PREMISES LIABILTYKiely v. Benini, 2011 NY Slip Op 08126 (11/9/11) Plaintiffs brought an action premised upon common-law negligence claims
and General Obligations Law §11-101, based upon injuries plaintiffs sustainedwhen they were assaulted at Defendant’s premises (a bar). The court held thatwhile an owner must act in a reasonable manner to prevent harm to those onits premises, “an owner’s duty to control the conduct of persons on its premis-es arise only when it has the opportunity to control such conduct, and is rea-sonably aware of the needfor such control.” The de-fendant property owner hasno duty to protect patronsfrom “unforeseeable andunexpected” assaults whichcould not have reasonablybeen anticipated or prevent-ed. The assaults in this mat-ter were sudden and unex-pected and plaintiffs failedto raise a triable issue of factin contradiction to the factsset forth by Defendants.
Horvath v. L& B Gar-dens, Inc., 2011 NY Slip Op08124 (11/9/11)
An assault on plaintiffcommitted by an employeethat occurred off premisesafter Defendant establish-ment had closed, did notgive rise to a claim under re-spondeat superior. The em-ployee was not acting with-
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By Shana De Caro, Esq.
On January 5, 2012, the ceremony induct-ing Carl J. Landicino as a Justice of theSupreme Court of the State of New York,Kings County was held in the CeremonialCourt Room of the Brooklyn Borough Hall.The beautiful court room was packed beyondcapacity with many dignitaries, includingNew York City Comptroller, John C. Liu andBrooklyn Borough President, Marty Marko-witz, as well as family and friends of thenewly elected Justice.
Justice Landicino was elected to theSupreme Court, Second Judicial District onNovember 8, 2011 and his 14 year term beganJanuary 1, 2012.
The Brooklyn Bar Association made astrong showing of support for the new Justice,who, until being elected, was a Trustee of ourAssociation. In attendance from the Bar Asso-ciation and sharing the dais, were PresidentElect Domenick Napoletano, Trustee Hon.Frank R. Seddio, and Trustee Frank V.Carone, who all had kind words for the Judge.
Justice Landicino’s family was in atten-dance and their participation in the event wasone of the highlights of the evening. His wife,Lucia, and their three children sat in the frontrow clearly proud of the honor their husbandand father was about to receive. His sonMarco opened the ceremony with the New
York State Court Officers Color Guard by say-ing the Pledge of Allegiance. His son, Josephread The Leprechauns, a poem by Ken Siegel-man, the late Poet Laureate of Brooklyn, andhis daughter, Garbriella M. Landicino, per-formed the musical selection, “The Wind Be-neath My Wings.” Musical talent runs in thefamily. As remarked upon by more than onespeaker, Justice Landicino is a gifted pianistand he accompanied his daughter for thisnumber.
While many commented on Justice CarlLandicino’s musical talents, and his skills as alawyer, especially with regard to the work heperformed on behalf of the Brooklyn Democ-ratic Committee, Hon. Sylvia O. Hinds-Radix,pointed out his best quality as a lawyer, bypraising above all qualities, his outstandingdemeanor as an attorney. This quality shouldserve him well as a jurist in the Kings CountySupreme Court House.
Hon. Carl J. Landicino attended the Uni-versity of Rochester and graduated with a de-gree in political science and as a WilsonScholar. He went to St. John’s University LawSchool and graduated with a law degree in1990. He began his legal career as an attorneyfor the New York City Department of HousingPreservation and Development. He thenjoined, and later became a partner, in the firmof Genovesi, Berman and Genovesi. He prac-
Former Brooklyn Bar Association Trustee Carl J. LandicinoInducted as Justice of the Supreme Court of the State of New York
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TORT LAW UPDATE — APPELLATEDIVISION, SECOND DEPARTMENT
Hon. William F. Mastro, Acting Presiding Justice of the Apppellate Division, Sec-ond Department, administering the oath of office to Hon. Carl J. Landicino
February 15, 2012 Wednesday Brooklyn Women’s BarAssociation Board MeetingBoard of Trustees Room5:00 P.M.
CLE Bankruptcy (VLP)Auditorium6:00 P.M.
February 20, 2012 Monday In observance of President’sDay, the Brooklyn BarAssociation, LawyerReferral Service and the Volunteer Lawyer Project will be closed.
February 28, 2012 Tuesday American Inns of CourtAuditorium5:00 P.M.
February 29, 2012 Wednesday CLE Bankruptcy Part II (VLP)Auditorium6:00 P.M.
March 1, 2012 Thursday KCCBA Board MeetingBoard of Trustees Room5:00 P.M.
KCCBA CLEAuditorium6:00 P.M.
March 5, 2012 Monday Joint Meet & Greet with MBBA forHon. Theodore T. Jones, Jr.Auditorium6:30 P.M.
March 6, 2012 Tuesday 18B Family Court CommitteeCenter Conference Room1:00 P.M.
Ethan B. Gerber, PresidentDomenick Napoletano, President-ElectAndrew M. Fallek, First Vice-President
Rebecca Woodland, Second Vice-PresidentArthur L. Aidala, SecretaryHon. Frank Seddio, Treasurer
Avery Eli Okin, Esq., CAEExecutive Director
CLASS OF 2012Elaine N. AveryFrank V. CaroneRichard S. GoldbergDeborah LashleyMichael S. LazarowitzJoseph RosatoGlenn Verchick
CLASS OF 2013David M. ChidekelFidel Del ValleArmena D. GayleSteven Jeffrey HarkavyAnthony J. LambertiHemalee J. PatelIsaac N. Tuchman
CLASS OF 2014Theresa CiccottoPamela ElisofonFern FinkelDewey GolkinDino MastropietroSteven H. RichmanAimee L. Richter
Roger Bennet AdlerVivian H. AgressAndrea E. BoninaRoss M. BrancaRoseAnn C. BrandaGregory T. CerchioneMaurice ChaytSteven D. CohnHon. Miriam CyrulnikLawrence F. DiGiovanna
David J. DoyagaJoseph H. FarrellAndrew S. FisherDominic GiordanoPaul A. GolinskiGregory X. HesterbergHon. Barry KaminsMarshall G. KaplanAllen LashleyMark A. Longo
John. E. MurphyJohn LonuzziManuel A. RomeroHon. Harold RosenbaumBarton L. Slavin
Hon. Jeffrey S. Sunshine
Hon. Nancy T.Sunshine
Diana J. Szochet
TRUSTEES COUNCIL (Past Presidents)
TRUSTEES
LEGAL BRIEFSJudicial Recognition
Congratulations to Brooklyn Bar Associa-tion Past President Hon. Barry Kamins whowas appointed by Chief AdministrativeJudge A. Gail Prudenti as the Administra-tive Judge of the Criminal Court of the City ofNew York. Justice Kamins, in addition to hisnew position, will remain as the Administra-tive Judge for Criminal Matters in KingsCounty Supreme Court.
In his capacity as the Administrative Judgefor Criminal Matters in Kings CountySupreme Court Hon. Barry Kamins an-nounced the appointment of Hon. PatriciaDiMango as the Deputy AdministrativeJudge, Supreme Court, Criminal Term.
Justice Patricia DiMango and Hon.Lawrence Knipel, along with Brooklyn BarAssociation Past Presidents Andrea E. Boni-na and Diana J. Szochet and Young LawyersSection Chair Jaime Lathrop, were the fea-tured speakers at the Bay Ridge Lawyers As-sociation Annual Winter Seminar held lastmonth in Atlantic City.
Kudos and Professional RecognitionBrooklyn Bar Association Past President
Manuel A. Romero was a featured panelist ina program entitled “Demystifying JudicialScreening Panels — How you can activelyparticipate in the Judicial Selection Process”hosted at the New York City Bar on January19, 2012.
Brooklyn Bar Association member BruceBaron was appointed at the beginning of theyear as the Special Counsel to the President ofthe New York State Court Officers Associa-tion. The appointment was announced on Jan-uary 6, 2012 by Dennis Quirk, President ofthe NYSCOA.
Professional AnnouncementsWord has reached the Brooklyn Bar Associ-
ation from Jeffrey Miller &Associates, P.C. thatDoron Lieby has been named a partner in thefirm effective the beginning of the year. DoronLieby, who serves as an arbitrator in the Part137 Attorney Client Fee Dispute Resolutionprogram of the Brooklyn Bar Association hasoffices located at 32 Broadway, 13th floor, NewYork 10004. Telephone number 212-227-4200.
BereavementsThe Brooklyn Bar Association extends its
deepest sympathy to the Pannone family onthe passing of John A. Pannone on August12, 2011. A member of the Brooklyn Bar As-sociation since 1959, John A. Pannone hadbeen admitted to practice in 1950.
Legal Briefs is compiled and written byAvery Eli Okin, Esq., CAE, the Executive Di-rector of the Brooklyn Bar Association and it’sFoundation. Items for inclusion in “LegalBriefs” should be sent to [email protected], faxed to 718-624-0675 or mailed to123 Remsen Street, Brooklyn, New York11201-4212.
NEW MEMBERSFOR JANUARY 2012
Justin DentonCyrus Dugger
Peter GoodmanMatthew Benjamin Kauget
Bonnie S. KurtzJoseph MacLellanNicholas Moccia
Craig Trainor
Rebecca WassermanEugene Weitz
Mariam ZakharyBryan Zuckerman
STUDENT MEMBERSDmitry Levitsky Marina Theodoris
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FEBRUARY 2012 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 30 Henry Street, Brooklyn, New York 11201.Vol. 64 No. 5 February 2012. 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, Brook-lyn, 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, 123Remsen Street, Brooklyn, NY 11201-4212.
Cecilia N. AnekweHon. Bruce M. BalterMarianne BertunaJaime J. BorerMark DiamondJason EldridgePaul S. Forster
Hon. David FriedmanJason D. FriedmanMichael HernandezHon. Allen Hurkin TorresRichard KlassAnthony LambertiSusan Master
Gregory MesserHemalee J. PatelElena PopovaRobert P. SantoriellaMichael TreybichShelly Werbel
A number of years ago, I attended a semi-nar at the United States District Court for theEastern District. The Court had implemented anew mandatory electronic filing system andwas providing instructional seminars to attor-neys. As the course proceeded it became ap-parent that there were many flaws. For exam-ple, Bills of Particulars were automaticallystored in the Motions section of the electronicfile. The system had limitations as well; youcould not change an attorney’s name or loca-tion so that if the system had an incorrect list-ing or the attorney had been substituted therewas no way to indicate service upon the cor-rect address or upon the new attorney unlessthe court had already made the correction —something that often took months to catch up.When some of the attorneys pointed out thatthe system was flawed, the instructor, in anamazing display of hubris, replied that the sys-tem was developed by the federal court andthat the Eastern District doesn’t make mis-takes — the instructor didn’t seem to realizeshe had just suggested that the Second Circuit
Court of Appeals was now completely irrele-vant and unnecessary.
The good news is that the system has vast-ly improved. It is with some trepidation, how-ever that we must now embrace the fact thatThe New York State Courts are about to makethe same leap. With the recent enactment ofChapter 543 of The Laws of 2011, New Yorkis about to undertake a dramatic step forwardin launching the New York State Courts Elec-tronic Filing System (NYSCEF). The Honor-able A. Gail Prudenti, in a circular letter to,inter alia, The Brooklyn Bar Association,dated January 4, 2012 announced that amandatory e- filing pilot program would com-mence on January 17, 2012 and be further im-plemented on February 27, 2012. Since thescope and the start times are important theyare as follows:
Supreme Court, Westchester County: Allactions (except matrimonial matters andCPLR Art. 78, election law and Mental Hy-giene Law proceedings) without regard toamount in controversy, commencing on orafter January 17, 2012.
Supreme Court, New York County: com-mercial actions commenced on or after Febru-
ary 27, 2012.Supreme Court, Kings County: Commer-
cial actions commenced on or after February27, 2012.
Supreme Court, Bronx County: MedicalMalpractice actions commenced on or afterFebruary 27, 2012.
Justice Prudenti has done much to ensurethe transition will be successful: First, OCA isoffering two credits CLE training programs —these programs can be found on the NYSCEFwebsite, www.nycourts.gov/efile or contactingthe resource center at 646-386-3033.
Attorneys should also know that there is anopt-out mechanism for attorneys who certifyin good faith that they lack the hardware, elec-tronic connection or technical knowledge toproceed; others can make a motion to thecourt which could exercise its discretion forgood cause shown. Also, Justice Prudenti in-vites our comments and recommendations —all users are invited to send such comments toJeffrey Carucci, the Statewide Coordinator forElectronic Filing at [email protected]. If you like you can also contact theBrooklyn Bar Association and we will helpget your feedback across.
It is suggested that we members of the Barattempt to meet the challenges of the pilot pro-gram. Although this pilot project will no doubt
meet with frustration and resistance, we attor-neys cannot be Luddites fighting progress. Wemust master technology or be succumbed byit.
To this end, the Bar is wrestling with manyof the consequences of technology. For exam-ple, a recent presentation by the New York
By Ethan B. Gerber, EsqPresident
BROOKLYN BAR ASSOCIATION PRESIDENT
RESPECTFULLY SUBMITTEDA Brave New World for Lawyers
President Ethan B. Gerber
Whatever the frightful weather outside,take comfort in the fact that spring traininghas begun, and spring itself cannot be far be-hind. To while away the time awaiting thegreen shoots, we present some interestingcases, an Internal Revenue Service request forcomments, an Internal Revenue Service noticeof proposed rulemaking, and an Internal Rev-enue Service final regulation involving admis-sion of a Will to probate under the ancientdocument rule; the eligibility of an attestingwitness to act as executor; the revocatory ef-fect on testamentary provisions of the dissolu-tion of a marriage by annulment in a MHL Ar-ticle 81 proceeding; natural children, born be-fore, but about whom a decedent did not knowuntil after, he executed his Will not being ‘af-terborns’ entitled to the benefits of EPTL §5-3.2; an unsuccessful attempt by a firm to ob-tain fees in excess of the fixed amount in theretainer agreement; the rejection of the blan-ket application of an exculpatory clause in anintervivos trust; allowance of intervention in acy pres proceeding by a potential trust benefi-ciary with a unique contractual relationshipwith the prior beneficiary; the dismissal of apain and suffering cause of action against so-cial workers alleged to have failed properly totreat the decedent prior to her suicide; pre-judgment interest on wrongful death judg-ments; the income, gift, estate, and/or genera-tion-skipping transfer (GST) tax conse-quences of “decanting;” final regulations onthe portion of property (held in trust or other-wise) includible in the grantor’s gross estateunder I.R.C. §2036 if the grantor has retained
the use of the property, the right to an annuity,unitrust, graduated retained interest, or otherpayment from the property for life, for any pe-riod not ascertainable without reference to thegrantor’s death, or for a period that does not infact end before the grantor’s death; and pro-posed regulations respecting the election touse the alternate valuation method underI.R.C. §2032.
Will Admitted to Probate Under AncientDocument Rule- The propounded Will wasexecuted in September, 1977 under the super-vision of an attorney. The Will contained anattestation clause and was subscribed by wit-nesses whose signatures were notarized. TheWill devised certain real property to one of thedecedent’s three daughters, Bella. The dece-dent died in November, 1977, and his will wasfiled with the Surrogate’s Court, in April,1978. Bella died intestate in 2000, and an ad-ministrator was appointed for her estate. InMay 2003, a photocopied document was sub-mitted to the Probate Department of the Sur-rogate’s Court purporting to be the will of thedecedent. The 2003 instrument provided thatthe real property was to be divided equallyamong the decedent’s three daughters, one ofwhom was her daughter, Mildred. In January,2008, the administrator of Bella’s estate fileda petition to admit the 1977 Will to probate,and Mildred filed objections thereto. The Sur-rogate’s Court granted the administrator’s mo-tion for summary judgment dismissing Mil-dred’s objections, and admitted the 1977 Willto probate utilizing the ‘ancient document”rule. Mildred appealed. HOLDING- The Sur-rogate’s Court decision to dismiss the objec-tions and admit the 1977 Will to probate underthe ‘ancient document’ rule was affirmed bythe Appellate Division. The Appellate Divi-
sion found that the proponent had established,prima facie, that the 1977 Will had been onfile in the Probate Department of the Surro-gate’s Court since 1978, and that therefore, itwas an ancient document, exempt from the re-quirements of SCPA §1405(4), that, where thewitnesses to a will are deceased, the handwrit-ing of the testator and at least one witnessmust be proved. The Appellate Divisionadded that the propounded Will contained anattestation clause, which it held was primafacie evidence of proper execution. The Ap-pellate Division found that the fact that theWill was prepared by an attorney, gave rise toa presumption of proper execution, as towhich the objectant had failed to raise a triableissue of fact. The Appellate Division held thatthe objectant also had failed to raise a triableissue of fact as to the validity of the decedent’ssignature, or to otherwise offer proof in sup-port of her objections. Consequently, the Sur-rogate’s Decree was affirmed. Matter of Der-rick, 88 A.D.3d 877 (2d Dept., 2011)
Attesting Witness Eligible to Act As Ex-ecutor- In a probate proceeding, the petition-er applied for preliminary letters testamentary.The objectants to the Will contended that thenominated executor was disqualified fromacting as such by reason of EPTL §3-3.2 be-cause he was one of only two attesting wit-nesses to the Will and because his appoint-ment as executor constituted a “beneficial dis-position” under the statute. The Surrogate’sCourt granted the application for preliminaryletters testamentary and the objectants ap-pealed. HOLDING- The Appellate Divisionaffirmed the Surrogate. The Appellate Divi-sion acknowledged that under EPTL §3-3.2any disposition or appointment of propertymade to a non distributee attesting witness is
void unless there are, at the time of executionand attestation, at least two other attesting wit-nesses to the Will who receive no beneficialdisposition or appointment of property. TheAppellate Division stated however that thestatutory commission attendant upon the per-formance of one’s duties as an executor ap-pointed under a will is not in the nature of atestamentary bequest or benefit, but insteadrepresents compensation for services ren-dered. Consequently, the Appellate Divisionruled that even though the petitioner was onlyone of two attesting witnesses to the subjectWill, the fact that he was named executor ofthe Will did not mean that he was receiving abeneficial disposition under the Will so as todisqualify him from that position pursuant toEPTL §3-3.2. The Appellate Division foundno merit to the objectants’ contention that thephrase ‘appointment of property’ as used inthe statute included an individual’s appoint-ment as executor thereunder. Accordingly, theAppellate Division held that the Surrogate’sCourt properly granted the petitioner’s appli-cation for preliminary letters testamentary.Matter of Marsloe, 88 A.D.3d 1003 (2d Dept.,2011)
The Dissolution of A Marriage by An-nulment in a MHL Article 81 ProceedingHas the Effect of Revoking TestamentaryProvisions- The decedent died at 97 years ofage in 2005, leaving a Will executed in 2003.The Will bequeathed his entire estate to hisformer nurse, the petitioner, who was 43 yearshis junior, whom he married in 2003 fourmonths before the execution of the Will. Thepetitioner nurse also was a beneficiary in twowills which the decedent executed in 2000. Inthe second of the year 2000 Wills, 65% of the
THE STATE OF ESTATESBy Hon. Bruce M. Balter and Paul S. Forster, Esq.
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Page 4, BROOKLYN BARRISTER FEBRUARY 2012
decedent’s residuary estate was left to the pe-titioner nurse. During the decedent’s lifetime aproceeding was commenced under MentalHygiene Law Article 81 in the Supreme Courtfor the appointment of a guardian for the dece-dent’s person and property. In a judgmentmade and entered after the decedent’s death,the Supreme Court granted the petition, uponits determination that, inter alia, the decedentwas incapacitated as early as 2001, and ap-pointed co guardians for the decedent’s personand property and directed the annulment ofthe decedent’s 2003 marriage to the petitionernurse. The Supreme Court’s determinationthat the decedent was incapacitated as of adate in 2001, and the annulment of the parties’marriage previously was affirmed by the Ap-pellate Division. In the pending proceeding inthe Surrogate’s Court the petitioner-nursemoved for permission to file objections to the2003 Will. The Surrogate’s Court admitted the2003 Will to probate, but deemed the bequestto the petitioner nurse, and her nomination asexecutor, to have been revoked by EPTL §5-1.4. Among other things, the statute providesthat except as provided otherwise by the ex-press terms of a governing instrument, a di-vorce or annulment of a marriage revokes anyrevocable disposition or appointment of prop-erty made by a divorced individual to, or forthe benefit of, the former spouse, including,but not limited to, a disposition or appoint-ment by will, and the nomination of the for-mer spouse to serve in any fiduciary or repre-sentative capacity, including as a personal rep-resentative, executor, trustee, or attorney-in-fact. Under the statute, provisions of a gov-erning instrument are given effect as if the for-mer spouse had predeceased the divorced in-dividual as of the time of the revocation. Thepetitioner nurse appealed. HOLDING- TheAppellate Division affirmed the Surrogate. Inthe Court’s view, EPTL §5-1.4 was enacted toprevent a testator’s inadvertent disposition toa former spouse where the parties’ marriagehad terminated by annulment or divorce, andthe former spouse still was named as a benefi-ciary in a testamentary instrument which thetestator neglected to revoke. The AppellateDivision stated that the statute created a con-clusive and unrebuttable presumption that anyprovisions in a will for the benefit of a formerspouse were revoked by divorce or annul-ment. The Appellate Division ruled that as thepetitioner’s marriage to the decedent was an-nulled, absent an express provision in the pro-pounded will to the contrary, the bequest tothe petitioner and her nomination as executorunder the 2003 Will properly were deemed bythe Surrogate’s Court to be revoked. The Ap-pellate Division concluded accordingly thatthe Surrogate’s Court properly had denied thatbranch of the petitioner’s motion which wasfor permission to file objections to the 2003Will, since the petitioner did not have an in-terest in the decedent’s estate. Matter ofSchmeid, 88 A.D.3d 803 (2d Dept., 2011)[Authors’ Note: Effective July 7, 2008, EPTL§5-1.4 was amended to apply, in addition totestamentary dispositions and fiduciary ap-pointments, to securities registered in benefi-ciary form, to life insurance and pension ben-eficiary designations, and to revocable trustsincluding bank accounts in trust form.]
Natural Children, Born Before, ButAbout Whom a Decedent Did Not KnowUntil After, He Executed His Will Are Not‘Afterborns’ Entitled to the Benefits ofEPTL §5-3.2- The decedent executed his Willin 1996. He died in 2007. One of the dece-dent’s children, Angela, as executor of thedecedent’s estate, offered the will for probate.Although the decedent was survived by 11children, his will left his entire estate to An-gela.
After the Will was admitted to probate, itwas contended by Andrea and Malverick thatalthough they were born prior to the executionof the decedent’s will, the decedent did notknow that they were his biological childrenuntil 10 years after he executed his will whenhe underwent DNA testing which revealedthat he was their father, and that consequentlythey should be granted the rights of after-born
children under EPTL §5-3.2. The executor ac-knowledged that the purpose of EPTL §5-3.2was to guard against inadvertent or uninten-tional disinheritance, but argued that the Leg-islature chose to limit the definition of after-born children to children, marital or non mar-ital, born after the execution of a will. Andreaand Malverick argued that the term after-born,as employed by EPTL §5-3.2, can includechildren born prior to the execution of a will,but who are only established as children of atestator after the execution of a will, such asafter-adopted children. The movants notedthat a child adopted after the execution of awill, but born prior to the will’s execution, isconsidered an after-born child. The partiesconsented to have the motion submitted as-suming the truth of the movants’ paternity al-legations. The Surrogate’s Court found thatthe movants were not entitled to any rightsunder EPTL §5-3.2, and the movants ap-pealed. HOLDING- The Surrogate was af-firmed by the Appellate Division. The Appel-late Division opined that a parent in New YorkState is under no obligation to leave any partof his or her estate to his or her children, butacknowledged that to address situations wherea child is inadvertently left out of a parent’swill because such child was born after thewill’s execution, the Legislature enactedEPTL §5-3.2. In affirming the Surrogate, theAppellate Division distinguished cases in-volving non marital children born after themaking of a Will, who are entitled to the ben-efit of the statute. The Court rejected the ap-pellants’ entreaties to interpret the statute so asto create a new class of ‘afterknown’ childrenentitled to the benefit of EPTL §5-3.2, analo-gous to after adopted children. The AppellateDivision stated that when presented with aquestion of statutory interpretation, theCourt’s primary consideration is to ascertainand give effect to the intention of the Legisla-ture. The Appellate Division noted that thestatutory text is the clearest indicator of leg-islative intent and courts should construe un-ambiguous language to give effect to its plainmeaning. The Appellate Division stated that ifthe movants’ arguments were to be accepted,the result would be contrary to the plain mean-ing of EPTL §5-3.2. The Appellate Divisionasserted that a Court cannot amend a statuteby inserting words that are not there, nor readinto a statute a provision which the Legisla-ture did not see fit to enact. The Appellate Di-vision found nothing in the statute’s legisla-tive history to support appellants’ contentions.The Appellate Division added that in its viewa contrary holding would promote uncertaintyin identifying persons interested in an estateand finality in its distribution, which are criti-cal to the public interest in the orderly admin-istration of estates. The Appellate Divisionalso pointed to the significant difference be-tween adopted children and so-called after-known children. The Appellate Division stat-ed that adopted children do not become thechildren of a person until after the adoption,while ‘after-known’ children are children of aperson at the time of their birth. The AppellateDivision pointed to the fact that by adopting achild, a parent makes an affirmative decisionto incur legal obligations that are triggered byan adoption, while a child’s birth prior to theexecution of a Will, and a testator’s subse-quent discovery of said child, involves no af-firmative act. The Appellate Division foundthat the decedent’s conduct prior to the execu-tion of his will included activities which couldhave, and ostensibly did, result in the birth ofnonmarital children, and that thereafter, he ex-ecuted a Will which made no disposition toany unknown children that he may have fa-thered, the failure to address any potential off-spring evidencing in the view of the AppellateDivision an intent to preclude succession tothe same. The Appellate Division concludedthat if so-called after-known children are toinherit in New York in the same manner asafter-born children to prevent an inadvertentdisinheritance, such an intent must be ex-pressed by the Legislature and not the Courts.Matter of Gilmore, 87 A.D.3d 145 (2d Dept.,2011)
Firm Unsuccessful in Obtaining Fees In
Excess of the Fixed Amount in the RetainerAgreement- A corporate fiduciary sought ju-dicial settlement of its final account as co-ex-ecutor of the decedent’s estate. The determi-nation of attorneys’ fees claimed by petition-er’s counsel was submitted to the court for adecision on the papers. The decedent’s estateamounted to approximately $1.25 million,most of which was attributable to the value ofher cooperative apartment. During the admin-istration of the estate the individual executorresigned and his sons were appointed in hisplace, to serve with the corporate fiduciary.Under a retainer, the attorneys agreed to atotal fee of $50,000 for their legal services in(1) obtaining the appointment of the execu-tors, (2) preparing and filing estate tax returnsand representing the estate at any audit of thereturns, and (3) attending to the general ad-ministrative needs of the estate. The retainerexpressly further provided, however, that the$50,000 fee did not cover any legal servicesthat the firm might be called on to render inlitigation or in connection with the projectedsale of decedent’s New York apartment. Theretainer also contemplated that the firm wouldbe allowed, as disbursements, the fees of out-side experts, including a lawyer in France forwork related to the decedent’s apartment inParis and appraisers, presumably for both theapartments. The petition asked that the firm beallowed $200,000 from the estate for legalfees, plus disbursements, rather than $50,000.Most of the time on which the $200,000 feerequest was based was devoted to the legalwork for which the firm previously agreed tobe paid $50,000. It was the position of the at-torneys that the firm was not bound by thelimits of the retainer and should instead re-ceive compensation determined by quantummeruit. The attorneys also submitted that theindividual executors, by their alleged recalci-trance, interfered with and complicated theadministration of the estate. As a result, it wasalleged by the attorneys that legal fees wereincurred well out of proportion to a fee thatmay have seemed reasonable and foreseeableat the outset of the representation. HOLD-ING- The firm was restricted to its agreedupon fee. The Surrogate stated that as athreshold matter, notwithstanding the exis-tence of a retainer agreement, the Surrogatewas the ultimate arbiter of the fees to be paid,under the Courts’ inherent and statutory powerto regulate the practice of law. The Courtopined that an estate must pay the fees of itsfiduciary’s counsel only to the extent of thevalue of the legal services rendered, even ifthe terms of a retainer would allow a higherfee. The Court asserted that, as the arbiter ofhow much value the estate derived from suchservices, the Surrogate is free to make that as-sessment irrespective of the retainer’s terms.The Court noted that agreements entered intobetween an attorney and his client, as a matterof public policy, are of special concern toCourts, and accordingly, such agreements arenot always enforceable against the client inthe same manner as ordinary commercial con-tracts. The Court pointed out that even wherea legal fee has been prescribed by a retainer,the attorney still bears the burden of provingthat the prescribed fee is reasonable. TheCourt stated that innumerable decisions of theCourt attested to the fact that attorneys did notalways succeed in carrying such a burden. Inthe Court’s view, where, as in the case at bar,the attorneys seek a fee higher than is pre-scribed by the retainer agreement that theydrafted, they invariably will be disappointed.The Court held that any attorney who entersinto a retainer agreement will be bound bysaid agreement regardless of the complexityinvolved in the handling of the estate. TheCourt ruled that it is presumed that any attor-ney who agrees to enter into a retainer willevaluate the amount of time and complexity ofthe estate before fixing a dollar retainer agree-ment. The Court noted that the practitionerwho agrees to a flat fee for specified legalservices is chargeable with the knowledge thata client may make the lawyer’s professionalobjectives harder or easier to reach than is typ-ical. Thus, the Court held, where clients add tothe lawyers’ work burden, the lawyers may
well rue the bargain that they struck, but theycannot seek relief from that bargain’s terms byclaiming unfair surprise. The Court did awardthe attorneys an additional fee for the addi-tional work it did outside of the retainer termsin the amount of $3,528 in relation to the saleof decedent’s New York apartment. Accord-ingly, the firm’s legal fee was fixed at the sumof $53,528. Matter of Jacoby, N.Y.L.J.12/19/11, p.17, c.1 (Surr. Ct., New York Co.,Surr. Glen)
Blanket Application of An ExculpatoryClause in an Inter vivos Trust Rejected- Thedecedent’s daughter, co executor of the estate,and one-half residuary beneficiary, sought torecover from her brother and four family busi-nesses to deliver to her money in their posses-sion, custody, or control which allegedly be-longed to the estate. The funds were alleged tohave come from an inter vivos trust. Thebrother, by third-party petition, brought in thesurviving co trustee of the trust, who was thedecedent’s attorney, asserting a single cause ofaction for common-law indemnification. Thedecedent had been the other trustee. The trustterminated on the decedent’s death. The dis-puted funds involved loans in the approximateamount of $1,216,064, which the decedent asco trustee periodically made to the businesses.The trust agreement contained an exculpatoryclause which recited that no trustee would beliable or responsible in any way or manner un-less he acted in bad faith. At his deposition theco trustee acknowledged that he failed to keepany books or records for the trust, did not re-view any records of the trust, if any suchrecords existed, and could not recall if anyloans were made to the decedent from thetrust. The co trustee acknowledged that he wasaware that money was transferred into and outof the trust, but never asked the decedentabout the nature of the transfers, and that henever reviewed the trust’s checking accountrecords or financial statements. The co-trusteemoved for summary judgment dismissing thethird-party petition, arguing that the exculpa-tory clause barred the claim for indemnifica-tion against him. The Surrogate’s Court de-nied the motion and the co trustee appealed.HOLDING- The Appellate Division affirmedthe Surrogate. The Court stated that a trustee,as a fiduciary, is bound by a duty of undivid-ed and undiluted loyalty to the beneficiarieswhose interests the fiduciary is appointed toprotect. The Appellate Division acknowl-edged that while the essential ingredient of atrust is the accountability of the trustee, excul-patory provisions are valid in inter vivos trustsso long as there is some accountability, at leastto the settlor. However, the Appellate Divisionnoted that a trustee bears the unwavering dutyof complete loyalty to the beneficiaries of thetrust no matter how broad the settlor’s direc-tions allow the trustee free rein to deal withthe trust, stating that no matter how broad anexculpatory provision may be, the trustee is li-able if he commits a breach of trust in badfaith or intentionally or with reckless indiffer-ence to the interests of the beneficiaries, or ifhe has personally profited through a breach oftrust. The Appellate Division found that the cotrustee failed to make a prima facie showingof his entitlement to judgment as a matter oflaw. The Appellate Division ruled that the ev-idence submitted by the co trustee on his mo-tion revealed the existence of a triable issue offact as to whether he committed a breach oftrust intentionally or with reckless indiffer-ence to the interests of the ultimate beneficiar-ies of the trust remainder. Accordingly, theAppellate Division held that Surrogate’sCourt properly denied the co-trustee’s motionfor summary judgment dismissing the third-party petition. Matter of Mankin, 88 A.D.3d717 (2d Dept., 2011)
A Potential Trust Beneficiary with aUnique Contractual Relationship with thePrior Beneficiary Allowed to Intervene in aCy Pres Proceeding- The petitioner trustee ofcharitable trusts commenced a cy pres pro-ceeding pursuant to EPTL §8-1.1(c) to deter-mine whether a hospital’s relinquishment ofits license to operate rendered the administra-tion of the subject charitable trusts accordingto their literal terms impractical or impossible.Pursuant to a New York State hospital consol-idation mandate the hospital beneficiary relin-
Continued from page 3
THE STATE OF ESTATES
Please turn to page 11
FEBRUARY 2012 BROOKLYN BARRISTER, Page 5
I am happy to contribute to this month’scolumn by complying with a request fromUnified Court System that we alert ourmembers to new legislation regardingmandatory e-filing in New York StateCourts. I also want to alert our members toan interesting Court of Appeals decision re-garding calculation of interest on awards forwrongful death.
E-filing was first introduced in New YorkSupreme Court in 2010 and now it is beingexpanded effective February 27, 2012. TheCourt system provided us with the followinginformation regarding the new legislation:
Expansion of E-Filing Programs in NYState-January, 2012
An Administrative Order issued on Janu-ary 12, 2012, by Chief Administrative JudgeA. Gail Prudenti expands both the voluntaryand mandatory e-filing programs in NewYork State.
In several upstate Counties, effective im-mediately, e-filing is now authorized on avoluntary basis in probate and administra-tion proceedings, related miscellaneous pro-ceedings, and any others the court may per-mit in Surrogate’s Court (Cayuga, Chau-tauqua, Erie, Livingston, Monroe, Ontario,Seneca, Steuben, Wayne and Yates Coun-ties). In Onondaga County Supreme Court,as of February 28, 2012, voluntary e-filingin commercial, contract, tort, and tax certio-rari actions is effective. In Chautauqua, Erie,and Monroe Counties as of March 1, 2012all Surrogate’s Court proceedings require e-filing.
In Westchester, it is MANDATORY thatall case types (excluding matrimonial casesand Article 78, election law, and Mental Hy-giene Law proceedings) be commencedelectronically.
In SupremeCourt New York County, asof February 27, 2012, all commercial, con-tract, and tort actions must be commencedelectronically. In Bronx County SupremeCourt medical malpractice actions must beelectronically commenced. In KingsSupreme commercial actions seeking at least$75,000 must be commenced electronically.
Additional information can be found inthe January 23, 2012 New York Law Jour-nal, Court Notes Section, Page 15. In par-ticular, the Law Journal Notice advises ofa free 2 credit, 2 hour CLE on e-filing,
given weekly, at 60 Centre Street. To signup, go to the “Training” link on theNYSCF website. If you do not want toopen up an account over the internet, youcan go to the Courthouse and open an ac-count at the Clerk’s office. You can al-ways go to the Clerk’s office with the doc-ument on a memory stick/thumb drive andupload the document at the computers re-served for e-filing within the Clerk’s Of-fice.
Attorneys should note that while the Of-fice of Court Administration has designatedthe types of cases that are to be e-filed, eachCounty Clerk has their own rules and proce-dures for the filing process. Our Court sys-tem is unified, not uniform. In the FederalCourt system, the PACER log on is good forall Courts in the Federal Court system. ForNew York Courts, as a practical suggestion,you should keep a list of all the passwordsand log-on information that you use for eachCounty. If possible, try to keep all sign on in-formation the same. Additionally, you maywant to maintain a separate credit card forthe sole use of paying filing fees to the Courtsystem.
Court of Appeals — CalculationOf Interest on Future Damages
In the case of Toledo v. Iglesia Ni Chris-to, decided on January 10, 2012, the Court ofAppeals held that in an action for wrongfuldeath, interest on future damages should becalculated from the date of death after reduc-ing the future wrongful death damages awardto present value. In the case, the defendantunsuccessfully argued that interest on futuredamages should be calculated from the dateof damages verdict, not the date of death, be-cause to do otherwise would represent awindfall to plaintiff. This argument was re-jected by the Court. It is interesting that thedate that interest runs from is the date ofdeath, not the date of the summary judgmentdetermination on liability. As a factual back-ground not found in the Court of Appeals de-cision, the Plaintiff was an undocumentedworker whose death was caused when a verylarge piece of stone which was being liftedfell on him while he was on a scaffold andthe strapping chains failed. He died almostinstantaneously. The death was in 2002, lia-
Across My DeskBarton Slavin, Esq.
e-Filing in NYS Courts
Please turn to page 9
Abandoned Property � Assignment for Benefit of Creditors � Assumtion of Debts � Bankruptcy Notices � Bar Date � Bids � Procurement�RFP � Board of Standard and Appeals Notice � Bulk Sales � CitationClaims Notice � Conservatee Sale � Dissolution of Corporation � Diution of Marriage � Dissolution of Partnership � Dissolution of Reli
gious Corporation � Earnings Statement � Emergency Order to ShowCause � Foreclosure and Sale � Formation of LLC � Foundation NoticGrant of Land Under Water � Immigration Ad � Inquest �Late FilingOrder � Liquor License � Lost Stock Certificate � Notice of AccountinNotice of Intention by Receiver to File Settlement � Notice of Intento Foreclose � Notice of Intention to Issue Refunding Bonds �NoticeProposed Supplemental Indenture � Notice of Public Sale of CollateNotice of Seizure � Notice to Creditors � Notice to Establish a BrancOffice � Order Compelling Discharge of Mortgage/ Ancient MortgagOrder Serving Defendant by Publication and Voiding Marriage � OrdTerminating Receivership � Discharging Receiver � Order to Sho w C
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On January 2, 2011, H.R. 847, the JamesZadroga 9/11 Health and Compensation Actof 2010 (P.L. 111-347) (Zadroga Act), wassigned into law by President Obama. TheZadroga Act reopens the September 11th Vic-tim Compensation Fund of 2001. Eligibleclaimants who have a traumatic physical in-jury or a presumptively covered health condi-tion or disease (and representatives of individ-uals who have died as a result of such a trau-matic injury or presumptively covered healthcondition or disease) that was caused as a re-sult of September 11th and who are otherwiseeligible may receive compensation from theVCF for economic and non-economic loss asdefined in the regulations.
In our capacity as disability counsel to twoNYC Law Enforcement unions, we have beenreceiving steadily increasing inquiries regard-ing the Zadroga Act from attorneys and po-tential beneficiaries. As a service to theBrooklyn Barrister reader, we are providingyou with a preliminary digest of the some ofact’s relevant provisions and some general in-formation.
The Zadroga Act expanded the scope ofthe original Victim Compensation Fund. ThisAct allows more individuals who sufferedphysical injury or death as a result of the Sep-tember 11th attacks to obtain compensationfrom the program. It provides $4.2 billiondollars to finance two important benefits:
1. Continued health care monitoring andtreatment and;
2. Compensation to individuals (or theirestates if applicable) who were physically in-jured or killed as a result of 9/11.
On May 18, 2011, Sheila Birnbaum wasappointed Special Master, by Eric Holder, theUnited States Attorney General. Ms. Birn-baum is a life-long New Yorker, a past Presi-dent of the New York Women’s Bar Associa-tion and has decades of experience resolvingcomplicated litigation. She gained recognitionfor her work mediating a settlement of $500million for 92 families of victims of the Sep-tember 11th terrorist attack on the WorldTrade Center. As Special Master, she is re-sponsible for administering the fund, process-ing claims and promulgating regulations. Ms.Birnbaum has completed two distinct claimforms – the Eligibility Form and the Compen-sation Form – which are now available. Theprocess of filing a claim has begun. Please re-member, the Eligibility Form and Compensa-tion Form may be completed and submittedseparately, but the Eligibility form must becompleted first.
The Act provides information on cover-age:
Eligibility:WHO: Workers, volunteers, and certain
residents who suffered exposures during theterrorist attacks and subsequent rescue and re-covery operations.
WHAT: The development of serious, phys-ical ailments which may include:
the above conditions.Musculoskeletal DisordersLow back pain Carpal tunnel syndrome (CTS) Certain other musculoskeletal disorders
defined as “a chronic or recurrent disorder ofthe musculoskeletal system caused by heavylifting or repetitive strain on the joints or mus-
culoskeletal system occurring during” the pe-riod between September 11, 2001 and May30, 2002 or as determined by the Special Mas-ter.
WHEN: 4 Hours in first 4 days; 1 Day inSeptember of 2001; or 80 hours between9/11/2001 & 7/31/2002.
WHERE: In lower Manhattan, (south ofCanal Street), the Staten Island Landfill or theBarges and Piers used to transport debris.
HOW: Treatment: The Zadroga Act re-quires treatment by medical professionals for9/11 related physical injuries within a reason-able time from the date of discovery andwhich is supported by contemporaneous med-ical evidence.
Time Periods Within Which Claims mustBe Filed: The Zadroga Act divides those whocan file into two groups to be determined bythe Special Master.
Group 1: Individuals who knew or shouldhave known that they suffered a physicalharm as a result of 9/11 BEFORE the date thenew regulations are promulgated - such indi-viduals will have until October 3, 2013, to filea claim.
Group 2: Individuals who become awareof a physical harm as a result of 9/11 AFTERthe date new rules are promulgated by theSpecial Master - such individuals will havetwo years form the date the Special Master de-termines that such individual knew or shouldhave known that they suffered from suchharm and were eligible to file a claim.
IN ALL CIRCUMSTANCES CLAIMSARE TO BE FILED DURING THE FIVEYEARS from the date the new rules are prom-ulgated (October 3, 2016).
Pending and Future Civil Claims:This Fund was established as an alterna-
tive to litigation and requires that individualswho wish to file a claim, waive their right tofile a future civil action for damages as a re-sult of 9/11 in Federal or State court. TheZadroga Act also makes provisions for thosewho previously commenced civil actions dur-ing the years since the Victims CompensationFund closed (December 2003) in two ways:
Pending Actions: Individuals with pendingclaims may not submit a claim under this actunless they withdraw from such action within90 days from the date that regulations are es-tablished.
Settled Actions: Such individuals may notsubmit a claim unless such action was com-menced AFTER 12/22/2003 and a release ofall claims in the action was tendered prior tothe date on which the Zadroga Act was enact-ed.
Benefits:Claims can be filed for both Economic and
Non-economic losses.Economic Loss means any pecuniary loss
resulting from harm (including the loss ofearnings or other benefits related to employ-ment, medical expense loss, replacement serv-ices loss, loss due to death, burial costs, andloss of business or employment opportunities)to the extent recovery for such loss is allowedunder applicable State law. Non-economicLoss means losses for physical and emotionalpain, suffering, inconvenience, physical im-pairment, mental anguish, disfigurement, lossof enjoyment of life, loss of society and com-panionship, loss of consortium (other thanloss of domestic service) hedonic damages,injury to reputation, and all other non-pecu-niary losses of any kind or nature.
The Special Master, in determining awardvalues, shall consider Collateral Source com-pensation, which may include life insurance,pension benefits, death benefits, and pay-ments by Federal, State, or local governmentsrelated to 9/11, or prior civil claim awards.
If an individual is determined to be eligi-ble, the VCF will issue a determination oncompensation once a Compensation Form isfully submitted and deemed substantiallycomplete. Claimants will have the right to ap-peal both determinations. Once an individualhas accepted the award or completed the ap-
Zadroga Act Reopens theVictims Compensation Fund of 2001
Please turn to page 10
Page 6, BROOKLYN BARRISTER FEBRUARY 2012
ticed in the areas of real estate, commerciallitigation, business transactions and electionlaw. Before being elected to the bench he wasa partner in the Borchert, Genovesi, LaSpinaand Landicino P.C. law firm. His former part-ners, Anthony J, Genovesi Jr., HelmutBorchert and Gregory LaSpina all attendedand spoke highly of the Judge at the ceremo-ny. Justice Landicino has received many hon-ors and recognitions during his legal career.
He was designated by the Federation of Ital-ian-American Organizations as the Distin-guished Italian-American of the Year in 2009.He is a past president of the ColombianLawyers Association. He is a member of theNathan R. Sobel Kings County American Innof Court and, as stated, was a Trustee of theBrooklyn Bar Association. The Associationhas lost a valuable member of its Board ofTrustees, but the Brooklyn legal communityhas gained a very promising jurist.
Continued from page 1
Landicino Family
DomenickNapoletano, Esq., President Elect, Brooklyn Bar Association, Hon. CarlJ. Landicino, Hon. Miriam Cyrulnik, Past President, Brooklyn Bar Association
Anthony J. Genovesi, Jr. Esq., Gregory M. LaSpina, Esq., Hon. Carl J. Landicino,Helmut Borchert, Esq.
Former Brooklyn Bar Association Trustee Carl J. LandicinoInducted as Justice of the Supreme Court of the State of New York
Hon. Robert J. Miller,Justice, Appellate Division,
Second Department
Frank V. Carone, Esq., Trustee,Brooklyn Bar Association
Hon. Sylvia O. Hinds-Radix,Administrative Judge of theSupreme Court, Civil Term,
2nd Judicial District
Hon. David I. Schmidt, Justice of the Su-preme Court, delivering the Opening Prayer
Hon. Frank R. Seddio,Treasurer,
Brooklyn Bar Association
Hon. Jesse E. Hamilton III,District Leader,
43rd Assembly District
Marty Markowitz, Brooklyn Borough President (right) presenting Carl J. Landi-cino, Esq., with a Proclamation
FEBRUARY 2012 BROOKLYN BARRISTER, Page 7
Former Brooklyn Bar Association Trustee Carl J. LandicinoInducted as Justice of the Supreme Court of the State of New York
Domenick Napoletano, Esq., PresidentElect, Brooklyn Bar Association
Hon. Vito Lopez, Assembly Member, Joyce Seddio and Hon. Frank R. Seddio,Treasurer, Brooklyn Bar Association
Dominic Famulari, Esq., President Colombian lawyers Association of Brooklyn,Gregory M. LaSpina, Esq., Hon. Carl J. Landicino
Anthony J. Genovesi, Jr. Esq., Hon. Carl J. Landicino, Hon. William F. Mastro,Acting Presiding Justice of the Appellate Division, Second Department
Hon. Carl J. Landicino and Ethan Gerber, Esq., President, Brooklyn Bar Association
Sara Gozo, Esq., President, Catholic lawyers Guild, Gregory Cherchione, Esq., Past President, Brooklyn Bar Association, AlenLashey, Esq., Past President, Brooklyn Bar Association and Hon. Anthony J. Cutrona, Justice of the Supreme Court
Page 8, BROOKLYN BARRISTER FEBRUARY 2012
in the scope of employment and it was notforeseeable as the employee was acting on per-sonal motives, unrelated to Defendant’s busi-ness. Plaintiff did not raise a triable issue offact.
Alexander v. NYCHA, 2011 NY Slip Op08547 (11/22/11)
Plaintiff alleged that he was struck by anexposed screw in a door after it swung quicklyback. The Defendant premises owner failed tomeet its initial burden on a summary judgmentmotion to establish that it neither created norhad constructive or actual notice of the haz-ardous condition. The building caretaker statedthat she performed a daily inspection and whather custom was if she found something amiss;however, she failed to demonstrate what sheactually observed about this door prior toPlaintiff’s accident.
Iacone v. Passanisi, 2011 NY Slip Op08564 (11/22/11)
Plaintiff alleged that her vision was obstructedat the intersection and she was unable to see thevehicle with which she had an accident due to theheight of some hedges on two adjacent defendantproperty owners, in violation of a town ordinance.Defendants’motions for summary judgment wereboth denied. One defendant landowner failed toestablish that he did not own the hedges and thushad no duty, as the land survey did not establishon whose property the trunks or bodies of thehedges stood. The other landowner defendantonly submitted an attorney’s affidavit stating thatthe height of the hedges was not the proximatecause of the accident. An attorney’s affidavit has“no probative weight.”
Assumption of the RiskAlqurashi v. Party of Four, 2011 NY Slip
Op 08716 (11/29/11) Plaintiff alleged injuries sustained as a re-
sult of metal plates coming loose from 140pound dumbbells at Defendant’s gym, causinghim to drop the dumbbells on his foot. Defen-dant failed to establish that Plaintiff assumedthe risk of injury as a participant in a sportingactivity, as the president of the gym stated thathe was the only person who had the necessaryequipment to adjust the weights on the dumb-bell.
Special UseAlleyne v. City of NY, 2011 Slip Op 08548
(11/22/11)After alighting from a bus the Plaintiff was
injured when he stepped into a hole in the curbabutting property owned by co-DefendantDiner. The diner defendant moved for summa-ry judgment alleging that the defect was on thecurb and not on the sidewalk and thus theywere not subject to liability pursuant to Ad-ministrative Code §7-210(a). The court agreedthat generally the curb is excluded from theAdministrative code definition of sidewalk,however denied the motion because the defen-dant Diner failed to establish that it did notcause the defect due to a special use, as theedge of the curb cut was adjacent to the park-ing area utilized by the Diner.
Trip and FallSokolovskaya v. Zemnovitsch, 2011 NY
Slip Op 08342 (11/15/11)A trivial defect is not actionable as a matter
of law. “In determining whether a defect istrivial as a matter of law, a court must examineall of the facts presented, including the width,depth, elevation, irregularity and appearanceof the defect, along with the time, place andcircumstances of the injury.” Plaintiff relied, inopposition to a summary judgment motion bydefendant, on a photograph taken the day afterthe accident but did not measure the height dif-ferential in the flooring (the basis of the
claimed defect). Defendant’s superintendenttestified that he regularly inspected the premis-es and inspected the site of the accident andfound a ¼ inch differential.
Slip and FallSarisohn v. 341 Commack Rd., Inc. 2011
NY Slip Op 08579 (11/22/11)Plaintiff slipped and fell on ice and snow in
a parking lot owned by one defendant andleased by another defendant (CVS Pharmacy).The court denied their respective motions forsummary judgment. The contract between thetwo defendants required the owner to be re-sponsible for all snow and ice removal which itsubcontracted out to a snow removal company.Defendant owner failed to eliminate all triableissues of fact as to whether the snow removalefforts of the company it hired did not “cause,create or exacerbate the icy condition.” More-over, the tenant failed to establish that it did notowe a duty to Plaintiff as a tenant, which has acommon law duty to remove dangerous or de-fective conditions from the premises it occu-pies, despite the fact that the landlord “mayhave explicitly agreed in the lease to maintainthe premises and keep them in good repair.”
Amendola v. City of NY, 2011 NY Slip Op08104 (11/9/11)
Plaintiff allegedly slipped and fell ongrease on steps of a trailer which housed theworkers’ locker room inside an enclosed sani-tation garage. Defendant’s motion for summa-ry judgment was denied as it failed to offer ev-idence as to when the area was last cleaned orinspected and that the condition was not creat-ed by its employees, and therefore did not ad-dress the issue of notice. Since defendantfailed to meet its initial burden the court neednot look at the sufficiency of the plaintiff’s op-position papers.
LATE NOTICE OF CLAIMCastaneda v. Nassau Health Care Corpo-
ration, 2011 Slip Op 08108 (11/9/11)Plaintiff served a notice of claim after the
90 day period had expired and then com-menced a medical malpractice action relatingto the birth of the infant plaintiff and moved toserve a late notice of claim pursuant to Gener-al Municipal Law §50-e(5). The court held thatthe Defendants had actual knowledge of thefacts through the medical records which sug-gested that the injury might be attributable tomalpractice, (Plaintiff’s mother was advisedupon discharge that her infant might experi-ence developmental delays upon release fromhospital 25 days after delivery). There was noprejudice, despite the fact that two treatingphysicians were no longer working at Defen-dant Hospital, as the defendant made no show-ing that those physicians were unavailable.
Matter of Joy v. County of Suffolk, 2011Slip Op 08593 (11/22/11)
Plaintiff timely moved for leave to serve alate notice of claim. The court found that themunicipality had acquired actual notice byway of timely notices and copies of police ac-cident reports served by other plaintiffs arisingout of this incident. Despite the fact that peti-tioner’s excuse was not reasonable there wasno prejudice. Where there is actual notice andan absence of prejudice the lack of a reason-able excuse is not fatal.
MEDICAL MALPRACTICEOrsi v. Haralabatos, 2011 Slip Op 08570
(11/22/11)Defendant submitted expert affidavits in
support of his summary judgment motion suf-ficient to establish that the post-operative carereceived by Plaintiff did not depart from goodand accepted practice and that any alleged de-partures did not proximately cause plaintiff’sinjury in an orthopedic surgery case. Plaintiff’sexpert affidavit in opposition raised triable is-sues as to departures but failed to raise an issueof fact as to whether the alleged departuresproximately caused the plaintiff’s condition,and therefore Defendant’s motion was granted.Opponent to summary judgment in medicalmalpractice actions must proffer evidenceBOTH as to departures and causation.
Continuous TreatmentPeters v. Asarian, 2011 Slip Op 08739
(11/29/11)Plaintiff commenced an action against sur-
geon (Defendant Asarian) who performed amastectomy on her and the plastic surgeon(Defendant Chaudhry) who performed breastreconstruction surgery thereafter in December2004. After the surgeries Plaintiff experiencedpain and returned to the plastic surgeon whoinstructed her that the pain was not due to thereconstruction (and insertion of tissue ex-pander). Shortly thereafter the tissue expanderwas removed on January 4, 2005 (althoughthere is no indication of who performed thissurgery) Plaintiff saw defendant Chaudhrythree more times, through January 27, 2005,and then did not schedule anything further, butcontinued to see Defendant Asarian who re-quested on August 17, 2006 that defendantChaudhry examine her again, who recom-mended that she see a neurologist. The courtfound that the August 17, 2006 visit was notpart of a continuing course of treatment by De-fendant Chaudhry, but that Plaintiff went at therequest of co-Defendant Asarian. The plaintiffand Defendant Chaudhry “did not mutuallyagree upon, or expect, future consultation ortreatment after January 2005,” and thereforplaintiff’s action commenced on November 8,2007, was untimely as to Defendant Chaudhry.
DISCOVERYMacDonald v. Leif, 2011 NY Slip Op
08568 (11/22/11)Where a party repeatedly fails to comply
with court-ordered discovery, without ade-quate explanation, willfulness may be inferredand the court may strike the pleading.
PROCEDUREDerby v. Bitan, 2011 NY Slip Op 08321
(11/15/11)Plaintiff’s motion for summary judgment
for breach of contract on an underlying med-ical malpractice action (disc surgery) was de-nied. Pro se plaintiff brought a medical mal-practice action premised upon both negligenceand breach of contract. The court found thatthe evidence submitted which showed that thedefendant promised that if Plaintiff underwenta surgical procedure,the Defendant would “at-tain a specific result” which he failed toachieve. However, there was also evidencetending to demonstrate that Defendant did notmake “an express promise to the plaintiffs”and therefore failed to eliminate all material is-sues of fact with respect to the cause of actionalleging breach of contract. The court foundthat Defendant’s request for attorney’s feeswas not warranted under the circumstances.
Derby v. Bitan, 2011 NY Slip Op 08322(11/15/11)
Defendant’s cross-motion for summaryjudgment made 121 days after the filing of theNote of Issue was untimely and must be deniedwithout consideration of the merits.
Relation BackTemple v. NY Community Hosp. of Brook-
lyn, 2011 NY Slip Op 08347 (11/15/11)Plaintiff allegedly sustained injuries on
3/12/2004 in the course of being transportedby ambulance to defendant Hospital. Plaintifffailed to conduct any pre-action discovery toascertain the name of the EMT but merelynamed him as “John Doe,” in an action com-menced on 6/7/2005. Plaintiff served discov-ery notices in April 2006 but did not ascertainthe identity of the EMT until March 2009 andthen thereafter sought to amend the summonsand complaint. The plaintiff failed to exercisedue diligence, prior to the running of thestatute of limitations to identify the individualdefendant by name, either through discoveryor a Freedom of Information request, andtherefore there is no tolling of the statute oflimitations.
LABOR LAWTorres v. Forest City Ratner Cos., LLC,
2011 NY Slip Op 08348 (11/15/11)Defendant’s motion for summary judgment
based upon Labor Law §241(6) was denied.Plaintiff was a sheet metal worker who was in-stalling duct work. He was struck by a “raw”unhinged door that was on the floor on top ofsome loose pipes in his work area with no
other means of egress or ingress. He steppedon the door and fell. The defendants failed toestablish the absence of triable issues of fact asto whether the materials which caused the fallwere “integral to the work being performed”and were a “tripping or other hazard” in viola-tion of Industrial Code 12 NYCRR §23-1.7(e).
SERIOUS INJURYSwensen v. MV Transp., Inc., 2011 NY Slip
Op 08346 (11/15/11)Plaintiff moved to vacate his default in op-
posing Defendant’s motion for summaryjudgment. The Plaintiff relied upon the reportof Defendant’s examining doctor which foundsignificant limitations in the range of motionin both the cervical and lumbar regions of theplaintiff’s spine almost 4 years post-accident.Although the doctor suggested that the limita-tions were subjective, he failed to explain orsubstantiate the basis for his conclusion. Thusthe report was deemed to be the basis for ameritorious opposition to the motion.
PEDESTRIAN/WRONGFUL DEATHJahangir v. Logan Bus Co., Inc.,2011 NY
Slip Op 08729 (11/29/11)Defendant’s motion for summary judg-
ment was denied in a case in which plain-tiff’s decedent darted out between parkedvehicles and was struck by the defendant’sminibus. The defendant alleged that the ac-cident was unavoidable. Plaintiff success-fully raised a triable issue of fact by pro-ducing the affidavit of a nonparty witness(in whose car decedent had been a passen-ger), which was not inconsistent with thestatement in the police accident report. Thewitness stated that plaintiff’s decedent exit-ed her vehicle and stopped in front of hervehicle and then stuck her head out “direct-ly above” the double yellow line, at whichpoint she was struck by defendant’s sidemirror. The court found that there can bemore than one proximate cause of an acci-dent, with the issue of comparative negli-
gence a question for the jury.
APPLICATION OF FRYERatner v McNeil-PPC, Inc., 2011 NY Slip
Op 08575 (11/22/11)This is an excellent review of the Frye stan-
dard for admissibility of expert testimony. Theunderlying action was a suit by plaintiff againstthe manufacturer of Tylenol for her developmentof micronodular cirrhosis after therapeutic useof that over the counter medication. The suitsounded in negligence, failure to warn, defectivedesign, breach of implied and express warrantiesand a violation of the General Business Law.Plaintiff revealed during discovery, four expertsthat were prepared to set forth that acetamino-phen caused her liver cirrhosis. Defendant’s mo-tion to preclude and for summary judgment wasgranted based upon Plaintiff’s failure to satisfythe standard for admissibility of scientific evi-dence, pursuant to Frye v. US (293 F 1013).Plaintiff argued that a Frye hearing was not nec-essary as there was nothing novel in the method-ologies used by her experts, and that essentiallyshe would not have used Tylenol if she had beenwarned about its inherent dangers. The burdenof proving general acceptance is on the party of-fering the disputed expert testimony. It requiresthat “those espousing the theory or opinion havefollowed generally accepted scientific principlesand methodology in evaluating clinical data toreach their conclusions.” Defendant assertedthat there was no scientific support for the gen-eral theory that acetaminophen, taken withinrecommended doses, can cause cirrhosis, al-though they acknowledgedthat acetaminophenishepatotoxic. The court found that the method-ology employed by the plaintiff’s experts, “cor-relating long term, therapeutic acetaminophenuse to the occurrence of liver cirrhosis, primari-ly based upon case studies, was fundamentallyspeculative, and that there was too great an ana-lytical gap between the data and the opinionproffered.”
Shana De Caro, Esq., is a partner in thelaw firm of De Caro & Kaplan and publishesfrequently on Tort Issues and Traumatic BrainInjury Litigation.
TORT LAW UPDATEContinued from page 8
March 15, 2012 Thursday Elder Law Committee Study GroupRear Conference Room1:00 P.M.
March 20, 2012 Tuesday Brooklyn Women’s BarAssociation Board MeetingBoard of Trustees Room5:00 P.M.
March 22, 2012 Thursday VLP Board Officer & Member ElectionsBoard of Trustees Room5:30 P.M.
March 27, 2011 Tuesday American Inns of CourtAuditorium5:00 P.M.
March 29, 2011 Thursday KCCBA Board MeetingBoard of Trustees Room5:00 P.M.
KCCBA CLEAuditorium6:00 P.M.
IF YOU HAVE ITEMS FOR INCLUSION IN THE DOCKET, PLEASEMAIL OR FAX THEM TO LOUISE FELDMAN, BROOKLYN BAR ASSO-CIATION, 123 REMSEN STREET, BROOKLYN, NEW YORK 11201.
bility judgment was in 2006 and jury verdicton damages was in 2007. The Court reiteratedthe long standing rule that pre-verdict intereston future damages to plaintiff is not a penaltyagainst defendant. “The purpose of interest isto require a person who owes money to paycompensation for the advantage received fromthe use of that money over a period of time.”Citing Love v. State and other cases. TheCourt’s decision is well written and relies upon
EPTL 5-4 which has clear language related tointerest involving death cases. The decision iscarefully reasoned by Judge CarmenBeauchamp Ciparick and is a must read fortrial attorneys prosecuting wrongful deathcases with claims for future damages.http://www.nycourts.gov/ctapps/Decisions/2012.
State Bar Association dealt with many of thenew problems that are arising — it is nowsuggested by the NYSBA that basic legalcompetence includes an understanding ofelectronic communication and even of socialnetworks and how those communicationsmight endanger attorney-client privilege.Similarly, an entire seminar could now betaught in electronic advertising for lawyers —not only how to do it but also the many possi-ble transactions one could get caught up inwhen not careful. For example, while cut ratemortgage companies and erectiledysfunctionpharmacologyads might regularly fill yourspam box, attorneys who send such automaticsolicitations are in violation of Rule 7.3 of theNew York Rules of Professional Conduct, thecomments of which specifically forbid direct
solicitation by “Computer-accessed Commu-nication.”
Other pitfalls occur when domain namesmight run afoul of the Rule 7.4 prohibition onan attorney claiming a specialty. Do not regis-ter WWW. Divorce specialist.com or, closerto my heart, Taxispecialist.com — it wouldvery likely result in disciplinary action.
For those like mewho measure their prac-tice in decades, not months or even years, wehave seen the transformation first hand andoften reluctantly. I remember when Fax ma-chines seemed space age and legal researchwas primarily conducted in books — if youworked for a large firm, as I did, you mighthave been lucky enough to have access to abig red Lexis terminal to do research, onerushed associate attorney at a time. The NewYork State Court System has taken the nextbig step forward. We should embrace it and atthe same time help make it better.
Respectfully SubmittedContinued from page 3
Page 10, BROOKLYN BARRISTER FEBRUARY 2012
It’s no secret that the economy is in direstraits. Layoffs and work reductions are ram-pant. Many American families find them-selves struggling to keep up with their month-ly bills and as a result are falling behind. Weall know someone who used to pay their billsperfectly but now finds themselves in a situa-tion where they cannot afford to pay at all.
The past couple of years have seen a sharpincrease in collection activity throughout thiscountry. The most telltale sign of this phe-nomenon are the repeated inquires that manyattorneys receive from clients who informthem that they receive incessant phones callsfrom debt collection agencies. Attorneys andclients alike are at a loss as to how to addressthis rapidly growing problem.
The purpose of this article is to enlightenthe bar with regards to the most useful statutewhich can be used to protect clients’ rightsand provide relief from the stress of repeateddebt collection calls. This article shouldhopefully enable the general practitioner whois not familiar with this area of law to advisetheir clients in such a way as to either end thecollection calls or pursue an economically vi-able remedy in a venue of appropriate juris-diction.
The law I am referring to is the UnitedStates Fair Debt Collection Practices Act(hereinafter “FDCPA”).1 The law does notprevent debt collectors from calling a client,but it does regulate the activity of debt collec-tors and outlines what is permissible.
The FDCPA was first signed into law onSeptember 20th 1977 and became effective onMarch 20th 1978.2 Since then the FDCPA hasundergone a series of amendments and revi-sions 1986,3 1996,4 and, 20065.
Generally speaking, the FDCPA prohibitsbill collectors from engaging in abusive orthreatening behavior towards consumers. It isimportant to understand who’s covered andwhat kind of activity is regulated by theFDCPA.
The FDCPA regulates the activity of anyperson whose primary occupation is collect-ing a debt.6 This means anyone who regularlycollects debt on behalf of others, including at-torneys.7 First party creditors are not regulat-ed by the FDCPA. This means that if a bankissues a credit card and begins to engage incollection activity via their internal collectiondepartment that activity is NOT regulated bythe FDCPA. However, once the account isdeemed to be in default and that account issent to an outside independent bill collectioncompany then the account falls underneath thepurview of the FDCPA. 8
Second, the FDCPA covers all debt arisingfrom consumer or household debt. TheFDCPA does not regulate business debt.9 TheFDCPA only regulates personal debt such as apersonal credit card or personal store card, ordebt arising from medical accounts, rent, util-ity bills, insurance bills student loans, andother personal accounts for personal or house-hold use.10 This is a critical point becauseclients often obligate themselves as personalguarantors for business loans and businesscredit cards.
There are a several strategies that debt col-lectors utilize to recover debt.
Section 1692(c)(a)1 of the FDCPA pro-scribes a debt collector from contacting a con-sumer via telephone before 8 A.M. or after 9P.M or any other unusual time or place that isknown to be inconvenient to the consumer.11
Further, if the consumer informs the bill col-lection agency that any other time between 8A.M. or 9 P.M. is inconvenient the bill collec-tion company may not contact the consumerat that time. 12 This is important because oftentime consumers may be involved in certainactivities to which a phone call may be dis-ruptive and embarrassing, i.e. at school, reli-gious activities, etc.
Although, some reputable debt collectorshave strict procedures in place which ensuresthat they adhere to the 8 A.M. to 9 P.M. pro-
vision of the FDCPA, it seems as thoughmany collection agencies totally disregardthis provision. Notwithstanding the above,my clients inform me that even those compa-nies that ensure calls accrue only between 8A.M. or 9 P.M. will often times disregard theirrequest not to be contacted at an inconvenienttime.
The FDCPA doesn’t specifically prohibitdebt collectors from contacting consumers attheir place of employment. However, it doesprohibit the collection company from contact-ing the consumer at their place of employmentwhen the collection company knows that theemployer prohibits such communication.13
Thus, once the collection company reachesout to a consumer at their job and the con-sumer informs the collection agent that theiremployer prohibits such communication, thecollection agent must stop all attempts to con-tact the consumer at their place of employ-ment. The FDCPA also prevents collectionagencies from contacting a consumer’s em-ployer and discussing the nature of the allegedebt with them. There are many cases noted inwhich collection agencies have been held li-able for divulging sensitive information toemployers regarding their employees’ over-due accounts.14
One highly litigated area of the FDCPA issection 1692(b)(2). This section strictly regu-lates the type of communication that a debtcollector may have with a third party regard-ing a debt. It’s important to know that theterm “consumers” is defined by the FDCPA toinclude not only the debtor but any other indi-vidual that’s contacted by the debt collectorduring the attempt to collect a debt.15
A debt collector may contact a third partyin an attempt to locate a debtor. However, adebt collector may not contact a third party,more than once, in an attempt to locate adebtor. During that one permitted phone callthe debt collector may in-fact confirm or cor-rect the debtor’s location.16
The debt collector also may not state thatthe consumer owes a debt or discuss any in-formation with regards to the consumer’s debtwith the third party.17
A popular tactic of many debt collectors isto call a consumer several times a day. Oftentimes the collection agencies will alternate be-tween calling the cell phone or the housephone multiple times on a daily basis. Thepurpose of this particular tactic is to harassand aggravate a consumer into ultimately pay-ing the debt regardless of whether the con-sumer may have a legal basis for not doing so.
Section 1692d(5) strictly prohibits debtcollectors from causing a phone to ring or en-gaging any person in telephone conversationsrepeatedly for the purposes of harassing thatindividual.18 Most people in this countrywould agree that anyone who causes yourphone to ring several times in one day eitherhas an emergency situation which needs to berectified immediately or is engaging in suchbehavior for the purpose of harassing you.
The FDCPA also prohibits debt collectorsfrom contacting a consumer that they know tobe represented by an attorney unless the attor-ney consents or is unresponsive.19
Debt collectors also may not place anony-mous phone calls or leave anonymous mes-sages for consumers. 20
Many consumers feel at a loss when deal-ing with the waves of phone calls that manydebt collectors may send out on any one par-ticular account. There are things that yourclients may do in order to empower them-selves to attain a degree of relief.
The client may send a cease and desist let-ter to the debt collector. Once the debt collec-tor receives the cease and desist letter theymay not engage in any communication what-soever-written or by telephone-with the con-sumer. Any attempts to contact the consumeroutside of commencing a legal action will bea violation of the FDCPA. Practitionersshould also encourage their clients to docu-ment these phone calls. A very low techmeans of keeping track of these phone calls
would be to take pictures of the caller I.D.which note the date and time of phone calls.It is important that practitioners advise theirclients to take pictures of these phone calls asthey come in.
Practitioners in New York State may alsoexplore the possibility of recording telephonecalls. New York is a one party state meaningthat under New York’s statutes any individualis permitted to surreptitiously record theirown phone calls.21
There is an important caveat when itcomes to recording telephone calls. Manystates strictly prohibit surreptitious recordingof phone calls. Additionally some of thesestates have long arm statures which attach lia-bility to individuals outside the state thatrecords telephone calls which originate insidethe state. Thus, practitioners are greatly en-couraged to review their clients’ cases care-fully when exploring the possibility of record-ing phone calls. Nonetheless, recording of aphone call can provide invaluable evidencewhen preparing a FDCPA case. It shouldcome as no surprise that without pictures orrecordings, debt collectors often dispute thatcertain phone calls were ever made.
Practitioners should inform their clientsnow that if they find themselves in financialtrouble in a situation where they are bombard-ed by collection calls they should contact theattorney. The benefits to the client may bemultifold.
Clients may receive up to a $1,000 instatutory damages for each FDCPA violationthat has occurred and can be proven per of-fender.22 Actual damages can be recoveredwhen they can be sustained. 23 The FDCPAcontains a provision which allows consumersto recoup their legal fees when pursuing anFDCPA case.24 This means that practitionerscan provide this service to their clients with-out the need to charge an upfront fee.
The FDCPA may provide enormous pro-tection for many of our clients who find them-selves financially crushed in these difficuttimes. Practitioners are encouraged to take ad-vantage of the many resources available suchas the manual published by the National Con-sumer Law Center CITE and when necessaryto contact a more experienced practitioner inthis area. The FDCPA has become an increas-ingly utilized tool in providing today’s Amer-ican consumer with the legal protection thatthey deserve and so desperately need.
The Author began his legal career as alegal advisor with the New York City Council.Mr. Pierre then entered private practice wherehe had the privilege to represent clients in a
variety of matters ranging from credit-debtorcases, credit card cases, medical debt cases,wage garnishments, bank account levies, fore-closure defense and debt collection harass-ment matters. He is also admitted to practicebefore United States Federal Court, in allNew York Districts. In 2010 Mr. Pierre wassworn as an Arbitrator for the Small ClaimsCourt of the City of New York. Mr. Pierre isa proud member of the National Associationof Consumer Advocates, The Brooklyn BarAssociation and Queens County Bar Associa-tion. In his spare time Mr. Pierre enjoys play-ing the drums and trumpet, weightlifting andpracticing aikido.
1 15 U.S.C. § 1692 et seq.2 Clearinghouse Rev. 547, 552-573 Pub. L. No. 99-361, 100 Stat. 768 (effec-
tive July 9, 1986).4 15 U.S.C. § 1692e(11) as amended by
Pub. L. No. 104-208, 110 Stat. 3009-[1243]5 See Pub. L. No. 104-208, 110 Stat. 3009-
[1243], the Omnibus Consolidated Appropria-tions Act of 1997 Section 2305
6 15 U.S.C. §1692a(6)7 15 U.S.C §1692a(6); See Crossley v.
Lieberman, 868 F.2d 566 (3d Cir. 1989)8 15 U.S.C.§1692a(6)(F)(iii)9 15 U.S.C. §1692a(5); See Heintz v. Jenk-
ins 514 U.S. 291, 115 S. Ct. 1489, 131 L. Ed.2d 395 (1995)
10 15 U.S.C. §1692a(5)11 15 U.S.C. §1692c(a)(1); See United
States, v. Central Adjustment Bureau, Inc.667 F. Supp. 370 (N.D. Tex. 1986)
12 15 U.S.C. §1692c(a)(1)13 15 U.S.C. §1692c(a)(3); See Austin v.
Great Lakes Collection Bureau, Inc. 834 F.Supp. 557 (D. Conn. 1993)
Fin. Sys., Inc. 424 F. Supp. 2d 643 (S.D.N.Y.2006)
21 N.Y. Penal Law §§ 250.00, 250.05; Peo-ple v. Gibson, 23 N.Y.2d 618 (N.Y. 1969);People v. Kirsh, 176 A.D.2d. 652
(N.Y. App. Div. 1991).22 15 U.S.C. §1692k(a)(2)(A)23 15 U.S.C. §1692k(a)(1)24 15 U.S.C. §1692k(a)(3); See Pipiles v.
Credit Bureau, 886 F.2d 22 (2nd Cir. 1989)
peal process, the VCF will issue a paymentwithin 20 days of that date.
These initial payments will not contain aClaimant’s full award. In order to ensure thatthere is enough money to make a payment toevery Claimant who is entitled to receive apayment, the Zadroga Act provides that thefirst payment to each Claimant should containa portion of the full award. As a result, the sizeof that first payment will depend on theamount of the Claimant’s full award, as well asthe total number of Claimants and the amountof money available. The Zadroga Act providesthat most of the available money will be dis-tributed at the end of the program, so in mostcases these initial payments will be signifi-cantly less than the full award. The ZadrogaAct provides that $875 million will be avail-able to pay claims in the VCF’s first five years.
The Act provides that the remainder of theaward may be paid five years after the VCFopens. Claimants can thus expect to receivethe rest of their payment in 2016-2017. De-pending on the number and type of claims,and in order to ensure that all eligibleClaimants receive an award, the ZadrogaAct’s cap on funding means that it is possiblethat those payments will be pro-rated.
RepresentationThe Special Master is making efforts to
make this process user friendly and legal rep-resentation is not required and potentialclaimants are free to decide whether to engagecounsel. However, great care should be direct-
ed at insuring that the application properlydocuments eligibility through participation,physical impairments and the proper supportby treating specialists. Improperly filedclaims can result in the loss of benefits or thedenial of a claim. We do not recommend thatour clients file directly. Because awards canbe appealed via an administrative hearing,where witnesses, including expert witnesses,testimonial and documentary evidence maybe presented it may be most prudent to havean experienced practitioner assist in the devel-opment of the record, ab initio.
Capped Legal FeesAttorney fees are modest, paid only upon a
successful result and will be capped at 10%.Such fees must be paid directly by theClaimant. The Zadroga Act prohibits thecharging of any up front fees.
This article seeks to provide you with anopportunity to assist your clients, as well as toturn legal inquiries into income generatingcases. However, it does not apply to every sit-uation and is not meant to substitute specificlegal advice from an attorney familiar withthis area of law or a careful review of theAct’s provisions and administrative rules.
Robert Ungaro is a founding partner of Un-garo & Cifuni, Attorneys at Law, LLP, a gener-al disability practice which also serves as dis-ability counsel to both the New York City PoliceDepartment Captains Endowment Associationand the New York City Police Department Lieu-tenants Benevolent Association. He has suc-cessfully represented thousands of disabledclients seeking financial and medical benefits.He can be contacted directly at (212) 766-5800.Their Website is http://nycdisabilitylaw.com.
Continued from page 5
Zadroga Act DEBT COLLECTIONDEFENSE AND PROTECTION
By Abel L. Pierre, Esq.
FEBRUARY 2012 BROOKLYN BARRISTER, Page 11
quished its license to operate as a hospital andceased to be operational, and executed anasset transfer agreement. The transferee,which assumed the sole responsibility of pro-viding the hospital and other health care serv-ices previously provided by the hospital, andbecame the sole remaining hospital in Sch-enectady County, filed a Notice of Appear-ance in the cy pres proceeding. The petitionhad not listed the transferee as an interestedparty. The defunct hospital moved for an orderrejecting the Notice of Appearance filed bythe transferee and asked for a determinationthat the transferee had no standing to partici-pate in the proceeding. The Attorney Generalsupported the defunct hospital’s motion. Thetrustee took no position. The defunct hospitalargued that the transferee did not have a cog-nizable legal stake in the cy pres proceedingsufficient to confer upon it standing as a party,in that under New York law as a mere poten-tial beneficiary among the unlimited and un-defined class of hundreds of charities thatwere possible beneficiaries of the subjecttrusts it did not have standing to enforce orchallenge the disposition of charitable gifts.The Attorney General argued that his officehad sole standing to represent potential bene-ficiaries of charitable gifts in cy pres proceed-ings. The Attorney General further argued thetransferee should not be allowed to participatesince the Court had not decided it was evennecessary to exercise its cy pres power overthe trust agreement, and that even if cy preswere appropriate the transferee did not fallwithin the exception to the general rule ofstanding, because the transferee had neither aspecial interest nor a preference in the subjectgift superior to that of any other charitable or-ganization. The transferee argued that thecourt need not reach the issue of standing be-cause it had neither initiated the cy pres pro-ceeding nor was suing to enforce a claim tothe subject charitable gift, rather, that theCourt should simply permit it to appear as aninterested party in light of its acquisition ofthe hospital’s assets and assumption of itshospital services. The transferee argued fur-ther that if the Court reached the issue, itwould have standing based upon its contractu-al relationship with the defunct hospital mak-ing it unique among all other potential benefi-ciaries. HOLDING- The Court ruled that thetransferee could participate in the proceeding.The Court rejected the Attorney General’s po-sition that it should not determine the transfer-ee’s role until it decided whether cy pres evenwas necessary.
The Court stated that if it were to applythis argument to its logical conclusion, thenthe Attorney General himself, the statutoryrepresentative of potential charitable benefici-aries pursuant to EPTL §8-1.1(f), would noteven have standing, which the Court statedclearly was not the result the Attorney Gener-al wanted.
The Court added that a potential benefici-ary had just as much of a tangible stake in theCourt’s determination of whether to apply itscy pres power as it had in the Court’s determi-nation of how to apply that power. The Courtnoted that this also
protected the interests of all parties, avoid-ed prejudice, the potentiality for duplicativelitigation and inconsistent judgments, and fos-tered judicial economy. As to the exact role ofthe transferee, the Court stated that whether itwere to be found to have standing, or were tobe granted intervenor status, would be a dis-tinction without a difference. The Court statedthat to allow a party to appear and participatein a proceeding, or to grant a party intervenorstatus, would be the equivalent of conferringstanding on that party, since an intervenorgenerally acquires the same status as that of anoriginal party, including the right to partici-pate in discovery, make dispositive motions,and assert additional claims. The Court ac-knowledged that the proper course of actionwould have been for the transferee to file amotion to intervene as required by CPLR§1012 and CPLR §1013, rather than just file aNotice of Appearance, but the Court pointedout that in response to the motion by the de-
funct hospital, the transferee sought inter-venor status as an alternative remedy. On themerits, the Court opined that generally onewho is merely a possible beneficiary of a char-itable trust, or a member of a class of possiblebeneficiaries, is not entitled to sue for en-forcement of the trust, it being the AttorneyGeneral with the statutory power and duty torepresent the beneficiaries of any dispositionfor charitable purposes. However, the Courtpointed out that there is an exception to thegeneral rule when a particular group of peoplehas a special interest in funds held for a char-itable purpose, as when they are entitled to apreference in the distribution of such fundsand the class of potential beneficiaries issharply defined and limited in number. Underthe circumstances concerning the mandate tothe hospital to cease operations and its assettransfer, the Court found that the transfereehad a unique, contractual relationship with thedefunct hospital that set it apart from all otherpotential charitable beneficiaries and entitledit to a preference in the distribution of the sub-ject charitable disposition. The Court cau-tioned that its ruling should not be interpretedas meaning that in the event the court deter-mined that it must exercise its cy pres power,it would do so in favor of the transferee, onlythat there was a unique, contractual relation-ship between the defunct hospital and thetransferee, causing the transferee to have asubstantial interest in, and possibly be ad-versely affected by, the court’s determinationof whether to exercise its cy pres power, and ifso, how it should exercise that power. TheCourt therefore ruled that the transferee hadstanding to appear and participate in the pro-ceeding as an interested party, with the right tofile a responsive pleading, participate in dis-covery, make motions, and participate duringthe trial as if it were originally listed as an in-terested party/respondent in the petition. TheCourt also ruled, alternatively, that the trans-feree should be granted intervenor statusunder CPLR §1013, with the same rights as ifit were an original party. The Court added thetransferee as a respondent, and was directed toserve and file a responsive pleading. Matter ofTrust Bank (Lally), 33 Misc.3d 745 (Sup. Ct.,Schenectady Co., Surr. Versaci, 9/8/11)
Pain and Suffering Cause of Actionagainst Social Workers Alleged To HaveFailed Properly To Treat the DecedentPrior to her Suicide Dismissed- The dece-dent, depressed over a breakup with herboyfriend, attempted suicide by ingesting 22pills of various types of medications. She wasadmitted to the hospital. According to the hos-pital records, the decedent presented with de-pression due to the breakup with her boyfriendand suffered from depression, suicidalthoughts, and suicidal ideation. The hospitalrecords also indicate that the decedent told ahospital employee that she could harm herselfagain and that she had been depressed for thepast two weeks. As part of her discharge plan,the decedent met with a member of defendant,telling the social worker that she could notlive without her boyfriend. The social workernoted that the decedent was in a depressedmood and had a tearful affect. About a weeklater, the decedent again met with defendant’ssocial worker. The social worker’s records in-dicate that the decedent’s separation from herboyfriend continued to trigger depressedmood and feelings of hopelessness. There-after, the decedent returned to the apartmentshe had shared with her boyfriend, accessedhis firearm and took her own life by shootingherself in the temple. Plaintiffs, the decedent’sparents, brought a wrongful death action seek-ing recovery for the pain and suffering thedecedent experienced between the time shewas released from the hospital after her firstsuicide attempt and the time the decedent tookher own life approximately two weeks later.Plaintiffs argued that the decedent’s death wascaused by defendant’s failure to properly treatthe decedent. Plaintiffs conceded that theywere not seeking damages for the pain andsuffering experienced by the decedent fromthe time she shot herself until her actual deathbecause there was undisputed evidence thatthe decedent’s death was instantaneous. Plain-
tiffs claimed that they were entitled to dam-ages for the decedent’s pain and sufferingcaused by the alleged fact that she did not re-ceive proper psychological evaluation andtreatment from defendant. The plaintiffssought recovery for the decedent’s pain andsuffering before she took her own life. Thepain and suffering which plaintiffs claim thedecedent suffered during this period was de-pression, a feeling of hopelessness, and suici-dal thoughts.
Defendant moved to dismiss the complainton the ground that it failed to state a cause ofaction. The defendant argued that the damagesplaintiffs sought to recover for pain and suf-fering were not recoverable under New Yorklaw. HOLDING- The Court dismissed thepersonal injury cause of action. The Courtopined that in a wrongful death action, theplaintiffs have the threshold burden of provingthat decedent was conscious and in pain for atleast some period of time following the inci-dent which caused her death in order to justi-fy an award of damages for pain and suffering.The Court distinguished the case before itfrom the ‘pre impact terror’ cases cited byplaintiffs, in that in those cases the decedent’sdeath was directly and undisputedly caused bythe action of another party, in each case thedefendant, while in the case at bar the dece-dent took her own life. The Court also reject-ed the plaintiffs’ argument that the defendant’sfailure to properly treat the decedent causedand/or exacerbated her depression and thefeeling of hopelessness and, therefore, inessence, directly caused the decedent to takeher own life, claiming that the defendant’s ac-tions or inactions amounted to, in essence, theactual pulling of the trigger of the firearmwhich caused the decedent’s death. In theCourt’s view, plaintiffs’ position was belied bythe fact that the decedent’s first attempt to takeher own life was caused by the end of her re-lationship with her boyfriend. The Courtnoted that the hospital records indicated thatthe decedent’s continued depression and suici-dal thoughts were caused by the breakup withher boyfriend, not by the defendant. The Courtstated that when the decedent presented to thedefendant she already was suffering depres-sion, hopelessness and suicidal thoughts. TheCourt asserted that the defendant did not cre-ate those thoughts in the decedent. The Courtnoted that during the two visits the decedenthad with the social worker she indicated thather continuing depression and hopelessnesswas caused by the breakup of her relationshipwith her boyfriend. The Court found no evi-dence that the defendant caused the decedent’sdepression, hopelessness and suicidalthoughts which resulted in her taking her ownlife. The Court, while expressing sympathyfor plaintiffs, held that the damages theysought to recover were not permitted underNew York law. Accordingly, defendant’s mo-tion to dismiss the complaint for failure tostate a cause of action was granted, but only tothe extent of dismissing the cause of actionwhich sought pain and suffering damages.Plaintiff’s claim seeking pecuniary damages
was not dismissed. Stolarski v. Family Ser-vices of Westchester, Inc., 33 Misc.3d 607(Sup. Ct., Westchester Co., Justice Giacomo,9/21/11)
Brief briefs: Prejudgment interest in awrongful death action is part of the damages,and such interest runs from the date of deathto the date of verdict. The damages on awrongful death action are due on the date ofthe death of the plaintiff’s decedent. Futuredamages are a debt owed entirely as of thedate of liability—the date of death, and suchdamage award properly should include pre-verdict interest calculated from the date ofdeath. Toledo v. Christo, Court of Appeals(N.Y.L.J. 1/10/12 p.22, c.1)
The Internal Revenue Service has request-ed comments regarding whether (and underwhat circumstances) transfers by a trustee ofall or a portion of the principal of an irrevoca-ble trust (Distributing Trust) to another irrev-ocable trust (Receiving Trust), sometimescalled “decanting,” that results in a change inthe beneficial interests in the trust are not sub-ject to income, gift, estate, and/or generation-skipping transfer (GST) taxes. In these trans-fers, the interests of one or more of the bene-ficiaries may be changed and, in some cases,the interest of a beneficiary may be terminat-ed and/or another beneficiary who did nothave an interest in the Distributing Trust mayreceive an interest in the Receiving Trust. No-tice 2011-101, Internal Revenue Bulletin,2011-52, (12/27/11, p. 932.)
The Internal Revenue Service has issuedfinal regulations providing guidance on theportion of property (held in trust or otherwise)includible in the grantor’s gross estate underI.R.C. §2036 if the grantor has retained theuse of the property, the right to an annuity,unitrust, graduated retained interest, or otherpayment from the property for life, for any pe-riod not ascertainable without reference to thegrantor’s death, or for a period that does not infact end before the grantor’s death. The finalregulations affect estates that file Form 706,United States Estate (and Generation-Skip-ping Transfer) Tax Return. The regulations areeffective November 8, 2011. TD 9555, Grad-uated Retained Interests, Internal RevenueBulletin, 2011-50, (12/12/11, p. 838.)
The Internal Revenue Service has issued anotice of proposed rulemaking containingproposed regulations that provide guidancerespecting the election to use the alternate val-uation method under I.R.C. §2032. The pro-posed regulations would affect estates that fileForm 706, United States Estate (and Genera-tion-Skipping Transfer) Tax Return and electto use the alternate valuation method. Regula-tion 112196-07, Internal Revenue Bulletin,2011-51, (12/19/11, p. 865.)
Compiled by Hon. Bruce M. Balter, Jus-tice of the Supreme Court, State of NewYork, and Chair, Brooklyn Bar Association,Surrogate’s Court Committee, and Paul S.Forster, Esq., Chair, Brooklyn Bar Associa-
