federalagent Mike Kops, took up the challengein 2005 to open, and to this day run, theLove and Hope Animal Sanctuary, inDelaware county New York. For anyonewho presently has, or who has lost a pet,I trust that this article, whose subject mat-ter is near and dear to my heart, inspiresthe best, in all who read it, to treat the de-fenseless of God’s creation with care andrespect.
Dognapping is the latest criminaltrend running rampant, not only here inthe United States, but across the globe.This past Christmas day, seven-year-oldMia Bendrat was finally reunited with herbeloved Marley, a Cavalier King CharlesSpaniel. Marley was stolen while tied upoutside a store in Washington Heights,where Mia and her mom had stopped topick up groceries for Christmas dinner. Itwas thanks to a quick thinking GoodSamaritan that the thief was apprehended,after she sensed the selling a dog inUnion Square to be a tad suspicious. Ul-timately, the dog proved to be Marley andMia and Marley were back togetheragain.
I was much surprised to find that thistype of thievery has a history in NewYork, dating back to the 1800’s when it
was common place. The culprits did notprowl the streets by night or by disguise,but, instead, plied their crime openly andnotoriously. The culprits were, in fact, theprelude to today’s animal control officer.The dog catchers of the late 1800’s wereoften, and in most cases rightfully, vili-fied for the pretext under which they op-erated. They seized the economic penal-ties that pet owners faced for keepingtheir dogs unleashed, uncollared, un-muzzled, or any combination thereof.Dog catchers would often conduct“raids,” or in some cases coax dogs frominside their homes, and literally stealthem. Later they would pocket the $2.00impound fee, from the pet owner that ar-rived at the pound to claim their pets re-lease. If they were not so lucky to get
R E S P E C T F U L L Y S U B M I T T E D
Domenick Napoletano
By Domenick Napoletano, Esq.
PRESIDENT’S MESSAGE
Please turn to page 8
The Brooklyn Bar Association Announces
The First AnnualHON. THEODORE T. JONES, JR.
MEMORIAL GOLF TOURNAMENT
for the benefit of theBrooklyn Bar Association Foundation, Inc.
Monday, April 29, 2013
COLONIA COUNTRY CLUBColonia, New Jersey
Cost $350 per golfer
Watch for packages, sponsorship and registration information by flyer
Email and online at www. Brooklynbar.org
Page 4, BROOKLYN BARRISTER APRIL, 2013
T H E S T A T E O F E S T A T E SWe anticipate that by now the icy hand of winter has lifted
and the warm breezes from Persephone are at hand (to be fol-lowed we expect by the blow torch heat of summer) and presentfor your Spring enjoyment some interesting cases involvingwhat a trial Court must charge a jury as to the potential bias of afact witness when a payment to the witness by the party forwhom he is testifying for the witness’ lost time and incidentalexpenses is in excess of what might appear to be reasonablecompensation; the reversal of a Probate Decree and remission ofthe probate proceeding to the Surrogate’s Court because theGuardian ad litem’s application to conduct examinations and dis-covery pursuant to SCPA §1404 was denied; production of doc-uments in connection with SCPA §1404 examinations in probateproceedings prior to the filing of objections; the creator of a jointbank and brokerage accounts successfully rebutting the BankingLaw §675 presumption and being allowed to remove the nameof the co tenant from the accounts; the principle that if a transferis made with the intention that it will be effective only after deaththen it is invalid as an inter vivos gift; a proceeding by the dece-dent’s estate to recover from the surviving joint tenant of a bankaccount withdrawals made prior to the decedent’s death by thejoint tenant in excess of the surviving joint tenant’s moiety; thedenial of funeral expenses paid by someone other than a distrib-utee of the decedent as a recoverable element of damages in awrongful death suit; the burden of proof in an accounting pro-ceeding; the application of the three-year/two-year discoveryrule in contested probate proceedings; the requirement thatnotwithstanding the general attorney-client privilege an attorneyor his employee must disclose information as to the preparationor execution of a Will; and the statute of limitations in a Surro-gate’s Court discovery proceeding.
Trial Court Must Charge a Jury Specifically As to thePotential Bias of a Fact Witness When a Payment to theWitness by the Party for Whom He Is Testifying for theWitness’ Lost Time and Incidental Expenses Is In Excess OfWhat Might Appear to Be Reasonable Compensation — In a‘trip and fall’ case plaintiff testified that while walking her dogshe stepped into a “dip in the trench” that caused her to fall. Thedefendant had dug trenches on the plaintiff’s street in connectionwith the installation of high-speed fiber optic cables. To rebutthis testimony, the defendant subpoenaed a physician who hadtreated plaintiff in the emergency room shortly after the accident.The doctor was called merely as a fact witness to testify con-cerning his entry in the “history” section of his consultation notethat plaintiff “tripped over a dog while walking last night in therain.” At trial the doctor testified consistently with his docu-mented note. During cross-examination, plaintiff’s counselelicited from the doctor that the defendant had paid the doctor$10,000 for appearing and testifying. The doctor denied that histestimony was influenced by the payment, stating simply that hewas there to “testify to my records.” His testimony consistedonly of his verification that he made the entry into the emergencyroom record. No professional opinion was sought or given.Plaintiff’s counsel requested that the Court strike the doctor’s en-tire testimony or, in the alternative, issue either a curative in-struction or a jury charge concerning monetary influence. Plain-tiff argued that, having been subpoenaed, the doctor had a legalduty to appear and a legal right to only a $15 attendance fee, andbecause he was paid in excess of that amount, Supreme Courtshould strike his testimony. That request having been denied,plaintiff’s counsel asked that the court charge the jury that, pur-suant to CPLR §8001, the doctor, as a fact witness, was entitledto a witness fee of $15 per day and $.23 per mile to and from theplace where he was served with the subpoena. Defense counselcountered that the witness fee was the statutory minimum andthat there was no prohibition against paying a fact witness fortime missed from work. The Court suggested that, rather than is-suing a charge, the parties could address the issue during sum-mation and the jury could draw whatever inference it wishedfrom those facts. The Court cautioned the parties against refer-encing the statutory criteria of CPLR §8001. After summations,where the parties addressed the doctor’s fee payment in detail,the Court gave the jury a general bias charge but made no spe-cific reference to the doctor’s testimony or the payment he re-ceived for appearing at trial. Following deliberations, the juryfound the defendant negligent, but that such negligence was nota substantial factor bringing about the accident. Supreme Courtdenied plaintiff’s motion to set aside the verdict. The AppellateDivision affirmed, holding that although the defendant’s sub-stantial payment to the doctor did not warrant exclusion of histestimony, the Supreme Court had erred in failing to adequatelycharge the jury regarding the suspect credibility of factual testi-mony by a paid witness, but that reversal was not required be-cause the error was harmless. The plaintiff appealed. HOLD-ING- The Court of Appeals ruled that the testimony of a sub-poenaed fact witness, who receives a fee alleged to be dispro-portionately in excess of the CPLR §8001(a) mandatory fee re-quirement for attendance at trial, is not inadmissible as a matterof law. The Court of Appeals concluded that such testimony isgenerally admissible, but that the trial court should, in a propercase, charge the jury as to the witness’s potential bias, in light ofthe perceived excessiveness of the fee. The Court of Appealsadded that where the party who subpoenaed the witness offered
no explanation for a fee that was seemingly in excess of reason-able compensation for lost time and incidental expenses, the trialcourt, upon a timely request by an objecting party, must chargeas to the witness’s potential bias. The Court of Appeals statedthat it was troubled by what appeared to be a substantial paymentto a fact witness in exchange for minimal testimony. In the viewof the Court of Appeals, such payments, when exorbitant ascompared to the amount of time the witness spends away fromwork or business, create an unflattering intimation that the testi-mony is being bought or, at the very least, has been uncon-sciously influenced by the compensation provided. Nonetheless,the Court of Appeals stated that while it was concerned by theamount the witness was paid for his minimal attendance and tes-timony, it concluded that the Appellate Division should be af-firmed under the circumstances of the case. The Court of Ap-peals opined that CPLR §8001(a) provides that one who is com-pelled by subpoena to appear at trial is entitled to a $15 daily at-tendance fee and $.23 per mile in mileage fees. The Court of Ap-peals stated that although this is only the minimum that must bepaid to a subpoenaed fact witness, that does not mean that an at-torney may pay a witness whatever fee is demanded, howeverexorbitant it might be. The Court noted that Courts and discipli-nary rules long have acknowledged that to procure the testimo-ny of witnesses it often is necessary to pay the actual expensesof a witness in attending court and a reasonable compensationfor the time lost, and that there also are many incidental expens-es in relation to the prosecution or defense of an action at lawwhich can with propriety be paid by a party to the action. TheCourt of Appeals added however that what is not permitted and,in fact, is against public policy, is any agreement to pay a factwitness in exchange for favorable testimony, where such pay-ment is contingent upon the success of a party to the litigation.The Court of Appeals recognized that that situation was not pre-sented in the case at bar, in that the doctor’s testimony was lim-ited to what he had written on his consultation note less than 12hours after the accident and well before plaintiff commenced lit-igation. The Court of Appeals also pointed out that it could notbe argued that the doctor tailored his testimony in exchange forthe fee or that there was any evidence that the doctor’s consulta-tion note was fabricated. The Court of Appeals rejected the plain-tiff’s argument that, having been subpoenaed, the doctor had alegal duty to appear and a legal right to only a $15 attendancefee, and because he was paid in excess of that amount, SupremeCourt should have stricken his testimony, stating that the fee setforth in CPLR §8001(a) only is a minimum fee, and that pay-ment of more than the $15 daily fee is not precluded under eitherthe law or code of ethics. Nonetheless, the Court of Appeals ac-knowledged that the payment of such a disproportionate fee fora short amount of time at trial was troubling, and that the dis-tinction between paying a fact witness for testimony and payinga fact witness for time and reasonable expenses can easily be-come blurred. The Court of Appeals stated that a line must there-fore be drawn between compensation that enhances the truthseeking process by easing the burden on testifying witnesses,and compensation that serves to hinder the truth seeking processbecause it tends to influence witnesses to remember things in away favorable to the side paying them. The Court of Appealsfound that plaintiff’s counsel’s request that the Court charge thejury that, per the subpoena, the doctor was required by law to ap-pear at trial and was entitled to a $15 attendance fee and $.23 permile and to let the jury do with it what they will, was tantamountto a charge request for a special jury instruction relative to thedoctor’s potential bias. The Court of Appeals agreed with plain-tiff that the Supreme Court should have issued a bias chargespecifically tailored to address the payment the defendant madeto the doctor. While acknowledging that the Supreme Court gen-erally had instructed the jury that bias or prejudice was a consid-eration that it should consider in weighing the testimony of anyof the witnesses, the Court of Appeals held that this was insuffi-cient as it pertained to the defendant’s payment to the doctor. TheCourt of Appeals stated that the Supreme Court properly hadacted within its discretion in concluding that the fee paymentwas fertile ground for cross-examination and comment duringsummation, but ruled that because the defendant had not even at-tempted to justify the $10,000 payment for one hour of testimo-ny, the Supreme Court should have also crafted a charge thatwent beyond the CPLR §8001 requirements. The Court of Ap-peals held that, if requested in a timely fashion, the SupremeCourt should have instructed the jury that fact witnesses may becompensated for their lost time but that the jury should assesswhether the compensation was disproportionately more thanwhat was reasonable for the loss of the witness’s time from workor business, and that should the jury find that the compensationwas disproportionate, it should then consider whether it had theeffect of influencing the witness’s testimony. The Court of Ap-peals added that it is within the trial Court’s discretion to deter-mine whether the charge is warranted in the context of a partic-ular payment to a witness, and to oversee how much testimonyshould be permitted relative to the fact witness’s lost time andother expenses for which he is being compensated. Nonetheless,the Court of Appeals concluded that, although a more specificjury charge should have been given, the Supreme Court’s failureto issue one was harmless, in view of the fact that the dispute un-derlying the doctor’s testimony was not whether he fabricated
the contents of the consultation note, and that the substance ofthe doctor’s testimony was such that the jury’s assessment wasonly related tangentially to the doctor’s credibility. Accordingly,the Court of Appeals held that the order of the Appellate Divisionshould be affirmed. Bessie Caldwell, et. al. v. CablevisionSystems Corporation, et. al. N.Y.L.J. 2/8/13, p. 22, col. 1 (Courtof Appeals, 2013) [Authors’ note: although the subject matter ofthis case does not involve substantive estate law or estate prac-tice or procedure, the decision gives guidance in a vexatious areaof trial practice in the Surrogate’s Court, particularly in contest-ed probate, administration, turnover, and accounting proceed-ings.]
Probate Decree Reversed and Probate Proceeding Remit-ted to the Surrogate’s Court Because the Guardian AdLitem’s Application to Conduct Examinations and DiscoveryPursuant to SCPA §1404 was Denied — A probate Decree de-nied a Guardian ad litem’s application to conduct examinationsand discovery pursuant to SCPA §1404 and admitted the dece-dent’s will and codicil to probate. The decedent’s granddaughter,for whom the Guardian ad litem had been appointed, appealed.HOLDING- The Appellate Division reversed the probate De-cree, granted the application to conduct examinations and dis-covery pursuant to SCPA §1404, and remitted the matter to theSurrogate’s Court for further proceedings. The Appellate Divi-sion stated that under SCPA §1404, any party to a probate pro-ceeding, before or after filing objections, may examine any or allof the attesting witnesses or the person who prepared the will asto all relevant matters which may be the basis of objections to theprobate of the propounded instrument. The Appellate Divisionadded that by statute the party conducting such examination isentitled to all rights granted under article 31 of the civil practicelaw and rules with respect to document discovery. The AppellateDivision opined that as a general rule, the right of potential ob-jectants, such as adversely affected distributees or legatees, toexamine under SCPA §1404, is unconditional, without any pre-liminary showing of the need for the examination. The AppellateDivision found that the decedent’s granddaughter had been de-prived of her unconditional right to examine the attesting wit-nesses and persons who prepared the will, and to related discov-ery pursuant to SCPA §1404. Accordingly, the Appellate Divi-sion ruled that the Decree must be reversed, the application toconduct examinations and discovery pursuant to SCPA §1404granted, and the matter remitted to the Surrogate’s Court for ex-aminations and related discovery conducted pursuant to SCPA§1404, and a new determination of the petition. Matter of LaM-otta, 101 A.D.3d 1009 (2nd Dept., 2012)
Petitioner Required To Produce Of Documents InConnection With SCPA §1404 Examinations in Probate Pro-ceeding Prior To the Filing of Objections by Respondent —A few days prior to her death, the decedent made a new will, inwhich she radically altered her estate plan. The propounded in-strument nominated its drafter as executor. Examinations of thetwo attesting witnesses and the petitioner were conducted pur-suant to SCPA §1404. During the petitioner’s SCPA §1404 ex-amination, counsel for the respondent requested that the peti-tioner produce certain documentation, and reserved the right toreexamine the petitioner upon respondent’s review of that docu-mentation. The petitioner expressly consented to leave open hisSCPA §1404 examination. Following a disagreement regardingthe production of the requested documents, the objectant movedpursuant to SCPA §1404 to compel the disclosure of the request-ed documents and pursuant to SCPA §1410 for leave to file andserve his objections to probate. The Surrogate’s Court grantedthe respondent’s motion, directing the petitioner to produce therequested documents by a date certain and, upon the respon-dent’s review of those documents, directing that the respondenteither schedule the continued examination of the petitioner orfile and serve his objections to probate, if any, by a date certain.The petitioner appealed. HOLDING- The Surrogate was af-firmed. The Appellate Division opined that SCPA §1410 pro-vides, in relevant part, that if an examination is requested pur-suant to SCPA §1404, objections must be filed within 10 daysafter the completion of such examinations, or within such othertime as is fixed by stipulation of the parties or by the Court. TheAppellate Division pointed out that since in the case at bar theSCPA §1404 examination of the petitioner was incomplete, thetime limitation established by SCPA §1410 for the service andfiling of objections had not elapsed. The Appellate Divisionadded that in any event, contrary to the petitioner’s contentions,the Surrogate’s Court providently exercised its discretion in di-recting him to produce the demanded document discovery and insetting a date for the filing of objections. The Appellate Divisionfound that the order setting a schedule for the filing of objectionswas fully consistent with the paramount concern to admit onlyvalid wills to probate. Matter of Pascale, 102 A.D.3d 796 (2ndDept., 2013)
The Creator of Joint Bank and Brokerage Accounts Suc-cessfully Rebuts the Banking Law §675 Presumption and IsAllowed to Remove the Name of the Co Tenant from the Ac-counts; Transfer Made With the Intention That it Will Be Ef-fective Only After Death is Invalid As An Inter Vivos Gift —The plaintiff brought an action seeking a determination that hewas the sole owner of certain real property and the proceeds of
Please turn to page 6
By Hon. Bruce M. Balter and Paul S. Forster, Esq.
APRIL, 2013 BROOKLYN BARRISTER, Page 5
DISCOVERY
Carrington v. Truck Rite Dist. Sys, Corp.,2013 NY Slip Op. 00719 (2/6/13)
Defendant was not entitled to a secondorthopedic examination of plaintiff subse-quent to filing of Note of Issue. In order tojustify an additional examination after thefiling of the note of issue a defendant mustdemonstrate unusual and unanticipated cir-cumstances. The court found that the factthat Defendant’s examining physician wasarrested and temporarily surrendered hismedical license subsequent to his examina-tion of plaintiff and filing of note of issuedid not justify an additional examination.Defendant’s concern regarding impeach-ment of doctor at trial was not a sufficientbasis upon which to compel another exam.
Farrell v. E.W. Howell Co. LLC, 2013 NYSlip Op 01061 (2/20/13)
Full disclosure is not unfettered disclo-sure. Under the facts in this case, however,where plaintiff suffered two work-relatedinjuries within three years prior to subjectaccident, and an automobile accident aftersubject accident, plaintiff should be com-pelled to provide unrestricted medical au-thorizations relating to treatment he re-ceived commencing three years prior to thesubject accident up to the present.
Suchorzepka v. Mukhtarzad, 2013 NY SlipOp 01257 (2/27/13)
The court ordered an on-site inspectionof the Chemical Dependency Unit of defen-dant hospital where the allegations of negli-gence were that the hospital was negligentin supervising plaintiff’s decedent duringhis admission and permitted him to exit un-attended, which resulted in him beingstruck and killed by a motor vehicle. Thecourt dealt with privacy issues of other pa-tients by limiting the inspection to ascer-taining the physical layout of the premises,conducted in a manner so as to avoid dis-ruption and prevent disclosure of confiden-tial and privileged information. Any videoor photography taken would be subject toan in camera inspection if deemed neces-sary.
SPOLIATION
Rodman v. Ardsley Radiology PC, 2013 NYSlip Op 01253 (2/27/13)
Plaintiff’s medical malpractice action al-leged that defendants failed to properly readand interpret results of a sonogram. Defen-dants moved, pursuant to CPLR §3126, forsanctions against Plaintiff on grounds ofspoliation of the actual ultrasound films,which Plaintiff signed out of defendant’soffice and failed to return. Thereafter, in thecourse of litigation, plaintiff admitted (pur-suant to a Notice to Admit) that she hadsigned out the films without returning them.In opposition to Defendant’s spoliation mo-tion, Plaintiff claimed that she had in factreturned the films and in support, submitteda letter of defendant’s former counsel whichthat stated that the “original ultrasoundfilms” had been included in correspon-dence. Plaintiff’s attempt to amend her re-sponse to Notice to Admit within the Replypapers for the first time, alleging that Plain-tiff’s counsel had failed to review the filebefore responding to Notice, was unpersua-sive. The court found that in light of Plain-tiff’s admission, sanctions were justifiedand that an adverse inference charge wouldbe proper at the time of trial.
PLEADINGS
Wicks v. Leemilt’s Petroleum, 2013 NY SlipOp 01079 (2/20/13)
Plaintiff’s motion for leave to supple-ment his bill of particulars to allege that cir-cumstantial evidence permits an inferenceof defendant’s negligence, under the doc-trine of res ipsa loquitur, should have beengranted. Plaintiff’s failure to plead res ipsadoes not foreclose its application if war-ranted by the evidence, and the defendantsare not prejudiced thereby as there were nonew factual allegations or new causes ofaction. Plaintiff was injured as a result ofhis fall from an extension ladder attached tothe van which was provided to him. It wasalleged that a scissors lift could have beenattached to the van but for the fact that hehad not been trained in its operation. Plain-tiff leaned the extension ladder against apole and secured it with clips and he fellwhen the pole collapsed. Plaintiff sought torecover based upon Labor Law §240(1).
M.C. v. Sylvia Marsh Equities, Inc., 2013NY Slip Op 00888 (2/13/13)
Defendant was entitled to a supplemen-tal deposition of Plaintiff in a case whereshe was allegedly injured when bathroomceiling collapsed, despite her contentionthat she could not answer questions pertain-ing to her participation in the federal wit-ness protection program. The court foundthat she could be deposed, must answerquestions, the transcript of the depositioncould only be disclosed to counsel ofrecord, and it would be sealed if it becamepart of any court record.
Vallejo-Bayas v. NYCTA, 2013 NY Slip Op01260 (2/27/13)
A court may grant leave to amend a No-tice of Claim where a mistake or omissionwas made in good faith and the municipalcorporation was not prejudiced thereby.Moreover, a court’s inquiry “is not limited tothe four corners of the notice of claim, and itmay consider the testimony provided duringan examination conducted pursuant to GML§50-h and any other evidence properly be-fore the court.” In this case plaintiff alleged,in Notice of Claim, that he was injured whendefendant’s bus struck a wire which caused itto strike him in front of his residence. TheNotice provided the exact location, date andnature of the incident but incorrectly statedthe time as 2:00 rather than 1:15 PM. Therewas no evidence of bad faith, and althoughplaintiff was not able to identify bus withgreater particularity, under the circumstancesthe information in the Notice, supplementedby testimony at the 50-h hearing was suffi-cient for Transit Authority to conduct ameaningful investigation.
SUMMARY JUDGMENT
Products Liability
Melendez v. Womack, 2013 NY Slip Op00721 (2/6/13)
Plaintiff, forklift operator was injuredwhen he lost control of the stand-up forklifthe was operating, collided with a column,causing his foot to slip off the platform andbe crushed, ultimately resulting in amputa-tion. Plaintiff commenced products liabili-ty action under theories of strict products li-ability, defective design and negligent de-sign in failing to equip forklift with an op-erator guard door, which would have pre-vented the injury. Defendants establishedtheir prima facie entitlement to judgment.Plaintiff, however, raised a triable issue offact as to whether the forklift was “reason-ably safe for its intended use without an op-erator door guard.” Plaintiff’s expert me-chanical engineer had published papersspecifically on this topic.
Slip and FallMahoney v. AMC Entertainment, Inc., 2013NY Slip Op 01242 (2/27/13)
“Mere reference to general cleaningpractices, with no evidence regarding anyspecific cleaning or inspection of the area inquestion, is insufficient to establish lack ofconstructive notice.” Defendant’s motionfor summary judgment on slip and fall wasdenied, as defendants failed to offer any ev-idence as to when the last time before plain-tiff’s accident anyone had inspected thearea, but merely established general clean-ing practices.
AutomobileWilliams v. Hayes, 2013 NY Slip Op 00908(2/13/13)
The court granted Plaintiff’s motion forsummary judgment in this intersection acci-dent case. Plaintiff established that the de-fendant had the stop sign and negligentlydrove into the intersection without yieldingthe right of way to plaintiff. Defendantfailed to raise a triable issue of fact, as hesimply contended that he did stop at thestop sign but thereafter he failed to yield theright of way. Defendant failed to contest thestatements in plaintiff’s affidavit but mere-ly contended that plaintiff was compara-tively negligent because the accident hap-pened in the middle of the intersection,which the court found to be speculative.
Gifford v. Consolidated Edison Co., 2013NY Slip Op 01062 (2/20/13)
Generally, a rear-end collision with astopped or stopping vehicle creates a primafacie case of negligence with respect to theoperator of the rearmost vehicle, as it is inviolation of VTL §1129 regulation that pro-hibits following too closely. Plaintiff’s ve-hicle was struck in the rear and defendantfailed to raise a triable issue of fact despiteevidence submitted that the occupants ofdefendant’s truck did not feel an impact, asthey did not submit any evidence that therehad, in fact, been no impact.
Williams v. County of Westchester, 2013 NYSlip Op 01080 (2/20/13)
Plaintiff was injured when the vehicle inwhich he was travelling veered from theroad and struck a tree, but had no recollec-tion of the accident. The court granted De-fendant’s motion for summary judgment, asthe Notice of Claim served by Plaintiffs didnot mention the theories that were thenbeing urged, to wit: that the accident wasproximately cause by the lack of guardrail,failure to remove or place protection aroundthe tree or failure to maintain a clear zoneon the side of the roadway. A party may notadd a new theory of liability which was notincluded in the notice of claim, as it wouldnot adequately put defendant on notice.The court specifically found that the Nose-worthy doctrine would not excuse plaintifffrom stating with specificity the theory ortheories on which they sought to hold thecounty liable in their notice of claim.
Medical MalpracticeMehra v. Nayak, 2013 NY Slip Op 01244
(2/27/13)After a suicide attempt, decedent’s hus-
band brought his wife to Defendants forpsychological consultation at which timeshe expressed suicidal ideations. She metwith psychiatric social worker and psychia-trist twice each, and was prescribed somemedication. Later that month she commit-ted suicide. There was also an employmentdiscrimination action against her employer,another municipal defendant. All defen-dants brought motion for summary judg-ment. The court granted it as to the employ-ment discrimination defendants, as notevery element to a viable claim had oc-curred, as decedent had suffered no adverseemployment consequence as a result. As tothe claims for medical malpractice, howev-
er, the court found that plaintiff had raised atriable issue of fact, as neither defendanthad established that the claimed deviationswere not a proximate cause of plaintiff’s in-juries. One defendant’s expert offered onlyconclusory opinions and the other offer noexpert opinion on this issue. Plaintiff sub-mitted expert affidavit which delineated de-partures and raised a triable issue of fact asto whether treatment decisions were “some-thing less than a professional medical deter-mination or that [their] decisions were notthe product of a careful evaluation.”
Pedestrian KnockdownJackson v. Trust, 2013 NY Slip Op 01237(2/27/13)
Defendants established prima facie enti-tlement to judgment by submitting defen-dant’s deposition in which he testified thather vehicle never came in contact withplaintiff pedestrian. This was rebutted, anda triable issue of fact was raised, whenplaintiff submitted the police accident re-port which contained a statement by defen-dant that her vehicle “grazed the left leg ofplaintiff’s decedent.” The police officerwho prepared the report was acting withinthe scope of his duty and defendant’s state-ment is admissible as an admission.
PREMISES LIABILITY
Charles v. City of Yonkers, 2013 NY SlipOp 01056 (2/20/13)
Infant plaintiff was injured when he fellfrom monkey bars in a school playgroundduring recess while being supervised bytwo teacher’s aides. Defendant establishedits entitlement to judgment by demonstrat-ing that NY State has no regulations gov-erning the minimum age or skill level ofstudents who are permitted to play on mon-key bars (allegation of negligence) and thatthere was adequate supervision. Plaintiff’sexpert could not rely on nonmandatory rec-ommendations and guidelines issued by theNational Association for Sports and Physi-cal Education as there was no proof thatthey had been adopted in actual practice.
TRIAL
Coakley v. Parkway Hospital, 2013 NY SlipOp 00889 (2/13/13)
In a medical malpractice and wrongfuldeath action the court found that it was errorfor the trial court to redact a portion of themedical examiner’s report insofar as it stateda probable cause of a hemorrhage whichcontributed to plaintiff’s decedent’s death.Plaintiff underwent a subtotal colectomywhich involved tying off of blood vessels.Decedent died of lower gastrointestinal hem-orrhage with cardiovascular disease con-tributing. The trial court redacted the state-ment in the medical examiner’s report thatstated: “probable dehiscence of ligature.”The court found that this opinion was im-properly excluded from evidence and there-fore a new trial was warranted. The courtfurther found that this witness’s opinion con-tained in the M.E. report was not subject toCPLR §3101(d)(1) disclosure as he was anonparty witness, not a party’s expert.
D’Andraia v Pesce, 2013 NY Slip Op01060 (2/20/13)
The Court set aside a plaintiff’s verdictand ordered a new trial where the trialcourt, over Defendant’s objection, permit-ted the plaintiff’s expert, in this medicalmalpractice, wrongful death case, to basehis opinions, in part, on the contents of a re-port that had been prepared by another, non-testifying doctor interpreting the results ofmedical tests. An expert may only rely onout-of-court material if it is “of a kind ac-
T H E S T A T E O F E S T A T E Stwo financial accounts and removal of the cotenant’s name from all indicia and records oftitle or ownership. The plaintiff owned realproperty with his late wife. The couple execut-ed a deed purporting to transfer the premises tothemselves and their son as joint tenants withthe right of survivorship. The plaintiff’s wifedied two years later. Subsequently, the plaintiffopened a bank account and a brokerage accountboth of which were opened jointly in the namesof the plaintiff and his son. According to theplaintiff the son’s name was added to the deedso that, upon the deaths of his wife and himself,the premises would be transferred to the son,and not to their daughters, in accordance withChinese tradition. The son conceded that he hadheard his parents express this purpose to the at-torney who prepared the deed. The plaintiff alsoasserted that he had continued to pay all ex-penses of the premises with no contributionfrom his son, and it was undisputed that the sonnever reported any rental income from thepremises on his tax returns. As to the financialaccounts, the plaintiff stated that he had addedthe son’s name to the accounts at the suggestionof bank officials, so that the son could retrievethe funds upon his death. After a nonjury trial,the Supreme Court declared that the plaintiffwas the sole owner of the property and the fi-nancial accounts. The Supreme Court foundthat the appellant had not paid any considera-tion toward the purchase of the property, ormade any contribution toward its upkeep. TheSupreme Court also determined that the plain-tiff had not had a present intention to transfer aninterest in the property to his son, despite hav-ing placed his name on the deed, and conclud-ed that there had been no completed inter vivosgift of an interest in the real property. With re-spect to the financial accounts, in the absence ofdocumentary substantiation, the Supreme Courtdiscredited the son’s testimony that he had de-posited funds into the accounts, or into previousaccounts which were the source for the initialdeposits, credited the plaintiff’s testimony thatthe accounts were funded with his own money,without contribution by the son, and deter-mined that the son’s name was added to the twoaccounts solely for convenience. The son ap-pealed. HOLDING- The Appellate Divisionruled that the Supreme Court’s findings werewarranted by the facts and would not be dis-turbed. In the view of the Appellate Division,the Supreme Court had credited the plaintiff’stestimony that the son had not made any contri-butions toward the purchase of the premises orto have his name added to the deed, and dis-credited the son’s testimony to the contrary, andthe Appellate Division deferred to the trialcourt’s credibility determinations. The Appel-late Division stated that the evidence also sup-ported the Supreme Court’s finding that therehad been no completed inter vivos gift of an in-terest in the premises. The Appellate Divisionopined that an inter vivos gift requires that thedonor intend to make an irrevocable presenttransfer of ownership, and that if the intention isto make a testamentary disposition effectiveonly after death, the gift is invalid unless madeby will. The Appellate Division also found thatthe Supreme Court’s finding that the son’sname had been added to the bank and brokerageaccounts solely for convenience also was war-ranted by the facts. The Appellate Division ac-knowledged that in general, the deposit of fundsinto a joint bank or brokerage account consti-tutes prima facie evidence of an intent to createa joint tenancy. However, the Appellate Divi-sion said that the statutory presumption createdby Banking Law §675 can be rebutted, by pro-viding direct proof that no joint tenancy was in-tended or substantial circumstantial proof thatthe joint account had been opened for conven-ience only. The Appellate Division gave defer-ence to the credibility determinations of theSupreme Court as to the source of the funds inthe accounts. Accordingly, the Appellate Divi-sion ruled that the Supreme Court’s finding thatthe plaintiff had rebutted the statutory presump-tion of Banking Law §675 was warranted bythe facts and would not be disturbed. Hom v.Hom, (2nd Dept., 2012)
The Decedent’s Estate May RecoverFrom the Surviving Joint Tenant of a BankAccount Withdrawals Made Prior to the
Decedent’s Death by the Joint Tenant inExcess of the Surviving Joint Tenant’s Moiety— Petitioner, the executor of the decedent’s es-tate, alleged that, prior to decedent’s death, re-spondent withdrew more than his moiety froma money market account and a savings account,both of which were jointly held by respondentand decedent. The executor moved for summa-ry judgment which was denied by the Surro-gate’s Court, and the executor appealed.HOLDING- The Surrogate was affirmed. TheAppellate Division agreed with the Surrogate’sCourt that there were issues of fact regardingrespondent’s withdrawals from the joint ac-counts that precluded summary judgment. TheAppellate Division opined that the creation of ajoint account vests in each tenant a present un-conditional property interest in an undividedone half of the money deposited, regardless ofwho puts the funds on deposit. The AppellateDivision noted, however, that if a joint tenantwithdraws more than his or her moiety, theother tenant has an absolute right to recoversuch excess, and that the death of a joint tenantdoes not divest his or her estate of the right torecover the amount of the excess withdrawal, inwhich proceeding, the Appellate Divisionpointed out, nonetheless, the withdrawing ten-ant may successfully resist recovery by the es-tate if he or she can establish that the now de-ceased joint tenant had consented to the with-drawal. The Appellate Division agreed with theSurrogate that there were issues of fact whetherdecedent had consented to or otherwise ratifiedrespondent’s withdrawals from the joint ac-counts, and thus affirmed. Matter of Civiletto,101 A.D.3d 1585 (4th Dept., 2012)
Funeral Expenses Paid By SomeoneOther Than a Distributee of the DecedentDenied as a Recoverable Element of Dam-ages in a Wrongful Death Suit — In an actionto recover damages for medical malpractice andwrongful death, the defendants moved for sum-mary judgment dismissing the cause of actionalleging wrongful death, inter alia, to the extentit sought to recover damages against the defen-dants for funeral expenses. It was alleged thatthe decedent died from complications whicharose during surgery performed by the defen-dants. The decedent’s brother, as administratorof her estate, commenced an action, inter alia,to recover damages for funeral expenses al-legedly incurred. In fact, the decedent’s distrib-utees had incurred no out of pocket funeral ex-penses, since they were fully reimbursed forthose costs by a family friend. The SupremeCourt denied the defendants’ motion for sum-mary judgment and the defendants appealed.HOLDING — The Appellate Division re-versed. The Appellate Division opined that inan action to recover damages for wrongfuldeath, the measure of damages includes fair andjust compensation for the pecuniary injuries re-sulting from the decedent’s death to the personsfor whose benefit the action is brought. The Ap-pellate Division added that the essence of thecause of action for wrongful death is that theplaintiff’s reasonable expectancy of future as-sistance or support by the decedent has beenfrustrated by the decedent’s death, and that lossof support, voluntary assistance and possibleinheritance, as well as medical and funeral ex-penses incidental to death, are injuries forwhich damages may be recovered. The Appel-late Division ruled that the defendants had mettheir prima facie burden of establishing theirentitlement to judgment as a matter of law dis-missing so much of the cause of action allegingwrongful death as sought to recover damagesagainst them for funeral expenses on behalf ofall of the distributees in that they had estab-lished that the distributees had incurred no fu-neral expenses, since they were fully reim-bursed for those costs by a family friend, andthat in opposition the plaintiff had failed to raisea triable issue of fact. Accordingly, the Appel-late Division held that the Supreme Courtshould have granted that branch of the defen-dants’ motion which was for summary judg-ment dismissing so much of the cause of actionalleging wrongful death as sought to recoverdamages against them for funeral expenses onbehalf of all of the distributees. Johnson vRichmond Univ. Med. Ctr., 101 A.D.3d 1087(2nd Dept., 2012) [Authors’ Note: Although itmight seem anomalous, the Appellate Division
decision comports exactly with the language ofEPTL §5-4.3(a) which states in pertinent part“… In every such [wrongful death] action, inaddition to any other lawful element of recov-erable damages, … the reasonable funeral ex-penses of the decedent paid by the distributees,or for the payment of which any distributee isresponsible, shall also be [a] proper element[s]of damage.“ (emphasis added) The AppellateDivision decision also comports with the theo-ry of such wrongful death actions which, al-though brought by the estate fiduciary (EPTL§5-4.1), are for the benefit of the decedent’s dis-tributees as defined specially in EPTL §5-4.4(a), not the decedent’s estate. The decedent’sestate may recover only for the decedent’s per-sonal injuries and conscious pain and suffering,not for the decedent’s death itself. The dece-dent’s estate has responsibility for the dece-dent’s debts and funeral and administration ex-penses, not the decedent’s distributees. Hence,if the funeral expenses are not paid by one ormore of the distributees, then the distributeeshave not suffered a pecuniary loss thereby, andcannot recover under the wrongful deathstatute. That having been said, the Legislaturemight want to revisit EPTL §5-4.3(a). As writ-ten, the statute might offend one’s sense of jus-tice in that a defendant responsible for a dece-dent’s death is relieved of the responsibility forthe decedent’s funeral expenses, as well as forthe medical aid, nursing and other such atten-tion incident to the injury causing death, if paidby someone other than the statutory distribu-tees.]
Burden of Proof in an Accounting Pro-ceeding — After he was held in contempt bythe Surrogate’s Court, the executor of the dece-dent’s estate provided an accounting. The bene-ficiaries, the decedent’s daughters, filed objec-tions to the account, asserting that it was in-complete and inaccurate. The Court agreed, anddirected the executor to file an amended ac-count. The executor filed an addendum to hisaccount, but the daughters again filed objec-tions, asserting that the amended account stillwas incomplete and inaccurate. One of thedaughters moved for summary judgment grant-ing her objections, contending, among otherthings, that the executor had mismanaged theestate and engaged in self-dealing in breach ofhis fiduciary duty. The Surrogate’s Court im-posed surcharges and interest upon the executorfor various undocumented administration ex-penses and for assets omitted from his account.The executor appealed. HOLDING — TheSurrogate’s Court was affirmed. The AppellateDivision stated that SCPA §2211 grants the Sur-rogate’s Court broad authority to take the ac-count, hear the proofs of the parties respectingit and make such order or decree as justice shallrequire. The Appellate Division added that theSurrogate’s Court is empowered to state the ac-count and make such a decree as justice re-quires notwithstanding the failure or refusal ofa fiduciary to file an amended account, and thatbecause the Surrogate’s Court is governed byprinciples of equity as well as of law, it is notprevented by any legal restriction from doingexact justice to any of the parties. The AppellateDivision opined that a fiduciary acting on be-half of an estate is required to employ such dili-gence and prudence to the care and manage-ment of the estate assets and affairs as wouldprudent persons of discretion and intelligence,accented by not honesty alone, but the punctilioof an honor the most sensitive. The AppellateDivision stated that where the beneficiary of anestate has demanded an accounting, the partysubmitting the account has the burden of prov-ing that he or she has fully accounted for all theassets of the estate, and this evidentiary burdendoes not change in the event the account is con-tested. The Appellate Division acknowledgedthat while the party submitting objections bearsthe burden of coming forward with evidence toestablish that the account is inaccurate or in-complete, upon satisfaction of that showing theaccounting party must prove, by a fair prepon-derance of the evidence, that his or her accountis accurate and complete. The noted that wherethe objectant satisfies the prima facie burdenand the fiduciary fails to rebut it, the Surro-gate’s Court may impose surcharges and, whereappropriate, may also impose interest charges.The Appellate Division found that the daughter
had satisfied her prima facie burden of demon-strating that the executor’s account was inaccu-rate or incomplete, and that the executor hadfailed to rebut that showing. The Appellate Di-vision added that because the legitimacy ofmost, if not all, of the daughter’s objectionswere apparent from a plain reading of the ac-count, no factual issues were presented whichnecessitated the conduct of a hearing. The Ap-pellate Division noted that in any event, as theexecutor of the decedent’s estate, it was incum-bent upon petitioner to maintain clear and accu-rate records, absent which all presumptions andall doubts were to be resolved adversely to him.The Appellate Division ruled that the recordcontained ample proof to support the SurrogateCourt’s determination that the executor wastedthe estate’s assets, improperly omitted assetsfrom his account, and engaged in impermissibleself-dealing. The Appellate Division found thatsince the executor failed to raise a triable issueof fact in opposition to the daughter’s summaryjudgment motion, the Surrogate’s Court proper-ly granted the daughter’s motion. Matter ofCarbone, 101 A.D.3d 866 (2nd Dept., 2012)
Scope of Materials to Be Produced in AContested Probate Proceeding Limited Bythe Application of the Three-Year/Two-YearDiscovery Rule — In this probate proceeding,decedent’s nephew, a distributee and potentialobjectant, moved for an order pursuant toCPLR §3124 compelling another nephew, thepetitioner nominated executor and residuarylegatee under the proffered will to produce thedocuments demanded in nephew-respondent’sDemand for Discovery and Inspection, direct-ing the nephew-petitioner to execute medicalauthorizations, and for the imposition of mone-tary sanctions. The decedent died at 95 years ofage, survived by the two nephews and a niece.Nephew-petitioner had lived in the same houseas decedent for the nephew’s entire life. Heaverred that the decedent was like a father tohim. The petitioner stated that as his uncle’scondition deteriorated, he undertook to caringfor him and seeing to his affairs. The petitionerdid not controvert the statements by thenephew—respondent that in 2003 decedentgranted the petitioner two powers of attorneywhich gave him substantial access to decedent’sfinancial affairs and that the petitioner and thedecedent had shared business interests in anumber of enterprises. The decedent had exe-cuted four wills in the eight years before thedate of the propounded instrument, which wasdated approximately six years before his death.SCPA §1401 examinations were scheduled butwere held in abeyance when discovery issuesarose. The nephew-respondent’s counsel serveda Demand for Discovery and Examination con-taining 43 separate items. Petitioner’s attorneyinitially transmitted a letter which, except forfive of the demands, very generically took issuewith the remaining 38 discovery demands, andshortly thereafter responded formally to the de-mand with what the respondent characterized asa partial document production. The respon-dent’s demand sought documentation com-mencing with the year 1997 and concludingwith the date of decedent’s death and financialdocuments. HOLDING- The Court limited dis-covery to the three-year/two-year rule under 22NYCRR 207.27. The Court stated that disclo-sure is guided by the principle of full disclosureof all matter material and necessary in the pros-ecution or defense of an action. The Court saidthat the words material and necessary are to beinterpreted liberally to require disclosure, uponrequest, of any facts bearing on the controversywhich will assist preparation for trial by sharp-ening the issues and reducing delay and prolix-ity. The Court added that the test is one of use-fulness and reason. In the Court’s view, materi-al and necessary means nothing more or lessthan relevant. The Court pointed out that under22 NYCRR 207.27, in any contested probateproceeding in which objections to probate aremade, except upon the showing of special cir-cumstances, the examination is be confined tothree years prior to the date of the will and twoyears thereafter or to the date of death whichever is shorter. Nonetheless, despite the word-ing of the Official Rule, the Court noted that thethree-year/two-year rule applies regardless ofwhether objections have been filed. The Court
Continued from page 4
Please turn to page 9
APRIL, 2013 BROOKLYN BARRISTER, Page 7
Supervisory Matrimonial Judge and PastPresident BBA Hon. Jeffrey Sunshineand Past President and Commissionerof Jurors Hon. Nancy T. Sunshine.
BBA Secretary Hon. Frank R. Seddioand Justice David B. Vaughn.
Supervisory Judge of Criminal Term and CriminalCourts of the City of NY Hon. Barry Kamins,Past President Steven D. Cohn, Executive Direc-tor Avery Eli Okin, Esq.,CAE and President-Elect and Judiciary Committee Chair Andrew M.Fallek.
Justice Bernard Graham, Past President Rose Ann C.Branda, Catholic Lawyers Guild President Sara Gozo.
Hon. Kenneth Sherman, Trustees Lara Genovesi, Hon. Carl Landicinoand Hon. Ellen Spodek.
NYSBA President Seymour James.
Hon. Yvonne Lewis, Hon. Ingrid Joseph, Hon. Harriet Thompson, Surrogate Diane Johnson,Surrogate Margarita Lopez-Torres and Hon. Baily Shifman.
CLE Director Meredith D. Symonds,Esq. and LRS Director RoseannHiebert.
Supervisory Judge of the Civil CourtHon. Lisa Ottley and Past PresidentDiana J. Szochet.
Judiciary Night 2013
At the BBA
Page 8, BROOKLYN BARRISTER APRIL, 2013
there in time, their pets were euthanized.I was pleased to discover that, as was
the case with Marley’s abduction, somepet owners of the 1800’s also had theirvindication. On September 13,1880, theBrooklyn Daily Eagle reported in the caseof John Fee, a dog catcher, who havingbeen charged and found guilty of stealinga pet, was sentenced for his crime. JusticeGoetting (who I later learned was also adog lover), in handing down his sentence,remarked, “Dog catchers should be prose-cuted more than they are. There is toomuch dog stealing of late. I believe dogcatchers are thieves every one of them”and with those words he sent Fee to jail fortwenty-nine days.
Unlike yesteryear’s dog catchers, who sawpets as a means to personally profit financial,today’s animal control officers profess an al-truistic calling and are devoted to “rescue,care for, and finding loving homes for home-less and abandoned animals in NYC.”Today’s Animal Care & Control of NYC is,according to their web site, “the largest animalorganization in the northeast, rescuing morethan 30,000 animals each year.”
Thanks to present day awareness, andpeople’s sensibilities, we have come a longway in how our pets are protected fromthose who prey on them and legislationruns the gamut. From the creation of legis-lation embodied in New York’s Agricul-ture and Markets Law § 350 et. seq.“Overdriving, Torturing and Injuring Ani-mals” § 353, a misdemeanor, to “Aggra-vated Cruelty to Animals popularly knownas “Buster’s Law,” § 353-a a felony. Also,in 2010 Nassau County District AttorneyKathleen Rice announced the creation ofThe Animal Cruelty Unit. The unit’s mis-sion according to District Attorney Rice isto “protect pets and defenseless animals,this newly created unit will give a voice tothe victims of animal abuse, and send themessage that the abuse and neglect of ani-mals is not tolerated in Nassau County,”Rice said. “The Animal Cruelty Unit willdo everything possible to ensure that thosewho endanger pets and other animals willface the full brunt of the criminal justicesystem.”
Laws protecting pet owners and natu-rally, by extension, their pets have alsobeen adopted. In New York City for exam-ple § 27-2009.1 (b) of the New York CityAdministrative Code commonly known asthe Pet Law provides:
“Where a tenant in a multiple dwellingopenly and notoriously for a period ofthree months or more following takingpossession of the unit harbors, or has har-
bored a household pet or pets . . . and theowner or his or her agent has knowledge ofthis fact, and such owner fails within thisthree-month period to commence a sum-mary proceeding or action to enforce thelease provision prohibiting the keeping ofsuch household companion animal, suchlease provision shall be deemed waived. . ..” Subsection (c) goes on to provide that“it shall be unlawful for an owner or his orher agent, by express terms or otherwise,to restrict a tenant’s rights as provided inthis section. Any such restriction shall beunenforceable and deemed void as againstpublic policy.”
The applicability of the Pet Law in coop-erative apartment ownership cases was dis-cussed by the Court in Corlear GardensHousing Co., Inc. v. Ramos, 126 Misc.2d 416,481 N.Y.S.2d 577 (Sup. Ct. Bronx Co., 1984),which by applying the Pet Law retroactively,reasoned “the law must necessarily affect,inter alia, the rights and obligations of partiesunder leases executed ... prior to its date ofpassage”, and in doing so stated that there wasno reason to exclude cooperative owner-shareholders and tenants from the Pet Law”.
In applying the above protection to condo-minium ownership situations the AppellateDivision Second Department In Board ofManagers v. Lamontanero, 206 A.D.2d 340,616 N.Y.S.2d 744 (2 Dept.,1994), stated:“The legal status of the occupant of a multipledwelling unit (i.e., whether he pays rent, ownscooperative shares, or is the owner in fee sim-ple of a condominium unit) is not relevant tothe purposes of the statute, which include pre-venting abuses in the enforcement ofcovenants prohibiting the harboring of house-hold pets and preventing the retaliatory evic-tion of pet owners for reasons unrelated to thecreation of nuisance. “We generally concludethat it would be pernicious to create an excep-tion for condominiums from the generallybeneficial requirements of Article 27 of theAdministrative Code [the Pet Law]. In addi-tion to substantive harms, an exception forcondominiums could lead to anomalies suchas permitting the tenant of a condominiumowner to invoke the protection of the....”
However, in Board of Managers of theParkchester North Condominium v. NicholasQuiles, 234 A.D.2d 130, 651 N.Y.S.2d 36 (1stDept., 1996) the Appellate Division, First De-partment, held that the Pet Law was notapplicable to condominiums, reasoningthat, by its terms, the Pet Law only applieswhere there is a landlord-tenant relation-ship and this is not true of condominiums.The court noted hat the law refers only to“covenants contained in multiple dwellingleases and that condominiums are a formof fee ownership.” In its decision the First
Department went on to expressly state itsdisagreement with the Court in Lamon-taner, supra, by stating “We disagree withthe Second Department that condomini-ums should be deemed covered by the PetLaw because not explicitly excluded.” Thelesson here is that if you’re a pet owner itsbetter to own a condominium in the Sec-ond Department, which is, apparently, amuch friendlier bench to pets and theirowners.
As for the elderly, and those who sufferfrom emotional or physical disabilities,Federal, State and City legislation is thereto protect them, as well, against landlords,and cooperative and condominium boardsdetermined to separate them from a lovingand devoted pet. In New York City, theNew York Civil Rights Law § 47 providesthat “no person shall be denied admittanceto and/or the equal use of and enjoymentof any public facility solely because saidperson is a person with a disability and is ac-companied by a guide dog, hearing dog, ora service dog.” This applies to housing andincludes service dogs for a wide range ofphysical, mental, and medical impairments.
Under the federal Fair Housing Act 42USC §3604 people with disabilities havebeen successful in arguing that, in certaincircumstances, landlords must allow themto have a companion animal, who providesthem with emotional support, as a reason-able accommodation. An excellent discus-sion on this topic can be found in “Dis-crimination: The Emotional Support Pet,as a Reasonable Accommodation, underFederal Law” by Karen Copeland, Esq., inLandlord-Tenant Practice Reporter, Vol. I,Issue 1, December 1999. In these situa-tions, the companion animal does not haveto be qualified as a guide dog, hearing dog,or other type of service animal. Disabili-ties do not necessarily have to be physicaland may include such conditions as de-pression. Therefore, if a companion ani-mal is determined to be medically neces-sary, by your health care provider, a courtmay hold that the pet must be permitted tolive in your home with you.
I started this article by conveying howpersonally near and dear this topic is to myheart. The loves of my life, besides my wife,daughter, and mother are my calicos Bellaand Mia. While they can both be rambunc-tious at times, my cats light up my morning,as I go out the door to work, and remind meof what is really important when I comehome from a hard day. They serve as invalu-able, loving, and faithful companions to mymother, throughout her day, as well. Themeaning and intensity of the relationships wehave with our pets was never so evident then
when the light was dimmed, several yearsago, on my tortoise shell calico Mimi. Shetravelled with me daily to and from work.After her loss, which I still feel today, JusticeVirginia E. Yancey, (yes the very same JudgeYancey who has devoted herself to givingher love and care to God’s little ones) re-ferred me to a web site for solitude. Thatsite is RainbowBridge.com. The site con-tains a very special poem, which I havereproduced here with permission, ofRainbowBridge.com, and which I hopewill resonate in the hearts of all pet lovers.It reads as follows:
Just this side of heaven is a placecalled Rainbow Bridge. When an
animal dies that has been especiallyclose to someone here, that pet goes
to Rainbow Bridge. There are meadows and hills for all
of our special friends so they can runand play together. There is plenty offood, water and sunshine, and ourfriends are warm and comfortable.
All the animals who had been ill andold are restored to health and vigor.Those who were hurt or maimed are
made whole and strong again, justas we remember them in our
dreams of days and times gone by.The animals are happy and content,
except for one small thing; theyeach miss someone very special tothem, who had to be left behind.
They all run and play together, butthe day comes when one suddenlystops and looks into the distance.
His bright eyes are intent. His eagerbody quivers. Suddenly he begins torun from the group, flying over thegreen grass, his legs carrying him
faster and faster.
You have been spotted, and whenyou and your special friend finallymeet, you cling together in joyousreunion, never to be parted again.The happy kisses rain upon yourface; your hands again caress thebeloved head, and you look once
more into the trusting eyes of yourpet, so long gone from your life but
never absent from your heart.
Then you cross Rainbow Bridgetogether....
— Author unknown —
RESPECTFULLY SUBMITTEDContinued from page 3
0
UPCOMING CLE COURSES AT THE BROOKLYN BAR ASSOCIATION
2013
• IRS 1031 Exchange Seminar (Thursday, April 25th) • The Nuts and Bolts of Building Your Own Practice (Tuesday, April 30th)*
• Structuring and Negotiating Sports Industry Commercial Contracts (Thursday, May 9th)
• Forensic Accounting in Matrimonial Issues (Monday, May 20th)• How to Become a Judge (Tuesday, May 21st)
• Part 137 Arbitration Fee Disputes (Wednesday, May 22nd)
• iPads for Lawyers (Thursday, June 6th-afternoon and evening programs)*
• Nuts and Bolts of Real Property Contracts (Wednesday, June 19th)*
*Indicates courses that offer basic training in skills and practice.
APRIL, 2013 BROOKLYN BARRISTER, Page 9
cepted in the profession as reliable in form-ing a professional opinion.” There was noproof that the report was reliable and the de-fendant had no opportunity to cross-examinethe physician who prepared it. The court fur-ther found, as it related to retrial, that therewas merit to defendant’s argument that theprobative value of certain photos of decedentwas so slight that admitting them into evi-dence “could not be expected to accomplishany result other than to introduce the person-al element for the consideration of the jury.”
Crooks v. E. Peters, 2013 NY Slip Op 01226(2/27/13)
On a Labor Law §240(1) action the juryfound that Defendants’ negligence was a sub-stantial factor in causing foot and ankle in-juries but not as to back, elbow and knee in-juries and made awards of $2 million for pastpain and suffering, $2 million for past lostearnings and $1 million for past medical ex-
penses, but made no award for future pain orlost earnings. Plaintiff moved, pursuant toCPLR §4404, to set aside verdicts on causa-tion and future damages. The court found thata new trial was appropriate on issues of pastand future damages with respect to injuries toplaintiff’s foot and ankle as there may havebeen juror confusion or an impermissiblecompromise, however, the jury verdict oncausation was supported by the evidence.
ZONE OF DANGER
Thompson v. Dhaiti, 2013 NY Slip Op 00907(2/13/13)
The court held that “zone of danger”damages for a member of the immediatefamily who witnessed an accident and deathof a purported family member are strictlylimited to a member of the immediate fami-ly. This excluded a girl who had lived withdecedent since the age of 4, had been finan-
cially supported by him for the majority ofher life and had acted as the only father fig-ure she had ever known. The court specifi-cally found that immediate family would notinclude such a person. An aunt was alsofound not to be a member of the immediatefamily for the purpose of applying the “zone
of danger” rule, pursuant to Trombetta v.Conkling (82 NY2d 549).______________________________
Shana De Cara, Esq., is a partner at De Caro &Kaplen, LLP. She is also on the Board of Directorsof the New York State Academy of Trial Lawyersand a regular contributor to the Barrister.
Second Department Tort Law Update...Continued from page 5
opined that the three/two year rule is a prag-matic rule designed to prevent the costs andburdens of runaway inquisition and may be ex-tended when special circumstances exist. Forexample, the Court explained, allegations of ascheme of fraud or a continuing course of con-duct of undue influence may be sufficient toconstitute special circumstances. Despite thefact that the moving papers explored bothsides’ factual claims and the inferences to bedrawn therefrom in great depth the Court ruledthat there wasn’t a shred of facts or allegationsin the record to warrant departure from thethree-year/two-year rule. Accordingly, the re-spondent’s motion to compel disclosure to theextent requested was denied and discovery waslimited to the period three years before and twoyears after the dated date of the propounded in-strument. The Court also directed the respon-dent to prepare and the petitioner to execute
HIPPA-compliant authorizations for the samethree-year/two-year period. Matter of Yagoda,2013 N.Y. Slip Op. 50140 (Surr. Ct., NassauCo., Surr. McCarty, 1/17/13)
Notwithstanding the General Attorney-Client Privilege an Attorney or His Employ-ee Must Disclose Information as to thePreparation or Execution of a Will — In acontested probate proceeding, the Court man-dated an in camera review of a certain docu-ment withheld from production by the petition-er on the grounds of the attorney-client privi-lege. During the decedent’s lifetime the peti-tioner had sent an email to an attorney with acopy to “A” and “D”. Two days later the at-torney sent a retainer letter to the petitioner,“A”, and “D”, requesting that they confirmtheir retention of his firm regarding issues andpotential litigation with regard to the decedentnow and upon his death. The letter was signedon that same day by the petitioner and “D” and
four days later by “A”. HOLDING- The Courtruled that the document was discoverable. TheCourt stated that the applicability of the attor-ney-client privilege is determined by the factsand circumstances of each case, adding that inorder for the privilege to apply to a communi-cation between an attorney and client, it mustbe made in the course of professional employ-ment for the purpose of the client obtainingthe legal services or for enabling the attorneyto render those services. The Court opined thatthe privilege is not absolute and exists only toaid the administration of justice by ensuringthe frank revelation of pertinent informationbetween attorney and client and should bestrictly confined within the narrowest possiblelimits consistent with the logic of its principle.The Court noted that the statute carves an ex-ception to the rule concerning proceedingsthat involve the probate or validity of a Will,in which proceedings an attorney or his em-
ployee must disclose information as to thepreparation or execution of any Will. TheCourt held that the communication betweenthe petitioner and the attorney concerned thepreparation and execution of the propoundedinstrument, and therefore the document wasdiscoverable. Matter of Yoran, N.Y.L.J.3/4/13, p.17, c.1 (Surr. Ct., Westchester Co.,Surr. Scarpino)
Brief briefs: Statute of limitations is sixyears in Surrogate’s Court Discovery Proceed-ings involving contractual or quasi-contractu-al theories. Matter of Rokeach, 101 A.D.3d1022 (2nd Dept., 2012)
Compiled by Hon. Bruce M. Balter, Justiceof the Supreme Court, State of New York, Act-ing Surrogate, Kings County Surrogate’sCourt, Chair, Brooklyn Bar Association, Sur-rogate’s Court Committee, and Paul S.Forster, Esq., Chair, Brooklyn Bar Associa-tion, Decedent’s Estates Section.
Continued from page 6
T H E S T A T E O F E S T A T E S
Advertise twice a week in the Brooklyn Eagle’s LEGAL SERVICES DIRECTORY.
In the early 1950s, then West Germany passed an indem-nification law to provide compensation to Holocaust sur-vivors. In the ensuing years, Germany and other countrieshave passed new laws and created additional funds for vari-ous populations of victims.
The compensation can be in the form of regular paymentsor lump sum payments. Eligible recipients of these paymentscan be Holocaust victims who were in Germany or otherCountries throughout Central and Eastern Europe.
In 2001, it was estimated that there were still 125,000Holocaust survivors
(Findings of H_R. 2786: Holocaust Survivors AssistanceAct of 2001) living in the United States.
Knowing how to protect these payments can be a signifi-cant part of an elder law practice.
PUBLIC BENEFITS ELIGIBILITYAND REPARATION PAYMENTS
All forms of Holocaust restitution payments are non-countable for Medicaid, SSI and Federally subsidized hous-ing programs. Congress passed the Victims of Nazi Persecu-tion Act of 1994 which provided that payments made underthe various German Restitution Acts could not be counted in
determinations or eligibility for benefits under any Federal orFederally assisted program which are based on need of therecipient. This Federal law is now codified as 42 USC 1437a,20 CFR 416.1236 (a) (18) and in the Social Security Admin-istration’s Program Operations Manuel System (POMS) asPOMS SI 01130.610.
This law expands a 1984 case Grunfeder v. Heckler 748F2d 503 (1984), which held that payments made under theGerman Reparations Act could not be counted in a Medicaideligibility determination.
Segregation of these payments and their accumulationinto various accounts would certainly make the applicationprocess for governmental benefits easy, However, what ifthat these payments are co-mingled with other funds ownedby a potential applicant? Not only are the restitution pay-ments non-countable as income in eligibility determination,but the accumulated restitution funds are non-countable as-sets for all federally funded public benefits programs, POMSSI I01130.601, SI 00830.500(d). Recipients of these fundsare not required to spend them down in order to maintain el-igibility. Furthermore, the accumulated payments remainingat the death of the recipient should be exempt from estate re-covery, (see CMS State Medicaid Manuel 3810).
Fortunately, the law permits co-mingling of excluded andnon-excluded funds so long as the excluded funds are “iden-tifiable” (see POMS SI 01130700). It does not require thatexcluded funds be kept physically apart. Excluded funds maybe identified by presenting documentation of both the natureof the payments and the deposit history into one or more ac-counts. Where withdrawals are made from an account withco-mingled funds, there is an assumption that the non-ex-
cluded funds are withdrawn first, POMS SI 01130.700(B2).
WHAT IF IDENTIFIABILITYIS CHALLENGED
There is little case law that exists to aid in defining whatconstitutes “identifiable” excluded restitution paymentswhen there are poor records of documenting where the fundswent after receipt.
In a fair hearing decision in New York (NY Fair HearingNo. 44336062), the applicant had documented approximate-ly $290,000.00 in restitution payments which were received.A year prior to the Medicaid application, the applicant trans-ferred two brokerage accounts totaling $185,000.00 into anaccount titled in the name of a restitution trust.
The applicant began depositing the monthly restitutionpayment into that restitution trust. The hearing office accept-ed the restitution trust as an excluded asset and based its de-cision on the issue of identifiably as set forth in the POMSsince the operating assumption is that non-excluded fundsare spent before excluded funds POMS SI 01130.700(c)(2).
ConclusionKnowing how to protect Nazi restitution funds can be an
important part of an elder law practice. It is critical to beaware of these protections when these cases cross your desk.______________________________Anthony J. Lambert is a trustee of the Brooklyn Bar Association.
By: Anthony J. Lamberti, Esq.
The Brooklyn Bar Association Presents:
Big Lawyers, Small Firms:The Nuts & Bolts of Building Your Practice
Tuesday, April 30th, 6:00-8:00pm2 MCLE Credits (1 Practice Management, 1 Ethics)
Presented by:• Jaime Lathrop, Esq., The Law Offices of Jaime Lathrop, P.C.• Pery D. Krinsky, Esq., Krinsky LLC
Course Description:Whether you’re joining a small firm or hanging your own shingle, this course willhelp new and experienced attorneys understand how to develop a practice and whatethical concerns must be considered.
TO REGISTER: Go to www.brooklynbar.org and Order Online, OR
Download the flyer and form AND! Fax it to 718-624-4045, or! Mail to Brooklyn Bar Association,
123 Remsen Street, Brooklyn, NY 11201, or! Email to [email protected]
This program is appropriate for attorneys and newlyadmitted attorneys.The Brooklyn Bar maintains a financial hardshippolicy. For more information, please call 718-624-0675.
Sponsored by:• BBA’s Young Lawyers Section, Robin Goeman, Esq. – Chair• Investors Bank
APRIL, 2013 BROOKLYN BARRISTER, Page 11
This month’s issue of Across my Desklooks at a recent Court of Appeals casewhich touches on the interplay betweenWorkers Compensation Board decisionsand Third Party Actions pending in ourSupreme Courts. The case was brought toour attention and summarized below byRobert Valletti, Esq.,an associate at the lawfirm of Ginarte O’Dwyer, Gonzalez, Gallar-do & Winograd, LLP
Auqui v. Seven Thirty One LimitedPartnership: The Latest on Workers’Compensation Decisions and theirPreclusive Effect in State Courts
The effect of Workers’ Compensationdecisions on third-party litigation is acommonly-visited topic, often in therealm of the preclusive effect a WCB(Workers Compensation Board) decision
has on the state court case. The doctrineof “collateral estoppel,” also known as“issue preclusion,” prevents a party fromlitigating an issue in a subsequent pro-ceeding because the issue has been previ-ously determined in a prior proceeding;the theory behind this doctrine lies in thefact that allowing re-argument of the issuewould be an abuse of judicial resourcesand potentially cause prejudice to a party.
Typically, collateral estoppel is appli-cable to determinations of a “quasi-judi-cial” administrative agency like theWorkers Comp Board. If an identicalissue was necessarily decided in a prioraction at a time when the party litigatingthe issue had a full and fair opportunity tocontest it, collateral estoppel will disallowits re-argument. Importantly, however,legal conclusions and conclusions of
mixed law and factare not given preclu-sive effect, while purefindings of fact are.
The New YorkCourt of Appeals re-cently decided thecase of Auqui v.Seven Thirty OneLimited Partnership,20 NY3d 1035(2013), which specif-ically spoke to theissue of the preclusiveeffect given to Work-ers Comp Board deci-
sions. In Auqui, the plaintiff was injuredwhen a sheet of plywood fell off a build-ing owned by the defendant. The plaintiffwas compensated for treatment of hishead, neck and back injuries as well asPTSD and depression. The WCB subse-quently determined the plaintiff was nolonger disabled, did not need any moretreatment and terminated his benefits ac-cordingly.
The Auqui defendants then moved, inthe Supreme Court where the plaintiff’spersonal injury matter was pending, tocollaterally estop the plaintiff from re-lit-igating the duration of his work-relatedinjury on the grounds that the issue wasalready fully litigated and decided by inthe WC proceeding.
The Court of Appeals held that the WCdecision should be given a preclusive ef-fect because the WCB decided he was nolonger disabled and that this determina-tion was purely a question of fact (thusentitling the finding to preclusive effect).
The Court of Appeals also determinedthat the plaintiff had a full and fair oppor-tunity to litigate the issue, i.e. he was rep-resented by counsel, submitted medicalreports, presented expert testimony, andcross-examined the defendants’ expertsregarding the issue of whether or not therewas an ongoing disability.
The dissent, authored by Justice Pig-ott, felt that the determination of whetherthe plaintiff had an ongoing physical orpsychological disability (and, relatedly,his ability to return to work) is an ultimatedecision and should not be given preclu-sive effect. The dissent also notes thatthis determination is ultimately a mixedquestion of law and fact: “the WCB hadto reach a conclusion based on both ques-tions of fact, such as whether [the plain-tiff] had a particular injury to the brain orbody, and a question of law, namelywhether the facts amounted to a disabilitypreventing [the plaintiff] from returningto work.”
This decision sheds light on why it isimportant for third-party practitioners tostay abreast of what is going on in the ac-companying workers’ compensationcases associated with their clients. De-spite the nature of workers compensationtrials being briefer and the practice beingvolume-based with less time devoted toeach individual case, the rulings of thejudges therein are still rulings withweight; such rulings regularly affect thelandscape of the associated third partycases and may even preclude argument onimportant legal issues in the stateSupreme Courts so long as the require-ments for collateral estoppel are met.
The Auqui Case And Collateral Estoppel
Across My DeskCharisma Miller, Esq.
Page 12, BROOKLYN BARRISTER APRIL, 2013
The Brooklyn Bar Association recently celebrated judges at its annual Judiciary Night. Seen here left-to-right are Hon. Lawrence Knipel,Hon. Barry Kamins, and Hon. Randall T. Eng. See story, page 20. Eagle photo by Mario Belluomo
The BBA was honored to haveboth Kings County Surrogates in at-tendance and at the podium for re-marks. Surrogate Diana A. Johnsonspoke to the assembled on on herown behalf and on behalf of Surro-gate Margarita Lopez-Torres. Shesaid the Surrogates are workingharder with less, noting that they aredown 44% of their clerks. SurrogateJohnson thanked the Brooklyn BarAssociation, especially SidneyCherubin, Managing Attorney of theBBA Volnteer Lawyers Project forhis work with the VLP and the judi-ciary to co-chair programs to fosterpro bono practice.
The following members of the Ju-diciary also spoke and had praise forthe many fine Judges that work intheir respective courts: Hon. Jean-nette Ruiz, Supervising Judge, Fami-ly Court, Kings County; Hon. LisaOttley, Supervising Judge, CivilCourt, Kings County; Hon. JeanneSchneider, Supervising Judge, Hous-ing Court, Kings County, and HonMichael Yavinsky, SupervisingJudge, Criminal Court, Kings County.
The ceremonies concluded, butthe conversation between the mem-bers of the Judiciary and the attor-neys in attendance continued, whichhighlighted one of the goals of thisannual program — to build a rela-tionship of mutual respect betweenthe Judge’s of the various Courts inKings County and the members ofour Bar Association. The evening, asusual, went a long way towardsachieving this goal.
Judiciary Night 2013 At the Brooklyn Bar Association Continued from page 1
