Hon. Theodore T. Jones, Associate Judge of the Courtof Appeals, administered the oath of office to Andrea E.Bonina, Esq. on June 7th, 2010 in Brooklyn BoroughHall, officially installing her as the 95th President of theBrooklyn Bar Association.
Immediate Past President John Lonuzzi served as themaster of ceremonies and, in addition to Judge Jones, thespeakers included Kings County Administrative Judge-Civil Term, Hon. Sylvia Hinds-Radix, Brooklyn BarAssociation Past Presidents Hon. Barry Kamins,Lawrence F. DiGiovanna and RoseAnn C. Branda,Volunteer Lawyers Project Executive Director JeannieCostello, as well as Father Timothy Tighe of St. SaviourChurch, who delivered the Invocation.
Judge Jones also administered the oath of office to
newly elected Class of 2013 trustees David M. Chidekel,Armenia D. Gayle, Steven J. Harkavy, Anthony J.Lamberti, Carl J. Landicino, Hemalee J. Patel and IsaacN. Tuchman. He then swore in the new officers: Ethan B.Gerber, President-Elect; Domenick Napoletano, FirstVice President; Andrew M. Fallek, Second VicePresident; Rebecca Woodland, Secretary; and ArthurAidala, Treasurer.
Jason Otano, counsel to Brooklyn Borough PresidentMarty Markowitz, delivered a Proclamation on behalf ofthe Borough President and Hon. Barry Kamins,Administrative Judge-Criminal Term, introduced themany judges, bar presidents and other dignitaries in atten-dance. Past presidents Lawrence DiGiovanna and
VOL. 62 NO.10
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
Under a brilliant blue sky in the elegant PalmHouse of the Brooklyn Botanic Garden, morethan 200 guests gathered on June 15th to cele-brate the 20th Anniversary of the Brooklyn BarAssociation Volunteer Lawyers Project, whichhonored Chief Judge Judith S. Kaye (Ret.) withthe organization’s 2010 Building BridgesLeadership Award for “exceptional commitmentto the public good and justice for all.”
“I want to thank each and every one of you for
the honor you bestow on me, but overwhelming-ly for the honor you bestow on our legal profes-sion through the Volunteer Lawyers Project,”Judge Kaye told the crowd of volunteer lawyersand supporters at the June 15, 2010 event.
“I could not thank you more for all the thingsyou have done,” Judge Kaye continued. “I havestudied the statistics and reviewed your work andthe brilliance and the genius of your comprehen-
Brooklyn Bar Association Volunteer LawyersProject Honors Chief Judge Judith S. Kaye
(Ret.) at 20th Anniversary Event
(Continued on page 9)
(Continued on page 9)
Andrea E. Bonina Installed As Association’s 95th President
Executive Board – Ethan B. Gerber, President-Elect; AndrewM. Fallek, Second Vice- President; Andrea E. Bonina,President; Arthur L. Aidala, Treasurer; DomenickNapoletano and First Vice-President; Rebecca Woodland,Secretary.
President Andrea E. Bonina being congratulated by Court ofAppeals Judge Theodore T. Jones, Jr.
Trustees Class of 2013 taking oath of office – Isaac Tuchman,Hemalee J. Patel, David Chidekel, Armena Gayle, StevenHarkavy and Carl Landicino.
This will be my last issue as Editor-in-Chief ofthe Barrister. It’s been a fun ride but I toldPresident Bonina that it would be a good time tohand the reigns over to someone new. One of theduties of the Editor-in-Chief is to convince peopleto write articles. In the beginning, you reach out to
friends and acquaintances. When they start duck-ing your phone calls, you rely, to borrow a phrasefrom Tennessee Williams, on the “kindness ofstrangers.” Unfortunately, the strangers are often“stranger” than one might imagine. Some havescores to settle or want to tell a “funny” (readoffensive) story. Others are simply unreadable. I
In ConclusionBy Andrew M. Fallek, Esq.
(Continued on page 9)
HOLD THE DATEWEDNESDAY, AUGUST 18, 2010
BROOKLYN BAR ASSOCIATION SECOND ANNUAL
STATEN ISLAND VS. BROOKLYN CYCLONES
HOME GAME AT MCU PARK
WATCH FOR EMAIL ANNOUNCEMENTWITH DETAILS
BROOKLYN BARRISTER - JULY 20102
July 20, 2010 Tuesday BBA Volunteer Lawyers Project Meeting 4:00 P.M.Board of Trustees Room
August 18, 2010 Wednesday Brooklyn Bar Association outing S. I. Yankees v. Brooklyn Cyclones MCU Park (Coney Island)
September 6, 2010 Monday In observance of Labor Day the Brooklyn Bar Association, the Foundation Reading Room, the Lawyer Referral Service and the Brooklyn Bar Association Volunteer Lawyers Project will be closed
September 14, 2010 Monday CLE Program – Bankruptcy Part 1 6:00 P.M. Association Meeting Hall
September 15, 2010 Wednesday Board of Trustees Meeting 5:15 P.M. and Board of DirectorsMeeting 5:30 P.M. Board of Trustees Room
September 16, 2010 Thursday BBA Volunteer Lawyers Project Board Meeting 5:30 P.M. Board of Trustees Room
September 21, 2010 Tuesday CLE Program – Bankruptcy Part 2 6:00 P.M. Association Meeting Hall
September 28, 2010 Tuesday CLE Program – Bankruptcy Part 3 6:00 P.M. Association Meeting Hall
October 11, 2010 Wednesday In observance of Columbus Day the Brooklyn Bar Association, the Foundation Reading Room, the Lawyer Referral Service and the Brooklyn Bar Association Volunteer Lawyers Project will be closed
October 13, 2010 Wednesday Board of Trustees Meeting 5:15 P.M. and the Board of Directors Meeting, 5:30 P.M. Board of Trustees Room
October 26, 2010 Tuesday Forum for Tenants & Homeowners on foreclosures 3:00 P.M.-5:00 P.M. Association Meeting Hall
October 27, 2010 Wednesday Forum for Tenants & Homeowners on foreclosures 3:00 P.M.- 5:00 P.M. Association Meeting Hall
November 10, 2010 Wednesday Board of Trustees Meeting 5:15 P.M. and the Board of Directors Meeting, 5:30 P.M. Board of Trustees Room
November 11, 2010 Thursday In observance of Veterans’ Day the Brooklyn Bar Association, the Foundation Reading Room, the Lawyer Referral Service and the Brooklyn Bar Association Volunteer Lawyers Project will be closed
November 25, 2010 Thursday In observance of Thanksgiving the Brooklyn Bar Association, the Foundation Reading Room, the Lawyer
& & Referral Service and the Brooklyn Bar Association November 26, 2010 Friday Volunteer Lawyers Project will be closed
December 6, 2010 Monday Brooklyn Bar Association Foundation, Inc., will hold its Annual Dinner at the NY Marriott at the Brooklyn Bridge Hotel 6:00 P.M. Reception Hour and 7:30 P.M. Dinner
December 8, 2010 Wednesday Board of Trustees Meeting 5:15 P.M. and the Board of Directors Meeting 5:30 P.M. Board of Trustees Room
December 10, 2010 Friday CLE program – 2010 Annual: Update: Precedent & Statues for Personal Injury Litigants Brooklyn Bar Association andAcademy of Trial Lawyers 9:00 A.M. to 5:00 P.M. Auditorium
December 24, 2010 Friday In observance of the Christmas Holiday the Brooklyn BarAssociation, the Foundation Reading Room, the Lawyer Referral Service and the Brooklyn Bar Association Volunteer Lawyers Project will be closed
December 31, 2010 Friday In observance of the New Year the Brooklyn Bar Association, the Foundation Reading Room, the Lawyer Referral Service and the Brooklyn Bar Association Volunteer Lawyers Project will be closed
IF YOU HAVE ITEMS FOR INCLUSION IN THE DOCKET, PLEASE MAIL OR FAXTHEM TO AVERY ELI OKIN, ESQ., CAE, BROOKLYN BAR ASSOCAITION, 123 REM-
SEN STREET, BROOKLYN, NEW YORK 11201. FAX NO.: (718) 797-1713E-mail: [email protected]
THE DOCKETIncluded below are events which have been scheduled for the period
July 20, 2010 through December 31, 2010 Compiled by Marie Alfano
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 David M. Schwartz Hemalee J. PatelAimee L. Richter Hon. Frank R. Seddio Isaac N. Tuchman
TRUSTEES
CLASS OF 2011 CLASS OF 2012 CLASS OF 2013
BROOKLYN BAR ASSOCIATION
2010-2011
Avery Eli Okin, Esq., CAE
Executive Director
Andrea E. Bonina, President
Ethan B. Gerber, President-Elect
Domenick Napoletano, First Vice President
Andrew M. Fallek, Second Vice President
Rebecca Woodland, Secretary
Arthur L. Aidala, Treasurer
Roger Bennet Adler
Vivian H. Agress
Ross M. Branca
RoseAnn C. Branda
Gregory T. Cerchione
Maurice Chayt
Steven D. Cohn
Hon. Miriam Cyrulnik
Lawrence F. DiGiovanna
David J. Doyaga
Joseph H. Farrell
Andrew S. Fisher
Dominic Giordano
Paul A. Golinski
Gregory X. Hesterberg
Hon. Barry Kamins
Marshall G. Kaplan
Allen Lashley
Mark A. Longo
John E. Murphy
John Lonuzzi
Manuel A. Romero
Hon. Harold Rosenbaum
Barton L. Slavin
Hon. Jeffrey S. Sunshine
Hon. Nancy T. Sunshine
Diana J. Szochet
TRUSTEES COUNCIL (Past Presidents)
NEW MEMBERS FOR JUNE 2010
STUDENT MEMBERS
Nicholas Connolly Stacie Large
Alexander Behr
Alena Bespechny
Alexander Dudelson
Alex Feerst
Patricia Jane Gust
Leonard Herbst
Mitchell Kessler
Craig Lanza
William Meyer
Yana Pechersky
Jason Rogers
Fernando Silva
Marina Tasevich
Eleanor G. Taylor
Benjamin R. Tessler
Barry Thomas
LEGAL BRIEFSJudicial Recognition
Congratulations to Brooklyn BarAssociation member Hon. JohnLeventhal of the Appellate Division,Second Department who was elected asthe First Vice President of the SupremeCourt Justices Association of the City ofNew York. Also elected as theCorresponding Secretary for 2010-2011was Brooklyn Bar Association memberHon. Lawrence Knipel.
Kudos and ProfessionalRecognition
Congratulations to Brooklyn BarAssociation First Vice PresidentDomenick Napoletano who wasinstalled for a two year term as the presi-dent of the Confederation of ColumbianLawyers Association, at a dinner held atGargiulo’s Restaurant on June 21, 2010.
Congratulations to Brooklyn BarAssociation member Steve Chiaino whowas honored by the Bay Ridge LawyersAssociation on Thursday, June 17, 2010,
at the Annual Dinner Dance held at theDyker Beach Golf Course. The occasionmarked the conclusion of Steve’s presi-dency of the Bay Ridge LawyersAssociation. Taking over the leadershipof the BRLA is Boris Zivitov.
Earlier in the year the Kings CountyCriminal Bar Association reinducted forthe second year of his term PresidentJohn B. Stella, Executive Vice PresidentRobert Gershon, Vice PresidentsArthur Aidala, Stanford J. Bandelli,Michael O. Hueston, Michael Millett,Ita Parnass and Estelle J. Roond aswell as Treasurer Jay H. Schwitman andSecretary David M. Walensky.
Congratulations to Brooklyn BarAssociation member and VLP ForeclosureIntervention Director Jaime Lathrop whowas appointed by New York State BarAssociation President Steven Younger asa member of the NYSBA Committee onVolunteer Lawyers.
(Continued on page 3)
The fate of the Assigned Counsel 18Bcriminal defense plan, which has servedindigent defendants in New York City forover forty years and currently employsover 1,000 private practice attorneys, isnow in the hands of the court system.The Brooklyn Bar Association, alongwith the other four original signatories tothe 18B plan, has brought suit to preventthe City from dismantling the program.
This action was necessitated by theMayor’s issuance of a Request ForProposal (RFP) and Executive Orderwhich would significantly alter the man-ner in which indigent legal defense coun-sel was assigned and would marginalizethe county bar’s role in ensuring stan-dards for assignment of counsel.
The Brooklyn Bar Association was anoriginal signatory to the 1966 IndigentDefense Plan, which was adopted to ful-fill the Sixth Amendment guarantee to theright to the assistance of counsel for all
criminal defendants. UnderArticle 18-B of the CountyLaw, which codified thisplan, when institutionalproviders cannot handle acase it is assigned to a privateattorney chosen from a panelof experienced lawyers.These attorneys are common-ly referred to as “18 B”lawyers, and they arescreened and certified.
Through the screeningprocess and oversight com-mittees, Bar Associationssuch as the Brooklyn Barplay a critical role in ensuring that indi-gent defendants receive the effectiverepresentation they are constitutionallyentitled to.
The Mayor’s proposal alters this planby seeking to assign responsibility forindigent defense to the winning bidder ofa procurement process and by transfer-ring administration of private counsel toan office of the Mayor. The Article 78
petition filed by the fivecounty bar associationsseeks to have the Mayorand the City comply withthe current law in terms ofassignment of indigentdefense counsel. I willkeep you up to date on theprogress of this action.
In other BBA news, I amlooking forward to a greatnight out with our mem-bers on August 18th atMCU Park when we haveour second annualCyclones outing. The
Association has 100 tickets available, andthey are going fast. If you have not yetreserved your tickets, please contactAvery Okin at the Brooklyn Bar.
The VLP’s Liz Padilla 5k is set forSunday October 3rd in Brooklyn’sProspect Park. This fun run/walk event isa wonderful fundraiser for the VLP and agreat opportunity to spend time withBBA members in a casual environment.
Even if you are not a runner there areplenty of opportunities to volunteer. Beon the lookout for an email with detailsabout registration and sponsorship.
Finally, the response to our membersurvey circulated via email was outstand-ing. I thank everyone who completed thesurvey for sharing their ideas. I will besharing the feedback from members withthe board and committee chairs so thatour association can better serve its mem-bers. If you did not receive a survey,please contact Marie Alfano at the BBAto make certain we have your correctemail on file.
I have found that as I became moreinvolved in the BBA the benefits of mem-bership became greater, both in terms ofdeveloping friendships and growing as anattorney. I encourage each of our mem-bers to get involved by coming out forevents like our Cyclones outing and theLiz Padilla 5k and to approach me withany other ideas they have for events theywould like to see at the BBA. I value yourinput and hope to hear from you!
BROOKLYN BARRISTER - JULY 2010 3
BROOKLYN BARRISTER EDITORIAL BOARD
B R O O K L Y N B A R P R E S I D E N T
RESPECTFULLY SUBMITTED
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. 62 No. 10 July 2010. 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
Remsen Street, Brooklyn, New York 11201-4212.
Andrew M. FallekEditor-in-Chief
Diana J. SzochetManaging Editor
Hon. Barry KaminsAssociate Editor
Hon. Allen Hurkin-TorresArticles Editor
Cecilia N. Anekwe
Hon. Bruce M. Balter
Marianne Bertuna
Jaime J. Borer
Mark Diamond
Jason Eldridge
Paul S. Forster
Hon. David Friedman
Jason D. Friedman
Michael Hernandez
Richard Klass
Anthony Lamberti
Gregory Messer
Hemalee J. Patel
Aimee L. Richter
Robert P. Santoriella
Michael Treybich
Glenn Verchick
Andrea E. Bonina Esq.
By Andrea E. Bonina Esq.,President
The Brooklyn Supreme Court LawLibrary receives the New York State BarAssociation Journal and newsletters fromseveral of the Bar’s legal sections. Theseuseful articles are written by practicingattorneys for the working bar.Unfortunately, these articles are notindexed by the legal periodical index serv-ices, so attorneys should review thesepublications in the library monthly. Thepublications’s monthly columns and topi-cal articles apply the materials containedin the library to the legal issues debated inthe courts.
The New York State Bar AssociationJournal contains two monthly columns onwriting: “Language Tips” by GertrudeBlock and “The Legal Writer” by JudgeGerald Lebovits. The May issue’s table ofcontents gives you an idea of the range oftopics covered and how the law library canhelp you research covered topics.
“Retirement Accounts and SpecialNeeds Planning” by Jonathan McSherryinvestigates how tax issues affect specialneeds trusts. Just findings forms on specialneeds trusts is difficult; I have found onlyone book with such forms Tax, Estate &Financial Planning for the Elderly: Forms& Practice KFN 750 .R452 1991. So thisarticle is unique.
Judge Dickerson’s article continues hissurvey of New York consumer protectionlaws and class actions. Books on this topicare Handling Consumer Credit Cases byJohn Fonseca. KF 1040 .F67 and Newbergon Class Actions KF 8896 .N4. The NewYork Lawyers Formbook (availablethrough Loislaw) contains a pamphlet,
“What is a Debt Collection Case?”“Discovery, and Its Absence, in Tax
Certiorari Proceedings” by David C.Wilkes and Nicholas J. Connolly studiesthe topic of discovery. When I searchedthe text of NYSBA’s Review andReduction of Real Property Assessments inNew York on Loislaw, the word discoveryoccurred only five times. This article couldhelp an attorney prepare for such a pro-ceeding.
The spring issue of the NYSBA N.Y. RealProperty Law Journal contains themonthly column by Bruce Bergman ofBergman on Mortgage Foreclosure. JudgeLebovits of the Housing court frequentlysubmits articles. With the current foreclo-sure crisis, this is an essential publication.
The NYSBA Elder Law Attorneyincludes articles on medicaid andmedicare as well as special needs planningfor children. Families needing help locat-ing services will find Adrienne J.Arknotaky’s article “The EarlyIntervention Program for Children withSpecial Needs, from Birth to Age Three”in the spring issue helpful.
NYSBA Torts, Insurance &Compensation Law Section Journal,Winter 2010, had a number of articles Ithought could help attorneys using theLaw Library.
“Roadblocks on the Road to theAppellate Division and How to(Sometimes) Overcome Them” by HarrySteinberg contains a list of recent casesthat updates Practitioner’s Handbook forAppeals to the Appellate Divisions of theState of New York. KFN 6081 .S334.
“Use of Computer-GeneratedAnimation of Simulation at Trial” by
Salvatore J. Desantis, Alice Spitz andAyesha Syed developed a theme also cov-ered in Scientific Automobile AccidentReconstruction section 12.04[6] KF 1290.A8 L3. Another useful article might be, “Establishing Foundation AdmitComputer-Generated Evidence asDemonstrative or Substantive Evidence,”Laura Wilkinson Smalley. 57 Am. JurProof of Facts 3d 455-539. KF 8920 .A531988 updated by pocket part
“The Use of Unsigned DepositionTranscripts in Summary JudgmentMotions” is a topic not discussed much intreatises, but the authors, David A. Glazerand Melissa Wu, have found many cases onthis issue. This article looks very helpful.
“Everything I Need to Know About the
Business Judgment Rule I (Re)Learnedfrom In re Bear Stearns by AnthonyMichael Sabino updates CommercialLitigation in New York State Courts 72:12, KFN 5225 .C66, and White New YorkBusiness Entities B717.01, B720.04[1]andB912.06, KFN 5225 .C66. White includescites to legislative reports and legislativehistory.
*Senior Law Librarian, BrooklynSupreme Court. The Library is openMonday-Friday, 9 am - 6 pm. TheLibrary offers free Lexis and Westlawand a document delivery service atwww.nycourts.gov. Click on Librariesto get a full description of services andlocations throughout the state.
New York State Bar Journals and NewslettersBy Jacqueline Cantwell*
Congratulations to Paul J. Richman,brother of Trustee Steven H. Richman,who has been appointed as the Director ofFederal Affairs, Government andCommunity Relations for the PortAuthority of New York and New Jerseybased in Washington, D.C.
ProfessionalAnnouncements
Brooklyn Bar Association memberAdam Braverman has announced theopening of his law office at 1375Broadway, 3rd Floor, New York,Telephone number 212-206-8166. [email protected]
BereavementsThe Brooklyn Bar Association extends
its deepest sympathy to the entire Kranefamily on the passing of Steven C. Krane,the general counsel of Proskauer Rose andformer President of the New York StateBar Association in 2001-2002 who died atthe age of 53 on June 22, 2010.
Legal Briefs is completed and writtenby Avery Eli Okin, Esq., CAE, theExecutive Director of the Brooklyn BarAssociation and its foundation. Items forinclusion in “Legal Briefs” should besent to [email protected], faxed to718-797-1713 or mailed to 123 RemsenStreet, Brooklyn, NY 11201-4212.
Legal Briefs (Continued from page 2)
The Following Attorneys WereDisbarred By Order Of The AppellateDivision, Second Judicial Department:
Allan E. Binder, admitted as AllanEli Binder (May 4, 2010)
On January 29, 2009, the respondententered a plea of guilty in County Court,Suffolk County, to receiving a bribe inthe third degree, a class C felony. Hethereafter failed to notify the AppellateDivision of his conviction, as required byJudiciary Law §90(4)(c). As a result ofhis felony conviction, the respondent wasautomatically disbarred, effectiveJanuary 29, 2009.
Neda B. Imasuen, admitted as NedaBernards Imasuen (May 11, 2010)
The respondent was disbarred, ondefault, upon a finding that he was guiltyof a pattern and practice of failing tocooperate with the Grievance Committeeand neglect of a legal matter entrusted tohim.
Michael J. Kaper, admitted asMichael Jonathan Kaper, a suspendedattorney (May 11, 2010)
The respondent was disbarred, ondefault, upon a finding that he was guiltyof, inter alia, failing to re-register as anattorney with the Office of CourtAdministration (OCA) for the biennialperiods 1994 through 2008; failing tocooperate with the Grievance Committee;neglecting legal matters entrusted to him;misrepresenting the status of a matter to aclient; handling a legal matter withoutadequate preparation; and failing to coop-erate with the Nassau County FeeArbitration Committee in seeking to arbi-trate fees with three former clients.
Alain D. Kodsi, admitted as AlainDamien Kodsi (May 11, 2010)
On or about July 19, 2006, the respon-dent pleaded guilty in the United StatesDistrict Court, Southern District of NewYork, to insider trading, a Federal felony.He thereafter failed to report his convic-tion to the Appellate Division, as requiredby Judiciary Law §90(4)(c). Inasmuch asthe Federal felony of insider tradingwould constitute a class E felony underNew York’s General Business Law, therespondent was automatically disbarredin New York as of the date of his Federalsentencing, November 14, 2006.
Brian Matthew Rosicky, a suspendedattorney (May 11, 2010)
The respondent was disbarred, ondefault, upon a finding that he was guiltyof failing to cooperate with the GrievanceCommittee; failing to re-register as anattorney with OCA for the biennial regis-tration periods 2007-2008 and 2009-2010; misappropriating funds; failing todeliver funds; failing to render a properaccounting of funds; and failing to pro-duce escrow records he was required tomaintain.
Thomas Edward Wynne, a suspend-ed attorney (May 11, 2010)
The respondent was disbarred, ondefault, upon a finding that he was guiltyof a pervasive pattern of failing to coop-erate with the Grievance Committee’sinvestigation of multiple complaintsinvolving dishonored checks and failingto release funds held in connection with areal estate action and a foreclosure action.
Nat J. Azznara, admitted as NatJohn Azznara (May 18, 2010)
On January 14, 2010, the respondentwas sentenced, upon his plea of guilty togrand larceny in the second degree andgrand larceny in the third degree, in theCounty Court, Westchester County. As aresult of his felony conviction, therespondent was automatically disbarredeffective January 14, 2010.
Cesar G. Cardona, admitted asCesar G. Cardona, Jr., a suspendedattorney (May 18, 2010)
The respondent tendered a resignationfrom the practice of law wherein heacknowledged that he could not success-fully defend himself on the merits againstpending charges alleging conversion offunds entrusted to him as a fiduciary andfailure to maintain required bookkeepingrecords.
Russell G. Cheek, a suspended attor-ney (June 8, 2010)
On May 15, 2008, the Supreme Courtof New Jersey entered an order disbarringthe respondent on consent. Upon theGrievance Committee’s application ofreciprocal discipline, pursuant to 22NYCRR §691.3, the respondent was dis-barred in New York.
Maureen Elizabeth Delgado, a sus-pended attorney (June 8, 2010)
The respondent was disbarred, ondefault, upon a finding that she was guiltyof failing to re-register as an attorneywith the Office of Court Administration(OCA) from 2001 through 2006, failingto cooperate with the GrievanceCommittee in its investigation of the fore-going and failing to schedule a court-ordered examination to determine if shewas incapacitated due to medical illness.
Raghubir K. Gupta (June 8, 2010)On April 7, 2008, the respondent was
found guilty, after a jury trial in theUnited States District Court for theSouthern District of New York, of immi-gration fraud. The Appellate Divisionfound that the Federal felony of immigra-tion fraud was essentially similar to theNew York felony of offering a falseinstrument for filing in the first degree.Accordingly, the respondent was auto-matically disbarred pursuant to JudiciaryLaw §90(4)(a).
William L. Netusil, a suspendedattorney (June 8, 2010)
The respondent was disbarred, ondefault, upon a finding that he was guiltyof engaging in conduct prejudicial to theadministration of justice, which adverselyreflects on his fitness as a lawyer, by fail-ing to comply with the GrievanceCommittee’s legitimate demands in con-nection with the investigation of fourcomplaints of professional misconductalleging, inter alia, that respondentaccepted retainers in domestic relationsmatters and thereafter had no further con-tact with the complainants.
The Following Attorneys WereSuspended By Order Of The AppellateDivision, Second Judicial Department:
Emanuel A. Towns, admitted asEmanuel Alexander Towns (April 27,
To assist you during what is predicted to bea scorching summer, we hope that you willhold on to this issue for use to create air cir-culation and also will use it to enjoy someinteresting and important cases involving theallowance of the prosecution of a legal mal-practice claim by a decedent’s estate for dam-ages resulting from alleged negligent repre-sentation of the decedent in estate tax plan-ning that caused enhanced estate tax liability;the recognition in New York under choice oflaw principles of the validity a marriage notvalid in the state where it occurred, becausethe procedures utilized satisfied the statutoryrequirements for a valid marriage in NewYork; the standard to be used to resolve com-peting applications for letters of administra-tion between the decedent’s nephews; theapplicability of an in terrorem clause to a pro-ceeding to revoke letters testamentary andtrusteeship; admitting to probate a will with-out an attestation clause or witness signatures,based upon a ‘self-proving’ affidavit affixedfollowing the dispositive provisions of thewill and the decedent’s signature; a cautionarytale concerning beneficiary designations onjoint annuities; a refusal to vacate a 12 yearold probate decree entered with the appli-cant’s consent at the time; the limits on thediscretionary authority of a Surrogate toaward attorney’s fees to a successful objectantto an accounting; the limit of judicial authori-ty over discretionary acts by a fiduciary; andthree new legislative acts that clarify the waya non-marital child can establish status toinherit from his or her father; eliminate the 21-year limit for the duration of pet trusts andprovide that such trusts shall terminate whenthe living animal beneficiary or beneficiaries
of such trust are no longer alive; and revisecertain provisions of EPTL §2-1.11 pertainingto the renunciation of property interests tomake New York practice in this area moreconsistent with federal tax law.
A Personal Representative of an EstateMay Maintain a Legal Malpractice Claimfor Damages Resulting From NegligentRepresentation of the Decedent in EstateTax Planning That Caused EnhancedEstate Tax Liability- According to the com-plaint, the defendants represented the dece-dent from at least April 2000 to his death inOctober 2006. In April 2000, decedent pur-chased a $1 million life insurance policy.Over several years, he transferred ownershipof that policy from himself to an entity ofwhich he was principal owner, then to anoth-er entity of which he was principal owner andthen, in 2005, back to himself. At his death inOctober 2006, the proceeds of the insurancepolicy were included as part of his gross tax-able estate. The decedent's estate commenceda malpractice action in 2007, alleging thatdefendants negligently advised decedent totransfer, or failed to advise decedent not totransfer, the policy which resulted in anincreased estate tax liability. The SupremeCourt granted defendants' motion to dismissthe complaint for failure to state a cause ofaction, and the Appellate Division affirmed,holding that, in the absence of privity, anestate may not maintain such an action forlegal malpractice. HOLDING- The AppellateDivision was reversed and the plaintiff’sclaim was reinstated. The Court ruled that apersonal representative of an estate may main-tain a legal malpractice claim against an attor-ney for damages resulting from negligent rep-resentation in estate tax planning that causedenhanced estate tax liability. The Court notedthat strict privity, as applied in the context of
estate planning malpractice actions, is aminority rule in the United States. The Courtopined that in New York, a third party, with-out privity, cannot maintain a claim against anattorney in professional negligence, absentfraud, collusion, malicious acts or other spe-cial circumstances. The Court acknowledgedthat New York Courts have applied strict priv-ity to estate planning malpractice lawsuitscommenced by the estate's personal represen-tative and beneficiaries alike. In the Court’sview, this rule effectively protects attorneysfrom legal malpractice suits by indeterminateclasses of plaintiffs whose interests may be atodds with the interests of the client-decedent.However, the Court pointed out that the rulealso leaves estates with no recourse against anattorney who planned the estate negligently.The Court held that privity, or a relationshipsufficiently approaching privity, existsbetween the personal representative of anestate and the estate planning attorney. In theCourt’s view, the estate essentially stands inthe shoes of a decedent and, therefore, has thecapacity to maintain the malpractice claim onthe estate's behalf. The Court ruled that thepersonal representative of an estate should notbe prevented from raising a negligent estateplanning claim against an attorney whocaused harm to the estate. The Court statedthat the attorney estate planner surely knowsthat minimizing the tax burden of the estate isone of the central tasks entrusted to the pro-fessional. The Court also felt that such a resultcomports with EPTL §11-3.2(b), which gen-erally permits the personal representative of adecedent to maintain an action for injury toperson or property after that person's death.The Court emphasized that despite its holdingin the case at bar, strict privity remains a baragainst beneficiaries' and other third-partyindividuals' estate planning malpractice
claims absent fraud or other circumstances.The Court acknowledged that relaxing privityto permit third-parties to commence profes-sional negligence actions against estate plan-ning attorneys would produce undesirableresults, to wit: uncertainty and limitless liabil-ity. In the Court’s view, these concerns are notpresent in the case of an estate planning mal-practice action commenced by the estate's per-sonal representative. Accordingly, the orderof the Appellate Division was reversed, anddefendants' motion to dismiss the complaintdenied. Matter of Schneider, 2010 N.Y. SlipOp. 05281 (Court of Appeals, 2010)
Attorney Retained to Represent EstateFiduciary Not Potentially Liable ForFailure to Advise Fiduciary on PersonalMatters Involving the Fiduciary Outsidethe Scope of Defendants’ Representation-The plaintiff brought an action against herattorneys, inter alia, to recover damages forbreach of fiduciary duty. The defendants hadbeen retained to represent the plaintiff as co-executor of her father’s estate. The plaintiffalleged that she was the subject of a pendinglawsuit, in effect, to recover sums of moneydue under certain notes she executed beforeher father died, and that the defendants com-mitted legal malpractice by, inter alia, failingto speak with her “about the circumstancessurrounding [her] signing of [those] notes,”and failing to “question [ ]” their “validity.”The defendants submitted a retainer agree-ment reflecting that the plaintiff “understood,accepted and agreed” that the “scope of” their“engagement” was “to represent” her as a co-executor of her deceased father's estate. Thedefendants’ motion to dismiss the complaintunder CPLR §3211(a)(1) (documentary evi-dence) and (7) (failure to state a cause ofaction) was granted and the plaintiff appealed.
By Hon. Bruce M. Balter and Paul S. Forster, Esq.
(Continued on page 8)
BROOKLYN BARRISTER - JULY 20106
Immediate Past President John Lonuzzi acting as Master ofCeremonies for the induction. Father Timothy Tighe, C.S.P. after delivering the invocation
Jason Otano, Counsel to BrooklynBorough President Marty Markowitz andPresident Andrea E. Bonina
Hon. Sylvia Hinds-Radix Past President Gregory T. Cerchione, Trustee David Chidekel,Hon. Donald Scott Kurtz, President-Elect Ethan B. Gerber.
Past President Barry Kamins, President Bonina and Courtof Appeals Judge Theodore T. Jones, Jr.
Past President Lawrence F. DiGiovanna VLP Executive Director Jeannie Costello The reception at the Borough Hall Rotunda
The leadership of the Bay Ridge Lawyers AssociationPresident Bonina, Trustee Michael Lazarowitz, Judge Jones Andrea E. Bonina with Past President
Gregory T. Cerchione.
Induction – June 7, 2010Brooklyn Borough Hall Ceremonial Courtroom
BROOKLYN BARRISTER - JULY 2010 7
Judge Jones, Past President RoseAnn C. Branda, PastPresident Lawrence F. DiGiovanna.
John Bonina, Trustee Dino Mastropietro and ImmediatePast President John Lonuzzi.
Trustee Hemalee J. Patel, former trustee Lara Genovesi and PastPresident Diana J. Szochet.
Past President Hon. Jeffrey S. Sunshine, Hon. Wayne Saitta andPast President Hon. Nancy T. Sunshine.
Brooklyn Women’s Bar Association President Joanne D.Quinones and Jason Otano.
Past President RoseAnn C. Branda and newly installedTreasurer Arthur L. Aidala.
Trustee Theresa Ciccotto and President-Elect Ethan B.Gerber.
Hon. Donald Scott Kurtz and President Andrea E. Bonina. President Bonina and Past President Allen Lashley
President of the Catholic Lawyers Guild Sara Gozo, Hon SylviaHinds-Radix, Hon. Robert Miller, Hon. Donald Scott Kurtz.
Hon. Wayne Saitta, Trustee Carl Landicino, Judge Jones andEvan Goldberg.
Past President Judge Barry Kamins, Judge Jonesand Hon. Phil Minardo.
Induction – June 7, 2010Brooklyn Borough Hall Ceremonial Courtroom
The State Of Estates (Continued from page 5)
BROOKLYN BARRISTER - JULY 20108
HOLDING- The Supreme Court wasaffirmed. The Court stated that on a motion todismiss a complaint pursuant to CPLR §3211(a) (1), if the documentary evidence submittedby the defendant utterly refutes the plaintiff'sfactual allegations and conclusively establish-es a defense to the asserted claims as a matterof law, the motion may be granted. Similarly,the Court opined, on a motion to dismiss acomplaint pursuant to CPLR §3211 (a) (7) forfailure to state a cause of action, the courtmust determine whether, accepting the factsalleged in the complaint as true and accordingthe plaintiff the benefit of every possibleinference, the facts as alleged fit within anycognizable legal theory. Applying these prin-ciples, the Court ruled that the Supreme Courtproperly granted the defendants' motion todismiss the complaint. The Court held that thelanguage of the retainer agreement conclu-sively established a defense to the plaintiff'sclaims of malpractice in that the plaintiff'sindividual liability on the notes was a matteroutside of the scope of the defendants' repre-sentation of the plaintiff in her capacity as co-executor of the estate. The Court also foundthat the complaint failed to allege facts suffi-cient to establish that the plaintiff's allegeddamages were proximately caused by any actsor omissions of the defendants. Consequently,the Court affirmed the dismissal of the com-plaint. Hallman v. Kantor, 2010 N.Y. SlipOp. 03280 (2nd Dept., 2010)
A Marriage Not Valid In the StateWhere it Occurred Recognized in NewYork Under Choice of Law Principles,Because the Procedures Satisfied theStatutory Requirements For a ValidMarriage in New York- In a proceeding fora compulsory accounting, the respondentmoved for an order pursuant to CPLR§3211(a)(3) dismissing the petition, arguingthat petitioner was never the lawful spouse ofthe decedent and, therefore, lacked the requi-site standing to compel an accounting. Thedecedent died intestate leaving five adult chil-dren, including respondent, and a purportedsurviving spouse, petitioner, who was not themother of the children. It was undisputed thatdecedent and petitioner engaged in a marriageceremony. The decedent, a resident of NewYork, traveled from New York to petitioner'sbrother's home in New Jersey for the ceremo-ny. Petitioner asserted that the ceremonyoccurred in New Jersey because Islamic lawdictated that the marriage ceremony occur atthe premises of the bride's eldest male rela-tive. It was alleged that petitioner's brotherwas her eldest male relative and that heresided in New Jersey. An imam traveledfrom New York to solemnize the marriage.When the ceremony was concluded, the wed-ding party returned to New York for a wed-ding reception. It was not disputed that fromthat day forward, the decedent and petitionerlived in New York as husband and wife.Respondent asserted that New Jersey lawgoverned the legal status of the marriagebecause the marriage occurred in New Jersey,and that the marriage would not be validbecause the couple failed to obtain a validstate license as is required by New Jersey law.An affidavit of the imam who presided overthe ceremony confirmed that the marriage cer-tificate was signed in New Jersey even thoughthe actual Certificate of Marriage signed bythe imam indicated that the certificate wassigned in Brooklyn, New York. Petitionerargued that New York law should controlbecause the couple was domiciled in NewYork, owned property in New York, and hadno connection to New Jersey other than thefact that the ceremony occurred there.Petitioner also argued that she and the dece-dent believed themselves married, had anexpectation that they were married, andbelieved that their marriage ceremony hadresulted in a valid marriage. Petitioner alsoargued that under New York law their mar-
riage would be valid despite the absence of astate license, and that under Islamic law, theplace of the marriage is where the final stepsof the marriage, the walima or reception, andconsummation occur. Petitioner asserted thatthese two events occurred in New York andtherefore the marriage was finalized in NewYork. The Surrogate denied the motion to dis-miss the proceeding to compel an accountingand the administrator appealed. HOLDING-The Surrogate was affirmed. The Court statedthat under the law of the State of New Jersey,the failure to obtain a marriage license rendersa purported marriage absolutely void. TheCourt contrasted this with New York’sDomestic Relations Law which deems it nec-essary for all persons intending to be marriedto obtain a marriage license, but under whicha marriage is not void for the failure to obtaina marriage license if the marriage is solem-nized. The Court defined solemnization aswhere the parties “solemnly declare in thepresence of a clergyman or magistrate and theattending witness or witnesses that they takeeach other as husband and wife.” The Courtacknowledged that the general rule is that thelegality of a marriage is to be determined bythe law of the place where it is celebrated.However the Court pointed to other conflict oflaws authority to the effect that the validity ofa marriage is to be determined by the local lawof the state which, with respect to the particu-lar issue, has the most significant relationshipto the spouses and the marriage. In the Court’sview, the petitioner and the decedent had ajustified expectation that they were married,since they participated in a formal marriageceremony in accordance with Islamic law.The Court pointed to the fact that the only rea-son the petitioner and the decedent had theirmarriage ceremony in New Jersey wasbecause, under Islamic law, the marriage cer-emony had to be conducted in the residence ofthe bride's eldest male relative, the petitioner'sbrother, who lived in New Jersey. In addition,the Court found that the intended and actualmatrimonial domicile was New York, and thepetitioner and the decedent held themselvesout as a married couple in New York. TheCourt concluded that New York for that rea-son had a significant interest in the marriagebetween the petitioner and the decedent, whileNew Jersey’s interest based upon enforcing itsmarriage requirements was not particularlystrong since the petitioner and the decedentleft New Jersey immediately after the mar-riage ceremony, and lived in New York forthe entirety of their marriage. The Court ruledthat the Surrogate's Court properly deter-mined that New York had the most significantrelationship to the spouses and the marriageand that New York law should apply to deter-mine the validity of the marriage. Since underNew York law the marriage between the peti-tioner and the decedent was valid, even with-out a marriage license, since it was solem-nized, the Court held that the appellant'smotion to dismiss the compulsory accountingproceeding was properly denied by theSurrogate. Matter of Farraj, 72 A.D.3d 1082(2nd Dept., 2010)
Standard to Be Used to ResolveCompeting Applications for Letters OfAdministration between the Decedent’sNephews is Best Interests of the Estate, NotMerely the Number of DistributeesSupporting Each Side- Two nephews of thedecedent filed a petition and cross petition forletters of administration. The decedent’s dis-tributees were five nephews. The petitionerand one other nephew were the children ofone of the decedent's predeceased brothers.The cross petitioner and two other nephewswere the children of the decedent's other pre-deceased brother. Under EPTL §4-1.1(a)(5)and EPTL §1-2.16 the five nephews sharedequally in the estate by representation. Thepetitioner lived in Ohio and was representedby counsel. He alleged that the primary estate
asset was Bronx realty in disrepair, valued at$358,000, on which mortgage, insurance andtax arrears existed. He stated that he was inthe process of obtaining an appraisal of therealty and had received several offers frominterested parties willing to purchase the prop-erty in an “as is” condition. The petitioner'sbrother filed a waiver of citation and consentto the petition. One of the sons of the dece-dent’s other brother then filed a cross petitionfor letters of administration, pro se. The crosspetitioner lived in Queens, New York. One ofthe cross petitioner's brothers executed awaiver and consent and a sworn handwrittenstatement stating that he supported the appli-cation of the cross petitioner and did not trustthe petitioner. His other brother submitted asworn handwritten statement to the effect thathe supported the cross petition. HOLDING-In the best interests of the estate, the Surrogateappointed the petitioner, supported by onlyone nephew over the cross-petitioner support-ed by two nephews. The Court pointed outthat both the petitioner and cross petitionerequally were eligible to serve under SCPA§1001(1)(f) and neither contended that theother was statutorily disqualified from servingas fiduciary of the estate. The Court opinedthat where two apparently eligible distributeeshave the same share in the estate and, accord-ingly, are equally entitled to administer theestate, the court has the discretion to appointone or both of them. The Court noted that inthe absence of circumstances militating infavor of a different result, the court wouldappoint the distributee selected by the distrib-utees entitled to the largest share of the estate,or, if the shares are equal, the one preferred bya majority of the distributees. The Court stat-ed additionally, that generally, where apparentfriction, antagonism or hostility existsbetween persons in the same class of priorityfor appointment and they are unable to agreeas to an appointment, the court would avoidissuing letters jointly to them, on the roundsthat distributees who clash over who shouldreceive letters would probably be incapable ofadministering the estate together. The Courtpointed out that the parties had expressed theirmutual distrust and inability to agree based ona division along family lines, and the crosspetitioner stated on the record that he did notwant to serve with the petitioner. The Courtopined that in exercising its discretion toselect one of multiple distributees, the courtmay consider factors such as each distribu-tee's: (1) relationship with the decedent; (2)business experience; and, (3) familiarity withthe decedent's affairs, and that ultimately, thecourt will exercise its discretion to appoint thedistributee whose appointment the courtdeems to be in the best interests of the estate.The Court, while acknowledging that the peti-tioner lived in Ohio, noted that he had filed hispetition prior to the cross petitioner, that hewas represented by counsel and clearly wasfamiliar with the nature and extent of thedecedent's assets and estate liabilities, and thathe had hired a real estate broker and was in theprocess of obtaining appraisals of the realty.The Court contrasted these factors with thefact that notwithstanding that the cross peti-tioner lived in New York and had the supportof his two brothers, he waited until after hewas served with the citation to commence hiscross proceeding, that his papers displayed nofamiliarity with the nature and extent of thedecedent's assets or estate liabilities, and thathe was proceeding pro se, although he didstate on the record that he would retain coun-sel in the event that he prevailed and wereappointed the administrator. The Court foundthat the complexity of the problems relating tothe estate’s real property indicated that thefiduciary should immediately address themwith the assistance of counsel. Considering allthe factors, the Court ruled that it was in thebest interests of the estate to grant letters ofadministration to the petitioner. Matter of
An In Terrorem Clause Held Applicableto a Proceeding to Revoke LettersTestamentary and Trusteeship- One of thedecedent’s children brought a constructionproceeding to determine whether an in ter-rorem clause in her father’s will would applyto a proceeding proposed by her pursuant toSCPA §711 to revoke the letters testamentaryand of trusteeship issued to respondents basedon their failure “to have divulged to the dece-dent the benefits that they would receive byvirtue of acting as executors and trustees.” Thedecedent’s two children, along with the tworespondents, who were the decedent's legal,financial and business advisors, were namedcoexecutors and cotrustees in the will, and let-ters testamentary and letters of trusteeshipwere issued to all four named fiduciaries. Thein terrorem clause would disinherit beneficiar-ies who commence proceedings “to void, nul-lify or set aside all or any part” of the will. TheSurrogate ruled that should such a proceedingbe instituted the in terrorem clause wouldapply. The daughter appealed. HOLDING-The Surrogate was affirmed. The Court foundthat as the proposed proceeding would not fallwithin the safe harbor provisions of EPTL §3-3.5 (b), the applicability of the in terroremclause was a matter of the decedent's intent.The Court rejected petitioner's argument thatbecause the decedent bequeathed his estateonly to his children and grandchildren, andgave nothing to respondents, he must haveintended to limit the scope of the in terroremclause to challenges against his family mem-bers. In the Court’s view, the decision of dece-dent not to leave his estate outright to his chil-dren and grandchildren, but to set up lifetimetrusts for their benefit, was consistent with anintent that they not have unfettered controlover his fortune. According to the Court, suchan intention would be furthered by the nomi-nation of two nonfamily members as coexecu-tors and cotrustees, preventing the childrenfrom having a majority vote. The Court alsorejected petitioner’s contention that even if thetestator intended the in terrorem clause tooperate with respect to the proposed proceed-ing, public policy considerations dictated thatit not be enforced. The Court opined that thepetitioner’s argument assumed that the safeharbor provisions of EPTL § 3-3.5 (b) werenot exhaustive. While recognizing that a recentdecision of the Court of Appeals expressly sostated, in the Court’s view that statementappeared to be dictum in that the Court ofAppeals held that the testator in that case didnot intend the clause to operate on account ofthe conduct of his son. The Court also rejectedpetitioner's argument on the ground that a judi-cial expansion of the safe harbor provisionsspecified by the Legislature should originatewith the Court of Appeals rather than with thetrial or intermediate appellate courts. Matter ofCohn, 72 A.D.3d 616 (1st Dept., 2010)
Will Admitted to Probate without anAttestation Clause or Witness Signatures,Based upon a ‘Self-Proving’ AffidavitAffixed Following the DispositiveProvisions of the will and the Decedent’sSignature- In an uncontested probate pro-ceeding, the two witnesses' signatures did notappear on the will itself, which lacked anattestation clause, but instead appeared on aself-proving affidavit signed before a notarypublic on the same date the testator executedthe document and set forth on a numberedpage ‘5‘ of the will document after the fourpages of the testator's dispositions and thedecedent’s signature. The witnesses also eachsigned an affidavit after the testator's death.The testator's will was otherwise validly exe-cuted pursuant to EPTL §3-2.1. HOLDING-The will was admitted to probate. The Courtopined that in order for a self-proving affi-davit to be valid, it must meet the require-
(Continued on page 11)
In Conclusion (Continued from page 1)
BROOKLYN BARRISTER - JULY 2010 9
sive array of services. You need to have acomprehensive approach, and you knowthat and you do that and you do it withjoy and compassion and love and I couldnot thank you more.”
“One of the hallmarks of Judge Kaye’stenure as New York’s Chief Judge washer passionate commitment to improvingand broadening access to justice forevery New Yorker,” Jeannie Costello,Executive Director of the VolunteerLawyers Project, wrote in the gala jour-nal. “The enduring value of her commit-ment has left its imprint on every facet ofour judicial system, from jury service tocommunity-based problem solving courtsto pro bono representation. It is a mosteminent tribute to Judge Kaye to presenther with the 2010 Building BridgesLeadership Award for her ‘exceptionalcommitment to the public good and jus-tice for all.’ ”
In 2009, Volunteer Lawyers Projectattorneys donated 6,114 hours of probono legal assistance to the most under-served residents of Brooklyn, and direct-ly served 5,400 individuals. In the firstfive months of 2010, in which the bor-ough felt the impact of the recession andtragedies that directly touched the diverseBrooklyn community, the organization’spro bono attorneys have already providedvital civil legal services in 987 matters
ensuring equal access to people who arestruggling to obtain or protect the mostbasic necessities of life, roofs over theirheads, family well-being, baseline finan-cial stability. These services includeassistance with bankruptcies; CLARO,the courthouse clinic for unrepresenteddebtors; and the Pro Bono ForeclosureIntervention Program, which is now han-dling over 160 active settlement confer-ences.
Most recently, in an immediate andcritical pro bono response to the devas-tating earthquake in Haiti, the VolunteerLawyers Project is co-sponsoring HILAP(Haitian Immigration Legal AssistanceProgram), a series of ongoing clinicsstaffed by volunteer lawyers throughoutBrooklyn.
The Brooklyn Bar AssociationVolunteer Lawyers Project is a501(c)(3) non-profit organization dedi-cated to providing civil legal assistanceto those Brooklyn residents who need itmost. One of the only legal servicesorganizations that operates borough-widein Brooklyn, the VLP recruits, trains andsupports volunteer attorneys from the pri-vate bar and matches them up with pro-grams designed to meet critical legalneeds in our community. To learn moreabout the Volunteer Lawyers Project,please see http://www.brooklynvlp.org/.
Brooklyn Bar Association Volunteer Lawyers Project (Continued from page 1)
RoseAnn C. Branda, spoke about Ms.Bonina’s work ethic and her innate abili-ty to look past roadblocks and find solu-tions to problems.
Jeannie Costello of the VLP talked atlength about President Bonina’s role as afounder and active supporter of the LizPadilla Annual 5k race, which in addition toraising significant sums for the VLP, memo-rializes Liz Padilla, a VLP attorney who wastragically killed in a bicycle accident.
Judge Jones spoke about the Boninafamily, and in particular, PresidentBonina’s father, John Anthony Bonina,who was an early pioneer in the medicalmalpractice field and who, on the occa-sion of Judge Jones first malpractice caseas a trial judge, expertly familiarized thejudge with the process. As PresidentBonina later told the audience, herfather’s “guidance, wisdom and love,” aswell as his belief that lawyers couldchange people’s lives, produced threelawyers in her family, Andrea, her broth-er John and her sister Beth.
In speaking of her intention to make theorganization and its leadership shine,President Bonina listed the outstandingaccomplishments of various trustees andofficers, two of whom regularly appear on
television as legal commentators, as fac-tors that would make her job easier.
As the mother of two young children,Charlie and Harry, and a full time manag-ing partner of a law firm, she thanked hermother Barbara, her husband Nick, andher brother John, for their help in balanc-ing her hectic schedule.
President Bonina proudly told thecrowd about Brooklyn’s leadership in pro-viding legal help to those in need. Shecited the CLARO program, started inKings County by Judge Ellen Spodek, tohelp those being sued in consumer lendingmatters. Other counties adopted the pro-grams, but, as President Bonina explained,Brooklyn’s CLARO program helped morethan twice the number of consumers as allother boroughs combined.
In keeping with the Brooklyn BarAssociation’s role of trailblazer, PresidentBonina announced that the Association isstarting a new mentoring program to helpguide new lawyers in their careers andhopefully bring them into the Associationas new members.
Following the installation, PresidentBonina and guests moved from the cere-monial courtroom to the rotunda for acatered celebration.
Andrea E. Bonina Installed AsAssociation’s 95th President(Continued from page 1)
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sense it’s time to bring on someone with anew set of friends to call on.
We have tried to provide a scholarlyjournal supplemented with reporting onBar Association and local activities,although sometimes it seemed like it wasthe other way around. We avoided anymajor First Amendment problems,although we did tackle some lesser issues,such as where to draw the line onannouncing the accomplishments of theoffspring of officers and trustees in theLegal Briefs column. (My line was at legaland law enforcement related matters,though occasionally other things slippedby.)
We unintentionally angered someimportant people, although usually onlytemporarily. Some members of the judi-cial branch wanted to know why otherjudge’s accomplishments were listedwhile theirs were not. Answer: the Judgesnamed in the Barrister were members ofthe Brooklyn Bar Association. Solution:join the BBA. I also had to occasionallyexplain that we don’t have reporters anddo not hear about every event.
Some people, no doubt, questionwhether a paper like this is worth its cost.To those people I must explain that theBarrister has no cost. Printing, publishingand mailing costs are borne entirely by theprivate publisher, which generates rev-enue from advertising, which it alone
solicits. We have no budget. Not even forcoffee or water. This should keep the crit-ics at bay for another year.
I owe a great debt of gratitude to a num-ber of our Association’s truly talentedpeople, who Served on our EditorialBoard and who ignored my admonitionsthat they were too busy and too importantto do editing. Diana Szochet, our manag-ing editor, continued to edit, write a regu-lar column and provide wise counsel tome, even when she was president of theAssociation and had a million otherimportant things to do. Judges BarryKamins and Allen Hurkin-Torres refusedto let their duties on the bench stop themfrom participating. Judge Bruce Balter andPaul Forster never let us down. OurExecutive Director, Avery Eli Okin, readevery issue and sat with me for countlesshours, finalizing every issue. And, ofcourse, my thanks to all the other mem-bers of the Editorial Board who spentmany a weekend poring over copy.
I wish good luck to the new Editor-in-Chief, Glen Verchick, who has been serv-ing as a member of the Editorial Board,and who will hit the ground running withthe September issue. As I look over July’sissue, my last, I see that it, like virtuallyevery issue of the Barrister, has a bereave-ment notice; a not so subtle monthlyreminder that all good things must eventu-ally come to an end.
2010)Following a disciplinary hearing, the
respondent was found guilty of enteringinto a fee agreement for, charging, or col-lecting illegal or excessive fees for servic-es of both a legal and non-legal nature ren-dered on behalf of an 89-year-old allegedincapacitated person, and conduct reflect-ing adversely on his fitness to practice lawas a result of the foregoing. He was sus-pended from the practice of law for a peri-od of six months, commencing May 27,2010, and continuing until further order ofthe Court.
Ganiu Owolabi Ajose (May 3, 2010)The respondent was immediately sus-
pended from the practice of law, pendingfurther proceedings, upon a finding that hewas guilty of professional misconductimmediately threatening the public interestbased, inter alia, on his failure to cooper-ate with the Grievance Committee.
Sheldon Cowen (May 7, 2010)On the Court’s own motion, the respon-
dent was suspended from the practice oflaw pursuant to 22 NYCRR 691.13(a)until further order of the Court, based upona judicial declaration of his incapacity.
Robert V. Fonte (May 11, 2010)Following a disciplinary hearing, the
respondent was found guilty of breachinghis fiduciary duty and failing to safeguardand ensure the transactional integrity offunds entrusted to him, incident to hispractice of law; failing to promptly pay ordeliver funds, which were placed in hispossession by clients for disbursement tothird parties, to the clients or third partiesentitled to receive them; failing to makereasonable efforts to adequately supervisethe work of attorneys within his firm;engaging in conduct prejudicial to theadministration of justice by failing to time-ly respond to the lawful demand for hiswritten response to one or more com-plaints of professional misconduct; andengaging in conduct adversely reflectingon his fitness as a lawyer by reason of theforegoing. He was suspended from thepractice of law for a period of three years,commencing June 10, 2010, and continu-ing until further order of the Court.
Mark E. Gold (May 11, 2010)By order of the Supreme Court of New
Jersey filed April 22, 2009, the respondentwas temporarily suspended from the prac-tice of law in that state based upon allega-tions of misappropriation of clients’ funds.Upon the Grievance Committee’s applica-tion for reciprocal discipline pursuant to22 NYCRR §691.3, the respondent wasimmediately suspended from the practiceof law in New York until further order ofthe Court.
Tara Anne Laudonio, admitted as
Tara A. Puterbaugh (May 11, 2010) Following a disciplinary hearing, the
respondent was found guilty of breachingher fiduciary duty and failing to safeguardand ensure the transactional integrity offunds entrusted to her, incident to her prac-tice of law; failing to promptly pay ordeliver funds, which were placed in herpossession by clients for disbursement tothird parties, to the clients or third partiesentitled to receive them; failing to makereasonable efforts to adequately supervisethe work of attorneys within her firm;engaging in conduct prejudicial to theadministration of justice by failing to time-ly respond to the lawful demand for herwritten response to one or more com-plaints of professional misconduct; andengaging in conduct adversely reflectingon her fitness as a lawyer by reason of theforegoing. Based upon a finding that shewas less culpable than her partner RobertV. Fonte (supra), she was suspended fromthe practice of law for a period of sixmonths, commencing June 10, 2010, andcontinuing until further order of the Court.
Anthony Chike Emengo (May 18,2010)
Following a disciplinary hearing, therespondent was found guilty of violatinghis fiduciary obligations by failing tomaintain and preserve funds entrusted tohim, which belonged to another person;engaging in conduct reflecting adverselyon his fitness as an attorney by reason ofthe foregoing; commingling personalfunds with funds belonging to another per-son in his attorney trust account; failing toadhere to his bookkeeping duties by failingto maintain required bookkeeping entriesfor seven years after the events thoseentries recorded; and engaging in conductreflecting adversely on his fitness as alawyer by violating his fiduciary obliga-tions and duties due to his inability toaccount for funds held in his attorney trustaccount. He was suspended from the prac-tice of law for a period of two years, com-mencing June 18, 2010, and continuinguntil further order of the Court.
Wynman Chang (June 3, 2010)The respondent was immediately sus-
pended from the practice of law, pendingfurther proceedings, upon a finding that hewas guilty of professional misconductimmediately threatening the public inter-est, by virtue of his persistent pattern offailure to cooperate with the GrievanceCommittee and other uncontroverted evi-dence of professional misconduct.
Stephen E. Atkins, admitted asStephen Edward Atkins (June 7, 2010)
The respondent was immediately sus-pended from the practice of law, pendingfurther proceedings, upon a finding that hewas guilty of professional misconduct
immediately threatening the public inter-est, based upon his failure to comply withthe lawful demands of the GrievanceCommittee and other uncontroverted evi-dence of professional misconduct.
Warren Scott Goodman, a suspendedattorney (June 8, 2010)
Following a disciplinary hearing, therespondent was found guilty of neglectinga legal matter entrusted to him by failing toproperly commence an action; engaging inconduct adversely reflecting on his fitnessas a lawyer by attempting to commence a“second” action, which was dismissed astime-barred, thereby misleading the clientabout the “first” action; engaging in con-duct adversely reflecting on his fitness as alawyer by failing to notify the client of thedismissal of the “first” action; engaging inconduct prejudicial to the administrationof justice by making assertions to theGrievance Committee with reckless disre-gard for the truth, thereby failing to coop-erate with the Committee’s lawful investi-gation; engaging in conduct adverselyreflecting on his fitness as a lawyer by rea-son of the foregoing; neglecting a legalmatter entrusted to him by commencing anaction, which was dismissed, and failing tonotify the client of the dismissal until suchtime as the appeal period had expired;engaging in conduct adversely reflectingon his fitness as a lawyer by neglecting toinform a client of the January 2005 dis-missal of his personal injury action untilMarch 2006, after the period for appealingthe dismissal had expired; engaging inconduct adversely reflecting on his fitnessas a lawyer by failing to apprise theGrievance Committee of the foregoing;engaging in conduct reflecting adverselyon his fitness as a lawyer by failing tocooperate with the Committee’s inquiries;engaging in conduct reflecting adverselyon his fitness as a lawyer by misleadingthe client, in March 2006, that he couldrecommence the lawsuit and that he(respondent) would be willing to continuepursuing the matter; engaging in conductprejudicial to the administration of justiceby neglecting client matters; and conductadversely reflecting on his fitness as alawyer by misleading the GrievanceCommittee relative to a purportedly “validand active” matter wherein the court filewas, in fact, lost, and a motion to recon-struct the file was required before theaction could be restored. The respondentwas suspended from the practice of law fora period of three years, and continuinguntil further order of the Court.
Ronald E. Stoute, admitted as RonaldEton Stoute (June 8, 2010)
Following a disciplinary hearing, therespondent was found guilty of convertingfunds entrusted to him as a fiduciary, inconnection with the practice of law. Hewas suspended from the practice of law fora period of two years, commencing imme-diately, and continuing until further orderof the Court.
The Following Attorney Was PubliclyCensured By Order Of The AppellateDivision, Second Judicial Department:
Robert John Demers, Jr., (June 8,2010)
On November 18, 2008, the SupremeCourt of the State of New JerseyDisciplinary Review Board issued a repri-mand to the respondent. Upon theGrievance Committee’s application for
reciprocal discipline, pursuant to 22NYCRR §691.3, the respondent was pub-licly censured in New York.
At Two Recent Meetings Of TheGrievance Committee For The Second,Eleventh And Thirteenth JudicialDistricts, The Committee Voted ToSanction Attorneys For The FollowingConduct:
Failing to timely re-register with theNew York State Office of CourtAdministration (5)
Failing to carry out a contract ofemployment and failing to maintain ade-quate communication with a client
Neglecting a legal matter and failing tomaintain adequate communication withthe client
Neglecting a legal matter; failing tosupervise the work of an attorney to whomthe matter was assigned; and failing tomaintain adequate communication with aclient
Neglecting a legal matter; failing to ade-quately supervise the employee to whomthe attorney delegated responsibility forobtaining required information; and failingto provide a client in a domestic relationsmatter with a written retainer agreementand/or monthly billing statements
Neglecting legal matters and failing toact with reasonable diligence and prompt-ness in representing clients
Failing to provide a client with a retain-er agreement addressing the scope of legalservices to be provided, an explanation ofthe fees to be charged and/or the client’sright to invoke fee arbitration
Misrepresenting pertinent facts to acourt
Putting a case into suit without withmeeting, or discussing the matter, with theclient(s) and obtaining the information toprepare the subject complaint from anadversarial party
Representing a client without payingappropriate attention to the legal workand/or adequately preparing, as well asfailing to exert best efforts to ensure thatthe client’s decisions were “informed”
Failing to promptly refund an unearnedfee; failing to abide by the terms of the feearbitration process; and failing to complywith an award and judgment issued and/orentered in Small Claims Court
Failing to maintain required bookkeep-ing records; failing to identify a fiduciaryaccount as an IOLA, escrow, trust or spe-cial account, as required; and failing totimely cooperate with the GrievanceCommittee
Sharing fees with a non-attorney andimproperly engaging in multidisciplinarypractice with said non-attorney
This edition of ROLL CALL wascompiled by Diana J. Szochet, AssistantCounsel to the Grievance Committeefor the Second, Eleventh and ThirteenthJudicial Districts and Past President ofthe Brooklyn Bar Association.
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Roll Call (Continued from page 4)
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ments of SCPA §1406 which states that any orall of the attesting witnesses to a will may atthe request of the testator or after his death, atthe request of the executor named in the willor of the proponent or the attorney for the pro-ponent or of any person interested, make anaffidavit before any officer authorized toadminister oaths stating such facts as would ifuncontradicted establish the genuineness ofthe will, the validity of its execution and thatthe testator at the time of execution was in allrespects competent to make a will and notunder any restraint. The Court found that theself-proving affidavit, dated the same as thetestator's will, was valid under SCPA §1406because it was completed at the direction ofthe testator and served to establish the gen-uineness of the will. The Court ruled that theaffidavit also satisfied the statutory require-ment that the witnesses sign their names onthe will (EPTL §3-2.1(a)(4)) The Court con-cluded that the appearance of the self-provingaffidavit on numbered page ‘5‘ of the willdocument after the four pages of the testator'sdispositions, evinced the testator's desire forthis affidavit to be considered part of his will.The Court acknowledged that the witnesses'addresses did not appear on either the will orthe self-proving affidavit, but stated that thatfact alone was insufficient to invalidate anotherwise properly executed will. The Courtnoted that the statute does not require thatthere be an attestation clause, or even that thesignatures of the attesting witnesses followrather than precede the testator's signature.Accordingly, the court found that the will wasexecuted properly under EPTL §3-2.1 andadmitted it to probate. Matter of Neville,NYLJ 6/16/10, p. 28, c.3 (Surr. Ct., NassauCo. Surr. Riordan)
Proceeds of Joint Annuity Payable to theSurviving Annuitant, Not to NamedAnnuity Beneficiary- The named beneficiaryof a joint annuity sued for the proceeds of anannuity after the death of both annuitants, whowere husband and wife. After the death of thehusband, under the terms of the annuity poli-cy, the wife became the primary beneficiary,and the death benefit became payable to her atthat time, not to the named beneficiary. Theannuity policy provided further that the sur-vivor wife, in her capacity as the remainingowner of the annuity policy, had severaloptions with regard to the death benefit.However, neither the wife nor her representa-tives exercised any of those options prior to
her death, and the defendant insurance com-pany paid the death benefit to the wife’sestate. Both sides moved for summary judg-ment. The Court ruled for the defendant estateand insurance company and the plaintiffappealed. HOLDING- The Supreme Courtwas affirmed. The Court held that the annuitycontract clearly and unambiguously specifiedthat benefits thereunder were payable to thesurviving joint owner of the annuity if theother enumerated options available to the sur-viving joint owner were not exercised. TheCourt ruled that since the surviving jointowner wife failed to exercise an election tocontinue the annuity, and since the death ben-efit amount of the annuity had vested in herupon the death of her husband, that deathbenefit was payable to her estate as personal-ty at the time of her own death.Consequently, the Court found that the insur-ance company properly paid the death benefitto the wife’s estate. Ivaldi v. MetlifeInvestors Insurance Co., 72 A.D.3d 897(2nd Dept., 2010)
Court Refuses to Vacate a ProbateDecree Entered 12 Years before with theApplicant’s Consent at the Time- Thedecedent’s son sought in 2006 to vacate a1994 decree, entered upon his consent, admit-ting his mother's will to probate. ThePetitioner claimed that his father used finan-cial leverage over him to obtain the waiverand consent. Petitioner also claimed that hesuffered from a cognizable mental disabilityat the time he signed the waiver and consentand submitted an affirmation from his formerpsychiatrist to support his position. TheSurrogate’s Court granted summary judg-ment dismissing the application to vacate theprobate decree and the son appealed. HOLD-ING- The Surrogate was affirmed. The Courtruled that the petitioner failed to show that hisconsent was obtained by fraud or overreach-ing, was product of misrepresentation or mis-conduct, or other sufficient cause that wouldjustify reopening the decree. The Court statedthat a party seeking to set aside a decreeadmitting a will to probate entered upon hisconsent bears the initial burden of articulatinga claim of good cause to set aside the waiverbased upon a showing that such consent wasobtained by fraud or overreaching, was theproduct of misrepresentation or misconduct,or other sufficient cause that justifies thereopening of the decree. The Court found thatthe petitioner had failed to make such a show-
ing. The Court stated that the claim that thepetitioner’s father used financial leverageover him to obtain the waiver and consent didnot provide a sufficient basis to make out aclaim of economic duress. The Court alsofound that the affirmation of petitioner's for-mer psychiatrist did not demonstrate thatpetitioner suffered from a cognizable mentaldisability at the time he signed the waiver andconsent, and that the evidence did not showthat petitioner was otherwise incapable ofsafeguarding his legal rights at that time. TheCourt also held that in the absence of a validexcuse for the 12-year delay in seeking tovacate the decree, and the prejudice thatwould result from revoking the probatedecree, the petitioner was guilty of grosslaches. Matter of Bryer, 2010 N.Y. Slip Op.03166 (1st Dept., 2010).
Legislative Acts:I. EPTL §4-1.2 was amended to clarify the
way a non-marital child can establish statusto inherit from his or her father. The measureestablishes two different methods of proof,both using the same clear and convincing evi-dence standard. The measure merges clauses(C) and (D) of section 4-1.2(a)(2) into a sin-gle clause (C) with respect to use of a genet-ic marker test and recognizes two methods bywhich a person may establish paternity: theresults of a genetic marker test administeredto the father (or to a close relative at anytime), or by open and notorious acknowledg-ment of the father during his lifetime. Clause(D) was repealed. 2010 Session Laws of NewYork, Chapter 64 (effective 4/28/10, apply-ing to the estates of decedents dying on orafter such date)
II. EPTL §7-8.1 was amended to eliminatethe 21-year limit on how long pets can bekept under trusts. The original 1996 act wascreated for domestic animals with shorter lifespans and created problems for pet owners ofanimals other than dogs and cats. Animalssuch as horses with the average life span of30 years and certain species of birds were notprotected for their full life expectancy. TheLegislature found that young pets and petswith long life expectancies tended to out livethe time period in which they were coveredby the trusts. In the view of the Legislature,pet owners should have the option availableto make these trusts last for the lifetimes oftheir pets, and allowing pet trusts to continueuntil no animal was covered will ensure petowners that even their young animals will be
covered for their full life after their owner’sdeath. 2010 Session Laws of New York,Chapter 70 (effective 5/5/10)
III. EPTL §2-1.11 was amended to revisecertain provisions pertaining to the renuncia-tion of property interests to make New Yorkpractice in this area more consistent with fed-eral tax law. According to the Legislature, thebill revises certain provisions of EPTL §2-1.11 to improve the ability of practitioners tomeet its requirements along with those of thefederal tax disclaimer act found in the InternalRevenue Code §2518. It was of concern to theLegislature that practitioners incorrectly hadoften thought that compliance with the provi-sions of the New York State renunciationstatute also meant compliance with federalrequirements as well. Among other things, thelegislation relocates the compliance warningfrom the end of the statute to a position whereit is difficult to overlook. In the Legislature’sview, parties seeking to renounce under NewYork law are clearly warned that compliancewith the provisions of the New York renunci-ation statute will not be sufficient under allcircumstances to qualify as a disclaimer forfederal tax purposes. The proposed legislationalso attempts to resolve certain inconsisten-cies between the two statutes with a goal ofmaking compliance easier under both rules.2010 Session Laws of New York, Chapter 27(effective 1/1/11)
Brief briefs:Although it is well settled that a Surrogate
has the discretion to order a fiduciary to paycounsel fees to the attorneys for a successfulobjectant to an accounting, the Surrogate didnot abuse his discretion in refusing to awardcounsel fees based on the Surrogate’s conclu-sion that there was no evidence of bad faith,fraud, self-dealing or theft by the fiduciary.Matter of Manufacturers & Traders TrustCo. (Adams), 72 A.D.3d 1573, 3rd Dept.,2010)
Where a trustee has discretionary power,its exercise should not be the subject of judi-cial interference, as long as it is exercised rea-sonably and in good faith. Haynes v. Haynes,72 A.D.3d 535 (1st Dept. 2010)
Compiled by Hon. Bruce M. Balter,Justice of the Supreme Court, State of NewYork, and Chair, Brooklyn Bar Association,Surrogate's Court Committee, and Paul S.Forster, Esq., Chair, Brooklyn BarAssociation, Decedent's Estates Section.
The State Of Estates (Continued from page 8)
New York State Chief Judge Judith S. Kaye (Ret.),recipient of the VLP’s 2010 Building BridgesLeadership Award, pictured with VLP BoardPresident James P. Slattery.
VLP Board President James P. Slattery, Hon. Judith S. Kaye, and VLPGala Benefit Co-Chairs and Board Members Terri Letica and LawrenceF. DiGiovanna
From left: 2008 Building Bridges Leadership Award recipi-ent William F. Kuntz II, Hon. Judith S. Kaye, BBA TrusteeDavid Chidekel and BBA Second Vice President AndrewFallek
Gala guests enjoyed a rousing performance by members of theBrooklyn Youth Chorus.
BBA President Andrea Bonina and Kings CountyAdministrative Judge for Civil Matters Sylvia Hinds-Radix
Event sponsor Robert P. Santoriella (second from left) oflaw firm Robert P. Santoriella P.C., with guests LisaHarris, Kathy Murphy, Paul Sagiv, Chad Kaser, PhilipSantoriella, Annette Norris, Geraldine Santoriella,Barbara Barrett and Brian Barrett.
Kings County Administrative Judge for CriminalMatters Barry Kamins presented the LeadershipAward to Judge Kaye.
Among the attendees were several who have been involved with the VLP fromits inception, including (from left) VLP Board Members Chip Gray, MartyNeedelman and Terri Letica, and BBA Executive Director Avery Okin (farright); pictured with Brooklyn Criminal Court Judge Miriam Cyrulnik andJudge Kaye.
The elegant Palm House of the Brooklyn Botanic Gardens was the setting for the VLP’s 20th anniversary celebration.
Judge Kaye with New York Court of AppealsJudge Theodore T. Jones
BROOKLYN BARRISTER - JULY 201012
Brooklyn Bar Association Volunteer Lawyers Project Honors Chief Judge Judith S. Kaye (Ret.) at 20th Anniversary Event
