When you’re born on the Lower East Side, if you makeit uptown, you’re a big success. Jonathan Lippmanbelieved he finally made it when he moved to the UpperEast Side and Rye years ago. Little did he know that, lastyear, he would really make it big with another uptownmove, this time to Albany to serve as Chief Judge of theNew York State Court of Appeals.
Judge Lippman is married to Amy Lippman. Theyhave two children; his son Russell, a litigation associate atlaw firm Ropes and Gray LLP, and his daughter Lindsay,an in-house counsel at insurer MetLife. Judge Lippman’sfather served as president and manager of Coop Village,one of several Title I federal slum clearance projects builtafter World War II in lower Manhattan and which iswhere the Judge grew up.
He attended Stuyvesant High School, then New YorkUniversity, where he received a bachelor’s degree in gov-ernment and international relations in 1965. Then it wason to NYU School of Law and a JD in 1968.
“When I graduated, I saw an ad for a job as a law assis-tant for the Supreme Court,” reminisces Judge Lippman.“I showed up on the last day that funding for the positionwas set to expire, so they hired me. I was just at the rightplace at the right time.”
After serving as an entry level court attorney, then as alaw clerk, then as principal court attorney in SupremeCourt and Surrogate’s Courts for about eleven years, theJudge was bumped up to Chief Clerk of the SupremeCourt, New York County, Civil Term, in 1983, where hebecame a student of the individual assignment system.
“In 1989, Judge Sol Wachtler became chief judge andJudge Joseph Bellacosa was the chief administrativejudge. They wanted to institute the IAS at that time and Ihad become sort of guru in that field. So I was appointedas deputy chief administrator for day-to-day managementof the New York State court system.”
Six years later, in 1995, came his first judgeship whenhe was appointed by Governor George Pataki to be aJudge of the New York Court of Claims. “I think theymade me judge because it allowed me to be more effec-tive in my role as administrator and, frankly, as an olivebranch to the judiciary,” says Judge Lippman in under-stated manner.
The following year, in 1996, Chief Judge Judith Kayeappointed Judge Lippman to serve as ChiefAdministrative Judge for the New York State court sys-tem, where he served until 2007, the longest anyone hasspent in that position. He is credited with guiding thecourts through a period of explosive growth in their dock-ets, which led to a doubling of the court system’s budget.
“We are a cottage industry,” he points out. “At thetime, there was a crack epidemic, Family Court wasbecoming a focus of the court system – we really neededthe money. It was a big deal to reach a one-billion dollarbudget.”
In 2005, Judge Lippman sought his first and, so far,only elected position, as Supreme Court justice in thefive-county Ninth Judicial District. He won the race for a14-year term, appearing on all five ballot lines. The fol-lowing year, he was appointed by Chief Judge JudithKaye and Appellate Division, Second Department,Presiding Justice A. Gail Prudenti to be an Associate
Justice of the Appellate Term, Ninth and Tenth JudicialDistricts. The following year came his appointment byGovernor Eliot Spitzer as Presiding Justice of theAppellate Division, First Department.
“There was a huge backlog of cases at the AppellateDivision, over three-hundred pending matters,” recallsLippman. “I had the skill set as an administrator to helpreduce those backlogs to as close to zero as possible.” Inthe twenty months that Judge Lippman served, hepresided over about 2000 cases and wrote fourteen opin-ions, including Nash v. Port Authority of New York andNew Jersey, 51 AD3d 337 (1st Dept 2008) whichinvolved difficult issues of liability arising from the 1993
VOL. 63 NO.5
T H E O F F I C I A L P U B L I C A T I O N O F T H E B R O O K L Y N B A R A S S O C I A T I O N
Negotiating and Drafting Retainer AgreementsBy Richard A. Klass, Esq. . . . . . . . . . . . . . . . . .Page 3
Helpful Material in the LibraryBy Jacqueline Cantwell . . . . . . . . . . . . . . . . . . .Page 4
Social Security Disability: What Every Attorney Should KnowBy Robert A. Ungaro, Esq., . . . . . . . . . . . . . . . .Page 6
Although our streets still may be garnished with snow,spring training has started, which means that the greenshoots of spring can’t be far away. To give you a pleas-ant means to while away the remaining dark pre equinoxevening hours we present some interesting and importantcases involving allowance of full commissions to anattorney-drafter executor where the disclosure formsigned by the client complied with the SCPA §2307-astatutory requirements but not with the ‘model’ formcontained in the statute; the reversal of a fee determina-tion by the Civil Court of the City of New York; therejection of an executor’s attempt to cause forfeiture ofthe fees of his attorney because the attorney had contin-ued to represent the executor even after moving out ofstate and no longer maintained an office in New York;the rejection of a claim of gift to a house; who bears thecost of the examination of a second attesting witness to aWill who resides out of state; the application of equitableestoppel in opposition to a statute of limitations defensein a constructive trust case; the transfer of a SCPAArticle 17-A Guardianship to Florida upon the incapaci-ty of the guardian and the appointment of a fiduciary forher in that State; an unsuccessful attempt to utilize SCPA2225; and the entitlement of twins conceived after thedeath of their father via artificial insemination of frozen
sperm to surviving children’s insurance benefits underthe Social Security Act.
Full Commissions Allowed to an Attorney-drafterExecutor Where the Disclosure Form Signed by theClient Complied With the SCPA §2307-a StatutoryRequirements but Not With the ‘Model’ FormContained in the Statute- The decedent’s Will wasadmitted to probate. Because the executor was the attor-ney-drafter, proof of compliance with the disclosurerequirements of SCPA §2307-a was necessary in orderfor the attorney-fiduciary to avoid a one-half reduction inthe commissions to which he otherwise would be enti-tled. At the time the Will was executed, in order for theattorney-drafter who was named as executor in theinstrument to avoid having commissions reduced by50%, the testator was required to sign an instrumentacknowledging that prior to the execution of the Will shehad been informed of three things, to wit: (1) that subjectto limited statutory exceptions, any person, including anattorney, was eligible to serve as an executor; (2) thatabsent an agreement to the contrary, any person, includ-ing an attorney, who serves as an executor was entitled toreceive an executor’s statutory commissions; and (3) thatif such attorney or an affiliated attorney rendered legalservices in connection with the executor’s official duties,such attorney or a then affiliated attorney was entitled to
By Hon. Bruce M. Balter and Paul S. Forster, Esq.
By Mark Diamond
(Continued on page 7)
(Continued on page 6)
THE STATE OF ESTATES
BROOKLYN BARRISTER - FEBRUARY 20112
February 21, 2011 Monday In observance of President’s Day the Brooklyn Bar
Association, the Lawyer Referral Service and the
Volunteer Lawyer Project will be closed.
February 28, 2011 Monday Joint Committee Surrogates Court and Decedant’s Estates
Board of Trustees Room 5:30 P.M.
March 2, 2011 Wednesday CLE – Hot Topics in Ethics Auditorium 6:00 P.M.
March 9, 2011 Wednesday 18B Family Court Committee Rear Conference Room
1:15 P.M.
Board of Trustees Meeting Board of Trustees Room 5:15 P.M.
Foundation Board of Directors Meeting
Board of Trustees Room 5:45 P.M.
CLE - Professionalism and Civility – a joint program in
conjunction with the Metropolitan Black Bar Association
Auditorium 6:00 P.M.
March 10, 2011 Thursday Elder Law Committee Meeting
Board of Trustees Room 5:15 P.M.
March 15, 2011 Tuesday Foundation Public Education Program
Auditorium 6.00 P.M.
March 16, 2011 Wednesday VLP Board Meeting Board of Trustees Room 5:30 P.M.
March 22, 2011 Tuesday CLE – The ABC’s of EBT’s Auditorium 6:00 P.M.
April 4, 2011 Monday Elder Law Study Group Board of Trustees Room 1:00 P.M.
April 6, 2011 Wednesday 18B Family Court Committee
Rear Conference Room 1:15 P.M.
Judiciary Night Auditorium 6:00 P.M.
April 13, 2011 Wednesday Board of Trustees Meeting
Board of Trustees Room 5:15 P.M.
Foundation Board of Directors Meeting
Board of Trustees Room 5:45 P.M.
BBA & NYS Bar Association Real Property Law Section
Auditorium 6:00 P.M.
April 22, 2011 Friday In observance of Good Friday, the Brooklyn Bar
Association, Lawyer Referral Service and the
Volunteer Lawyer Project will be closed.
IF YOU HAVE ITEMS FOR INCLUSION IN THE DOCKET, PLEASE MAIL OR FAXTHEM TO LOUISE FELDMAN, BROOKLYN BAR ASSOCIATION, 123 REMSEN
STREET, BROOKLYN, NEW YORK 11201. FAX NO.: (718-797-1713)E-mail: [email protected]
THE DOCKETIncluded below are events which have been scheduled for the period
February 21, 2011 through April 22, 2011Compiled by Louise Feldman
Judicial RecognitionCongratulations to Brooklyn Bar
Association Past President Hon. BarryKamins who was honored at the KingsCounty Criminal Bar Association AnnualDinner held on February 5, 2011.
Recently retired Supreme CourtJustice Randolph Jackson, a long timeBrooklyn Bar Association member, hasjoined NAMS – the National Arbitration& Mediation Service.
Kudos and Professional Recognition
Congratulations to Brooklyn BarAssociation member Jeffrey Miller whohas been selected to serve as Counsel tothe New York State Fraternal Order ofPolice Surgeons’ Lodge SA03.
Congratulation to the Brooklyn BarAssociation former trustee AndrewRendeiro who was appointed by JusticeA. Gail Prudenti to the GrievanceCommittee for the 2nd, 11th and 13thJudicial Districts.
Congratulations to Brooklyn BarAssociation Editorial Board MemberMichael Traybich who was appointedDeputy Legal Director of the New YorkState Young Democrats.
ProfessionalAnnouncements
Brooklyn Bar Association memberPery Krinsky has announced the open-ing of his own office after being associ-ated with the offices of grievance coun-sel Michael S. Ross. Pery Krinsky’soffice is located at 233 Broadway, Suite707, New York. Phone number 212-543-1400, email [email protected].
Heard On The StreetThe Court of Appeals has announced
that it is entertaining applications forappointment to the State Board of LawExaminers. The board position is for a 3-year term and pays $60,740 plus expens-es. To apply, send a letter of interest witha resume by March 1, 2011 to AndrewW. Klein, Clerk, NYS Court of Appeals,20 Eagle Street, Albany, NY 12207-1095.
Legal Briefs is compiled and writtenby Avery Eli Okin, Esq. CAE, theExecutive Director of the BrooklynBar Association and its Foundation.Items for inclusion in “Legal Briefs”should be sent to [email protected], faxed to 718-797-1713 ormailed to 123 Remsen Street,Brooklyn, NY 11201-4212
LEGAL BRIEFS
Theresa Ciccotto Elaine N. Avery David M. ChidekelPamela A. Elisofon Richard S. Goldberg Armena D. GayleFern J. Finkel Deborah Lashley Steven Jeffrey HarkavyLeardo Luis Lopez Michael S. Lazarowitz Anthony J. LambertiDino Mastropietro Joseph S. Rosato Carl J. LandicinoSteven H. Richman Hon. Frank R. Seddio Hemalee J. PatelAimee L. Richter Glenn Verchick Isaac N. Tuchman
TRUSTEES
CLASS OF 2011 CLASS OF 2012 CLASS OF 2013
BROOKLYN BAR ASSOCIATION2010-2011
Avery Eli Okin, Esq., CAEExecutive Director
Andrea E. Bonina, PresidentEthan B. Gerber, President-ElectDomenick Napoletano, First Vice President
Andrew M. Fallek, Second Vice PresidentRebecca Woodland, SecretaryArthur L. Aidala, Treasurer
Roger Bennet AdlerVivian H. AgressRoss M. Branca RoseAnn C. BrandaGregory T. CerchioneMaurice ChaytSteven D. Cohn Hon. Miriam CyrulnikLawrence F. DiGiovanna
David J. DoyagaJoseph H. FarrellAndrew S. FisherDominic GiordanoPaul A. GolinskiGregory X. HesterbergHon. Barry KaminsMarshall G. KaplanAllen Lashley
Mark A. LongoJohn E. MurphyJohn LonuzziManuel A. Romero Hon. Harold RosenbaumBarton L. SlavinHon. Jeffrey S. SunshineHon. Nancy T. SunshineDiana J. Szochet
TRUSTEES COUNCIL (Past Presidents)
NEW MEMBERS FOR JANUARY 2011
STUDENT MEMBERS
Joseph BalisokCara BenDaniel EdgertonRobert Macchia
Timothy MacFallDominic L. MascaraSeth Rigrodsky
Aaron N. SolomonMarianne StracquadanioSherwin SussRochelle Watson
Jill Ormandy Nina Shalshina Jason Stewart
BROOKLYN BARRISTER - FEBRUARY 2011 3
B R O O K L Y N B A R A S S O C I A T I O N P R E S I D E N T
RESPECTFULLY SUBMITTED
BROOKLYN BARRISTER EDITORIAL BOARD
Brooklyn Barrister is published by Long Islander Newspapers under the auspices of the Brooklyn Bar Association. For advertising information call (631) 427-7000. Mailing address 149 Main Street, Huntington, New York 11743.Vol. 63 No. 5 February 2011. The Brooklyn Barrister (ISSN 007-232 USPS 66680) is published monthly except in August and December by the Brooklyn Bar Association. Office of publication is: Brooklyn Bar Association, 123 Remsen Street, Brooklyn,New York 11201-4212. Telephone No.(718) 624-0675. Periodical postage is paid at Brooklyn, New York and at additional mailing offices. Subscription price is $11.00 per year. POSTMASTER: Send address changes to the Brooklyn Barrister, 123 RemsenStreet, Brooklyn, New York 11201-4212.
Glenn VerchickEditor-in-Chief
Diana J. SzochetManaging Editor
Hon. Barry KaminsAssociate Editor
Hon. Allen Hurkin-TorresArticles Editor
Cecilia N. AnekweHon. Bruce M. BalterMarianne BertunaJaime J. BorerMark DiamondJason Eldridge
Paul S. ForsterHon. David FriedmanJason D. FriedmanMichael HernandezRichard KlassAnthony Lamberti
Susan MasterGregory MesserHemalee J. PatelAimee L. RichterRobert P. SantoriellaMichael Treybich
Judiciary NightIn Kings County we have brilliant, dis-
tinguished, and hardworking judges, andeach year the Brooklyn Bar Associationpays tribute to them at Judiciary Night.Traditionally this free member event isheld in January, but this year we have hadto reschedule it for Wednesday April 6thdue to snow emergencies. Please markyour calendars for what I am sure will bean excellent evening.
As you know, twelve years have passedsince state judges in New York have got-ten a pay raise, but the recently enactedJudicial Salary Commission is expected toinsure that our judiciary finally gets a longoverdue pay raise. It is vitally importantthat judicial compensation reflects the crit-ically important role that New York’sjudges play in the administration of jus-tice. I am pleased to see progress beingmade towards this end, and hope that therewill be good news to celebrate with ourjudiciary soon.
Family Law SectionTeaches Application of NewLaws
On January 31st, 2011 BBAFamily Law Section ChairPast President Rose Ann C.Branda led an all star panel,including Past President Hon.Justice Jeffrey Sunshine, at aCLE entitled “No Fault andMaintenance Guidelines:Three Months Old.” The lec-ture was standing room onlyand earned rave reviews.
Attendees of this CLE weregiven a preview of the following day’sNew York Law Journal’s front page,which featured a ruling of first impressionby Justice Sunshine on the new laws gov-erning awards of maintenance. JudgeSunshine’s ruling was the first to addressthe measures a judge can take to reducesevere results under the new laws. JudgeSunshine applied a deviation authorized inone statute to reduce maintenance obliga-tions by one third and reduced the counselfees that would need to be paid by the
monied spouse.As these new laws devel-
op, the Family Law Sectionwill be sure to keep the BBAmembers ahead of the learn-ing curve.
Calling All Section andCommittee Chairs
I owe a world of thanks tothe Section and CommitteeChairs that have worked sohard this year. The quality ofContinuing Legal Educationhas been outstanding, and I
truly appreciate the work that has goneinto presenting such terrific lectures.
Taking a leadership role on a committeeor in a section is a big responsibility. Eachgroup is expected to sponsor at least oneCLE program and submit one Barristerarticle per year. I encourage all committeeand section members to take the initiativeand come forward with CLE or article sug-gestions. Let the committee or sectionchair know what your ideas are, and I amsure they will work with you to see them
through. It strengthens the organizationwhen many people participate, and it isgreat for your resume to publish articlesand present at lectures.
Upcoming EventsOn Wednesday March 9 at 6pm the
Brooklyn Bar will be hosting a joint pro-gram on “Professionalism and Civility”with the Metropolitan Black Bar, followedby a free cocktail reception for members ofthe BBA and the MBBA. Joseph Drayton,the MBBA President, and I have worked toput together a terrific panel of judges, whowill take questions from our moderator andmembers of the audience on how to actwith the highest level of professionalism.
On March 16th we will be having a“Meet the New Court Employees” lunch-eon, which will be free for Brooklyn Barmembers. Judge Barry Kamins and JudgeSylvia O. Hinds-Radix will be on hand tointroduce the many new court clerks andcourt officers in Kings County. I amthankful to both Judge Kamins and JudgeHinds-Radix for working with me toorganize this first time event.
Andrea E. Bonina Esq.
By Andrea E. Bonina Esq.,President
On January 5, 2011, the newlyformed Mentoring Section of theBrooklyn Bar Association held a paneldiscussion on the drafting and negotia-tion of attorney-client retainer agree-ments. The Mentoring Program wasformed this past year in order to providenew and seasoned practitioners bothgroup and one-on-one mentoring in spe-cific legal topics as well as law firmmanagement issues.
The program on January 5th wasmoderated by Richard Klass, Chair ofthe Mentoring Section. The programfeatured a distinguished panel of practi-tioners in different areas of law assem-bled to discuss the various clauses thatmeld into the typical retainer agree-ment. In addition to reaping the benefitsof the panel discussion, attendeesreceived copies of sample retaineragreements, along with reference to therelevant statutes and rules pertaining toretainer agreements and legal fees.
Real estate practitioner LawrenceDiGiovanna presented several differentforms of retainer agreements pertainingto real estate transactions, includingones directed to purchasers and sellersof real property, condominiums, and
cooperative apartments. Pertainingspecifically to cooperative corporations,the retainer agreement delved intocharges associated not only withreviewing by-laws and house rules, butalso board minutes (when made avail-able by the cooperative board and/ormanagement agent).
Brooklyn Bar Association PresidentAndrea E. Bonina delineated the vari-ous statutes that govern retainer agree-ments and legal fees in the areas of per-sonal injury and medical malpractice.She emphasized how most of the legalfee arrangements and terms are spelledout and extremely regulated by the law,without deviation. In medical malprac-tice cases, there is a statutory scheme of‘sliding scale’ payment of legal fees, asopposed to the typical ‘one-third’ con-tingent fee in personal injury cases. Ms.Bonina also suggested that attorneystake pro-active steps to keep theirclients involved in their cases, includingupdating them on developments, pro-viding copies of the papers in their case,and conducting surveys as to clients’opinions as to how the attorneys andstaff are handling their matters. She wasproud to say that many of her clientswere referred from past ones basedupon their positive experiences with her
office.Criminal law practitioner Arthur
Aidala brought up interesting issuesregarding retainer agreements in crimi-nal matters, from misdemeanors tolarge felony cases. Mr. Aidala discussedhow important it is for practitioners inthe criminal law field to obtain as muchmoney up-front as possible becauseonce the attorney appears before thejudge, it is very difficult to withdrawfrom the case, even if the client is nolonger paying the bill. He also men-tioned how many of his retainer agree-ments are signed by parents or relativesof the accused, so that he obtains per-sonal guarantees from third parties.
Lara Genovesi, Law Secretary toSupreme Court Justice JeffreySunshine, outlined for attorneys the rel-evant portions of the law dealing withretainer agreements in the matrimonialfield. Attorney fee agreements in matri-monial cases must be filed with theCourt together with the Statement ofNet Worth. Together with the retaineragreement, attorneys must provide theirmatrimonial clients with a statutorystatement concerning their rights underthe rules.
General practitioner Richard Klassdiscussed general clauses of retainer
agreements, including the requirementthat clients be informed of their right tofee dispute arbitration under Part 137 ofthe Court Rules. Mr. Klass emphasizedkeeping accurate time records, even onnon-hourly fee matters in order to estab-lish how much time is being spent onmatters vs. time spent on those matters.Also, Mr. Klass offered a Rider con-cerning the “litigation hold” proceduresrelating not only to hard copies of doc-uments but also to “ElectronicallyStored Information” or “ESI,” which isbecoming more and more prevalent,given that most business records todayare in electronic form and never printed.
Readers are encouraged to seek outthe Mentoring Program at any time toobtain any desired help to enhance theirpractices or careers. In addition, lookfor future programs that may serve toenhance or expand your current lawpractice.
Richard A. Klass, Esq., maintains alaw firm engaged in civil litigation at 16Court Street, 29th Floor, BrooklynHeights, New York. He may be reachedat (718) COURT-ST [email protected] withany questions.
Negotiating and Drafting Retainer AgreementsPresented by The BBA Mentoring Program Richard A. Klass, Esq.
The Real Property Law Section of theNew York State Bar Association publishesa valuable publication for practicing attor-neys, the N.Y. Real Property Law Journal.Issued four times a year, the Journal’s arti-cles provide in-depth analysis of legal top-ics not covered in law reviews or practicematerials. The Section is also active inreviewing legislation and regulatoryactions. These articles are not indexed oravailable on-line in Westlaw and Lexis.Because these publications are not freelyavailable on the internet or legal databases,non-section members may not be aware ofhow useful this publication is. The table ofcontents for each issue is available on thesection’s website, but the full-text is onlyavailable to section members. The Libraryreceives the Journal and posts recentlyreceived issues in the reading room.
Each issue of the Journal contains a col-umn on foreclosure by Bruce J. Bergman,the noted author of Bergman on MortgageForeclosures. This year’s foreclosure cri-sis was well covered by articles review-ing recent legislation protecting tenants offoreclosure properties and amendments toCPLR 3408.
Ethical issues also receive treatment, buta careful attorney would want to follow atopic before acting. For example in the
Spring 2010 issue, Karl B. Hostzschueargued “N.Y. Rules of ProfessionalConduct Make It Consentable for aLawyer to Refer a Client to the Lawyer’sTitle Abstract Company.” In the Fall 2010issue, Kenneth F. Jurist disagreed,“Because Rule 5.7(c) Was Not Adopted, ItIs Not Consentable for a Lawyer to Refer aClient to the Lawyer’s Title Abstract com-pany.” The Journal provides a real serviceby publishing these opposing viewpoints.
In 2010, the Hon. Gerald Lebovits co-authored three articles; “New York LoftLaw,” “Evidentiary Issues in the NewYork City Housing Court,” and“Accommodations and Modifications inthe New York City Housing Court forLitigants with Disabilities.” These are in-depth articles on unique aspects of NewYork City law; there is no other coverageof these issues in our library materials.
In your trips to the court house, takeadvantage of this publication and othermaterials by visiting the Library.
The Brooklyn Supreme CourtLibrary is open Monday-Friday, 9 am -6 pm. The Library is located in room 349of the Supreme Court Building, 360Adams Street, Brooklyn. The Libraryoffers free Lexis and Westlaw and a doc-ument delivery service at Click onLibraries to get a full description of serv-ices and locations throughout the state.
BROOKLYN BARRISTER - FEBRUARY 20114
DEWEY DECIMALDECLARATIONS
Helpful Material in the LibraryBy Jacqueline Cantwell, Senior Law Librarian
45 North Station Plaza, Suite 404, Great Neck, NY 11021516-504-0018
139 Manhattan Avenue, New York, NY 10025212-280-3706
The New York Center forNeuropsychology
& Forensic Behavioral Science
Dr. N.G. Berrill, Director
Social Security Disability Law is highlyspecialized and generally practiced byattorneys versed in the federal administra-tive law and governing legal doctrineunder which these claims lie (Code ofFederal Regulations, Title 20 Chapter III,Part 400 and the Social Security Act). Forthis reason, many general practitioners areunaware of the substantial benefit poten-tially available to their clients.
This article seeks to provide you with anopportunity to assist your clients, as wellas to turn legal inquiries into income gen-erating cases. However, it covers generalinformation, does not apply to every situa-tion and is not meant to substitute specificlegal advice from an attorney familiar withthis area of law.
Social Security Disability and YourClient: Did You Know That SSDBenefits Can Exceed $900.00 per Week?
Social Security can be an importantsource of income to your clients whobecome permanently or temporarilyunable to work. Many attorneys who con-tact me, on behalf of their clients seekingSocial Security Disability, are surprised athow substantive SSD benefits can be.When they inquire further, they are aston-ished to learn that benefits will, after aperiod of time, also include full medicalcoverage. When they discover that thesebenefits can be obtained irrespective of networth, are not reduced by any pension,passive or spousal income and are provid-ed with no lien or set-off on legal settle-ments, they really stand up and take notice.
Social Security Disability is an oftenunexplored asset and one that can have a
dramatic impact on the financial securityof your disabled clients, during periodsthey become unable to work. These finan-cial benefits can be interim, during longperiods of convalescence, or permanent,depending upon the nature of your client’sdisability.
What Is a Disability?Disability is a subjective term. Social
Security defines disability solely in thecontext of employment; a person must beunable to engage in substantial gainfulactivity 42 U.S.C. § 423(d)(1)(A). To acareer firefighter, it may simply mean theinability to perform full fire duty... climb-ing a ladder or carrying an injured adult,while clothed in full bunker gear and wear-ing an oxygen tank and self-containedbreathing apparatus. Disability to anoffice worker might be a spinal conditionwhich renders them unable to sit at a deskall day long. To a park worker, disabilitymight mean the inability to stand and walkall day. Disability determinations differdramatically from one individual to thenext and disability eligibility is affected byyour client’s age, education or work expe-rience. See U.S. Department of Labor’sDictionary of Occupational Titles (DOT),Fourth Edition, Revised 1991, a standardvocational reference.
Who Is Eligible?There are several basic predicates for
eligibility.
1. If your client is no longer capable ofworking or has been unable to work fora period lasting (or which they expect tolast) longer then one year; and
2. If your client has (a) worked a minimumof 5 years during the 10 years proceed-ing their disability and (b) paid into theSocial Security System during that peri-od; and
3. If a claimant became unable to workbefore the age of 65.
How do You Protect Your Clients?Eligibility for Social Security disability
benefits are predicated upon a worker’sFICA contributions. There exist compli-cated statutes of limitations which areaffected by your client’s unique earningshistory. Benefits can be obtained retroac-tivity but, a delay in filing, can result in adirect financial loss as well as reducing thelimited time period within which yourclient is required to establish disability. Itis important to insure that there is no delayin filing.
How Does One Apply?An application must be filed directly
with the Social Security Administration.However, great care should be directed atinsuring that the application properly doc-uments physical and/or mental impair-ments and the proper support by treatingspecialists. Improperly filed claims canresult in the loss of retroactive benefits orthe denial of a claim. We do not recom-mend that our clients file directly andbecause most claims are ultimately decid-ed after an administrative hearing heldbefore an ALJ, it is prudent to have anexperienced practitioner assist in thedevelopment of the record, ab initio.Given the immense financial value ofthese benefits and the improved chance ofsuccess, you should carefully consider
advising your client to consult with anattorney, whether or not they ultimatelypursue a claim. Attorney fees are modest,capped and are paid only upon a success-ful result.
How Long Does the ApplicationProcess Last?
While the initial determination takesabout 6 months, claims are often deniedand the process can often take severalyears if it requires a hearing. Thus, it isimportant to begin the process as quicklyas possible, and do so with great care andattention. Poorly handled claims andequivocal medical evidence are likely towaste away valuable time and result in thedenial of your client’s claim. A disabilityattorney assists in determining eligibilitybut, more significantly, he or she can guideyour client on how to establish a medicaldisability within that eligibility period.
Are There Time Limits on When toFile or Limits on the Number ofApplications?
Social Security Disability must be estab-lished within a specific period of time.Your client’s eligibility for benefits maybe directly affected by their employment,disability or retirement. Social Securitydisability eligibility is based upon (FICA)contributions to Social Security made bytheir employer during their employment.These contributions generally cease uponretirement or disability. When your clientstops making contributions to SocialSecurity, a clock starts ticking on the timethey have left to establish disability......Remember, your client’s individual eligi-
BROOKLYN BARRISTER - FEBRUARY 2011 5
Social Security Disability: What Every Attorney Should KnowBy Robert Ungaro, Esq.,
(Continued on page 6)
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terrorist bombing of the World TradeCenter.
In January, 2009, came JudgeLippman’s appointment as Chief Judge ofthe Court of Appeals. He was the firstchief judge who was not already a sittingjudge on the Court.
As chief judge, his plate is full. In addi-tion to hearing cases, Judge Lippman iswhat some narrowly focused people mightcall an activist judge. He is a potent force
in seeking increased funding for legalassistance to the poor, including the 2.3million litigants who appear in the NewYork State courts each year without thebenefit of a lawyer.
As part of next year’s New York Statecourt budget, he has proposed the firstinstallment of what is to be a phased-in$100 million increase in state financing forlawyers who represent indigent civilclients in such matters as eviction, child
support, access to healthcare, foreclosure,and public benefit cases. That is a fiftypercent increase over this year. Themoney will be phased in over four years.
When asked why we need it, JudgeLippman is quick to respond: “We areonly serving twenty percent of indigentpeople’s civil legal needs. The court andthe profession have a duty to foster equaljustice. It is the ethical thing to do. It is noless important than hospitals and schools.‘Justice, justice shall you pursue,’” hequotes from the Old Testament.
“In my opinion, the spirit of Gideon v.Wainwright should not be limited to crim-inal cases. It applies to all necessities oflife, the right to have a roof over yourhead, the right to earn a living. My defini-tion of indigence includes the workingpoor, the many working people who liveclose to the poverty level.
“There is also an economic benefit to thestate in reduced court calendar backlogs,reduced incarcerations, less homelessness,more jobs, more federal money coming toNew York to help pay for these cases.Everyone’s bottom line is affected by peo-ple who appear time after time in ourcourts without a lawyer. Reliable studiesshow that New York receives about a five-to-one benefit on money we spend on indi-gent civil representation; for every dollarwe spend on representing poor people, weget back five dollars in reduced costs.”
While a first, albeit giant step, JudgeLippman explains that what we really needis stable, permanent funding for indigentcivil representation. “What we have doneis create an oversight board consisting ofthe Chief Administrative Judge; the headof the Task Force to Expand Access toLegal Services, Helaine Barnett; andBenito Romano, the Chief of the Board ofTrustees of the Interest on LawyerAccount Fund, which will determine howthe money will be spent.”
How about mandatory pro bono service?“I don’t believe in it,” says the Judge.“The bar already contributes over two mil-lion hours a year for free, particularly inthe civil arena. Mandatory pro bono serv-ice will not happen on my watch.”
Judicial pay is also on Judge Lippman’slist of things to do. On December 10,Governor David Paterson signed legisla-tion that requires the establishment everyfour years of a seven-member commissionto evaluate and make recommendationsabout the adequacy of the judges’ pay and
non-salary benefits. Each panel’s recom-mendations will go into effect automati-cally unless the Legislature and governorenact a statute to modify or reject the find-ings. The first raises would be paid in thefiscal year beginning April 1, 2012. Thenew law is, at least in part, the outcome ofthree lawsuits heard by the Court ofAppeals regarding judicial pay, one ofwhich Judge Lippman was the plaintiff inMaron v. Silver et al, 14 NY3d 230(2010).
“Although nothing in the law mandatesthat judges receive a raise, the odds aregreat that the commission will approve acatch-up raise followed by cost-of-livingadjustments in each of the next three years,at the very least,” says Judge Lippman.“This delinks us from the other branchesof government as far as pay goes. It’s anoptimal solution. New York will be onlythe third state in the country to have aforce-of-law commission to set judicialpay.”
Speaking of money, Judge Lippmanbelieves the court system is sound and fis-cally responsible.
“I understand that this is a difficult yearfiscally,” he says. “We have no big capitalprojects planned. But there is ever-grow-ing demand on the New York court sys-tem. We have increasing needs in the areaof family law, which is the area of greatestgrowth, as are our problem-solving courtslike our drug treatment and domestic vio-lence parts. Demand on our courts hasalso greatly increased because of the num-ber of foreclosure actions pending.” JudgeLippman is seeking $2.7 billion for thecourts for the upcoming fiscal year, ofwhich about $16 million will go to theCourt of Appeals.
“In terms of other priorities going for-ward, I would like to increase the use ofarbitration by our courts. And KingsCounty Administrative Judge BarryKamins and Manhattan District AttorneyCyrus Vance, Jr., are in charge of thePermanent Sentencing Commission forNew York State; our sentencing laws are amess and need to be reformed and mod-ernized. We have created an indigentdefense board that will address the imbal-ance of services to defendants. That’s justa sample. We have a lot going on.”
And if he did not have all this going on,what would Chief Judge Lippman haveliked to have done? “Shortstop for theYankees,” he smiles. “What else?”
Interview with Judge Lippman (Continued from page 1)
bility for Social Security disability bene-fits is based upon their personal earningshistory, contributions and retirement dateand is unique. For this reason, you cannotrely on any general rule, time limit or dateto determine eligibility.
How Long Do Benefits Last?Benefits can be interim or can last your
client’s lifetime (if your client remainsdisabled). Benefits are not reduced whenyour client reaches retirement age andshould your client’s condition improveand they become able to return to work,there is no requirement that monies bepaid back.
How much are the attorney fees?Attorney fees are generally the lesser of
25% of past due benefits or $6,000.00;they are contingent upon success, capped
by law, and must be approved by theSocial Security Administration. Giventhe immense benefits, it makes financialsense to have an attorney on board asquickly as possible to help you preparethe application and continue to present apersuasive case.
Robert A. Ungaro is a founding partnerof Ungaro & Cifuni, Attorneys atLaw,LLP, a general disability practicewhich also serves as disability counsel toboth the New York City Police DepartmentCaptains Endowment Association and theNew York City Police DepartmentLieutenants Benevolent Association. Hehas successfully represented thousands ofdisabled clients seeking financial andmedical benefits. He can be contacteddirectly at (212) 766-5800. Their Websiteis http://nycdisabilitylaw.com
Social Security Disability (Continued from page 5)
receive just and reasonable compensationfor such legal services, in addition to theexecutor’s statutory commissions. On thesame day that she executed the will, thetestator signed an acknowledgment of var-ious disclosures substantially complyingwith the three requirements of the statute.In addition to setting forth the disclosurerequirements, SCPA §2307-a contains a‘model’ form. The ‘model’ in effect at thetime of the execution of the will containedan additional fourth item of disclosure tothe effect that absent execution of a disclo-sure acknowledgment, an attorney whoserved as an executor would be entitled toone-half the commissions he would other-wise be entitled to receive. When thestatute was amended to add this fourthitem of disclosure to the model, it was notadded to the list of three items required tobe disclosed in the substantive provisionsof the statute. The disclosure acknowl-edgement signed by the testator did notcontain the additional language. In hisaccounting the executor proposed paymentof a full commission. No interested partyobjected to the proposed accounting.HOLDING- The Court allowed full com-missions. As a threshold matter, the Courtstated that although there were no objec-tions filed to the accounting providing forfull commissions, it was required to deter-mine whether there was compliance withthe disclosure requirements in SCPA§2307-a. The Court noted that at the timethe will was executed, the statute mandat-ed only that the testator shall be informedof the three provisions set forth in thestatute. In the Court’s view, the word
“shall” clearly was a mandate and allowedno variation, and that without the disclo-sure of all three, the disclosure was inef-fective. Additionally, the Court stated, thestatute required written acknowledgmentof the disclosure only of the three items inthe statute, not of the disclosures set forthin the statutory ‘model.’ The Court con-trasted the mandatory nature of the disclo-sure of the three items, with the provisionin the statute that a statement which sub-stantially conformed to the model “shallbe deemed” compliance. In the Court’sview, such language did not require thatcompliance with the model was required,only that if the model language was used,then it must find compliance with thestatute and allow full commissions.According to the Court, the word“deemed” connoted that using the modelmerely was an alternative which wouldsuffice. The Court opined that had the leg-islature intended the fourth item of disclo-sure to be mandatory, it would haveincluded the same among the required dis-closures, or alternatively, that the statutecould have mandated that substantial com-pliance with the model was required, thatdisclosure must substantially conform tothe model, or that the required writtenacknowledgment of the disclosure be inthe form of the “model.’ The Court foundthat as used in the statute, the word“deemed” meant that the legislature con-sidered a notice which conformed to the‘model’ to be in compliance, but not thatuse of the ‘model’ was required for com-pliance. The Court concluded that at thetime the Will was executed, SCPA §2307-
a only required written acknowledgmentof three items of disclosure, all of whichhad been provided to the testator, and thatthe fourth item of disclosure was not man-dated until the statute was amendedapproximately two years after the Will hadbeen executed. Consequently, the Courtheld that the attorney-executor was enti-tled to full commissions as proposed in theaccounting. Matter of Riley, 29 Misc.3d1059 (Surr. Ct., Oneida Co., Surr.Gigliotti, 9/17/10)
Fee Determination by the Civil Courtof the City of New York Reversed-Plaintiff, an attorney, was retained bydefendant to perform certain legal work in
a proceeding in Surrogate’s Court, NewYork County. During plaintiff’s finalappearance on the matter, the Surrogate,on the record, directed plaintiff to make anapplication to the Surrogate if plaintiffwished to recover any additional legal feesfrom defendant for work plaintiff per-formed on the Surrogate’s Court matter.Rather than comply with this directive, orseek to appeal from or move to vacate it,plaintiff commenced an action in CivilCourt to recover legal fees for work heperformed in the Surrogate’s Court matter.Defendant notified Civil Court of theSurrogate’s directive that plaintiff makeany application for additional legal fees to
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Surrogate’s Court, but Civil Court never-theless adjudicated plaintiff’s claims, find-ing that defendant was liable for certainlegal fees. The defendant appealed.HOLDING- The Civil Court was reversedand the complaint was dismissed withoutprejudice. The Appellate Term stated thatthe Surrogate has jurisdiction to fix anddetermine the amount of attorneys’ feesfor services rendered in a Surrogate’sCourt matter to a devisee, legatee, distrib-utee or any person interested in the admin-istration of an estate. The Court noted thatthe Surrogate had acted pursuant to thatauthority. In light of both the undisturbedSurrogate’s Court directive and its viewthat the Surrogate would be in the bestposition to determine the amount of com-pensation to which an attorney is entitledfor work performed in Surrogate’s Court,the Court held that the order on appealcould not stand. The Court also was criti-cal of plaintiff’s course of action in that toallow the decision to stand would encour-age forum shopping and obstruct theorderly administration of justice.Consequently, the Court reversed and dis-missed the complaint without prejudice tobring an application before the Surrogate’sCourt for the legal fees sought. Hirschfeldv. De La Cruz, 29 Misc.3d 23 (Sup. Ct.,App. Term, 1st Dept., 2010)
Executor’s Attempt to CauseForfeiture of the Fees of His AttorneyBecause the Attorney Had Continued toRepresent the Executor Even AfterMoving Out of State And no LongerMaintaining an Office in New YorkRejected- The fiduciary sought to reject aclaim for attorney’s fees and to recoverfees already paid, based on the attorney’salleged violation of Judiciary Law §470.That statute requires that a person, regular-ly admitted to practice as an attorney andcounselor, in the courts of record of thisstate, whose office for the transaction oflaw business is within the state, may prac-tice as such attorney or counselor,although he resides in an adjoining state.At the time that the attorney began repre-senting the petitioner and entered into aretainer agreement with him, the attorneywas employed by a firm in Albany, NewYork. The attorney subsequently relocatedhis residence to Michigan. Despite hisknowledge that the attorney had separatedfrom the Albany firm, had relocated toMichigan, and was working for a differentlaw firm located in Michigan, petitionerrequested that the attorney continue to rep-resent him. The attorney agreed, and con-tinued to represent the petitioner over thenext four years. The petitioner alleged thatthe attorney engaged in the unauthorizedpractice of law in New York State after herelocated to Michigan, and failed to main-tain a law office in New York while con-tinuing to represent the petitioner, in viola-tion of Judiciary Law §470. Petitionerclaimed that the alleged violation ofJudiciary Law §470 rendered his retaineragreement with the attorney illegal andvoid ab initio as against public policy,resulting in a forfeiture of all legal feesbilled to the petitioner for services per-formed after his relocation to Michigan.The attorney argued, inter alia that a strictinterpretation and application of the statuteto this type of case would be unprecedent-ed, and that petitioner’s demand that therespondent be ordered to forfeit all of itslegal fees would be unwarranted andwould only serve to unjustly enrich thepetitioner. The attorney further argued that
the petitioner, who had demanded that theattorney continue to represent him despitehaving moved out of state, had essentiallywaived or opted out of the requirements ofthe statute. The attorney also claimed thatthe petitioner was equitably estopped fromseeking a refund of the legal fees that hevoluntarily paid to the respondent morethan three years prior for legal servicesactually performed to the petitioner’s sat-isfaction. HOLDING- While concludingthat Judiciary Law §470 did apply to thecase and was violated, the Court rejectedthe fiduciary’s position that the statuterequired the forfeiture of the attorney’sfees. The Court disagreed with the attor-ney’s position that Judiciary Law §470only applied where the out-of-state attor-ney did not have a New York presence atthe time the lawsuit was commenced norever had a New York presence, not wherea New York attorney commenced anaction, then moved out of state during thependency of the action but continued toappear in the New York action at therequest of the client and without opposi-tion from any interested party. The Courtfound that neither the statute nor theCourts in applying Judiciary Law §470,draw a distinction between an attorney’slack of presence in New York at the com-mencement of a lawsuit and a lack of pres-ence in New York occurring at some pointafter the commencement but before reso-lution of the lawsuit, which the Court char-acterized as a distinction without a differ-ence, which did not matter in applying theunambiguous language of Judiciary Law§470. The Court held that the statuteapplied regardless of what stage or whenthe offending attorney’s presence evapo-rated from the jurisdiction. This court alsowas unpersuaded by the attorney’s argu-ment that the petitioner opted out of therequirements of Judiciary Law §470, find-ing that there is no caveat written into thestatute allowing for such a waiver.Accordingly, the court determined that therequirements of Judiciary Law §470applied to the attorney. The Court alsorejected the attorney’s constitutional chal-lenge to Judiciary Law §470, and held thatthe attorney had failed to maintain a suffi-cient connection with his old Albany firmto satisfy the statute. Accordingly, theCourt found that the attorney had fallenout of strict compliance with the require-ments of Judiciary Law §470 after he relo-cated to Michigan, thereby violating thestatute. However, the Court ruled that theviolation did not render the parties’ retain-er agreement a nullity as alleged by thepetitioner, and that the fiduciary would bebound unless he could demonstrate that hesuffered prejudice as a result of being rep-resented by an unauthorized attorney. TheCourt noted that there was no indicationthat the petitioner suffered any prejudiceas a direct result of the attorney moving toMichigan and failing to maintain a lawoffice in New York, and that in fact duringoral argument, the petitioner admitted thathe had benefitted from the attorney‘s rep-resentation, and that he was satisfied withthe quality of his services. The Courtpointed out that the fiduciary could notidentify how he was damaged by the attor-ney‘s relocation, other than speculatingthat maybe his move could have cost himmoney that he would have otherwise savedhad he used the services of the originalAlbany firm instead of the attorney. TheCourt ruled that without a showing of prej-udice, petitioner remained bound by theretainer agreement and the legal services
provided thereunder. Furthermore, theCourt held that the petitioner is not entitledto a forfeiture of its fees due to a violationof Judiciary Law §470 because the viola-tion of a statute that is merely malum pro-hibitum will not necessarily render a con-tract illegal and unenforceable In theCourt’s view, if a statute does not provideexpressly that its violation will deprive theparties of their right to sue on the contract,and the denial of relief is wholly out ofproportion to the requirements of publicpolicy the right to recover will not bedenied. The Court noted that fee forfei-tures are disfavored and such forfeituresmay be particularly inappropriate wherethere are other regulatory sanctions fornoncompliance. Additionally, the Courtstated it was skeptical of an effort by aclient to use public policy as a sword forpersonal gain rather than a shield for thepublic good. The Court found thatJudiciary Law §470 is a regulatory statutethat does not expressly provide for a feeforfeiture in the event of its violation. TheCourt opined that the statute is not punitiveor remedial on its face, and the existenceof other possible disciplinary sanctions fornoncompliance militated against imposinga civil forfeiture by nullifying a bargained-for contractual obligation. The Court stat-ed it would not countenance petitioner’sattempt to use the respondent’s violationof Judiciary Law §470 as a sword for per-sonal gain. The Court ruled further that toimpose the drastic remedy of a completeforfeiture of fees for legal services that thepetitioner accepted and had admitted wereperformed to his satisfaction, all becausethe attorney technically violated a regula-tory statute under circumstances that thepetitioner knew about and consented to, isnot what the Legislature intended, wasunwarranted, and would, as argued by theattorney, result in the petitioner beingunjustly enriched. Despite finding thatthere was no forfeiture of the attorney’sfees by reason of the violation of JudiciaryLaw §470, the Court still found unavailingthe attorney’s invocation of the doctrinesof account stated, voluntary payment andequitable estoppel to determine his fee.While acknowledging that these principlesmight be dispositive in an ordinary fee col-lection action, the Court held that theywere not applicable to a determination bya Surrogate of the attorneys’ fees in anestate proceeding. The Court stated thatthe Surrogate has the inherent power tosupervise the fees attorneys charge forlegal services, and has the authority toinquire into the reasonableness of coun-sel’s fee even though agreed upon by theexecutor and assented to by the beneficiar-ies. The Court noted that even if the attor-ney could establish that an account hadbeen stated to the fiduciary, and that thefiduciary voluntarily paid the preponder-ance of the fees billed without protest, theCourt still had the broad discretion todetermine the fair and reasonable value ofthe legal services performed. Since theCourt did not have enough information toapply the factors that go into the determi-nation of an attorney’s fee, it reserveddecision to the final accounting proceed-ing, wherein it would determine the fairand reasonable fee due and owing to theattorney for the legal services he had per-formed, and decide from what source thefee would be paid. Matter of Garrasi, 29Misc.3d 822 (Surr. Ct., Schenectady Co.,Surr. Versaci, 9/8/10)
Delivery of Original Deed and
Insurance Papers not Sufficient toSatisfy Requirements For a Valid Gift-The decedent owned the property in whichshe resided. She lived in an apartment onthe second floor and rented out the firstfloor apartment. The administrator listedthe property for sale at a public auction.The administrator also brought an action inHousing Court to evict the first floor ten-ant. The tenant brought a proceeding inSurrogate’s Court pursuant to Article 19 ofthe SCPA to determine his right to theproperty. He also sought to stay theHousing Court eviction proceeding. Heclaimed that the decedent had given himthe property. The Petitioner alleged thatsoon after he began living in the apart-ment, the decedent’s health deterioratedand that he provided assistance to thedecedent in her household chores, such ascooking and cleaning. He alleged that thedecedent refused to accept any rental pay-ments from him. The petitioner claimedthat the decedent told him that she had noclose relatives and offered to give him herhouse. The petitioner said that he original-ly refused, allegedly because he felt that heshould give her some consideration for theproperty and the decedent refused toaccept any consideration. The petitioneralleged that the decedent gave him thedeed to the house, stating “here is the deedfor my home. This home is a gift from meto you. You can do with it as you wish.”He alleged that along with the deed thedecedent gave him the insurance papersfor the property and the original contractof from when the property was purchased.He alleged that the decedent requested thatshe continue to live in the property untilher death, to which petitioner agreed. Thepetitioner alleged that since that time hehad made all decisions concerning theproperty. Petitioner presented an Affidavitfrom a neighbor which stated that he had anumber of conversations with the decedentin which she expressed her desire to givepetitioner the property, and recited a con-versation in which the decedent told himthat she had given the petitioner her home.Petitioner asked that he be declared theowner of the real property and that theadministrator transfer title to the propertyto him. The administrator filed an answer,denying that the decedent had made acompleted gift of the property to the peti-tioner and asked that the petition be dis-missed. The administrator attached as anexhibit a verified claim against the estatefiled by the petitioner, wherein he statedthat he was entitled to be paid for his serv-ices to the decedent based upon his allega-tion that the decedent intended to compen-sate him for his services out of her estatesince she could not pay him at the time.The claim affidavit also stated that prior tothe decedent’s death, the decedentappointed him as her agent and custodianof the property, and that his services in thisregard were part of the claim.Significantly, the petitioner stated in theaffidavit that the decedent had offered togive him the property and that he hadrefused to accept her gift. Petitioner soughta preliminary injunction. HOLDING- Therequest for a preliminary injunction wasdenied. The Court stated that in order toestablish a right to a preliminary injunc-tion, the petitioner must establish, amongother things, a probability of success onthe merits, to wit: that there had been acompleted gift. The Court opined that toestablish a completed gift, the petitionerwould have to show that: (1) the intention
State Of Estates (Continued from page 7)
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BROOKLYN BARRISTER - FEBRUARY 2011 9
to make an irrevocable present transfer ofownership, (2) delivery and (3) accept-ance. The Court noted that the burden is onthe alleged donee to prove all of the ele-ments of a gift by clear and convincingevidence, adding that he who attempts toestablish title to property through a giftinter vivos as against the estate of a dece-dent takes upon himself a heavy burdenwhich he must support by evidence ofgreat probative force, which clearly estab-lishes every element of a valid gift. TheCourt opined that this requires direct proofof each element of the gift. Whileacknowledging that the petitioner had pre-sented proof of the decedent’s intention tomake a gift by way of his testimony andthat of the neighbor, the Court pointed outthat the affidavits failed to establish thatthe gift was ever completed. The Courtstated that where real property is involved,a valid transfer of an interest in real prop-erty requires the delivery a deed or otherwriting, acknowledged by the transferor.The Court held that without such a writtenevidence of transfer, the transfer is incom-plete. The Court rejected petitioner’s claimthat his ownership was confirmed bydelivery of the original deed conveying theproperty to the decedent and her insurancepapers, finding that delivery of those doc-uments did not establish a completed giftand were consistent with his stated role asthe decedent’s agent in managing the prop-erty. The Court also found that the peti-tioner had failed to establish that he hadaccepted the alleged gift, pointing to thefact that his position in the proceeding wasin conflict with his submission in supportof his claim against the estate for services.The Court held that the failure to establisha likelihood of success on the merits con-cerning the alleged inter vivos gift wasfatal to petitioner’s claim for injunctiverelief, and consequently denied the motionfor a preliminary injunction. Matter ofGoldberg, N.Y.L.J. 12/27/10 (Surr. Ct.,Kings Co., Surr. Johnson)
Cost of the Examination of a SecondAttesting Witness Who Resides out ofState to be Borne by the Party Seekingthe Examination- In a probate proceeding,the proponent, a daughter of the decedentwho was the sole beneficiary and nominat-ed executrix moved for an order dispensingwith the SCPA §1404 testimony of a wit-ness who resided in Florida. The dece-dent’s distributees were the proponent andtwo other daughters, one of whom wasunder a disability. Both the non disableddaughter (Barbara) and the guardian adlitem for the daughter under a disabilityopposed the motion. Barbara also settled anorder directing that the deposition be takenby video conference in Florida and that theproponent pay for the deposition. The pro-ponent’s counsel, who was the attorney-drafter of the instrument and one of the twoattesting witnesses, was deposed pursuantto SCPA §1404. The only other witness tothe will, a former employee of the propo-nent’s counsel, resided in Florida.Although for reasons unknown to the pro-ponent’s counsel, the witness refused tocooperate with him. However, the witnesstold an investigator hired by the proponentthat she would consent to being deposed inFlorida via a video conference. The propo-nent argued that because one witness wasalready deposed and the other witnesssigned a self-proving affidavit, there was
sufficient evidence to admit the will to pro-bate and, therefore, a commission wasunnecessary. Nonetheless, the proponentasserted that a commission would beacceptable provided that Barbara arrangedthe deposition and paid all costs. The pro-ponent contended that the estate had amodest value and that it would be a hard-ship for the estate to pay for the depositionbecause the only estate asset was a parcelof real property. The proponent alsorequested that the branch of her motionseeking to dispense with the witness’ testi-mony be granted in the event that the dep-osition was not conducted within 90 daysof the order directing the commission.Barbara asserted that the testimony of thesecond witness was important to clarifyissues surrounding the execution of thewill. She further argued that the real prop-erty could be sold to pay for the deposition.HOLDING- The Court ruled that as thetestimony of the Florida witness could beobtained with reasonable diligence, SCPA§1405(2) mandated that Barbara’s requestto require the testimony of this witness bycommission be granted. As to the cost, theCourt pointed to SCPA §1404(5)(a)whichprovides that unless the court directs other-wise for good cause shown the testator’sestate shall pay the cost of the examinationof (1) the first two attesting witnesses with-in the state or (2) if there is no competentwitness within the state, the witness with-out the state who resides closest to thecounty in which the probate proceedingsare pending, and that the costs of all otherexaminations shall be governed by article31 of the civil practice law and rules. TheCourt stated that inasmuch as the propo-nent had produced one competent witnesswho resided in the state, the cost of theexamination of the Florida witness, in theabsence of good cause shown, would begoverned by CPLR §3116(d), which pro-vides that the party taking the depositionshall bear the expense thereof. The Courtconcluded that since the proponent paid aprivate investigator to attempt to have thesecond witness testify, it did not appearthat the proponent’s counsel was in anyway involved in the inability to obtain thetestimony of the second witness.Additionally, the Court found that Barbarahad failed to present good cause to deviatefrom the rule that the party seeking the dep-osition pays for it. The Court added that inthe event that Barbara found it more eco-nomical to conduct the deposition by videoconference than to travel to Florida, theredid not appear to be any reason why thatrequest should not be granted.Accordingly, the Court denied the motionto dispense with the testimony of theFlorida witness, and directed Barbara topay for the cost and to arrange to take thetestimony of the Florida witness. The Courtruled that Barbara had the option of eitherconducting the deposition by video confer-ence or in person in Florida. The courtnoted that unless otherwise stipulated to bythe parties, the officer administering theoath must be physically present at the placeof the deposition pursuant to CPLR§3113(d). The Court also ruled that ifBarbara failed to arrange for the depositionwithin 90 days of the date of the decisionand order, the proponent could renew hermotion to dispense with the testimony ofthe Florida attesting witness. Matter ofSmith, 29 Misc.3d 832 (Surr. Ct., BronxCo., Surr. Holzman, 9/20/10)
The Equitable Estoppel DoctrineApplied in Opposition to a Statute ofLimitations Defense in a ConstructiveTrust Case- In an action, inter alia, toimpose a constructive trust on certain realproperty, the Supreme Court denied thatbranch of defendants’ motion which wasfor summary judgment dismissing thecomplaint on statute of limitationsgrounds. The defendants established thatthe limitations period expired severalyears prior to plaintiff’s commencement ofthe action. The plaintiff asserted thatdefendants should be equitably estoppedfrom invoking the statute of limitationsdefense. The plaintiff asserted that shetransferred her one-fifteenth interest in thesubject property to the defendants inreliance on a promise to transfer a one-halfinterest in the property back to her, that adefendant affirmatively had misrepresent-ed that she had fulfilled such promise, andthat for more than 12 years, the defendantsaccepted monthly payments from theplaintiff equal to approximately one half ofthe mortgage obligation. Defendants’motion was denied and they appealed.HOLDING- The Supreme Court wasaffirmed. The Appellate Division statedthat under the doctrine of equitable estop-pel, a defendant may be precluded frominvoking a statute of limitations defensewhere it is the defendant’s affirmativewrongdoing which produced the longdelay between the accrual of the cause ofaction and the institution of the legal pro-ceeding. In the Court’s view, the plaintiffraised a triable issue of fact as to whetherher delay in the commencement of theaction was the result of the defendants’alleged misconduct. Accordingly, theCourt found that the Supreme Court hadproperly denied that branch of the defen-dants’ motion which was for summaryjudgment dismissing the complaint on theground that it was time-barred. Tampa v.Delacruz, 77 A.D.3d 910 (2d Dept., 2010)
An SCPA Article 17-A GuardianshipTransferred to Florida Upon theIncapacity of the Guardian and theAppointment of a Fiduciary for Her inThat State- The co-guardians of the per-son and property appointed by a CircuitCourt in Florida applied to the Surrogate’sCourt in New York to transfer a SCPA 17-A guardianship to that court, revoke the let-ters of guardianship of the person and prop-erty that had issued in the New York Courtto the ward’s mother, and to discharge themother without the filing of an account.The ward and his mother had resided inFlorida since 1985. The mother was 89years old and lived in the same adult homeas her son. The mother had been judiciallydetermined to be incapacitated. There hadbeen no withdrawals from the guardianshipaccounts held in New York for many yearsand the ward’s funds were intact. TheFlorida Court had appointed the petitionersas co-guardians of the person and propertyof the son and directed them to place theson’s property in a restricted account in afinancial institution designated by Floridastatutes. The Florida Court also hadappointed the petitioners as co-guardiansof the person and property of the ward’smother, and authorized them to accepttransfer of all guardianship assets to theFlorida guardianship. HOLDING- TheCourt granted the relief requested. While
acknowledging that there was no statutoryor other authority to support the applica-tion, and that no transfer provision appearsin SCPA article 17-A, the Court opinedthat in an analogous situation, New Yorkcourts have authorized the transfer of thesitus of a trust to facilitate its administra-tion. The Court found that the transfer ofthe funds to Florida, under the supervisionof its judiciary in the jurisdiction where theward and his guardians were located,would be in his best interests and wouldpromote his welfare. Accordingly, theCourt granted the transfer application andthe letters of guardianship of the personand property that had issued to the ward’smother were revoked. The Court noted thatalthough it could not relieve the mother ofliability for her acts as guardian withoutjudicial settlement of her account, theCourt stated it would not order her toaccount in the absence of a request thereforby an interested party. Matter of MurrayG., 2010 N.Y.Slip Op. 51755 (Surr. Ct.,Bronx Co. Surr. Holzman, 10/13/10)
Brief briefs: Although under SCPA2225, if it appears to the satisfaction of thecourt that diligent and exhaustive effortshave been made from all available sourcesto ascertain the existence of distributees,or members of a class of devisees, legateesor beneficiaries, that at least three yearshave elapsed since the death of the dece-dent, or since the occurrence of the speci-fied event upon which such class is finallydetermined, as the case may be, that theparties before the court know of no distrib-utees of the decedent, or of such legatees,devisees or beneficiaries, other than thosestated in the record, and that no claim to ashare in the estate or trust has been madeby any person whose relationship or exis-tence has not been established in therecord, the Court may make a determina-tion that no distributee of the decedent orclass of distributees exists, or that no suchdevisee, legatee or beneficiary, or mem-bers of a class of legatees, devisees or ben-eficiaries exists, other than those whosestatus is established in the record beforethe Court, the Court ruled that the claimantwas not entitled to rely on SCPA 2225with respect to the paternal side of thedecedent’s family tree, because the statuterequires that diligent and exhaustiveefforts be made from all available sourcesto locate all heirs. The Court stated that ata minimum, a reasonable effort to garnerinformation is necessary to satisfy theproof required by the statute and the sizeof the estate is a factor to be considered indetermining the reasonableness of theeffort. Matter of Perry, 2009 N.Y. SlipOp. 52781 (Surr. Ct., Erie Co., Surr.Howe, 6/30/09)
Twins conceived after the death of theirfather via artificial insemination of frozensperm were entitled to surviving children’sinsurance benefits under the SocialSecurity Act. Capato v. Commissioner ofSocial Security, 2011 US App Lexis 19(Ct. of Appeals, 3d Cir., 1/4/11)
Compiled by Hon. Bruce M. Balter,Justice of the Supreme Court, State ofNew York, and Chair, Brooklyn BarAssociation, Surrogate’s CourtCommittee, and Paul S. Forster, Esq.,Chair, Brooklyn Bar Association,Decedent’s Estates Section.
State Of Estates (Continued from page 8)
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BROOKLYN BARRISTER - FEBRUARY 2011 11
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