In usual Brooklyn Bar Association style, a wonderfuland casual lunch was hosted on March 16th, to welcomeall of the new court officers, court officer trainees andcourt clerks to Kings County. From the minute the doorswere opened, all of these new personnel in our court-house, many of whom were in uniform, were cordiallygreeted by both a lovely buffet lunch and by numerousmembers of the Association, along with several membersof the Judiciary. It didn’t take long for these “guests ofhonor” to relax, partake of the sumptuous food and beginto mingle with those of us from the bar who were there tojust say “welcome.”
Among those there to greet the newcomers and to hostthe event were Andrea E. Bonina, President, EthanB.Gerber, President Elect, and Gregory T. Cerchione, PastPresident. Avery Eli Okin, Executive Director, was hissmiling self, welcoming one and all.
Additionally, several members of the bench were in
attendance to show their support for their new staff,including Hon. Lawrence Knipel, Hon. Peter Sweeney,Hon. Bernard Graham, Hon. Anthony J. Cutrona, Hon.Barry Kamins and Hon. Sylvia O. Hinds-Radix, to namea few. The Brooklyn Eagle even sent one of its staff attor-neys, Charisma Miller to be part of the event.
Speeches were kept to a minimum, as this was moreabout introductions and making them feel welcome, thananything else. Andrea Bonina took to the podium first toreiterate that the goal of this luncheon was to furtherstrengthen the relationship between bar, bench and courtemployees. She then introduced the Hon. Barry Kamins,Administrative Judge, Criminal Term and Hon. Sylvia O.Hinds-Radix, Administrative Judge for Civil Matters.Each in turn, introduced all of their Court’s new staff, whowere in attendance.
First, Justice Kamins spoke naming all of the new per-sonnel from his courthouse, starting with the new Chief
VOL. 63 NO.7
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 InsideLunch for the New Court PersonnelBy Shelly Werbel, Esq ....................................................Page 1
Slicing Up The Pie: Business Valuation of a Pizzeria and Other CashBusinessesBy Aimee Richter, Esq....................................................Page 1
Commercial Litigation in the New York State Courts: A book reviewBy Mark A. Longo, Esq..................................................Page 1
The DocketBy Louise Feldman.........................................................Page 2
New MembersMarch, 2011 ...................................................................Page 2
Legal BriefsBy Avery Eli Okin, Esq., CAE........................................Page 2
Respectfully SubmittedBy Andrea E. Bonina, Esq. ............................................Page 3
Yes You Can: The VLP shows the wayBy Professor Mary Jo Eysler .........................................Page 3
The Simplest Questions are the HardestBy Jacqueline Cantwell .................................................Page 4
The State of EstatesBy Hon. Bruce M. Balter and Paul S. Forster, Esq.................................................Page 5
On February 15, 2011, the Family Law Section and theVolunteer Lawyers Project cosponsored a CLE on tech-niques in the valuation of a closely held business. Theprogram was moderated by Aimee L. Richter, Vice-Chairof the Family Law Section. The program featured an indepth analysis of the area of business valuations in thecontext of matrimonial cases. Louis J. Cercone, Jr.,CPA/ABV, ASA, CVA and the Managing Director of theBrisbane Consulting Group, LLC gave a fascinating andinformative presentation on the many areas involved inthe often difficult process of coming to a valuation for abusiness that is owned by a party in a divorce case.
Mr. Cercone began with a general overview of the stan-dards and definition of value for the purposes of apprais-ing a business. He pointed out the different materials thatbusiness appraisers are required to consult and the factorsthat they must take into consideration when makingdeterminations about value. These include relevant IRSrulings, the uniform standards for the profession andstatements of standards for valuation services. Theseresources are especially important for a matrimonialpractitioner to be aware of because they can be extreme-ly useful in the cross examination of an expert withregard to his or her findings.
By Aimee L. Richter, Esq.
By: Shelly Werbel, Esq.
Commercial Litigation In New York State CourtsThird Edition, Editor-in-Chief, Robert L. Haig, Esq.
Pursuant to the bylaws, the elections will take place onWednesday May 11, 2011 from 3:30 PM – 5:30 PM inthe Association Meeting Hall.
Rebecca WoodlandSecretary
Slicing Up the Pie: Business Valuation of aPizzeria and Other Cash BusinessesPresented by Brisbane Consulting Group, LLC
(Continued on page 6)
Everyone today wants to get the best GPS tracking sys-tem they can for their car. What was once an out-of-the-realm-of-possibility concept — that we could have ourvehicles tell us and show us where to go while we drive —is now a reality. Soon, if not already, we won’t be able tolive without one.
To say that Bob Haig is a lawyer’s lawyer is about thebiggest understatement you could make. Despite the chal-lenges of being a partner at Kelley Drye and Warren, Bobhas always been a tireless supporter of lawyers as a con-stituency through his work with local, state and nationalbar associations.
While it is dangerous for one to think that they could list
all of his endeavors and the accolades he has been recog-nized with for his efforts, it is appropriate in this context tomention the Commercial Division Parts in our StateCourts in New York that he was instrumental in formingand fine tuning as Co-Chair of the Commercial CourtsTask Force created by the immediate past Chief JudgeJudith S. Kaye.
But one might ask what all of this has to do with thereview of a Third Edition of a treatise on the practice inCommercial Litigation in New York that is a part of West‘sNew York Practice Series? Are we looking at the life ofthe artist to help us to understand and appreciate the mean-ing of the work that he or she creates? Or writes? And isthat valid?
The answer to all of this lies in the fact that besides
Book Review byMark A. Longo, Esq.
(Continued on page 7)
Report of The2011 Nominating
CommitteeEthan B. Gerber, Chair of the 2011 NominatingCommittee, has announced, pursuant to the bylaws,the following slate of officers and trustees for2011-2012.
Ethan B. Gerber PresidentDomenick Napoletano President-ElectAndrew M. Fallek First Vice PresidentRebecca Woodland Second Vice PresidentArthur L. Aidala SecretaryHon. Frank Seddio Treasurer
Theresa Ciccotto Dino MastropietroPamela Elisofon Steven H. RichmanFern Finkel Aimee L. RichterDewey Golkin
TRUSTEES CLASS OF 2014
OFFICERS
TRUSTEES CLASS OF 2012
Frank CaroneGlenn Verchick
(Continued on page 6)
BROOKLYN BARRISTER - APRIL 20112
April 21, 2011 Thursday Workshop, Eastern District Bankruptcy Court & VLP Bankruptcy Practitioners, Auditorium 12:00 P.M.
KCCBA, Board Meeting Board Room 5:00 P.M.
KCCBA CLE/Meeting, Auditorium 6:00 P.M.
April 22, 2011 Friday In observance of Good Friday, the Brooklyn Bar Association, Lawyer Referral Service and the Volunteer Lawyer Project will be closed.
April 26, 2011 Tuesday BBA Pro Bono Committee Meeting, Board Room 5:30 P.M.
April 27, 2011 Wednesday CLE Asset Protection, Auditorium 6:00 P.M.
May 26, 2011 Thursday VLP Board Meeting, Board of Trustees Room 5:30 P.M.
May 30, 2011 Monday In observance of Memorial Day, the Brooklyn Bar Association, Lawyer Referral Service and the Volunteer Lawyer Project will be closed.
June 1, 2011 Wednesday Brooklyn Bar Association Board of Trustees Meeting Brooklyn Borough Hall 5:00 P.M.
Installation of Officers and Trustees, Ceremonial Courtroom Brooklyn Borough Hall 6:00 PM
June 14, 2011 Tuesday 18B Family Court Committee, Rear Conference Room 1:15 P.M.
June 21, 2011 Tuesday VLP 21st Annual Gala Bridgewaters, South Street Seaport 6:00 P.M.
July 4, 2011 Monday In observance of Independence Day, the Brooklyn Bar Association, Lawyer Referral Service and the Volunteer Lawyer Project will be closed.
July 27, 2011 Wednesday Group outing to Brooklyn Cyclones Home game, MCU Park 7:00 P.M.
IF YOU HAVE ITEMS FOR INCLUSION IN THE DOCKET, PLEASE MAIL OR FAXTHEM TO LOUISE FELDMAN, BROOKLYN BAR ASSOCIATION, 123 REMSEN
STREET, BROOKLYN, NEW YORK 11201. FAX NO.: (718-797-1713)E-mail: [email protected]
THE DOCKETIncluded below are events which have been scheduled for the period
April 21, 2011 through July 27, 2011Compiled by Louise Feldman
Judicial Recognition
Retired Civil Court Judge Alice FisherRubin has joined the NAM’s New YorkMetro Panel on an exclusive basis.
Brooklyn Bar Association PastPresident Hon. Jeffrey S. Sunshine wasthe featured speaker at the ColumbianLawyers Association of Brooklyn, April 5dinner meeting. Justice Sunshine’s topicwas “What’s Love Got To Do With It?”
Kudos and ProfessionalRecognition
Brooklyn Bar Association PastPresidents Manual A. Romero, JohnLonuzzi, Bart Slavin and Gregory TCerchione have been selected to serveon the 2011 Judicial ScreeningCommittee for the Kings CountyDemocratic Organization.
Congratulations to Past PresidentManuel A. Romero who was appointedby NYSBA President Steven Younger tothe State Bar’s Committee on the TortSystem as well as the Committee onProfessional Ethics.
Congratulations to Brooklyn BarAssociation member Frank Caronewho was appointed by Mayor Michael
Bloomberg and confirmed in a unani-mous vote by the New York City Councilto serve on the NYC Taxi and LimousineCommission.
Congratulations to Past PresidentGregory T. Cerchione who was honoredby the Federation of Italian-AmericanOrganizations of Brooklyn Ltd. at theirAnnual Gala held on March 27, 2011.
Congratulations to Brooklyn BarAssociation member Robert S. Gershonwho was elected and installed earlier inthe year as the President of the KingsCounty Criminal Bar Association.
Congratulations to Brooklyn BarAssociation member Abayomi Ajaiyeobawho was sworn in as the President of theNigerian Bar Association on March 21,2011 following a 6:00 PM reception at theNew York County Lawyer’s Association.
ProfessionalAnnouncements
Brooklyn Bar Association memberKathleen Higgins has announced the for-mation of the Law Office of Kathleen Higgins, PLLC located at 270 Jay Street,Suite One, Brooklyn, New York. The prac-tice will concentrate in the areas of Wills
LEGAL BRIEFS
Theresa Ciccotto Elaine N. Avery David M. Chidekel
Pamela A. Elisofon Richard S. Goldberg Armena D. Gayle
Fern J. Finkel Deborah Lashley Steven Jeffrey Harkavy
Leardo Luis Lopez Michael S. Lazarowitz Anthony J. Lamberti
Dino Mastropietro Joseph S. Rosato Carl J. Landicino
Steven H. Richman Hon. Frank R. Seddio Hemalee J. Patel
Aimee L. Richter Glenn Verchick Isaac N. Tuchman
TRUSTEES
CLASS OF 2011 CLASS OF 2012 CLASS OF 2013
BROOKLYN BAR ASSOCIATION2010-2011
Avery Eli Okin, Esq., CAEExecutive Director
Andrea E. Bonina, PresidentEthan B. Gerber, President-ElectDomenick Napoletano, First Vice President
Andrew M. Fallek, Second Vice PresidentRebecca Woodland, SecretaryArthur L. Aidala, Treasurer
Roger Bennet 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 MARCH 2011
STUDENT MEMBERS
David BellonHenderson Brathwaite, IIOded BurgerSandra Campbell-TrioioKen Davidson
Marc NovickThomas PurpiBryant RomanWilliam H. SloaneMarie-Claude Wrenn-Mgus
Tawanna Shaw
(Continued on page 7)
BROOKLYN BARRISTER - APRIL 2011 3
B R O O K L Y N B A R A S S O C I A T I O N P R E S I D E N T
RESPECTFULLY SUBMITTED
BROOKLYN BARRISTER EDITORIAL BOARD
Brooklyn Barrister is published by Long Islander Newspapers under the auspices of the Brooklyn Bar Association. For advertising information call (631) 427-7000. Mailing address 149 Main Street, Huntington, New York 11743.Vol. 63 No. 7 April 2011. The Brooklyn Barrister (ISSN 007-232 USPS 66680) is published monthly except in August and December by the Brooklyn Bar Association. Office of publication is: Brooklyn Bar Association, 123 Remsen Street, Brooklyn, New
York 11201-4212. Telephone No.(718) 624-0675. Periodical postage is paid at Brooklyn, New York and at additional mailing offices. Subscription price is $11.00 per year. POSTMASTER: Send address changes to the Brooklyn Barrister, 123 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. AnekweHon. Bruce M. BalterMarianne BertunaJaime J. BorerMark DiamondJason Eldridge
Paul S. ForsterHon. David FriedmanJason D. FriedmanMichael HernandezRichard KlassAnthony Lamberti
Susan MasterGregory MesserHemalee J. PatelAimee L. RichterRobert P. SantoriellaMichael Treybich
Limitations on Non Economic Awards Defeated
At the time of my last article, legislativechanges were being proposed that includ-ed plans to institute a $250,000 cap onnon-economic damages for medical mal-practice awards. I am very happy to reportthat the budget agreement reached doesnot include these proposals. Institutingcaps would have been discriminatory andunconstitutional and from a practicalstandpoint, ineffective in reducing medicalcosts. There is ample evidence from stateswhere caps have been instituted that theysimply do not work.
California is a prime example of caps ondamages not working to control medicalcosts. In 1975, California enacted a $250,000cap on non-economic damages, yet, between1975 and 1988, doctors’ premiums increasedby 450 percent. It was not until 1988, withthe passage of Proposition 103, a stringentinsurance regulatory law, that doctors andhospital experienced any relief in their mal-practice insurance rates. Proposition 103forced insurance companies to open theirbooks and get prior approval for any ratechange, and allowed the public to interveneand challenge excessive rate increases. This
insurance regulatory measure,not caps, resulted in a 20% raterollback, and public hearingslead to further reductionswhich ultimately saved doctors$66 million dollars.
The inequity in access tocivil justice that results fromlimitations on damages is oneof the reasons the SupremeCourt of Alabama cited inMoore v. Mobile InfirmaryAssociation, 592 So.2d 156,in determining them to beunconstitutional. The courtnoted: “The idea of preserving insuranceby imposing huge sacrifices on a few vic-tims is logically perverse. Insurance is adevice for spreading risks and costs amonglarge numbers of people so that no one per-son is crushed by misfortune.” I was proudto be part of a vocal and hardworkinggroup of Brooklyn Bar Association mem-bers who successfully opposed the pro-posed caps. Immediate Past President andTort Section Chair John Lonuzzi wasinstrumental in notifying members andmotivating them to speak out against thisproposal. I want to thank both John Lonuzziand Past President Manuel Romero, whowas recently appointed to the NYSBACommittee on the Tort System, for their
support and work on thisissue. Additionally, MedicalMal-practice CommitteeChair John Bonina andBarrister Editor and TrusteeGlenn Verchick wereextremely helpful and hard-working in their opposition tothese proposals. I am veryappreciative of their efforts.Their article , which willappear in the May issue of theBrooklyn Barrister, the cur-rent state of medical malprac-tice litigation in New York and
explain the changes that will occur and whattheir expected effect will be.
Concerns over Court Budget CutsThe state’s fiscal problems have already
resulted in early retirement programs, hir-ing freezes and layoffs of Judicial HearingOfficers. Despite these already deep cuts, itappears that further layoffs will be neces-sary as a result of additional budget cuts tothe judiciary. This is a great concern forboth the judiciary and for Brooklyn Barmembers. Among the greatest concerns arethe effect that a staff reduction could haveon court operations and security within thecourthouse. The association will work tokeep members apprised of any and all
changes and, as always, will be supportiveof the judiciary and non judicial court staff.
Mark Your CalendarsOur Annual Meeting will be held on
Wednesday May 11 at 6 p.m. This freemember event is always a terrific time.Elections for officers will be held earlierthat day, and the results will be announcedthat evening. Awards for distinguishedservice, pro bono service and outstandingservice by a non-judicial court employeewill be presented as well. I am lookingforward to congratulating all of the offi-cers and thanking and recognizing themany people who worked so hard to makethis past year a success. The Inductionceremony for soon-to-be President EthanGerber and all officers and newly electedtrustees will be held in Brooklyn BoroughHall’s ceremonial courtroom on Monday,June 13, 2011.
On June 21, 2011 the BBA VLP willhold its 21st anniversary gala, where theywill present their highest honor to VLPPresident Jim Slattery. Jim has served onthe VLP Board for 18 years and has beenPresident for 14 years. His leadership hasbeen exemplary, and he has been a tirelessadvocate for the indigent population inBrooklyn. Please keep an eye out for theinvitation to this wonderful event.
Andrea E. Bonina Esq.
By Andrea E. Bonina Esq.,President
How can I volunteer for ONE MORETHING? My schedule is full, my time islimited, and my life is short! Does thissound familiar? Read on, and I hope thatI can persuade you that time is too limit-ed and life is too short to wait. Volunteernow and you will see how your schedulecan expand to accommodate such aworthwhile enterprise.
The VLP offers a wonderful and rareresource to people who have far too fewresources at their disposal. The focus ofthis piece is on the opportunity to assistconsumer debtors who are being crushedby their debts – predominately creditcards and medical costs.
Bankruptcy offers the opportunity toget free of overwhelming debt, and tostart over without the burden of monthlylate fees, penalties and interest beingadded to one’s living expenses. But formany debtors, this simple relief is out ofreach. The amendments that took effect inOctober of 2005 made it harder for manyto file for bankruptcy, not because theydon’t qualify, but because the forms andrequired information became much morecomplex for non-attorneys to complete asuccessful filing. Ironically, debtors withvery little income, who unquestionablyare eligible for bankruptcy relief, are less
able to obtain it because they cannotafford to pay the standard legal fees, andare unable to complete the filing withoutcounsel.
This presents a wonderful opportunityfor newer attorneys, as well as for experi-enced ones, to get involved. Here aresome of the terrific advantages of takingon a pro-bono bankruptcy client from theVLP wait list. First, you will gain valu-able client interviewing and counselingexposure if you are a newer practitionerwho has limited client contact. The typi-cal bankruptcy case does not involve pro-tracted litigation – in fact there may be nolitigation. But there usually is ampleclient contact in the form of interviewing,case preparation, and then counseling asto options, risks and benefits. These are,of course, critical skills that can alwaysbe improved through practice.
Second, if you are thinking aboutexpanding your practice, or simply wantto learn more about bankruptcy options toenhance your ability to counsel your cur-rent clients, this is a great way to accom-plish that. The VLP will provide a mentorwho can assist you through the processand answer questions. There are also fre-quent CLE programs offered by the BBAthat cover the basics. For attorneys whoagree to take on pro bono cases, the feefor these courses is often waived.
Third, not only will you fulfill your probono obligation, but you will feel reward-ed by the appreciation of a client whofeels finally able to escape the stress ofunmanageable debt.
I have taught the Consumer Counselingand Bankruptcy Clinic at Brooklyn LawSchool since 1994, and during that timewe have assisted approximately 600 con-sumer debtors, perhaps more. There isalways a deep sense of satisfaction whenthe case is completed successfully, andthe client experiences what feels like asmall miracle – the lifting of the tremen-dous burden of debt that has been carriedfor so long.
At times there may be questions aboutwhether these clients are “deserving” ofpro bono assistance. After all, didn’t theyknowingly and voluntarily accumulatethe debt that is now consuming them?The short answer is – it’s complicated.Some debtors may have made mistakes,but few of them undertook an intentionalscheme to acquire debt that they did notintend to repay. Rather, many of ourclients are unaware of financial matters,and uneducated about the workings of thecredit card market. Indeed, as noted byElizabeth Warren in her FrontlineInterview on the Secret History of theCredit Card Industry: “[W]hen credit wasderegulated in the early 1980s, the con-
tracts began to shift. And what happens isthat the big issuers, the credit card com-panies who have the team of lawyers,started writing contracts that effectivelysaid, ‘Here are some of the terms, and therest of the terms will be whatever we wantthem to be.’” http://www.pbs.org/wgbh/pages/frontline/shows/credit/inter-views/warren.html
Other debtors have been slammed by apoor economy that tipped them from asometimes fragile equilibrium into amorass of debt. Whether the cause is theloss of a job, the increase in health relat-ed expenses, higher finance charges ormortgage payments, or a combination ofthese, a small shift in the income/expenseratio is enough to put many middle classfamilies into a hole from which they can-not escape. For still others, the causesmay be medical – either their own healthproblems or the health of a family mem-ber that causes a combination of loweredincome and increased expenses.
These are all common scenarios that ourclients have endured, and that any one ofus could face in an uncertain economicenvironment. Our clients come in all agegroups and backgrounds. There are singleparents with minor children; there areretirees who have worked all their lives,only to find their retirement years marred
YES, YOU CAN: The VLP Shows the WayBy: Mary Jo Eyster, Esq.
(Continued on page 7)
BROOKLYN BARRISTER - APRIL 20114
The Simplest Questions Are The Hardest
Sometimes, the simplest question cantake the most time to answer. This mostoften happens when the question involvesjargon or an acronym. Now, with on-linedatabases, we can search within the text oflegal materials and find mention of thoseterms even when the index omits terms.
Discussed below are some of the termsthat have caused me trouble and requiredsearching time. Please bring me more soI can add to my database of referencequestions.
A quick way to find the definition of anacronym or abbreviation in a court docu-ment is to enter the term in the search boxon the www.nycourts.gov home page.Most likely, the results page will link toWebCivil Local Glossary of CommonAbbreviations located on the e-court siteslisted below:
DRP – Directives and Proceedings/LSM – Legal Statutory Memorandahttp://www.nycourts.gov/courts/nyc/civil/
directives.shtml.An attorney came in wanting to find
DRP 189A. I was not familiar with thatabbreviation, but by inputting DRP 189Aon the search box on the court home page,I found the document. It was filed underthe NYC Civil Court Directives andAdvisory Notices. That page includedlegal/statutory memorandua (LSM), otherdirectives and procedures (DRP) and advi-sory notices. Advisory Notices had noabbreviations. These abbreviations werenot included in the WebCivil LocalGlossary of Common Abbreviations. Thedocuments do not seem to be reprinted ineither Lexis or Westlaw.
Summary jury trial program (SJT)This phrase is not in any index. I had to
search the court website to find the link tohttp://www.nycourts.gov/courts/2jd/kings/civil/SummaryJuryTrialRules.shtml.McKinney’s Local Court Rules prints eachcounty’s summary jury trial programrules.
Court JargonCalendar practice has many specialized
terms. Some of those terms are actualphrases from the text of CPLR sections, asI learned from on-line searching. Siegel’sNew York Civil Practice indexes mostcourt jargon and is the fastest way to finddefinitions and references to pertinentCPLR sections.
Marked offThe calendar practice terms “stricken
from” and “marked off” are used in casesand Carmody Wait, but what do theymean? I could not find the terms as indexentries in any of the civil practice materi-als, not even reliable Siegel’s. I did an on-line search in Westlaw and found the fol-lowing definition in CommercialLitigation in New York State Courts:
There are several ways a case can bestruck from a calendar. ... a court canorder the case struck for improper fil-ing of a note of issue or certificate ofreadiness. In addition, a case may bestruck or “marked off” by the agree-ment of the parties or a failure toappear at the call of the calendar or ata conference.Another on-line search found that
CPLR 3404 has the phrase “marked off”in its text:
A case in the supreme court or acounty court marked “off” or struckfrom the calendar or unanswered on aclerk’s calendar call, and not restoredwithin one year thereafter, shall bedeemed abandoned and shall be dis-missed without costs for neglect toprosecute. The clerk shall make anappropriate entry without the necessi-ty of an order
Marked pleadingsSiegel’s had an entry for “marks and
marking – pleadings, marked pleading.” inthe index. The explanation took up twopages. McKinney’s Forms 7:86 had a briefdescription that referred the reader toSiegel’s and to the commentary for CPLR4012, which reads:
Marked pleadings furnished Theparty who has filed the note of issueshall furnish the judge who is to pre-side at the trial with copies of eachpleading, where they have not beensuperseded by the pre-trial order,plainly marked to indicate which state-ments are admitted and which contro-verted by the responsive pleading
Oblivion calendarOblivion calendar is a humorous term
not indexed anywhere, but warrants aparagraph in Siegel’s New York CivilPractice, Section 372:
The general preference is a device foradministering the calendars of thesupreme court. It aims primarily at theubiquitous personal injury and wrong-ful death actions, the unintentionaltorts, which are so substantial a part ofjudicial calendars today. The functionof the general preference is to keep outof the supreme court cases in whichthe injuries (and hence the damages)are not permanent or protracted andwhich, in the court’s view, shouldtherefore have been brought for asmaller sum and in a lower court. Ifthe complaint in such a case asks for asum beyond the monetary jurisdictionof the lower court, the plaintiff there-by insisting on remaining in thesupreme court, the case will be denieda “general” preference. The impact ofthe denial is that the case will go ontothe calendar at the bottom and staythere; it will not, as will cases that doget the general preference, move upand get tried in due course. Attorneyssometimes facetiously call this the“oblivion” calendar.
Quash Quash is such a vivid expression and
again Siegel leads to an explanation insection 384, “Motion to Quash Subpoena”and CPLR 2304. New York Jurisprudencedoes not index the word quash, but a full
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The New York Center forNeuropsychology
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BROOKLYN BARRISTER - APRIL 2011 5
We know that competing for your atten-tion are the lengthening warm green daysof spring and the rush to wind up mattersbefore the summer hiatus, but we hopethat you will have time to examine someinteresting cases we have compiledinvolving the recognition of a Canadiansame-sex marriage for the purpose ofascertaining who was a decedent’s soledistributee in a probate proceeding; thevacatur of changes made to an irrevocableinter vivos trust by the trust grantor’sattorney in fact, in that the statutory rightto revoke an otherwise irrevocable trustwas a personal right which may only beexercised by the trust grantor, absent lan-guage in the trust instrument stating other-wise; the conclusive effect as a matter oflaw of Waivers and Consents in a probateproceeding; dismissal of a wrongful deathclaim brought within two year of death onbehalf of a “proposed administrator”; theentitlement of an attorney executor to hiscommissions, despite a partnership agree-ment with his former firm requiring themto be turned over to the firm, because theattorney already had left the firm when thecommissions were paid; the prima facieshowing of due execution arising from anattestation clause and attorney supervi-sion; the sufficiency of the affidavit ofattesting witnesses stating that decedentwas sound in mind and memory and in allrespects competent to make a will to cre-ate a presumption of testamentary capaci-ty; settlement of a cause of action and pay-ment of counsel fees and disbursements,
and funeral expenses, but not settlement ofthe administrator’s account being allowedin a compromise proceeding becauseseven months had not elapsed after theissuance of letters of administration;denial of an attempt to withdraw fromconsideration by a New York Surrogatewho had jurisdiction over the decedent’sestates of the terms of a proposed settle-ment of a wrongful death action broughtin Florida where the accident occurred;
the authority of a Surrogate to permit aGuardian ad litem to have members of hisfirm assist him and perform various dutieson his behalf; the necessity of vacating aprobate decree before objections can befiled and discovery thereon permitted; andthe resolution of a dispute between thedecedent’s sister and niece as to whetherthe decedent should be cremated orburied.
A Canadian Same-sex MarriageRecognized for the Purpose ofAscertaining Who Was a Decedent’sSole Distributee in a ProbateProceeding- In his Last Will andTestament the decedent made bequests tothree brothers and a goddaughter. He leftthe residue of his estate to his same-sexpartner, whom he had married in Canada.The decedent also appointed his partner asthe executor of his will, which included anin terrorem clause. The partner, as theexecutor named in the will, filed a petitionfor probate in the Surrogate’s Court, andidentified himself as the decedent’s sur-viving spouse and the sole distributee. Thelegatees were served with notices of pro-bate, and thereafter the Surrogate’s Courtissued a decree granting probate. The
Surrogate ruled that the partner was dece-dent’s surviving spouse and sole distribu-tee under EPTL §4-1.1, and thus citationof the probate proceeding need not beissued to anyone under SCPA§1403(1)(a). The Court found that thedecedent’s same-sex marriage to respon-dent was valid under the laws of Canada,where it was performed, and did not fallinto either of the two exceptions to themarriage recognition rule, as the marriagewas not affirmatively prohibited or pro-scribed by natural law. Accordingly, theSurrogate’s Court found that the marriagewas entitled to recognition. The dece-dent’s brother petitioned the Surrogate’sCourt for vacatur of the probate decreeand permission to file objections, allegingthat the court was without jurisdiction togrant probate without citation having beenissued on the decedent’s surviving sib-lings. The brother argued that the recogni-tion of the decedent’s same-sex marriageviolated public policy in New York andthat he should have been cited in the pro-bate proceeding and provided with anopportunity to file objections thereto as adistributee. The Surrogate rejected thebrother‘s position that same-sex marriageviolated public policy, and held the posi-tion to be patently without merit. Thebrother appealed. HOLDING- TheAppellate Division agreed with theSurrogate. The Court opined that NewYork’s long-settled marriage recognitionrule afforded comity to out-of-state mar-riages and recognized as valid a marriageconsidered valid in the place where cele-brated. The Court acknowledged that therule did not extend such recognition where
the foreign marriage was contrary to theprohibitions of natural law or the expressprohibitions of a statute. However, theCourt found that same-sex marriage didnot fall within either of the two exceptionsto the marriage recognition rule.
In the Court’s view, the failure of theLegislature to enact a bill recognizingsame-sex marriage afforded the mostdubious foundation for drawing positiveinferences. The Court held that theLegislature’s failure to authorize same-sexcouples to enter into marriage in NewYork or require recognition of validly per-formed out-of-state same-sex marriages,could not serve as an expression of publicpolicy for the State. Consequently theCourt ruled that in the absence of anexpress statutory prohibition, legislativeaction or inaction did not qualify as anexception to the marriage recognition rule.Ranftle v. Leiby, N.Y.L.J. 2/25/11, p.1, c.3(Appellate Division, 1st Dept.)
Changes Made to an IrrevocableIntervivos Trust by the Trust Grantor’sAttorney-in-Fact Vacated, in That theStatutory Right to Revoke an OtherwiseIrrevocable Trust was a Personal RightWhich May Only be Exercised by theTrust Grantor, Absent Language in theTrust Instrument Stating Otherwise-The petitioners were the trustee of an intervivos trust and the trust grantor’s attorney-in-fact. The respondents were the previoustrustee and successor trustee. The petition-ers sought to have the respondents turnover all records in their possession relatingto the Trust and its assets and to submit to
By Hon. Bruce M. Balter and Paul S. Forster, Esq.
THE STATE OF ESTATES
(Continued on page 8)
Overworked?Need Help Analyzing Complex
Issues for Possible Appeal?No Time To Do Research?
Preparation of motions, memoranda and briefsDrafting/revision of appellate briefsCareful, practical and cost effective
BROOKLYN BARRISTER - APRIL 20116
Clerk of the Criminal Term, DanAlessandrino. His list of attendeesincluded Siobhan Shea-Gillespie,Associate Court Clerk, and Senior CourtClerks, Susan Casey-Kinnane, LeonardCohen, Zaron Lancaster, JosephRossiello, Kimberly Smalley, JeanBernard Surena and Christopher Tropea.Also present from the Criminal Termwere the following Court Officers:Shanise Braddy, Danielle Calamia,Joseph Corbo, Maria Machuca, JasonMininni, Ashraf Rashid, Falon Taddio,Frank Zalonga and Tricia Jones. JusticeKamins also acknowledged the presenceof Lt. Benny Castillo, Sgt. Jeremy Madinaand Sgt. Frank Filminate.
Next to speak was Justice Hinds-Radix,who gleefully introduced the new staff at360 Adams Street, beginning with the newChief Clerk of the Civil Part, CharlesSmalls. She then introduced JosephMusilino, the new clerk in the
Guardianship Part and Nancy McCain, thenew clerk from the Mental Hygiene Part.The list of Court Officers in attendancefrom the Civil Part were KathleenArmstrong, Zakeia Keitt, Sharise Lewisand Deanna Wells. The Court OfficerTrainees in attendance were Claudio Cotto,Thomas McDonough, Michael Santos,Jason Szylagi, Joshua Wasserman andSusie Williams. The following Civil PartCourt Clerks were also introduced and hada chance to mix and mingle, Melissa Tucci,Joanne Downs, Stephanie Santo and TeresaHolt. Additionally Lance Harris from theSelf Help Center and Karen Holmgaardfrom the Mental Hygiene Part were inattendance to take part in the festivities.
By the smiles on everyone’s faces as theyleft, it was clear that events like this, whichoster good working relationships betweenthose who staff the courthouse and thosewho routinely come before them, are trulyappreciated by one and all.
Another important topic covered by Mr.Cercone were the different valuationapproaches and the methods encapsulatedunder each approach.
While matrimonial cases generally usethe Capitalization of Income Approachand the Excess Earnings Method in valu-ing small or closely-held businesses, it isimperative that a practitioner understandall of the approaches, including theMarket Approach and the Asset-BasedApproach, so that he or she is conversantwith valuation techniques in general. Themore a practitioner understands about theprocess, the better he or she will be able tocommunicate with the expert, understandthe report and be able to communicate thatinformation to the judge in his or her case.
Mr. Cercone discussed the concept thatall business appraisals in matrimonialcases are subject to a Capitalization Rate,or a multiple that is assigned by theappraiser to a specific business to indicatethe present value that is associated withthe expected returns of that business. Thisconcept is very important to the practition-er because it is an area where the apprais-er inserts his or her own judgment as towhat the rate should be. If an attorney isable to effectively convince a court oropposing counsel that a rate is too high ortoo low, it can change the appraised value
of the business significantly.After the break, Mr. Cercone discussed
the ways in which an appraiser can findthe “True Income” of a small business,especially in a business which is generally“all cash.” He suggested that discoverydemands should request not just theQuickBooks (or other general ledger soft-ware) reports, but the back up disks aswell. He discussed finding income basedupon vendor invoices (such as the numberof boxes, bags and sodas purchased andused) as opposed to a report of the ownerabout actual income. He suggested check-ing the register tape numbers to see ifthere are gaps, which would indicate thatthere are unreported sales. Finally, he rec-ommended that phone records, appoint-ment books, and a lifestyle analysis areother ways in which true income can befound.
The program was extremely informativeand highlighted the important areas that apractitioner needs to understand for thepurposes of reading a business valuationreport, effectively cross-examining a busi-ness appraiser and investigating trueincome as opposed to reported income.
On behalf of the Brooklyn BarAssociation and the Family Law Section,we thank Mr. Cercone for his time andexpertise.
text search leads to the section “Quashing,Vacating, Fixing Conditions, orModifying Subpoena” in the chapter“Evidence and Witnesses.”
Settle an order / submit an orderSiegel’s section 250, “Deciding the
Motion; Drawing and Entering the Order”explains the differences between these twoterms. Another good explanation is givenby Mark Davies in McKinney’s FormsCPLR 5:40. Attorneys should also checkCPLR sections 2219 and 2220.
Short form order
Besides relying upon Siegel’s brief sen-tence defining a short form order, readMark Davies’ explanation
A variation on the “so-ordered” deci-sion occurs when the court issues adecision and the clerk, without inter-vention by counsel for the parties,drafts up a “short form” order reflect-ing the decision of the court.However, the clerk will only performthat function when the decision issimple and straightforward. The clerkthen gives the parties notice that shortform order has been filed. Often thatnotice takes the form of a statement inthe legal newspaper: “order filed.”McKinney’s Forms, CPLR 5:39
Torres hearingNo treatise indexes this phrase. I had to
search on-line to find this definition inA hearing at which the court enter-
tains an application to vacate a war-rant of eviction based on the “goodcause” provision of RPAPL § 749(3)is often referred to as a “Torres hear-ing,” after New York City HousingAuthority v. Torres, 61 A.D.2d 681,403 N.Y.S.2d 527 (1st Dep’t 1978)New York Residential Landlord-Tenant Practice § 17:43
Traverse hearing The only index entry for this term is in
Siegel’s New York Civil Practice Section271. A model list of questions to ask in atraverse hearing is in Treiman’s TrialManual KFX 2081 A4 N47.. This manual,a part of the Housing Court Reporter pub-lication series, has sample forms and ques-tions for hold-over proceedings
The Brooklyn Supreme Court Libraryis open Monday-Friday, 9 am - 6 pm.The Library is located in room 349 of theSupreme Court House, 360 AdamsStreet, Brooklyn. The Library offers freeLexis and Westlaw and a documentdelivery service at Click on Libraries toget a full description of services and loca-tions throughout the state.
The Simplest Questions Are The Hardest (Continued from page 4)
Lunch for the New Court Personnel(Continued from page 1)
Business Valuation of a Pizzeria andOther Cash Businesses (Continued from page 1)
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Commercial Litigation In New YorkState Courts, Third Edition
BROOKLYN BARRISTER - APRIL 2011 7
being chock full of technical informationthat teaches even the most experienced ofus, the “GPS system” that his source pro-vides makes it a practical user-friendlysource to go back to again-and-again as youfit the facts and factors of your particularcase or situation and are guided on yourway toward the best outcome.
This is accomplished by tapping into theexpertise of specialists in their given fieldswho author the various chapters. It is theuser’s ability to rely not only on the writers’discussions, along with statutory and caselaw citations, but also to access exhaustive“checklists” and forms that make sure thatyou are making all the correct turns alongyour journey.
Everyone has had the occasion to headoff in the wrong direction in the handling ofa case and knows how hard it can be to rec-tify earlier mistakes and omissions, and theoften unnecessary stress and aggravationthat causes.
There is plenty to learn here by even themost experienced practitioners (and I daresay judges, too). The authors themselvesconsist of a virtual Who’s Who of legal tal-ent including litigators, trial lawyers andpast, present and maybe, even, future mem-bers of the Court of Appeals, includingJudge Lippmann, our present Chief Judge,and past, present and future jurists of thevarious Appellate Divisions.
The chapter heading that Mr. Haig hascompiled here runs the gamut from nuts-and-bolts subjects like: “The Complaint,”“Motion in Limine,” “Cross Examination,”“Graphics and Other DemonstrativeEvidence,” “Products Liability” and a verypractical chapter entitled “An Overview ofSurrogate’s Court Practice for theCommercial Litigator.”
More evolved subjects included in thisThird Edition, among the 19 added chap-ters to the 88 chapters which existed before,include “Litigation Avoidance andPrevention,” “Crisis Management,” “E-Commerce,” “Information TechnologyLitigation,” “Health Care InstitutionLitigation,” “Privacy and Security” and
“The Interplay Between CommercialLitigation and Criminal Proceedings.”
A good example of how the variouschapters are constructed is one found in anarea gaining more traction in the statecourts entitled: “Selection of Experts,Expert Disclosure and Pre-Trial Exclusionof Expert Testimony.”
Here, we are led from the beginning tothe end on this topic including the essen-tial aspect of when you require an expert,how to find one, the consultant/expert wit-ness retention letter, forms for a formalexchange of the expert and how to pre-clude the other side’s expert at the time oftrial.
This set of books is rounded out by asoft cover volume consisting of a Table ofLaws and Rules, Table of Cases and aneasy to use Index to orient you to the other6 hard-bound volumes. Pocket Parts keepthe information fresh and up-to date.
Clearly, these are not books to be stuckaway in a dark corner of the library butrather should be kept close by in your officefor ready access. The CD-Rom that comeswith the set contains the jury instructionforms and checklists that are included in theprinted volumes.
During the time I have been using them, Ihave found myself going to them more andmore frequently, even if just to re-familiar-ize myself in a specific practice area, tohone in on a factor of a case I am alreadyinvolved in or, very importantly, to preparefor an initial meeting with a prospective lit-igation client where my preparation canmake the difference between being retainedto handle a matter or not.
And if all of that is not enough, and toagain reiterate the first point I made hereabout the Editor, all royalties from the saleof this collection, which as you mightimagine, have been substantial, are con-tributed to his local bar organization, theNew York County Lawyers Association.
You won’t find yourself at the wrong des-tination if you take advantage of COM-MERCIAL LITIGATION IN NEW YORKSTATE COURTS.
& Estates, Real Estate, Elder Law, PersonalInjury and Civil Litigation. The emailaddress is [email protected].
Word has reached the BBA from theIndependent Judicial ElectionQualification Commission that in 2011there will be two (2) vacancies country-wide for the Civil Court and six (6) vacan-cies countywide for the Supreme Court.Candidates wishing to be reviewed by theIJEQC should submit completed applica-tions by May 25, 2011. Further informa-tion is available at www.ny-ijeqc.org orfrom Director Vivian McCallum at 347-401-9248 or [email protected]
Bereavements
The Brooklyn Bar Association extends itsdeepest sympathy to Hon. CherylChambers and family on the passing of herfather, Bryon Carr Chambers, on April10, 2011.
Legal Briefs is compiled and written byAvery Eli Okin, Esq. CAE, the ExecutiveDirector of the Brooklyn Bar Associationand its Foundation. Items for inclusion in“Legal Briefs” should be sent [email protected], faxed to 718-797-1713 or mailed to 123 Remsen Street,Brooklyn, NY 11201-4212
by anxiety; there are workers who have lostjobs, but hope to work again; and there arepeople with injuries and impairments thatwill prevent them from finding gainfulemployment. These are the clients andcases, and you have the simple and amazingopportunity to help them find a better life.Contact the VLP (jspiegel@brooklyn-
vlp.org) and you can make it happen.
Mary Jo Eyster is an AdjunctAssociate Clinical Law Professor,Brooklyn Law School, attorney andmediator, Brooklyn Bar Association ProBono Committee member and VLPVolunteer.
YES, YOU CAN: The VLP Shows the Way(Continued from page 3)
examinations before trial concerning thenature and value of the trust corpus whenreceived; any income received; and dis-bursements, distributions or payments;any commissions paid, and the location ofall records regarding the Trust; and toaccount. The respondents opposed theapplication and cross-moved to invalidatethe purported amendment to the trustmade shortly before the decedent’s deathby the trust grantor’s attorney-in-fact bywhich they had been removed and thepresent trustees appointed. The trust wascreated in 1991. The trust provided that itwas irrevocable and not subject to anyalteration or amendment, and that it was tocontinue until the trust grantor’s death.The trust grantor appointed his brotherand his accountant as trustee and succes-sor trustee, respectively. Upon the trustgrantor’s death the proceeds of the Trustwere to be distributed in 1/3 shares to thedecedent’s three children. The trust’s soleasset was a one million dollar life insur-ance policy that insured the trust grantor’slife. In 2010, the trust grantor executed aNew York Statutory Short Form Power ofAttorney designating one of his children,his daughter Linda, as agent, and hisnephew, her son Nicholas, as successoragent. The Power of Attorney granted theagent full authority to act on the trustgrantor’s behalf, as well as all the modifi-cations listed one through eleven on thestatutory form. Simultaneously with theexecution of the Power of Attorney, thetrust grantor executed the form designated“New York Statutory Major Gifts RiderAuthorization to Make Major Gifts orother Transfers”. Shortly thereafter, thedaughter, apparently using her purportedauthority as the trust grantor‘s attorney-in-fact, executed an amendment removingher uncle and the accountant as trustee andsuccessor trustee of the Trust. In theirplace, the daughter sought to appoint herson Nicholas and another person as trusteeand successor trustee, respectively. Eachof the beneficiaries of the Trust executedthe statutory consents to the amendment.The Trust grantor died fifteen days afterthe execution of the amendment by hisdaughter. The trust grantor did not executethe amendment. HOLDING- The respon-dents’ application was granted and thepetitioners’ motion was denied. The Courtopined that a trust created during the sett-lor’s lifetime is presumed to be irrevocableabsent language contained in the four cor-ners of the instrument that retains the sett-lor’s right to alter or amend the instru-ment. Nonetheless, the Court acknowl-edged that under EPTL §7-1.9 a trustgrantor of an irrevocable trust still couldrevoke or amend an otherwise irrevocabletrust by obtaining the written consent,acknowledged or proved in the mannerrequired for the recording of a conveyanceof real property, of all the persons benefi-cially interested in a trust property. TheCourt found it clear that the trust grantorintended to create an irrevocable trustwhen he executed the trust instrument in1991. The Court stated that the languagecontained within the four corners of thetrust instrument did not permit the trustgrantor to amend the trust, nor did it per-mit his agent to amend the trust. The Courtfound it without question that the trustgrantor could have, during his lifetime,utilized the statutory mechanism to revokeor amend the otherwise irrevocable trust.However, the Court ruled that his daugh-ter, one of the beneficiaries of the trust,
could not utilize that same statutory provi-sion acting as the settlor’s attorney-in-factto do so. The Court stated that petitionershad presented no New York law or prece-dent which would support their proposi-tion that an agent may use a power ofattorney to modify an irrevocable trustinstrument executed by her principal uti-lizing EPTL §7-1.9. The Court found thatthe statutory right to revoke an otherwiseirrevocable trust was individualized to thetrust grantor, and ruled that the statutoryright to revoke an otherwise irrevocabletrust was a personal right which may onlybe exercised by the trust grantor, absentlanguage in the trust instrument statingotherwise. In the Court’s view, the trustgrantor did not reserve the power torevoke or amend the trust instrument dur-ing his lifetime. To the contrary, the Courtfound that the trust instrument indicatedhis intent that the trust not be modified inany way, by either himself or an agent. Itwas clear to the Court that the trust grantorintended the instrument to be irrevocable,leaving only the statutory method avail-able to him during his lifetime to amend orrevoke the trust. The Court rejected theargument of the petitioners that theamendment to the trust was accomplishedby statute through the daughter as the trustgrantor‘s attorney-in-fact. The Court ruledthat to the extent permitted by law and theterms of the power of attorney, an attor-ney-in-fact may act for his principal in allmatters that do not require the principal toact for himself, but that it was clear thatthe trust grantor did not intend for himself,or anyone else, to amend the trust. TheCourt noted that the power of attorneyexecuted by the trust grantor less than twomonths before his death granted no powerto his agent to amend or revoke past estateplanning devices, such as trusts. The Courtfound that while the power of attorneygranted his agent the right to create trustsand name trustees, the language was for-ward looking and was silent as to restruc-turing past estate planning devices. TheCourt found that the trust grantor’s broth-er acted as trustee for his brother’s trust fornearly 19 years, apparently without inci-dent. The Court found the record com-pletely devoid of any evidence showingthat the trust grantor wished to have hisbrother removed as trustee, other thanfrom the petitioners. Consequently, thepetitioners’ application was denied, andthe respondent’s cross-petition to vacatethe purported amendment to the trust wasgranted. Perosi v. LiGreci, N.Y.L.J.2/25/11, p. 25, c.3 (Sup. Ct., RichmondCo., Justice Maltese)
Wrongful Death Claim BroughtWithin Two Year of Death On Behalf Ofa “Proposed Administrator” Dismissed-The decedent died on September 3, 2008.On or about December 1, 2009, the plain-tiff individually, and denominated as a“proposed administrator” of the dece-dent’s estate, commenced an action torecover damages for among other thingswrongful death against several defendants.Since he had not yet been issued Letters ofAdministration authorizing him to bringsuit on behalf of the decedent’s estate atthe time the action was commenced, plain-tiff denominated himself the “proposedadministrator (next of kin /onlychild/son)” in the caption of the action.Letters of Administration ultimately wereissued to the plaintiff on June 7, 2010.Defendants moved to dismiss plaintiff’swrongful death cause of action on the
grounds that the plaintiff, as a proposedadministrator, lacked the capacity to sueon behalf of the decedent, and that thewrongful death claim was barred by thestatute of limitations. Defendants arguedthat the plaintiff lacked the capacity tocommence the action because he was notdesignated as the legal representative ofthe decedent’s estate at the time the actionwas commenced. The plaintiff pointed outthat the Letters of Administration ulti-mately were issued to him, and contendedthat none of the defendants had been prej-udiced by his commencement of theaction prior to being named the adminis-trator of the decedent’s estate. Plaintiffadditionally noted that he was the onlyperson who could assert this action on thedecedent’s behalf because he was her soleheir. Additionally, plaintiff asserted thatsince the wrongful death action was com-menced on December 1, 2009, approxi-mately one year and three months after thedecedent’s death on September 3, 2008,the wrongful death claim, which has a twoyear statute of limitations, was timelycommenced. HOLDING- The wrongfuldeath action was dismissed. The Courtstated that pursuant to EPTL §5-4.1(1),only the personal representative, dulyappointed in this state or any other juris-diction, of a decedent who is survived bydistributees, may maintain an action torecover damages for a wrongful act, neg-lect or default which caused the dece-dent’s death. The Court noted that pur-suant to EPTL §1-2.13, a personal repre-sentative is a person who has received let-ters to administer the estate of a decedent.The Court pointed out that EPTL § 5-4.1further provides that the wrongful deathaction must be commenced within twoyears after the decedent’s death, and thatin the event that an executor, appointedunder a will, refuses to bring such a claim,the distributees are entitled to have anadministrator appointed to prosecute theaction for their benefit. The Court statedthat it is well established that the existenceof a qualified administrator is essential tothe maintenance of such an action and thatthe statutory right to recover for wrongfuldeath does not even arise until an adminis-trator has been named through theissuance of letters of administration. TheCourt emphasized that the existence of aqualified administrator not only is anessential element to the statutory right torecover for a wrongful death, but also is acondition precedent to bringing such aclaim. The Court held that a proposedadministrator lacks the capacity to bring awrongful death action. In the Court’s view,since it was undisputed that the plaintiffwas not in possession of Letters ofAdministration for the decedent’s estate atthe time the action was commenced, theplaintiff was not the personal representa-tive of his mother’s estate at the time hefiled the wrongful death claims againstdefendants, and therefore lacked thecapacity to bring, and lacked a conditionprecedent to bringing, the wrongful deathclaim. The Court held that the fact that theplaintiff received Letters ofAdministration for his mother’s estatesubsequent to commencing the wrongfuldeath action did not, by itself, cure thedefect. Accordingly, the wrongful deathclaims as against all of the defendantswere dismissed. Matter of Butler, 2011N.Y.Slip Op. 50279 (Sup. Ct., Kings Co.,Justice Hinds-Radix, 2/24/11)
Waivers and Consents in a Probate
Proceeding of Conclusive Effect as aMatter of Law- The decedent died in1995, survived by three children from hisfirst marriage (the objectants), his secondwife of 30 years (the petitioner), their twosons, and another two daughters born outof wedlock. In 2001, the petitionerobtained waivers and consents to probatefrom all of the decedent’s seven children,including the objectants, of a will datedNovember 3, 1994. The petitioner alsoobtained acknowledgments from theobjectants that they had received thebequests provided in the will. The peti-tioner filed a petition in 2006, for probateof the will. The will named the petitioneras executor of the decedent’s estate, pro-vided specific bequests to each of thedecedent’s children, and bequeathed theresiduary estate to the petitioner. Theobjectants filed objections to probate in2009, based, inter alia, on allegations thatthe will was the product of fraud andundue influence and had been altered. Thepetitioner moved to dismiss the objectionsand admit the will to probate based on thewaivers and consents and the acknowledg-ments which the objectants executed in2001, which was granted by the Surrogate.The Surrogate also denied the objectants’motion for summary judgment dismissingthe probate petition on the grounds thatthe motion was academic in view of itsholding as to the validity of the waivers.The objectants appealed. HOLDING-The Surrogate was affirmed. TheAppellate Division opined that underCPLR §3211(a)(1), a dismissal is warrant-ed only if the documentary evidence sub-mitted conclusively establishes a defenseto the asserted claims as a matter of law.The Court held that the waivers and con-sents which the objectants had executedresolved all of the factual issues as a mat-ter of law and conclusively disposed oftheir contentions that their waivers andconsents to probate were procured byfraud or overreaching, misrepresentationor other misconduct, or clerical error. Inthe Court’s view, the Surrogate properlyhad admitted the will to probate based onher finding that the will was genuine andvalidly executed, and that, at the time ofexecution, the decedent was competent tomake a will and not under any restraint.The Court also found that even if theobjectants’ motion for summary judgmentwas not rendered academic by the admis-sion of the will to probate, the motion wassubject to denial because the objectantsfailed to make a prima facie showing oftheir entitlement to summary judgment onthe ground that the will was altered.Matter of Chin, (2nd Dept., 2010 79A.D.3RD 867)
Attorney Executor Entitled to hisCommissions, Despite a PartnershipAgreement With his Former FirmRequiring Them to be Turned Over tothe Firm, Because the Attorney AlreadyHad Left the Firm When theCommissions Were Paid- A client of thedefendant died in April, 2003, whiledefendant was a partner at plaintiff lawfirm. The decedent’s will named defen-dant co executor. Defendant received pre-liminary letters testamentary in May,2003. Defendant left the firm in August,2003. In November 2003, defendantreceived letters testamentary; inDecember, 2005, the estate was settled byagreement, and defendant received an
The State of Estates (Continued from page 5)
(Continued on page 9)
executor’s commission. The firm partner-ship agreement provided that “commis-sions payable to a Partner for acting as anexecutor . . . shall belong to the Firm.” Thelaw firm sued defendant for the commis-sions. Defendant’s motion for summaryjudgment regarding the commissions wasgranted, and the law firm appealed.HOLDING- The Supreme Court was nar-rowly affirmed. In a three to two decision,the Appellate Division held that since theSurrogate’s Court Procedure Act providesthat compensation for the administrationof an estate “shall be payable in such pro-portions and upon such accounting asshall be fixed by the court settling theaccount of the person holding successiveor different letters,” no commission was“payable” until December 2005, at whichtime defendant no longer was a partner ofthe law firm. The Court opined that hadthe partnership agreement used anotherterm, such as “earned,” there might havebeen an issue of fact precluding summaryjudgment, but the Court noted that to thecontrary the agreement specifically usedthe same word “payable” as does theSCPA. The dissent argued that while itmight well be that under the Surrogate’sCourt Procedure Act the executor’s com-mission paid to defendant were not“payable” to him until after he left the lawfirm, nothing in the relevant provision ofthe partnership agreement required theconclusion that the parties to the agree-ment intended the meaning of the word“payable” to be determined in accordancewith the Surrogate’s Court Procedure Act.The dissent noted that the word “payable”was used in other provisions of the agree-ment having nothing to do with such com-missions, and those provisions similarlydid not require the conclusion that a sumof money was “payable” only when therewas an unqualified legal entitlement to thereceipt of the entire sum. The dissentadded that an agreement should be con-strued in a commercially reasonable fash-ion. In the dissent’s view, under SupremeCourt’s reading of the word “payable,” thefirm would have no claim for even a pennyif a partner worked on firm time for hun-dreds of hours marshaling the assets of anestate and then left the firm days beforehis commission was “payable” under theSurrogate’s Court Procedure Act. Becausein its opinion the word “payable” in theagreement was ambiguous, the dissentstated that the Supreme Court should havedenied defendant‘s motion for summaryjudgment dismissing the complaint to theextent it sought an accounting and recov-ery of the commission. Jackson & Nash v.McAuliffe, 2011N.Y. Slip Op 88449 (1st
Dept., 2010)An Attestation Clause and Attorney
Supervision Prima Facie Show DueExecution- In a probate proceeding, theSurrogate granted petitioner’s motion forsummary judgment dismissing respon-dent’s objections and admitting the will toprobate, and denied respondent’s motionfor summary judgment. The Surrogatefound that the propounded will containeda valid attestation clause and the executionof the will was supervised by an attorney.The objectant appealed. HOLDING- TheSurrogate was affirmed. The AppellateDivision stated that the determinationwhether to dismiss objections and admit awill to probate is within the discretion ofSurrogate’s Court, and such a determina-tion is not to be disturbed absent a show-ing of an abuse of such discretion. In the
Court’s view, the petitioner had demon-strated a prima facie showing of due exe-cution of the will, as it contained a validattestation clause and was executed underan attorney’s supervision. The Courtopined that the burden then shifted torespondent to produce evidentiary proof inadmissible form to rebut the presumptionand raise an issue of fact. According to theCourt, the respondent had failed to do soin that he countered only with a bare asser-tion that decedent suffered from cognitiveimpairment, which was not supported bymedical evidence or competent testimony.Matter of McInerney, 79 A.D.3d 549 (1st
Dept., 2010) Affidavit of Attesting Witnesses
Stating that Decedent Was Sound inMind and Memory and in all RespectsCompetent to Make a Will Sufficient toCreate a Presumption of TestamentaryCapacity- Respondent filed objections toprobate, alleging, among other things, thatdecedent lacked testamentary capacity andthat the will was the product of undueinfluence. Respondent alleged that dece-dent was not of sound mind at the time thewill was executed. The Surrogate grantedpetitioner’s motion for summary judgmentdismissing respondent’s objections andadmitted the will to probate. Respondentappealed. HOLDING- The Surrogate wasaffirmed. The Appellate Division statedthat before a will is admitted to probate,the Surrogate’s Court must be satisfiedthat the will was validly executed. In theCourt’s view, the petitioner had made aprima facie showing that the will wasvalidly executed because it was executedunder the supervision of an attorney, andcontained a valid attestation clause. In theCourt’s view, the burden then shifted torespondent to raise a material issue of fact.The Court rejected respondent’s con-tention that an independent medical reportwas required to establish that decedenthad testamentary capacity. The Court heldthat the affidavit of the attesting witnessesstating that decedent was sound in mindand memory and in all respects competentto make a will created a presumption oftestamentary capacity, and the Courtfound that respondent had offered no evi-dence to rebut that presumption. TheCourt added that respondent’s conclusoryallegations, unsupported by any proof,also were insufficient to establish that thewill was the product of fraud or acts ofundue influence on the part of petitioner.Consequently, the Court determined thatthe Surrogate’s Court did not abuse its dis-cretion by granting petitioner’s motion forsummary judgment. Matter of Doody, 79A.D.3d 1380 (3rd Dept., 2010)
Settlement of a Cause of Action andPayment of Counsel Fees andDisbursements, and Funeral Expenses,Approved, but Settlement of theAdministrator’s Account in aCompromise Proceeding not ApprovedBecause Seven Months had not ElapsedAfter the Issuance of Letters ofAdministration- The administratrixsought, inter alia, to remove the restric-tions from her limited letters of adminis-tration so that she could collect settlementproceeds, allocate the entire recovery tothe personal injury causes of action, andjudicially account for the proceeds. Thedecedent was struck by a motor vehiclewhile bicycling. The decedent’s sole dis-tributee, his son, was served with processand defaulted. The New York StateDepartment of Taxation and Finance and
the New York State Office of VictimServices consent to the application.Counsel fees and disbursements wereallowed in the sum requested and thefuneral expenses were reimbursed.However the Court did not settle theadministratrix’ account. HOLDING- TheCourt ruled that as a period of sevenmonths had not elapsed since the date ofthe issuance of limited letters of adminis-tration, the court could not grant therequest to judicially settle the petitioner’saccount, or relieve the fiduciary from lia-bility for a claim presented within sevenmonths of the issuance of letters shouldshe pay a distributive share prior to thepresentation of that claim. Consequently,the Court only removed the restrictions onthe limited letters of administration so thatthe administratrix could collect the settle-ment proceeds and pay counsel fees anddisbursements as well as funeral expenses,since, the Court stated, those administra-tion and funeral expenses had priority overany claims that might thereafter be pre-sented. The Court provided, however, thatin the event that no additional claims werepresented to the petitioner after sevenmonths, upon filing an affidavit so stating,she could present a decree judicially set-tling her account, including the paymentof statutory commissions to herself.Matter of Cridland, 30 Misc.3d 415 (Surr.Ct., Bronx Co., Surr. Holzman, 12/1/10)
Surrogate Who Had JurisdictionOver the Decedent’s Attempt toWithdraw From Consideration by aNew York Estates of the Terms of aProposed Settlement of a WrongfulDeath Action Brought in Florida Where
the Accident Occurred Denied;Surrogate Authorized to Permit aGuardian ad litem to Have Members ofHis Firm Assist Him and PerformVarious Duties on His Behalf- Decedentswere killed in the crash of a small plane inFlorida. Both were residents of New YorkState at the time of the crash. The dece-dents were mother and son. The son wassurvived by his wife, who was executrix ofhis estate, and by two minor children. Themother was survived by her husband whowas administrator of her estate. The fidu-ciaries commenced a wrongful deathaction in Florida against, inter alia, theowner and lessor of the plane. The partiesultimately entered into an agreement pur-suant to which the defendants agreed topay certain sums to the fiduciaries subjectto and conditioned upon the approval ofthe Surrogate and the approval of theFlorida Court. The fiduciaries thereafterfiled wrongful death petitions inSurrogate’s Court seeking, inter alia, tocompromise the Florida wrongful deathaction. Guardians ad litem were appointedfor the minor children. While the petitionswere pending, the Florida Court grantedthe fiduciaries’ motion to approve wrong-ful death claim involving the interests ofminors. The fiduciaries contended beforethe Surrogate that the Florida Court orderwas entitled to full faith and credit and thatthe only matter left for the Surrogate todetermine was whether appropriate invest-ment vehicles were in place for the settle-ment allocations to the minor children.The guardians ad litem, however, contend-
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The State of Estates (Continued from page 8)
(Continued on page 10)
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The State of Estates (Continued from page 9)
ed that the express terms of the agreementrequired the Surrogate to approve the set-tlement and that the Surrogate must makeher own determination regarding, interalia, the adequacy of the settlement. Thefiduciaries then attempted to withdrawtheir compromise proceedings, which wasdenied by the Surrogate. The Surrogatealso denied the fiduciaries’ attempt toamend the compromise proceedings. Thefiduciaries appealed. HOLDING- TheSurrogate was affirmed. The AppellateDivision concluded that the Surrogateproperly denied the fiduciaries’ request tolimit her role and that of the guardians adlitem. The Court rejected the fiduciaries’contention, that the Full Faith and CreditClause of the US Constitution barred theSurrogate’s review of the settlement inaccordance with the terms of the agree-ment. The Court noted that the parties tothe wrongful death action, including thefiduciaries, explicitly and unambiguouslyconditioned their settlement upon theapproval of both the Florida Court and theSurrogate. The Court also rejected thefiduciaries’ further contention, that theagreement limited the Surrogate’s role inapproving the settlement or requiring theSurrogate to defer to the Florida Court’sdetermination concerning the appropriate-ness of the settlement. The Court agreedwith the fiduciaries that a contract cannotconfer jurisdiction upon a court wheresuch jurisdiction does not otherwise exist,but stated that the Surrogate already hadconcurrent jurisdiction to approve the set-tlement. In the Court’s view, the agree-ment did not attempt to “confer” jurisdic-tion on the Surrogate but, rather, the par-ties requested, as a condition of their set-tlement, that the Surrogate exercise herconcurrent authority to approve the settle-ment. The Court concluded that theSurrogate’s independent review of the set-tlement did not fail to afford credit, valid-ity, and effect to the orders of the FloridaCourt. The Court stated that the FloridaCourt approved the settlement in accor-dance with Florida law and the agreement,while the Surrogate was reviewing the set-tlement pursuant to New York law asauthorized by statute and required by theAgreement. The Court rejected the fiduci-aries’ contention that the Florida Court’sapproval of the settlement was conclusiveevidence of the adequacy thereof underEPTL §5-4.6(d), inasmuch as the wrong-ful death action was not commenced inNew York. The Appellate Division alsoconcluded that the Surrogate properlydenied the fiduciaries’ requests to with-draw the wrongful death petitions and todiscontinue the proceedings. The Courtnoted that pursuant to CPLR §3217(a),any party asserting a claim may discontin-ue it without an order by serving upon allparties to the action a notice of discontin-uance within certain time periods. TheCourt, while acknowledging that the fidu-ciaries’ notices of discontinuance weretimely, agreed with the Surrogate that anapplication to compromise a wrongfuldeath action pursuant to EPTL §5-4.6 isnot a “claim” subject to unilateral discon-tinuance under CPLR §3217(a). The Courtalso agreed with the Surrogate that thefiduciaries’ amended petitions wereuntimely. The Court noted that underCPLR §3025 a party may amend hispleading once without leave of court with-in [20] days after its service, or at any timebefore the period for responding to it
expires, or within [20] days after serviceof a pleading responding to it. The Courtreasoned that inasmuch as no responsivepleadings were required, the timeliness ofthe amended petitions would be measuredonly by the 20-day time period followingservice of the original petitions. Since thefiduciaries filed the amended petitionsapproximately 48 days after serving theoriginal petitions, the Appellate Divisionruled that the Surrogate properly had con-cluded that the fiduciaries were not enti-tled to amend the petitions as a matter ofright. The Court also ruled that theSurrogate did not abuse her discretion indenying the fiduciaries’ motion for leaveto file and serve amended petitions pur-suant to CPLR §3025(b). In the Court’sview, the “amended” petitions were nottruly amended petitions, but rather newpleadings seeking entirely different reliefin an attempt to circumvent the orderwhich denied petitioners’ requests to with-draw the original petitions and discontinuethe proceedings. The Appellate Divisionalso held that given the scope and natureof the settlement and the financial stakesinvolved, the Surrogate did not abuse herdiscretion in granting the application ofone of the guardians ad litem to approvethe nunc pro tunc appointment andauthorization for members of his law firmto assist him and perform various dutieson his behalf as guardian ad litem. TheCourt pointed out that pursuant to 22NYCRR 36.1(a)(10) and 36.2(a), a courtmay appoint persons or entities perform-ing services for guardians ad litem such ascounsel, accountants, auctioneers,appraisers, property managers, and realestate brokers. Consequently, the ordersappealed from were affirmed. Matter ofStanley, 79 A.D.3d 1620 (4th Dept, 2010)
Probate Decree must be VacatedBefore Objections can be filed andDiscovery Thereon Permitted-Decedent left a will indicating that it wasexecuted in March 1994. The joint affi-davit of the witnesses to the will was exe-cuted three years later, in May 1997. Thewill named petitioner as executor of theestate and as the sole beneficiary. In con-nection with the probate proceeding, thedecedent’s brother received a copy of thewill. The brother alleged that despitenoticing the date discrepancy he did notobject to the will which subsequently wasadmitted to probate in December 2008. InFebruary 2009, the petitioner com-menced an action against the brother toset aside a deed which conveyed certainreal property, one of the major assets ofdecedent’s estate, from the decedent tothe brother. In the course of that action,the brother‘s attorney was permitted toreview decedent’s legal files, which werein the possession of an attorney. That fileincluded a note in the attorney’s hand-writing which suggested a possible issuewith the propriety of the execution ofdecedent’s will. The brother’s attorneylocated the witnesses to the execution ofthe will, and his conversations with themregarding their recollection of the perti-nent events furthered his concerns thatapplicable legal procedures had not beenadhered to. The brother thereafter movedfor vacatur of the decree granting probateand for permission to file objections andobtain discovery. The Surrogate’s Courtsuspended petitioner’s authority to act asexecutor of decedent’s estate pending
resolution of the brother‘s motion.Petitioner cross-moved for an ordervacating the suspension of his authorityand for an order of protection suppress-ing all previously released documentsfrom the estate file in the attorney’s pos-session which had been obtained by thebrother‘s attorney in the course of dis-covery in the real property action. TheSurrogate’s Court granted the brother’smotion insofar as it sought discoveryregarding the propriety of the executionof the will, but reserved decision as towhether to vacate the probate decreepending the conclusion of discovery.Petitioner’s request for an order of pro-tection was denied, but the Surrogate’sCourt granted him preliminary letters tes-tamentary, with limitations on his author-ity to act as executor. Petitioner appealedfrom both the order permitting discoveryand from the order granting limited pre-liminary letters testamentary. HOLD-ING- The Appellate Division reversedwith regard to discovery, holding that dis-covery cannot be permitted unless thedecree of probate first is set aside. TheCourt noted that while SCPA §1404(4)does not explicitly provide that a decreeof probate must be vacated prior to allow-ing discovery, the statute has been inter-preted by the Court of Appeals as requir-ing such vacatur. The Court concludedthat the brother’s motion seeking discov-ery should have been denied absent adetermination that the brother was enti-tled to an order vacating the decree ofprobate. The Court stated that inasmuchas such determination is a discretionaryone for the trial court, and Surrogate’sCourt did not address the issue, the mat-ter had to be remitted to the Surrogate’sCourt for that purpose. The AppellateDivision did not disturb the determina-tion of Surrogate’s Court to issue prelim-inary letters testamentary with limita-tions pending its determination ofwhether the decree granting probateshould be vacated, holding that suchdetermination was a proper exercise ofthe Surrogate’s Court’s discretion.Matter of Kelsall, 74 A.D. 3rd 1234 (3rd
Dept., 2010)Resolution of a Dispute between the
Decedent’s Sister and Niece as toWhether the Decedent Should BeCremated or Buried- The decedent was aperson for whom guardians had beenappointed under Mental Hygiene LawArticle 81. His niece Grace had beenappointed his personal needs guardian andhis sister Vita, along with an attorney,were appointed property guardians.During the guardianship proceeding awritten nomination by the decedent wasconsidered by the Court. The nominationspecifically stated that his sister was not tointerfere with his personal needs guardianand she was not to interfere with anyaspect of his daily life. The nominationalso stated that should his sister overstepher boundaries or cause trouble in thedecedent’s home life that he would requesther removal from any and all aspects of hisguardianship. As part of the guardianshipdetermination, the Court suspended ahealth care proxy which had nominatedthe sister. When the decedent passed awaythe sister and niece were at odds withregard to the final disposition of the dece-dent’s remains. The funeral home request-ed a court order directing the dispositionof the remains or determining which fam-
ily member had priority to make the deci-sion. The decedent was survived by thedisputing sister and niece, as well as byanother sister. The guardian sister testifiedthat she and the other sister each desired tobe cremated. She further testified that shewanted to cremate her brother’s remains,and transport the cremains to her bunga-low in Vermont where she claimed heexperienced artistic and musical inspira-tion during various points in his life. Shealso indicated that she wished for herashes to be mixed with his after her pass-ing. She claimed that she previously dis-cussed her own cremation with her broth-er during his lifetime and that while he didnot disapprove religiously or morally, sheadmitted that he never indicated that hewished to have his remains cremated. Sherepresented that her sister did not object tothe cremation of the decedent. The othersister did not testify. The niece testifiedthat she desired that her uncle be buried ashe intended in the catholic cemetery burialplot he purchased for himself 35 yearsbefore his death. She further testified thatthe decedent was a religious man, whoserved as the choir director at a localchurch for several decades, and expectedthat he would be buried in the customarygarb of a Knight of the Order of the HolySepulchre of which he was a member. Thedecedent’s parents and the decedent’s pre-deceased brother each were buried asopposed to being cremated. The dece-dent’s will did not indicate his desires withregard to his final resting place. HOLD-ING- The Court stated that the law regard-ing “possession” of a dead body forpreservation and burial expressly favorsthe surviving spouse, and subsequently thenext-of-kin. The Court noted that the tes-tamentary wishes of a decedent regardingthe disposition of his remains are para-mount, but that absent such directions, thewishes of the family should be consideredand heeded. The Court pointed out thatunder Public Health Law §4201(2), thecloser the degree of kinship, the higher thepossessory right. The Court stated thatabsent instructions to the contrary, thedecedent’s adult siblings would havestatutory priority over any other heirs fordetermining the disposition of hisremains. However, the Court found thatthe decedent had left a clear indication asto his intended wishes with regard to finalresting place, by virtue of his purchase ofa cemetery plot. The Court found persua-sive the fact that the decedent had pur-chased both the plot and permanent care,which to the Court indicated his intentionthat such plot eventually be utilized andperpetually tended. Accordingly, theCourt found that the decedent had mani-fested his wishes to be buried by virtue ofhaving purchased the funeral plot for hisown use several decades prior.Consequently, the Court granted the reliefsought by the niece, and directed that thedecedent be afforded a proper and digni-fied burial in the manner in which heintended. Matter of Louis P., 2011N.Y.Slip Op. 21069 (Sup. Ct., NassauCo., Justice Asarch, 2/22/11)
Compiled by Hon. Bruce M. Balter,Justice of the Supreme Court, State ofNew York, and Chair, Brooklyn BarAssociation, Surrogate’s CourtCommittee, and Paul S. Forster, Esq.,Chair, Brooklyn Bar Association,Decedent’s Estates Section.
BROOKLYN BARRISTER - APRIL 2011 11
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