The Brooklyn Bar AssociationVolunteer Lawyers Project washonored as one of the premierepro bono programs of New YorkState at a gala ceremony held inthe Rotunda of the State SupremeCourt on October 25, 2010. Tocelebrate National Pro Bono
Week, the New York State BarAssociation, the New York StateCourts and the Office of theMayor of the City of New Yorkpresented the VLP with a 2010Pro Bono Service Award for itsinnovative programming to assistBrooklyn residents facing over-
whelming legal issues related toconsumer debt. CLARO, theweekly consumer debt clinic inKings County Civil Court, whichoriginated with the VLP in 2006in partnership with a pro bonostudent action group at BrooklynLaw School, has now been repli-
cated city-wide. The VLP alsopartners with the NYS Access toJustice Program in conductingthe Consumer Debt VolunteerLawyer for a Day program inCivil Court, under the directionof the VLP’s Robert Jacovetti.
The award, accepted by VLPExecutive Director JeannieCostello and SupervisingAttorney Sidney Cherubin, was
presented to the VLP by the Hon.Jeffrey Oing, Supervising Judgeof New York County Civil Court.BBA President Andrea Boninaand Executive Director Avery EliOkin were in attendance at theceremony; NYSBA PresidentStephen P. Younger praised Ms.Bonina and the BBA for theirongoing support of pro bono pro-grams through the VLP.
VOL. 63 NO. 3
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
What’s InsideVolunteer Lawyers ProjectReceives Award at Kick-Off event ......................................Page 1
Discoverability of a Personal Injury Plaintiffs Facebook andMyspace PageBy: Glenn Verchick, Esq.........................................................Page 1
The DocketBy: Louise Feldman................................................................Page 2
Legal BriefsBy Avery Eli Okin, Esq., CAE................................................Page2
New MembersOctober 2010 ..........................................................................Page 2
Respectfully SubmittedBy: Andrea Bonina, Esq. ........................................................Page 3
Roll CallBy: Diana J. Szochet, Esq. .....................................................Page 3
Insurance Resources in the Brooklyn Supreme Court LibraryBy: Jacqueline Cantwell .........................................................Page 4
The State of EstatesBy: Hon. Bruce M. Balter and Paul S. Forster, Esq..............Page 5
Brooklyn Bar Association Foundation, Inc.Annual Dinner
Monday, December 6, 2010Marriott – Brooklyn Bridge Hotel
To Be Honored With The Association’s Annual Award:
Hon. Sylvia O. Hinds-RadixAdministrative Judge for Civil Matters
Supreme Court, Kings County
Hon. Ellen SpodekJustice, Supreme Court, Kings County
Rose Ann C. BrandaPast President 2007-2008Brooklyn Bar Association
And Honoring the Retirement of Judicial and Non-Judicial Court Personnel
For further information see www.brooklynbar.org
To what extent are a personal injury plaintiff’sself-restricted private pages of his or her social net-working websites, such as Facebook and MySpace,discoverable? The question was recently addressedin a well reasoned and thoroughly researched deci-sion by Justice Jeffrey Arlen Spinner, of theSupreme Court, Suffolk County.
In Romano v. Steelcase,1 the Court ultimatelyheld that plaintiff’s private, self-restricted MySpaceand Facebook pages, as well as deleted and histori-cal data from such sites, were discoverable whereplaintiff had put her physical condition and loss ofenjoyment of life in issue and where her right toprivacy concerns were outweighed by the defen-dants’ need for the discovery.
In Romano, plaintiff sued defendants allegingthat she sustained personal injuries as a result of
defendants’ negligence. The exact nature andextent of the plaintiff’s injuries in Romano are notdetailed in the decision but it is revealed that plain-tiff claimed to have, “sustained permanent injuriesas a result of the incident and that she can no longerparticipate in certain activities or that these injurieshave effected her enjoyment of life.”2 She alsoclaimed to be, “largely confined to her house andbed”3 but is depicted on the public portion of herFacebok page as, “smiling happily in a photographoutside the confines of her home.”4 Defendantstook the position that the portions of the plaintiff’sFacebook and MySpace pages, to which they hadfree access, painted a picture of plaintiff’s post-accident life that was contrary to her claims ofphysical limitations and loss of enjoyment of life,which were being made in her case. As such, defen-dants argued that plaintiff’s restricted information
Discoverability Of A Personal InjuryPlaintiff’s Facebook And Myspace Pages
(Continued on page 9)
From left to right: VLP Pro Bono Coordinator Jessica Spiegel; VLPSupervising Attorney Sidney Cherubin; the Hon. Jeffrey Oing,Supervising Judge, New York County Civil Court; Deputy MayorCarol Robles-Román; VLP Executive Director Jeannie Costello.
By Glenn Verchick, Esq.
BROOKLYN BARRISTER - NOVEMBER 20102
November 23, 2010 Tuesday KCCBA Board of Director’s Meeting
Board of Trustees Room 5:00 P.M.
KCCBA CLE Program Auditorium 6:00 P.M.
November 25, 2010 Thursday In observance of Thanksgiving the
& & Brooklyn Bar Association, the
November 26, 2010 Friday Foundation Reading Room, the Lawyer Referral Service and the
Brooklyn Bar Association Volunteer Lawyers Project will be closed
THE DOCKETIncluded below are events which have been scheduled for the period
November 23, 2010 through February 1, 2011 Compiled by Louise Feldman
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 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 OCTOBER 2010
STUDENT MEMBERS
Laura L. Cruz
Cynthia FisherMichelle Hua
Evelyn LaporteMichael Scott Mosberg
Olga StatzAnna Vidiaev
LEGAL BRIEFSJudicial Recognition
Congratulations to Brooklyn BarAssociation member Hon. Noach Dearwho has been designated an ActingSupreme Court Justice assigned to theCivil Term of Kings Supreme.
Congratulations to Brooklyn BarAssociation Past President Hon. BarryKamins who has been appointed Co-Chair of the New York State PermanentSentencing Commission. Co-Chairingthe Commission with Judge Kamins isHon. Cyrus Vance, Jr. the DistrictAttorney of New York County.
Kudo’s and ProfessionalRecognition
The New York Times’ SundayMagazine on October 3, 2010 publishedtheir Annual Super Lawyers supplement.Over twenty Brooklyn Bar Associationmembers were selected. Included werePresident Andrea E. Bonina and herlaw partner and brother John Bonina,Past Presidents Gregory T. Cerchione,Rose Ann C. Branda, David Doyaga,Sr., Paul A. Golinski and Trustees DinoMastropietro and Joseph Rosato.Three partners at Kramer, Dillof,Carmine A. Rubino, Judith Livingstonand Thomas A. Moore as well as bothname partners at Gurfein Douglas LLP,
Richard A Gurfein and Preston J.Douglas were selected.
Also singled out for Super Lawyersstatus were Brooklyn Bar Associationmembers Helene Blank, MartinEdelman, Hon. Kenneth Tisker,Andrew S. Garson, Louis Grandelli,David J. Hernandez, Gregory M.Messer, Richard E. Mischel, KennethP. Nolan and Devon Reiff.
Congratulations to Brooklyn BarAssociation Volunteer Lawyers ProjectExecutive Director Jeannie Costello andmanaging Attorney Sidney Cherubinwho accepted an award at the celebratePro Bono Celebration Week Kick-Offheld on October 25, 2010 in the Rotundaof New York County Supreme Court.The Volunteer Lawyer Project was rec-ognized for its work in consumer creditissues in partnership with CLARO andNYS Courts Access to Justice Programby Carol A Robles-Roman, DeputyMayor for Legal Affairs and Stephen P.Younger, President of the New YorkState Bar Association.
Heard on the street
The Judicial Council of the SecondCircuit has announced a vacancy for aBankruptcy Judge based in Brooklyn.
(Continued on page 9)
The Following Attorneys WereDisbarred By Order Of The AppellateDivision, Second Judicial Department:
William P. Fitzgerald (September 28,2010)
On March 9, 2010, the respondentpleaded guilty in the County Court,Suffolk County, to four counts of grandlarceny in the second degree, a class Cfelony; eight counts of grand larceny in thethird degree, a class D felony; grand larce-ny in the fourth degree, a class E felony;and scheme to defraud in the first degree,a class E felony. By virtue of his felonyconvictions, the respondent ceased to bean attorney and counselor-at-law pursuantto Judiciary Law §90(4)(a) and was auto-matically disbarred as of March 9, 2010.
Andrew McGee, admitted as AndrewBriscoe McGee (September 28, 2010)
On June 2, 2009, the respondent pleadedguilty in the Criminal Court of the City ofNew York, Richmond County, to thecrimes of driving while intoxicated, in vio-lation of Vehicle and Traffic Law §1192.3,and aggravated driving while intoxicated,in violation of Vehicle and Traffic Law§1192.2(a), both misdemeanors. The con-victions were for two separate offensescommitted on December 16, 2008, and
January 26, 2009, respectively. On March19, 2010, the respondent pleaded guilty inthe Supreme Court, Richmond County, todriving while intoxicated in violation ofVehicle and Traffic Law §1192.3. Pursuantto Vehicle and Traffic Law §1193(1)(c)(ii),that offense constitutes a class D felony inview of the respondent’s two prior convic-tions. By virtue of his felony conviction,the respondent ceased to be an attorney andcounselor-at-law pursuant to Judiciary Law§90(4)(a) and was automatically disbarredas of March 19, 2010.
The Following Attorneys WereSuspended From The Practice of LawBy Order Of The Appellate Division,Second Judicial Department:
Barry R. Feerst, admitted as BarryRoy Feerst, a suspended attorney(September 28, 2010)
On October 25, 2001, the respondentpleaded guilty to the federal felony of con-spiracy to defraud the United States. OnNovember 7, 2008, he was sentenced to aterm of three years probation, on conditionthat he participates in 75 hours of commu-nity service. By decision & order onmotion of the Appellate Division, SecondJudicial Department, dated July 22, 2009,the respondent was suspended pursuant to
Judiciary Law §90(4)(f) as a result of hisconviction of a serious crime. Following adisciplinary hearing, the respondent wasfound guilty of having been convicted of aserious crime, in violation of Code ofProfessional Responsibility DR 1-102(A)(3),(4) and (7). He was suspendedfrom the practice of law for an additionalone year, commencing immediately, andcontinuing until further order of the Court.
Koston Hui Feng, admitted as Koston F.Pelly (September 28, 2010)
Following a disciplinary hearing, therespondent was found guilty of engagingin a pattern of converting funds entrustedto him as a fiduciary, incident to his prac-tice of law; failing to safeguard fundsentrusted to him as a fiduciary; using hisattorney escrow account for purposesunrelated to his practice of law; and failingto maintain required records for his attor-ney escrow account. In determining anappropriate measure of discipline toimpose, the Court considered the absenceof any prior history as well as respondent’sexplanation that he was unfamiliar withthe rules governing escrow accounts; thathe opened three accounts: a checkingaccount, an escrow account and a moneymarket account; and that he “did not real-ize at the time that transferring escrow
funds back and forth between accountswas improper.” Moreover, “when apprisedby the Grievance Committee that hisescrow practices were improper, therespondent immediately ceased such prac-tices.” Under the totality of the circum-stances, the respondent was suspendedfrom the practice of law for a period of sixmonths, commencing October 29, 2010,and continuing until further order of theCourt. In addition, the respondent wasdirected to make restitution to the NewYork State IOLA Fund of the interest gen-erated by depositing fiduciary funds intohis money market account.
Eric A. Stewart, admitted as Eric AllenStewart (October 13, 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 on his failure to cooperate with theGrievance Committee and other uncontro-verted evidence of professional miscon-duct.
The Following Suspended AttorneysAnd/Or Voluntary Resignors WereReinstated As Attorneys And
The Brooklyn Bar AssociationFoundation will hold its annual dinner onMonday, December 6 at the New YorkMarriott at the Brooklyn Bridge Hotel.President-Elect Ethan B. Gerber, who isthe dinner chair, has been hard at workwith the Annual Dinner Committee. Withhis leadership and our terrific honorees, Iam certain this year’s dinner will be a hugesuccess.
We are honoring three exceptional indi-viduals this year, each of whom has beenunfailingly supportive of the Associationand the Foundation: Hon. Justice SylviaHinds-Radix, Hon. Justice Ellen Spodekand Past President Rose Ann Branda.Judge Hinds-Radix is the AdministrativeJudge for Civil Matters in Kings County.In this capacity she has been extremelyreceptive to our members and has workedto improve our court systems. JudgeSpodek was instrumental in starting theCLARO program with the BBAVolunteers Lawyers Project, which hasprovided extraordinary assistance to con-sumers burdened by debt. Past PresidentRose Ann Branda lead our organization in
an exemplary fashion duringher presidency and has con-tinued to given her time andleadership to our organizationthrough chairing the FamilyLaw Section.
As you may be aware, ourcourt system is losing manydedicated, experienced andvalued court employees whoelected to participate in anearly retirement program thisyear. In recognition of theiryears of outstanding service,the Brooklyn Bar AssociationAnnual Dinner Committeeunanimously voted to recognize theseretirees at this year’s dinner. James Pelzer,Chief Clerk of the Appellate Division,Second Department, who retired this sum-mer, will be representing the non-judicialemployees of the Appellate Courts who areretiring. Thomas Kilfolye, Chief Clerk ofCivil Term of the Supreme Court will berepresenting the retirees of 360 AdamsStreet. James Imperatrice, Chief Clerk ofthe Criminal Term of the Supreme Court,will represent the retirees of 320 Jay Street,including the Deputy Chief, and Major EricLong will represent the retiring uniform
court officers. In addition, asis our tradition, judicial mem-bers of the BBA in goodstanding who are retiring willbe recognized. This year wewill be recognizing SupremeCourt Justices Hon. AbrahamGerges, Hon. Allen Hurkin-Torres, Hon. RandolphJackson, Hon. MartinSchneier, as well as retiringFamily Court Judge Paul H.Grosvenor and retiring CivilCourt Judge Hon. AliceFisher Rubin. Along with theBrooklyn Bar Association
membership, I am deeply grateful for theextraordinary service of both the retiringjudicial members and the retiring non-judi-cial court employees. They will be greatlymissed.
With these spectacular honorees there isno question that our annual dinner will bethe event to attend in December, and I amlooking forward to being a part of what issure to be a terrific evening.
I have been asked what the difference isbetween the Association and theFoundation, and the short answer is thatthe Brooklyn Bar Association serves its
members and the legal community and theBrooklyn Bar Association Foundationserves the public.
The Foundation does important workthat benefits the Brooklyn community.Each year the Foundation awards twoscholarships to children of publicemployees, which assist these youngscholars in pursuing careers in the legalfield. This year these scholarships will beawarded at a ceremony at 1 Police Plazaon December 15. The Programs for thePublic lecture series sponsored by theFoundation provides important informa-tion on issues ranging from foreclosuresand bankruptcy to elder law and patientrights to members of the public for free.The Foundation also operates our library,which is a fantastic resource for ourmembers. Finally, the Foundation sup-plies significant funding for theVolunteer Lawyers Project through ayearly donation.
The funds raised by our annual dinnersupport these endeavors and make it pos-sible to continue making a positive differ-ence in our community. I truly hope thatall of our members will support theFoundation through attending and spon-soring our annual dinner.
BROOKLYN BARRISTER - NOVEMBER 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. 63 No. 3 Novebmer 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.
Glenn VerchickEditor-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
Susan Master
Gregory Messer
Hemalee J. Patel
Aimee L. Richter
Robert P. Santoriella
Michael Treybich
Andrea E. Bonina Esq.
By Andrea E. Bonina Esq.,President
(Continued on page 4)
ROLL CALL
Brooklyn Bar Association Foundation Annual Dinner
BROOKLYN BARRISTER - NOVEMBER 20104
The West’s New York Practice Serieshas issued a new title, New York InsuranceLaw by Anne M. Payne and JosephWilson. Insurance Law is volume 31 in aseries that emphasizes practice-orientedmaterial for an attorney; the text sectionsare brief, but extensively footnoted. Itseems to be more of a case finder than anexplanation of insurance. After scanningthe table of contents, the footnotes summa-rizing cases and the index, I realized that Idid not know enough about insurance towrite an informative review. This was anopportunity for me to learn what the libraryhad on insurance.
All of the practice oriented insurancevolumes refer to the two major treatises oninsurance, Appleman and Couch. These areessential explanations of insurance. TheLibrary has both sets in hard copy;Appleman is also part of our Lexis sub-scription in the Insurance Library section.The Lexis insurance resources are exten-sive; do not neglect them.
New York Jurisprudence revised itsinsurance law section this summer. Sixvolumes now cover insurance, 68 68A, 69,70, 70A and 71. The index in the last vol-ume is very detailed, but still check themain index. For example, title insuranceunder the insurance chapter index has oneentry, but in the general index title insur-ance entries take up two columns with ref-erences to the chapters on real property andabstracts. While NY Jur is not equivalent tothe Appleman and Couch treatises, it doesdirect the researcher to pertinent NYInsurance Law and cases.
In the reading room’s open stacks,West’s New York Insurance Law is shelved
beside Insurance Law Practice (KFN 5290.I57 2006) from the New York State Bar(NYSBA). Updates are on Lois Lawthrough the public access computers. Thetwo books should be used together and top-ical materials applied when necessary. Forexample, a footnote introducing NYSBA’sChapter 34 “Title Insurance: What EveryNew York Lawyer Should Know,” refersto Real Estate Titles, 3d ed, by the sameauthor, James Pedowitz.
After a day of reviewing insurance mate-rials, I would make the following sugges-tions. Use Appleman and Couch to getbackground understanding of your topic.The indexes to both titles are comprehen-sive and prove how complex an issue canbe. Once you have an understanding of thetopic, find New York state law and casesinterpreting these issues. Use NY Jur forNew York general background, West’sInsurance Law for cases, and NYSBAInsurance Law Practice for essays by prac-ticing attorneys. Do not neglect topicalmaterials. You can find those referenceseither through annotations or the librarycatalog. For example, automobile insur-ance is covered well in all the booksalready mentioned, but checking Arthur V.Lynch’s The New York No-FaultThreshold and Weitz on AutomobileLitigation and the No-Fault Handbookmight give you that extra edge to win yourcase. And you should also check HowInsurance Companies Settle Cases ( KF1164.3 N35 2004).
The Brooklyn Supreme CourtLibrary is open Monday-Friday, 9 am -6 pm. The Library offers free Lexis andWestlaw and a document delivery serv-ice at Click on Libraries to get a fulldescription of services and locationsthroughout the state.
Insurance Resources in the BrooklynSupreme Court Law LibraryBy Jacqueline Cantwell, Senior Law Librarian
Roll Call (Continued from page 3)
Counselors-At-Law By Order Of TheAppellate Division, Second JudicialDepartment:
Priya G. Bhatt, voluntary resignor(October 12, 2010)
Rene G. Garcia, a suspended attorney(October 12, 2010)
Andrew P. Jones, admitted as AndrewPaul Alexander Jones, a suspended attor-ney(October 12, 2010)
Gerard P. McLoughlin, admitted asGerard Peter McLoughlin, a suspendedattorney(October 12, 2010)
At A Recent Meeting of the GrievanceCommittee For The Second, EleventhAnd Thirteenth Judicial Districts, TheCommittee Voted To SanctionAttorneys For The Following Conduct:
Failing to timely re-register as an attor-ney with the New York State Office ofCourt Administration (6)
Neglecting a legal matter; failing tomaintain adequate communication with a
client; and failing to cooperate with theGrievance Committee (2)
Failing to adequately oversee the activi-ty in an escrow account upon which he/shewas the signatory
Escrow irregularities including failingto maintain a contemporaneous ledger orsimilar record of deposits into, and with-drawals from, his/her escrow account;drawing escrow checks for businessexpenses; and making cash withdrawals
This edition of ROLL CALL wascompiled by Diana J. Szochet, AssistantCounsel to the Grievance Committeefor the Second, Eleventh andThirteenth Judicial Districts and PastPresident of the Brooklyn BarAssociation.
45 North Station Plaza, Suite 404, Great Neck, NY 11021516-504-0018
139 Manhattan Avenue, New York, NY 10025212-280-3706
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We wish you all a meaningfulThanksgiving season, and we give thanksfor all we have, including the myriadopportunities our society offers us. Ourhumble contribution to your blessings arethe following interesting and importantcases, and New York State Department ofTaxation and Finance pronouncements,involving the admission of a 50-year oldwill to probate despite the sole survivingwitness having no recollection of the willsigning having occurred; the validity awaiver of the right of election signed onlyby the surviving spouse; a limitation on thedepositions of medical personnel in a pro-bate proceeding; leave being granted bythe Surrogate to the Department of SocialServices in a Surrogate’s CourtAccounting Proceeding to apply in theSupreme Court to vacate that Court’sdetermination allocating the entire pro-ceeds of a cause of action to wrongfuldeath; the absence of authority of aSurrogate to limit the amount from a set-tlement which can be put into a statutorysupplement needs trust; the refusal by theNew York State Department of Taxationand Finance to issue an Advisory Opinionon the valuation of a contract and mort-gage as of a decedent’s date of death, onthe grounds that that is the executor’sresponsibility, subject to later audit; and achange in New York State Department ofTaxation and Finance policy, now requir-ing “resident” trusts, not otherwise subjectto New York State income tax, nonethe-
less to file New York State Income TaxReturns, even if no tax is shown as due.
A 50-year Old Will is Admitted toProbate Despite the Sole SurvivingWitness Having no Recollection of theWill Signing Having Occurred- Thedecedent, a physician, married his firstwife in 1953. On September 12, 1958, hepurportedly executed a document that peti-tioners, his daughters, sought to probate ashis will. The first wife died in 1981, and in1988, the decedent married again. His sec-ond wife survived him and objected to pro-bate. The decedent died in 2006 leaving anestate valued at approximately $28 mil-lion. Two months after her husband'sdeath, the surviving spouse found thealmost 50-year-old four-page document intheir home, which the decedent’s childrenthen sought to have probated as his will.Three witnesses signed the will, HarryGrayer, Esq., Barbara Sammons, andMary Ann Schuder. Grayer was the dece-dent's attorney. There was an invoice fromGrayer in the record, dated the day the willwas executed, charging the decedent for“professional services rendered” “Re:Preparation of Will, etc.” The two otherwitnesses, Sammons and Schuder, workedin the decedent's medical office at the timethe will was signed. All three of the wit-nesses' signatures appear at the end of thewill, underneath an attestation clause,which recites: “The above instrument wason the 12th day of September, 1958 in theBorough of Manhattan, County, City andState of New York, subscribed by SEY-MOUR LIONEL HALPERN, the Testatorabove named in the presence of us and of
each of us, and at the same time and place,the above instrument was published anddeclared by the said Testator to be his Lastwill and Testament and thereupon each ofus at the request of the said Testator and inhis presence and in the presence of eachother have hereunto signed our names aswitnesses thereto, and wrote the places ofour respective residences alongside ournames.” The will made a number of minorbequests to relatives and charitable organ-izations. With the exception of thosebequests, the first wife and the decedent’seldest daughter were the sole beneficiariesunder the will, with a provision made forany after-born children. The decedent andhis first wife thereafter had a seconddaughter and a son. Ms. Sammons, theonly surviving attesting witness, wasdeposed. Ms. Sammons, who was 69 yearsold, testified that she recognized her signa-ture at the end of the will and that sheremembered living at the address listednext to her signature in 1958. However,she also testified, more than 15 times, inresponse to a variety of questions, that shehad no memory of the events of September12, 1958, because they occurred 50 yearsbefore the deposition. Handwriting expertsauthenticated decedent's signature at theend of the will, as well as that of his attor-ney, Mr. Grayer. The surviving spousefiled objections to probate, asserting thatthe will was not duly executed. The propo-nents moved for summary judgment toadmit the will to probate, and the objectantcross-moved for summary judgment aswell. The court held a hearing and con-cluded that the inability of the surviving
witness to remember the execution of thewill 50 years before when she was 20years old was insufficient to rebut the pre-sumption of due execution and that therewas no material issue of fact as to the dueexecution of the will, and admitted the willto probate. The objectant appealed.HOLDING- Over a strong dissent, theAppellate Division affirmed the Surrogate.The Court stated that before admitting awill to probate, Surrogate's Court must besatisfied that the execution of the will wasvalid. The Court noted that the proponenthas the burden of demonstrating, by a pre-ponderance of the evidence, that a purport-ed will was duly executed, and that if anattorney-drafter supervises the executionof a will, there is a presumption of regu-larity that the will was properly executed.The Court added that a valid attestationclause raises a presumption of a will'svalidity. Nonetheless, the Court acknowl-edged that it is incumbent uponSurrogate's Court to examine all of the cir-cumstances surrounding the execution ofthe document in order to ascertain itsvalidity. The Court pointed out that thedetermination whether to dismiss objec-tions and admit a will to probate is withinthe discretion of Surrogate's Court, andthat its determination should not be over-turned absent a showing of an abuse there-of. The Court found the will to have beenexecuted fully in accordance withDecedent Estate Law § 21 which then gov-erned. The Court found that the decedenthad signed the will at the end of the docu-ment; that there was an attestation clause
THE STATE OF ESTATESBROOKLYN BARRISTER - NOVEMBER 2010 5
Liz’s parents, David and Kathy Padilla, with BBA President Andrea Bonina, Borough PresidentMarty Markowitz, VLP Executive Director Jeannie Costello, and New York State Senator KevinParker.
Members of the Brooklyn Bar team included Steven Catalano, Mark Longo, GregoryLaSpina, Glenn Verchick, Ethan Gerber, Andrea Bonina, Ben Verchick and ArielleGerber.
BROOKLYN BARRISTER - NOVEMBER 20106
For the fifth consecutive year, hundreds of friends andsupporters of the Volunteer Lawyers Project came togetheron October 2 to enjoy a beautiful fall day in Prospect Parkand to honor the memory of an extraordinary colleague.With over 300 individuals participating in the 5th AnnualLiz Padilla Memorial 5k, and many more cheering from thesidelines, it was clear that the yearly run/walk has becomean eagerly-anticipated event for many in the legal commu-nity.
Brooklyn Borough President Marty Markowitz was onhand to present a proclamation to VLP Executive DirectorJeannie Costello, and to Liz’s parents Kathy and David
Padilla. Liz was a Staff Attorney at the Volunteer LawyersProject in June, 2005, when she was tragically killed in acycling accident while on her way to work. The 5k in hername was begun in 2006 to celebrate Liz’s legacy as a com-passionate advocate and an accomplished athlete.
This year marked the first appearance of an officialBrooklyn Bar Association team, led by BBA President andRace Co-Chair Andrea Bonina. Other teams includedTeam Slattery/Appelle, organized by VLP Board PresidentJames T. Slattery; Team Letica, led by VLP Board MemberTerri Letica; Team Patterson Belknap; Team Legal Eagles,comprised of associates from Alston & Bird LLP; TeamMedLaw, from the law firm of Bonina and Bonina; TeamSNR Denton; Team CLARO, representing the VLP’s con-
sumer debt clinic; and staff and participants from On YourMark, a non-profit that provides programs for adults andchildren with disabilities.
The race was followed by a “pee wee” race – always ahighlight of the day for the kids and adults alike – and thepresentation of trophies to runners in several categories.
In addition to supporting the VLP’s ongoing work assist-ing Brooklyn’s neediest residents, proceeds from the 5kfund the Liz Padilla Memorial Fellowship, allowing anaspiring public interest lawyer from Cornell Law School(Liz’s alma mater) to spend a summer as an intern at theVolunteer Lawyers Project.
Mark your calendars now – the next Liz PadillaMemorial 5k will be held Sunday, October 2, 2011.
5th Annual Liz Padilla Memorial 5kBy Jessica Spiegal
Members of the Slattery/Appelle Team included Erin Appelle; VLP BoardPresident Jim Slattery, Yvonne Robinson, Linda Slattery, Maggie Appelle, andShannon Appelle.
The CLARO team, made up of volunteers from the VLP’s consumer debt clinic at Kings County CivilCourt.
Race winners celebrate at the conclusion of the 5k.
Once again this year, staff and race participants from On Your Mark, a pro-gram for disabled children and adults, joined in the fun.
Members of Team Letica (from left): DanielBush, Matt Slootsky, VLP Board MemberTerri Letica, Jamie Letica, Alison Meyer andNick Letica
Runners take off from the starting line at the 5th AnnualLiz Padilla Memorial 5k.
BROOKLYN BARRISTER - NOVEMBER 2010 7
5th Annual Liz Padilla Memorial 5k
BROOKLYN BARRISTER - NOVEMBER 20108
stating that he did so in the presence ofthree attesting witnesses and that hedeclared the document to be his last willand testament; and that the decedent'slawyer prepared the will, served as anattesting witness, and billed the decedent,on the date of the execution of the instru-ment, for the services rendered. The coverpage of the will also contained thelawyer’s letterhead. Ms. Sammons identi-fied her signature and address on the doc-ument, and a handwriting expert verifiedthe signatures of the decedent and thelawyer. In the Court’s view, theSurrogate's Court correctly concluded thatthe proponents demonstrated a prima facieshowing of due execution of the will, as itcontained a valid attestation clause, andwas executed under an attorney's supervi-sion, despite the fact that the sole surviv-ing witness testified that she did notremember the will's execution 50 yearsprior. The Court noted that upon the pre-sumption of due execution, the burdenthen shifted to the objectant to produceevidentiary proof in admissible form torebut the presumption and raise a materialissue of fact. The majority rejected the dis-sent's position that a trier of fact could rea-sonably infer, from the sole surviving wit-ness's deposition testimony, that the for-malities set forth in the attestation clausehad never taken place. In the Court’s view,the excerpts from the EBT relied on by thedissent, read in context, also could beinterpreted that she could not confirm thestatements made in the attestation clausebecause she didn't remember an eventalmost 50 years earlier, when she wasapproximately 20 years old. The Court
concluded that given all of the evidencesubmitted to the Surrogate, to wit: theobjectant's delivery of the will, which shefound in the decedent's closet; the invoicefrom the attorney-drafter, dated the sameday the will was purportedly executed; thesignature of the supervising attorney at theend of the will (authenticated by a hand-writing expert); the admission of the attest-ing witness that she too signed the will andthat her address at the time was correctlyset forth next to her signature; and theauthentication of the decedent and theattorney's signatures at the end of the willby a handwriting expert, it was not anabuse of the court's discretion to havegranted the proponent's motion for sum-mary judgment admitting the subject willto probate. The gist of the dissent was thatthe majority had vitiated “the principle thatthe court’s function on a motion for sum-mary judgment is issue finding, not issuedetermination” and had in effect weighedthe evidence and found that the better con-clusion was that the decedent executed thewill in accordance with the statutoryrequirements, which in the dissent’s viewwas improper. Matter of Halpern, 76A.D.3d 429 (1st Dept., 2010)
Waiver of the Right of Election ValidEven Though it Was Signed Only by theSurviving Spouse- The decedent and hissurviving spouse objectant had enteredinto two prenuptial agreements, one in2001 and one in 2006. The agreements,which contained the same terms, provided,inter alia, that the objectant waived herrights to the decedent's estate. In the 2001agreement, the objectant's acknowledg-
ment did not follow exactly the languageof the Real Property Law, and the agree-ment was not acknowledged by the dece-dent. The decedent died in 2008 and a peti-tion was filed to probate his will. The sur-viving spouse filed objections to probateand a notice of election as the survivingspouse of the decedent. In response, thepetitioner moved pursuant to CPLR§3211(a) to dismiss the objections on theground that the objectant lacked standingbased upon the prenuptial agreements inwhich she waived her rights to the dece-dent's estate. The objectant contended thatthe motion should be denied because theprenuptial agreements were not properlyacknowledged and were invalid due tofraud in the execution. The objectantrequested, if the court was not inclined todeny the petitioner's motion on the papers,that the court hold an evidentiary hearingon the validity of the acknowledgments ofthe prenuptial agreements. The Surrogate'sCourt, without a hearing, granted the peti-tioner's motion to dismiss the objectant'sobjections and dismissed her notice ofelection, on the ground of lack of standing,and admitted the will to probate. Theobjectant appealed. HOLDING- TheSurrogate was sustained. The AppellateDivision stated that EPTL §5-1.1-A(e)(2)provides that a waiver or release of a sur-viving spouse's right to an elective share ofthe estate of the deceased spouse must bein writing and subscribed by the makerthereof, and acknowledged or proved inthe manner required by the laws of thisstate for the recording of a conveyance ofreal property. The Court pointed out thatthere is no requirement that a certificate ofacknowledgment contain the precise lan-guage set forth in the Real Property Lawonly that it be in substantial compliancewith the statute. The Court noted that thereare two aspects to an acknowledgment, anoral declaration of the signer of the docu-ment and a written certificate, prepared byone of a number of public officials, gener-ally a notary public. The Court found thaton the 2001 agreement, the objectant'sacknowledgment substantially compliedwith the requirements of the Real PropertyLaw. The Court rejected the objectant'scontention, that the decedent was requiredto have also properly acknowledged the2001 agreement. The Court stated that awaiver of the right of election is effectivewhether unilateral in form, executed onlyby the maker thereof, or bilateral in form,executed by both spouses. The Court alsorejected the objectant’s contention that the2001 agreement was invalid due to fraudin the execution and, therefore, she hadstanding to object to probate of the willand the right to elect against the estate.The Court found the objectant's allegationsof fraud in the execution to be insufficientas a matter of law. In light of its determi-nation that the 2001 agreement was valid,the Court did not address the objectant'scontentions that the 2006 agreement wasinvalid. Matter of Abady, 76 A.D.3d 525(2d Dept., 2010)
Depositions of Medical PersonnelLimited in a Probate Proceeding- In aprobate proceeding proponent submitted aself-proving affidavit of the attesting wit-nesses stating that the decedent was of“sound mind, memory and understanding”and was not incompetent. In addition, pro-ponent presented the testimony of five dis-interested witnesses who each attested tothe decedent's capacity on the date of exe-cution, and also presented evidence that
the decedent was aware of the assets pass-ing under his will and knew that objectantswere the natural objects of his bounty butconsciously decided not to make a bequestto them. Medical records submitted byobjectants showed that while decedent wasterminally ill and initially confused anddisoriented upon his admission to the hos-pital, his cognitive facilities quicklyimproved and he was lucid on the daysbefore and on the date he made the will.Objectants requested the decedent's med-ical records almost a year after they com-menced depositions, and did not seek fur-ther discovery until four months after theyreceived the medical records. The objec-tants also raised a question as to which ofthe two attorneys present had supervisedthe execution of the will. The proponentmoved for summary judgment and theobjectants moved for further discovery todepose medical personnel who attendedthe decedent in the hospital. The Surrogateruled that objectants' motion for furtherdiscovery to depose medical personnelamounted to a fishing expedition, andgranted the motion for summary judgmentadmitting the will. The objectant appealed.HOLDING- The Surrogate was affirmed.The Appellate Division ruled that the pro-ponent had met his burden of establishingthe decedent's testamentary capacity withthe self-proving affidavit of the attestingwitnesses stating that the decedent was of“sound mind, memory and understanding”and was not incompetent. The Court foundno triable issue of fact in the medicalrecords relied upon by the objectants. TheCourt agreed with the Surrogate that fur-ther discovery of the medical personnelwould have been a fishing expedition. TheCourt stated further that proponent estab-lished prima facie due execution of thewill with the affidavits and testimony ofthe attesting witnesses and attorney-drafter. The Court opined that where theattorney-drafter supervises the executionof the will, there is a presumption of regu-larity that the will was properly executedin all respects. The Court added that theattestation clause and self-proving affi-davit gave rise to a presumption of com-pliance with all statutory provisions andconstituted prima facie evidence of thefacts attested to therein by the witnesses.The Court found that there was no incon-sistency in the evidence regarding whichof the two attorneys present had super-vised the execution of the will and heldthat in any event such a discrepancy wouldbe insufficient to overcome the presump-tion of due execution raised by the self-proving affidavit. Matter of Schlager, 74A.D.3d 405 (1st Dept., 2010)
Leave Granted by the Surrogate tothe Department of Social Services in aSurrogate’s Court AccountingProceeding to Apply in the SupremeCourt to Vacate That Court’sDetermination Allocating the EntireProceeds of a Cause of Action toWrongful Death- In a proceeding to judi-cially account for the settlement proceedsobtained pursuant to an Order of theSupreme Court, the New York CityDepartment of Social Services (DSS)moved for an extension of time to fileobjections to the account as it neitherappeared nor filed objections on the returndate of the citation that was served upon it.The administrator, one of the decedent'snine children, opposed the motion. Theonly item listed in schedule A of the
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(Continued on page 10)
on her Facebook and MySpace sites werediscoverable.
For those not familiar with social net-working sites such as MySpace andFacebook, it should be related that suchsites allow a user, at his/her own discre-tion, to post information about themselves,such as biographical information, hobbies,likes, dislikes, photographs and other per-sonal information to share with people vis-iting their site. The user can choose to postinformation for all to see or post informa-tion to be viewed by invitation only.
In Romano, plaintiff had both public andrestricted postings on both her Facebookand MySpace pages. Since defendantswere blocked from the restricted portionsof the plaintiff’s sites, they asked forauthorization from plaintiff to view suchportions. The plaintiff objected to therequest. Defendants made a motion forauthorization to view the restricted por-tions and any previously deleted postings.In support of the motion, defendantsargued that, based on the freely accessibleportions of plaintiff’s sites (which showedplaintiff post-accident engaged in anactive lifestyle which included trips toPennsylvania and Florida), it could beinferred that the private portions wouldlead to discoverable information.
In opposition to the motion, plaintiffargued that the private content of hersocial networking sites was protected byher Fourth Amendment right to privacyand this right outweighed defendants’need for the information.
The decision in Romano carefully ana-lyzed the Fourth Amendment and the pro-tections it provides and compared thoseprotections to the material claimed byplaintiff to be protected there under. TheCourt concluded that because of the natureof social networking sites, particularly thefact that the sites advise users that theycannot guarantee that restricted informa-tion will remain private, plaintiff could notsuccessfully argue that she had a reason-able expectation of privacy.
The Court stated:Thus, when the plaintiff created her
Facebook and MySpace accounts, she con-sented to the fact that her personal infor-mation would be shared with others,notwithstanding her privacy settings.Indeed, that is the very nature of thesesocial networking sites else they wouldcease to exist.”5
With regard to guiding precedent, theopinion states that, “there is no New Yorkcase law directly addressing the issuesraised by this application, there are
instructive cases from other jurisdic-tions.”6 The Court carefully analyzed anddiscussed cases on point from other juris-dictions and, in addition, provided a suc-cinct primer on social networking sites.The Romano decision is a must-read forthe personal injury bar as it is an earlyguideline for pursuing, and defendingagainst, discovery of a plaintiff’s socialnetworking site. Note to the plaintiff’s bar:there is nothing in the Romano decisionthat would prohibit a plaintiff from obtain-ing disclosure of the private pages of adefendant’s social networking site, assum-ing a showing is made that defendant’sposition in the course of defending thecase is inconsistent with information con-tained on defendant’s public portions oftheir site.
In addition, the Romano case does notstand for the proposition that a defendantin a personal injury case be given unquali-fied access to a plaintiff’s restricted con-tent on his or her social networking site.The case implicitly limits discovery of alitigant’s private restricted Facebook orMySpace pages. According to Romano, adefendant must first make a showing thatcontent in the public portion of a plaintiff’sFacebook or MySpace page is inconsistentwith a position taken by plaintiff in the lawsuit. Then, and only then, can discovery ofthe private restricted portions be consid-ered. In this regard, the Court in Romano
compared the limitations and disabilitiesclaimed by plaintiff in the lawsuit with thepublic portions on the plaintiff’s two sitesand concluded:
Thus, it is reasonable to infer from thelimited postings on plaintiff’s publicFacebook and MySpace profile pages, thather private pages may contain materialsand information that are relevant to herclaims or that may lead to the disclosure ofadmissible evidence.7
Therefore, before a defendant can delveinto a plaintiff’s private site content, adefendant must first establish that an infer-ence can be drawn from plaintiff’s unre-stricted site content that material useful indefending the case is likely to be containedin the private portions.
With the ever growing use of online net-working sites and the increasing use ofcomputer online research and investiga-tion by lawyers who practice in the field ofpersonal injury litigation, we will no doubtsee more cases defining the discoverabili-ty of a party’s self-restricted on line post-ings in personal injury cases.
1 Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (S.C.Suff. Cty., Sept. 21, 2010, J. Jeffrey Arlen Spinner)2 Id. at 653.3 Id. at 654.4 Id. at 654.5 Id. at 657.6 Id. at 654.7 Id. at 655.
BROOKLYN BARRISTER - NOVEMBER 2010 9
DUFFY & POSILLICO AGENCY INC.Court Bond Specialists
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The term is for 14 years and the currentsalary is $160,080. Applications are avail-able at www.ca2.uscourts.gov. The dead-line for submission of completed applica-tions is December 3, 2010.
Lake George New York attorneyHoward L. Krantz, as part of a will con-test, is attempting to locate the files ofdeceased attorney Christopher Prudenteof 16 Court Street. Howard Krantz maybe contacted at 518-668-2199 or [email protected]
Bereavements
The Brooklyn Bar Association extendsit’s deepest sympathy to Leonard C.Spector and family on the passing of hisfather Abraham Spector on August 4,2010.
The Brooklyn Bar Association extendsits deepest sympathy to CindyMendelson and family on the passing ofher father Hyman Mendelson on October14, 2010.
The Brooklyn Bar Association extendsits deepest sympathy to Sara Gozo on thepassing of her aunt Zina Caputo onOctober 18, 2010
Legal Briefs is compiled and writtenby Avery Eli Okin, Esq. CAE, theExecutive Director of the Brooklyn BarAssociation and its Foundation. Itemsfor inclusion in “Legal Briefs” shouldbe e-mailed to [email protected],faxed to 718-797-1713 or mailed to 123Remsen Street, Brooklyn, NY 11201-4212
Legal Briefs (Continued from page 2)
Discoverability Of A Personal Injury Plaintiff’s Facebook And MySpace Pages(Continued from page 1)
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BROOKLYN BARRISTER - NOVEMBER 201010
account of the administrator was the sumof $300,000, in settlement of causes ofaction alleging wrongful death and person-al injury. In the Supreme Court order the$300,000 settlement was approved, theentire settlement proceeds were allocatedto the wrongful death cause of action, andthe personal injury and wrongful deathcauses of action were discontinued. Thecitation served upon DSS in theSurrogate’s Court proceeding sought todisallow the claim of DSS, in the sum of$87,903.76, or such other amount as itmay claim, on the ground, inter alia, therewere no estate assets to satisfy said claim.In regard to its failure to timely file objec-tions to the account, DSS pleaded lawoffice failure. The administrator arguedthat because DSS was not only personallyserved, but also faxed and mailed copies ofthe citation, the motion should be denied.In essence, the administrator contendedthat DSS failed to demonstrate a reason-able excuse for the delay and a meritoriousclaim. HOLDING- The Surrogate treatedDSS's application as a motion to beexcused for its failure to file timely objec-tions and for an extension of time to fileobjections to the account. The Courtopined that after the expiration of the timefixed to file a pleading, the court mayextend the time to file it, in the interests ofjustice, notwithstanding that the defaultwas caused by law office failure, providedthat the application satisfies the require-ments of CPLR §3012. The Court foundthat DSS moved promptly, and prior to theentry of a decree or order, to rectify its fail-ure to interpose timely objections to theaccount, and that the default was neitherwillful nor did it prejudice the administra-tor. The Court noted however, that theobjections DSS planned to file would bewithout merit unless the Supreme CourtOrder, dismissing the personal injuryaction and allocating the entire recovery tothe wrongful death action, were modified.The Court pointed out that wrongful deathdamages recovered belong to the dece-dent's distributees, individually, for thepecuniary injuries suffered by them as aresult of the decedent's death, and that onlyif a portion of the recovery is allocated tothe decedent's conscious pain and suffer-ing would there be an estate asset subjectto the DSS claim. The Court noted thatEPTL §5-4.6 was amended in 2005 tofacilitate, after the Supreme Courtapproves the amount of a wrongful deathcompromise, the expeditious payment ofcounsel fees and funeral and medicalexpenses incurred as a result of the actscausing the wrongful death, while holdingin abeyance issues as to allocation and dis-tribution, which are to be determined in aSurrogate's Court proceeding after juris-diction is obtained over all the partiesaffected by a determination of thoseissues. The Court pointed out that whileEPTL §5-4.6(a) grants authority to theSupreme Court to approve the amount ofdamages and subdivision (d) provides thatsuch determination is conclusive as to theadequacy of the compromise, subdivision(a) (2) envisions that a proceeding will becommenced in the Surrogate's Court forallocation and distribution of the settle-ment proceeds. The Court opined that inmost cases, the statute appears to work asintended, but noted that the matter subjudice illustrated the issues that can arisewhere the Supreme Court, without noticeto potential creditors of the estate, allo-cates the entire settlement proceeds to
wrongful death. The Court pointed out thatEPTL §5-4.6 does not contain any provi-sion governing the persons over whomjurisdiction should be obtained in thoseinstances where the Supreme Court orderdirects such an allocation. The Court stat-ed that prior to the entry of the SupremeCourt Order the administrator did notrequest that any notice be given to DSS ofthe proposed wrongful death allocation.As a result the Court found that both theDSS and the court thereby were left in aquandary, to wit: while on the one handthe Surrogate's Court lacked jurisdiction tomodify orders entered by other courts, theDSS, which represents the taxpayers ofNew York City, never had the opportunityto be heard on the issue of allocationbetween personal injuries and wrongfuldeath. The Court noted that the adminis-trator, who benefitted from the wrongfuldeath allocation, drafted the order request-ing the allocation embodied in theSupreme Court Order, without disclosingto the Supreme Court that the DSS had aclaim which it would be unable to recoverin the event that the entire settlement pro-ceeds were allocated to wrongful death.The Court opined that as a general rule,where a compromise is contemplated, thedefendant is concerned only about the totalamount that is to be paid to settle all of thecauses of action alleged in the complaintand does not care about the allocation ofthe settlement proceeds between thewrongful death and personal injury causesof action. The Court stated that it only is inthe exceptional case, such as where astatute or insurance policy limits liabilityto an amount less than the proposed settle-ment amount except in wrongful deathcases that a defendant might insist upon acertain allocation prior to consenting to thetotal amount of the settlement. The Courtsuggested that as a general rule, where thecomplaint alleges both wrongful death andpersonal injury causes of action, theSupreme Court Order should only author-ize the amount of the settlement for bothcauses of action and leave all allocationissues to the Surrogate's Court for determi-nation after jurisdiction is obtained over allnecessary parties in an accounting pro-ceeding.
In order to give the DSS an opportunityto have its interests heard, the Court heldboth the accounting proceeding and themotion in abeyance so that DSS mightmove in the Supreme Court for such reliefas it deemed appropriate. Otherwise, theCourt stated, the Supreme Court Ordermade any grant of leave to DSS to file lateobjections in the accounting proceedingpointless because, in light of the wrongfuldeath allocation, such objections wouldhave to be dismissed on the ground thatDSS had no right to recover from the dece-dent's distributees, individually, for servic-es provided to the decedent. The Courtsuggested that DSS might seek solely, orin the alternative, (1) reconsideration ofthe allocation issue by that Court; (2)vacatur of the allocation portion of thatCourt's order and transfer of that issue tothe Surrogate’s Court, or (3) other similarrelief. The Court gave the DSS approxi-mately six weeks to present an appropriateapplication to the Supreme Court, in theabsence of which the Court authorized theadministrator's counsel, upon the submis-sion of an affirmation stating that he hadnot been served with papers in connectionwith the Supreme Court order, to settle anorder denying the DSS motion. Matter of
Surrogate Lacks Authority to Limitthe Amount From a Settlement WhichCan be Put into a Statutory SupplementNeeds Trust- Petitioner, as administratrixof the estate of her husband, commenced aproceeding seeking, inter alia, an orderconfirming the settlement of an actionseeking damages for his wrongful deathand conscious pain and suffering, andapproving her proposed distribution of thenet proceeds of that settlement. Amongother things, the spouse sought to have herentire distribution placed in a statutory sup-plemental needs trust (SNT). After the peti-tion was filed, the Surrogate and petition-er's attorney exchanged correspondenceconcerning the proposed SNT. The attor-ney explained in a letter to the Surrogatethat petitioner receives benefits from theCounty Department of Social Services(DSS), and she did not want her inheritanceto affect her eligibility for such benefits.The attorney also forwarded to theSurrogate a “Waiver and Consent” execut-ed by DSS consenting to the establishmentand terms of the proposed SNT. TheSurrogate responded in a letter stating,inter alia, that “[w]hile [he] underst[ood]the underlying reason for the request, thepresent sheltering of ‘available resources'and payback to the government providersonly a future possibility, [he could] not ingood conscience approve the transfer of theentire balance [i.e., petitioner's intestateshare] to [an SNT].” The Surrogate furtherstated that he was willing to approve anSNT funded with only $100,000 of peti-tioner's share, and he would add a provi-sion for an annual accounting to the pro-posed trust instrument. Petitioner's attorneyagreed to add the annual accounting provi-sion but would not consent to theSurrogate's proposed limitation of$100,000 to fund the trust because that lim-itation would effectively render petitionerineligible for Medicaid. In his final corre-spondence with petitioner's attorney con-cerning the SNT, the Surrogate wrote: “Inthe end, I believe that I have a responsibil-ity to the public fisc that takes priority. Irecognize that to have someone pay fromtheir own resources when somehow, [someway] we can get the ‘government’ to pay isan old-fashioned thought but it is a thoughtthat I agree with.” The Surrogate furtherstated that “[i]f [his] only choice is toestablish a trust with the entire amount orto decline the request [his] inclinationwould be the latter.” Consistent with that“inclination,” the Surrogate denied thepetition to the extent that it sought theapproval of any SNT funded by petitioner'sentire share of the net proceeds of the set-tlement. The estate appealed. HOLDING-The Surrogate was reversed. The Appellatedivision concluded that the Surrogateshould have granted the petition in itsentirety, thereby approving the proposedSNT for the benefit of petitioner, whom itfound without dispute to be a disabled per-son eligible for an SNT. The Court opinedthat an SNT is a discretionary trust estab-lished for the benefit of a person with asevere and chronic or persistent disabilitythat is designed to enhance the quality ofthe disabled individual's life by providingfor special needs without duplicating serv-ices covered by Medicaid or destroyingMedicaid eligibility. In the Court’s view itis a planning device authorized by federaland state law to shelter the assets of a
severely disabled person for the dual pur-pose of securing or maintaining eligibilityfor state-funded services, and enhancingthe disabled person's quality of life withsupplemental care paid by his or her trustassets. According to the Court, the SNT isdesigned to address the unique and difficultsituation faced by severely disabled indi-viduals with assets that are sufficient to endtheir Medicaid eligibility but insufficient toaccount for their medical costs. The Courtnoted that under the pertinent statutes, 42USC §1396(d) (4) (A) and Social ServicesLaw §366(2) (b) (2) (iii) (A), neither thecorpus nor the income of an SNT is con-sidered a resource or income available tothe disabled trust beneficiary. The Courtpointed out that such favorable treatment isextended to an SNT as long as the trustdocuments are in conformance with therequirements of EPTL §7-1.12(a)(5), aswell as the applicable regulations of theDepartment of Social Services, which pro-vide among other things that the SNT mustcontain the assets of such a disabled indi-vidual, be established for the benefit of thedisabled individual while such individualwas under sixty-five years of age by a par-ent, grandparent, legal guardian, or court ofcompetent jurisdiction, and must providethat upon the death of the individual thestate will receive all amounts remaining inthe trust up to the total value of all medicalassistance paid on behalf of such individ-ual. The Court found that there was no dis-pute that petitioner was disabled and under65 years of age, or that the proposed SNTwas in conformance with the statutoryrequirements. The Court acknowledgedthat since petitioner was an adult with noparent, grandparent, or legal guardian toestablish the SNT for her benefit, the assis-tance of the Surrogate with respect to theSNT was required, and recognized that thedecision whether to establish or approve anSNT is a discretionary determination forthe Surrogate, and that the Surrogate had alegitimate concern that the ultimate goal ofMedicaid is that the program be the payerof last resort. The Court concluded, how-ever, that the Surrogate abused its discre-tion in conditioning its approval of the SNTupon petitioner's agreement to limit thefunding of the trust to $100,000. In theCourt’s view, the federal and state legisla-tion governing the establishment and oper-ation of SNTs allows a disabled personwho receives a lump sum of money tomaintain Medicaid eligibility by transfer-ring the funds into an SNT, provided that,in exchange, the State is given a priorityinterest in the balance of the SNT upon thebeneficiary's death. The Court opined that aSNT thus represents a bargain struckbetween the SNT beneficiary and the State.The Court found that in refusing to approvethe funding of the proposed SNT with asum greater than $100,000, the Surrogateskewed the balance fashioned by theLegislature in favor of the State and to thedetriment of petitioner. The Court statedthat by placing a limitation on the fundingof the SNT, the Surrogate ensured that peti-tioner would lose her eligibility forMedicaid, a result which it found inconsis-tent with the public policy underlyingSNTs and the Surrogate's function inapproving and supervising their establish-ment. The Court ruled that it is appropriatefor the Surrogate to seek assurance that aproposed SNT complies with the control-ling law and rules regarding Medicaid eli-gibility, which is consistent with the func-
The State Of Estates (Continued from page 8)
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BROOKLYN BARRISTER - NOVEMBER 2010 11
tion of the Surrogate to assure that the bestinterests of the incapacitated person arepromoted. However, the Court held that itwould be a clear dereliction of that duty forthe Surrogate to deliberately overlook pro-visions of a proposed SNT if such provi-sions were inconsistent with statutoryguidelines and thus would bar an incapaci-tated person from receiving Medicaid ben-efits by its establishment. To do so, theCourt held, would permit the diverting ofassets from the ownership or title of theincapacitated person to another legal entitywith no consequent benefit to the incapaci-tated person. The Court noted further thatnone of the pertinent statutes or regulationssupports a limitation upon the amount ofmoney that may be used to fund an SNT,and that none of the cases construing thosestatutes and regulations had imposed sucha limitation. The Court opined that in fact itappeared that Congress considered andrejected a limitation on the amount ofmoney used to fund an SNT. In the Court’sview, the proposed SNT funded by peti-tioner's entire intestate share appropriatelyprotected the needs and interests of bothpetitioner and the State, consistent with thepurpose of the Medicaid SNT and the pub-lic policy underlying its creation.Accordingly, the Court ruled that the orderinsofar as appealed from should bereversed and the petition granted in itsentirety. Matter of Woolworth, 76 A.D.3d160 (3d Dept., 2010)
New York State Department ofTaxation and Finance Refuses to Issuean Advisory Opinion on the Valuationof a Contract and Mortgage as of aDecedent’s Date of Death, on theGrounds That That is the Executor’sResponsibility, Subject to Later Audit-Decedent died a resident of New YorkState. Decedent sold three parcels of realproperty consisting of approximately 155acres, along with the mineral resources ofthose parcels. Under the contract of sale,purchaser paid a specified amount peracre at closing for the real property.Purchaser also agreed to pay an additionalspecified amount per acre for mineralresources, a portion of which was paid atclosing. Payment of the remainder of theper-acre price for mineral resources wasdue at the time all necessary municipal,state and federal permits to mine the
parcels were obtained, and was expresslyconditioned on purchaser obtaining thoseapprovals. Interest was due on the remain-der of the per-acre price for mineralresources, until the necessary permitswere received. If despite its best efforts,purchaser did not receive the necessarypermits by the 99th year after the closing,the balance due to the sellers would bebased on the fair market value of the prop-erty at that time. Purchaser executed amortgage to secure the debt due in thefuture under the contract. The mortgagestated that the amount of the debt securedwas a fixed amount, which was approxi-mately the amount of the remainder of theper-acre price for mineral resources, mul-tiplied by the number of acres. At the timeof Decedent’s death, no payments hadbeen made under the mortgage. The estatesought advice from the New York StateDepartment of Taxation and Finance as tothe valuation of the contract and mortgagefor inclusion in the estate tax return.DETERMINATION- The Departmentdeclined to provide a valuation of theassets. The Department stated that it is theestate’s responsibility to establish the fairmarket value of assets for purposes ofpreparing a New York State estate taxreturn, if required. The Department notedthat with the exception of the applicableexclusion amount, New York’s estate taxis conformed to the IRC with all amend-ments enacted on or before July 22, 1998.The Department noted that Tax Law sec-tion 954(a) provides that “[t]he New Yorkgross estate of a deceased resident meanshis federal gross estate as defined in theinternal revenue code (whether or not afederal estate tax return is required to befiled),” and that Internal Revenue Code(IRC) section 2031 defines the “grossestate” to include the value at the time ofdeath of all property of a decedent,whether real or personal, tangible orintangible, wherever situated. TheDepartment stated that under Tax Law§961(a)(3), a final federal determinationas to the value of any item of property orinterest in property determines the valueof that property or interest in property forpurposes of New York’s estate tax, unlessthe final determination is shown by a pre-ponderance of the evidence to be erro-neous. The Department ruled that the con-tract and mortgage were property owned
by decedent at the time of her death, andtherefore their value is properly includiblein her gross estate for both federal andNew York State estate tax purposes. TheDepartment stated that the value of prop-erty includible in a decedent’s gross estateis its fair market value at the time of thedecedent’s death, unless the executorelects the alternate valuation date underIRC section 2032, which is defined as theprice at which the property would changehands between a willing buyer and a will-ing seller, neither being under any com-pulsion to buy or to sell and both havingreasonable knowledge of relevant facts.The Department ruled that determiningthe valuation of specific property is anissue of fact, and thus not an appropriatematter for an Advisory Opinion, and thatit is the duty of the executor, with theassistance of professional appraisers ifnecessary, to estimate the fair marketvalue of the property for purposes of filingNew York State and federal estate taxreturns.
According to the Department, the valu-ation submitted by the executor thenwould be subject to review on an audit ofthe estate tax return. New York StateDepartment of Taxation and Finance,Office of Counsel, Advisory OpinionUnit, (TSB-A-10(4)M, Estate Tax,September 28, 2010)
New York State Department ofTaxation and Finance Policy, Changedto Require “Resident” Trusts, NotOtherwise Subject to New York StateIncome Tax, Nonetheless to File NewYork State Income Tax Returns, Evenif no Tax is Shown as Due- Under NewYork State Tax Law, a resident trust is:• a trust created by the will of a decedent
who was domiciled in New York Stateat the time of his or her death;
• an irrevocable trust that consists of prop-erty of a person domiciled in New YorkState when the property was transferredto the trust;
• a revocable trust consisting of propertyof a person domiciled in New YorkState at the time the property was trans-ferred to the trust if it has not laterbecome irrevocable; or
• a revocable trust that has later becomeirrevocable if the trust consists of prop-erty of a person domiciled in New YorkState when it becomes irrevocable.
The resident status of the fiduciary doesnot affect the resident status of a trust.
Under a policy previously described inTSB-M-96(1)I, Resident Trusts, a residenttrust that was not subject to tax because itmet the conditions described in section605(b)(3)(D) of the Tax Law was notrequired to file a New York State IncomeTax Return. Under section 605(b)(3)(D)of the Tax Law a resident trust is not sub-ject to New York State personal incometax if all of the following conditions aremet:• All the trustees are domiciled in a state
other than New York.• The entire corpus of the trust, including
real and tangible personal property, islocated outside of New York State.
• All income and gains of the trust arederived from or connected with sourcesoutside of New York State, determinedas if the trust were a nonresident trust.However, effective for tax years begin-
ning on or after January 1, 2010, the pol-icy in TSB-M-96(1)I has been revoked,and a resident trust that meets the condi-tions of section 605(b)(3)(D) of the TaxLaw still will be required to file a NewYork State fiduciary income tax return ifit meets the filing requirements for resi-dent trusts, to wit: if the trust:• is required to file a federal income tax
return for the tax year;• had any New York taxable income for
the year;• had tax preference items for minimum
income tax purposes in excess of thespecific deduction; or
• is subject to a separate tax on lump-sumdistributions.There is no longer any exception to
this filing requirement for resident truststhat are not subject to tax because theymeet the conditions of section605(b)(3)(D) of the Tax Law. New YorkState Department of Taxation andFinance, Office of Tax Policy Analysis,Taxpayer Guidance Division, (TSB-M-10(5)I, Income Tax, July 23, 2010)
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.
The State Of Estates (Continued from page 10)
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