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B ROOKLYN B ARRISTER THE OFFICIAL PUBLICATION OF THE BROOKLYN BAR ASSOCIATION ©2014 Brooklyn Bar Association July 2014 VOL. 66 N O . 10 New Lunch HourPro Bono Program By Andrew M. Fallek, Esq. .........................Pg. 1 The Docket Compiled by Louise Feldman ...................Pg. 2 New Members, June 2014 ........................Pg. 2 Legal Briefs By Avery Eli Okin, Esq., CAE ......................Pg. 2 Respectfully Submitted By Rebecca Rose Woodland, Esq. ...............Pg. 3 The State of Estates By Hon. Bruce M. Balter and Paul S. Forster, Esq. .....................................Pg. 4 Fiction Contest Winner: The Client From Hell By Arthur Susnow, Esq. ...................................... Pg. 5 Interview with Paul Hale, Esq. By Daniel Antonelli, Esq. .................................... Pg. 7 Medical Malpractice Update. By John Bonina, Esq. ..........................Pg. 9 What’s Inside You’ve always been willing to do some pro bono work, but as a busy solo or small firm practitioner your free time is in short supply and you’ve been reluctant to commit yourself to an open ended case that could consume dozens of hours. Most of the pro bono pro- grams you’ve encountered involve practice areas in which you have no competence. What if you make a mistake? What about possible malpractice claims? If these concerns sound familiar, have we got pro bono for you. The program, called ACU (“Assistance Center for the Unrepresented”) involves taking time out of your “lunch hour” — and only your lunch hour — to meet with self-represented lit- igants (also known as “pro se” litigants) in a room at the Kings County Supreme Court and provide the type of very basic legal advice and guidance that courthouse clerks are not permit- ted to give. The program provides verbal ad- vice only. Unrepresented litigants, not the vol - unteer lawyers , will do all their own drafting and filing of necessary documents and when you and the litigant leave the ACU room, your work is done, period. Your firm’s name is not listed on any legal papers, you do not appear as the litigant’s counsel in any proceeding and you won’t be obliged to give any additional advice on the matter unless the litigant returns to the center on a day when you happen to be there and are available to talk. You will be covered by malpractice insurance through OCA. No prior knowledge of a specific area of the law is required. The program will provide you with several hours of training and you can get CLE credit for the course if you commit to do a certain number of hours at the center. If you don’t want to commit for the CLE, just take the training and provide the lunchtime advice when you are available. We anticipate that the program will operate two days a week and will be over- seen by one or more seasoned attorneys partici- Visit us at www.brooklynbar.org Please turn to page 10 ‘New “Lunch Hour” Pro Bono Program to Assist The Self-Represented in Kings Supreme Court Makes It Easy To Do Pro Bono Work Volunteer: Now ForFree Training By: Andrew M. Fallek, Esq. Forensic Evidence CLE and Yankees Home Game, July 21 ABOVE: CLE Attendees: Doron Leiby, BBA President Rebecca Rose Woodland, Trustee Steven Jeffrey Harkavy and Trustee Armena Gayle. See more photos on pages 6-7.
Transcript
Page 1: THE OFFICIAL PUBLICATION OF THE BROOKLYN BAR …brooklynbar.org/wp-content/uploads/01-12_Barrister_7_2014lo.pdfLawyer Referral Service, and the Foundation Library will be closed. THE

BROOKLYN BARRISTERT 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

©2014 Brooklyn Bar Association July 2014 VOL. 66 NO. 10

New Lunch Hour Pro Bono ProgramBy Andrew M. Fallek, Esq. .........................Pg. 1The DocketCompiled by Louise Feldman ...................Pg. 2New Members, June 2014 ........................Pg. 2Legal BriefsBy Avery Eli Okin, Esq., CAE ......................Pg. 2Respectfully SubmittedBy Rebecca Rose Woodland, Esq. ...............Pg. 3The State of EstatesBy Hon. Bruce M. Balter andPaul S. Forster, Esq. .....................................Pg. 4Fiction Contest Winner: The Client From HellBy Arthur Susnow, Esq.......................................Pg. 5 Interview with Paul Hale, Esq.By Daniel Antonelli, Esq.....................................Pg. 7 Medical Malpractice Update. By John Bonina, Esq. ..........................Pg. 9

What’s Inside

You’ve always been willing to do some probono work, but as a busy solo or small firmpractitioner your free time is in short supplyand you’ve been reluctant to commit yourselfto an open ended case that could consumedozens of hours. Most of the pro bono pro-grams you’ve encountered involve practiceareas in which you have no competence. Whatif you make a mistake? What about possiblemalpractice claims? If these concerns soundfamiliar, have we got pro bono for you.

The program, called ACU (“AssistanceCenter for the Unrepresented”) involves takingtime out of your “lunch hour” — and only yourlunch hour — to meet with self-represented lit-igants (also known as “pro se” litigants) in aroom at the Kings County Supreme Court andprovide the type of very basic legal advice andguidance that courthouse clerks are not permit-ted to give. The program provides verbal ad-

vice only. Unrepresented litigants, not the vol-unteer lawyers, will do all their own draftingand filing of necessary documents and whenyou and the litigant leave the ACU room, yourwork is done, period. Your firm’s name is notlisted on any legal papers, you do not appear asthe litigant’s counsel in any proceeding and youwon’t be obliged to give any additional adviceon the matter unless the litigant returns to thecenter on a day when you happen to be thereand are available to talk. You will be coveredby malpractice insurance through OCA.

No prior knowledge of a specific area of thelaw is required. The program will provide youwith several hours of training and you can getCLE credit for the course if you commit to do acertain number of hours at the center. If youdon’t want to commit for the CLE, just take thetraining and provide the lunchtime advice whenyou are available. We anticipate that the programwill operate two days a week and will be over-seen by one or more seasoned attorneys partici-

Visit us at www.brooklynbar.orgPlease turn to page 10

‘New “Lunch Hour” Pro Bono Program to Assist TheSelf-Represented in Kings Supreme Court Makes It EasyTo Do Pro Bono Work Volunteer: Now For Free Training

By: Andrew M. Fallek, Esq.

Forensic Evidence CLE and Yankees Home Game, July 21ABOVE: CLE Attendees: Doron Leiby, BBA President Rebecca Rose Woodland, Trustee Steven Jeffrey Harkavy and Trustee Armena Gayle. See more photos on pages 6-7.

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Page 2, BROOKLYN BARRISTER JULY, 2014

IFYOU HAVE ITEMS FOR INCLUSION IN THE DOCKET, PLEASE MAILOR FAXOR EMAILTHEM TO LOUISE FELDMAN, BROOKLYN BAR ASSOCIATION,

123 REMSEN STREET, BROOKLYN, NEWYORK 11201. FAX NO.: 718-797-1713 • E-mail: [email protected]

BROOKLYN BAR ASSOCIATION 2014-2015Rebecca Rose Woodland, PresidentArthur L. Aidala, President Elect

Hon. Frank R. Seddio, First Vice President

Aimee L. Richter, Second Vice PresidentDavid M. Chidekel, Secretary

Hon. Frank V. Carone, TreasurerAvery Eli Okin, Esq., CAE: Executive Director

CLASS OF 2015Michael Farkas

Fidel F. Del ValleLara Genovesi

Richard S. GoldbergJaime Lathrop

Anthony W. Vaughn, Jr.Glenn Verchick

CLASS OF 2016Elaine N. Avery

Armena D. GayleDavid J. Hernandez

Richard KlassAnthony J. Lamberti

Deborah LashleyJoseph S. Rosato

CLASS OF 2017Marianne BertunaJoseph R. Costello

Stefano A. FilippazzoDewey Golkin

Hemalee J. PatelSteven J. Harkavy

Jeffrey Miller

Roger Bennet AdlerVivian H. AgressAndrea E. BoninaRoss M. BrancaRose Ann C. BrandaGregory T. CerchioneSteven D. CohnHon. Miriam CyrulnikLawrence F. DiGiovannaDavid J. Doyaga, Sr.

Andrew M. FallekJoseph H. FarrellAndrew S. FisherEthan B. GerberDominic GordanoPaul A. GolinskiGregory X. HesterbergHon. Barry KaminsMarshall G. KaplanMark A. Longo

Domenick NapoletanoJohn. E. MurphyJohn LonuzziManuel A. RomeroHon. Harold RosenbaumBarton L. SlavinHon. Jeffrey S. SunshineHon. Nancy T. SunshineDiana J. Szochet

TRUSTEES COUNCIL (Past Presidents)

TRUSTEES

NEW MEMBERSMONTH OF JUNE 2014

DANA BARRETTA

TARIS BURGESS

SARAH J DREISINGER

LAWRENCE FALLEK

JOHN GALLAGHER

JOYCE KENDRICK

ALEXANDER KHARAZ

MICHAEL LIBUSER

SHARON MCKENZIE

ELENA MINDIN

JUDY MOCK

STUDENT MEMBERSCHARLENE MCGREGOR

LEGAL BRIEFS

Included below are events which have been scheduled for the period September 1, 2014 through December 31, 2014

Compiled by Louise Feldman

September 1, 2014 Monday In observance of Labor Day the Brooklyn Bar Association Building includingthe Volunteer Lawyer Project, the Lawyer Referral Service, and the Foundation Library will be closed.

September 9, 2014 Tuesday Tuesday with TalmudBoard of Trustees Room1:15 PM

VLP Board MeetingBoard of Trustees Room5:30 PM

CLE Bankruptcy Part IAuditorium6:00 PM

September 10, 2014 Wednesday Brooklyn Bar Association Board & Foundation MeetingsBoard of Trustees Room5:15 PM

September 16, 2014 Tuesday CLE Bankruptcy Part IIAuditorium6:00 PM

September 17, 2014 Wednesday CLE Sports Law & Mets GameCitifield5:30 PM

September 23, 2014 Tuesday Tuesdays with TalmudBoard of Trustees Room1:15 PM

CLE Bankruptcy Part IIIAuditorium6:00 PM

October 8, 2014 Wednesday Brooklyn Bar Association Board & Foundation MeetingsBoard of Trustees Room5:15 PM

October 13, 2014 Monday In observance of Columbus Day the Brooklyn Bar Association Building includingthe Volunteer Lawyer Project, the Lawyer Referral Service, and the Foundation Library will be closed.

October 14, 2014 Tuesday BBA/BWBA Joint CLE – Medical MalpracticeAuditorium6:00 PM

October 21, 2014 Tuesday CLE – Decedents EstatesAuditorium6:00 PM

November 7, 2014 Friday NYS Trial Academy – Annual UpdateAuditorium9:00 AM

November 11, 2014 Tuesday In observance of Veterans Day the Brooklyn Bar Association Building includingthe Volunteer Lawyer Project, the Lawyer Referral Service, and the Foundation Library will be closed.

November 12, 2014 Wednesday Brooklyn Bar Association Board & Foundation Meetings Board of Trustees Room5:15 PM

November 27 & 28 2014 Thurs/Fri In observance of Thanksgiving the Brooklyn Bar Association Building including the Volunteer Lawyer Project, the Lawyer Referral Service, and the Foundation Library will be closed.

THE DOCKET KUDOS AND PROFESSIONALRECOGNITION

Congratulations to Brooklyn Bar Associ-ation member Bartholomew M. Verdi-rame, who was presented with the Hon. An-thony J. Cutrona Award “For Excellence inthe Science of Jurisprudence and the Promo-tion of Italian-American Culture in theLegal Community” at the Annual Installa-tion Dinner Dance of the ColumbianLawyers Association of Brooklyn at the ElCaribe Country Club on June 13, 2014.Also honored on the occasion of the com-pletion of his term as the president wasRobert J. Musso. Installed as the newpresident for 2014-2015 was BartholomewT. Russo.

Congratulations to Brooklyn BarristerEditor-in-Chief Glenn Verchick who earlierthis month was named Managing Partner ofthe New York Offices of Ginarte, O’Dwyer,Gonzalez, Gallardo & Winograd LLP. Thefirm, which concentrates in the area of per-sonal injury representation has offices inboth lower Manhattan and Jackson Heights,Queens.

HEARD ON THE STREETThe Brooklyn Bar Association has re-

ceived word from the State of New YorkCommission on Judicial Nomination thatrecommendations and applications arebeing sought from individuals to serve asan Associate Judge of the Court of Ap-peals of the State of New York. Two up-coming vacancies will be created by theretirement of Associate Judges Robert S.

Smith and Victoria A. Graffeo. Applica-tions are available on the Commission’swebsite www.nysegov.com/cjn or by contact-ing the Commission’s counsel Henry M/Greenberg, c/o Greenberg Traurig, LLP, 54State Street, 6th Floor, Albany, NY 12208:email: [email protected].

BEREAVEMENTSThe Brooklyn Bar Association extends

its deepest sympathy to the Cutrona Fami-ly, on the passing of Marianne J. Cutrona,the widow of Hon. Anthony J. Cutrona onJune 18, 2014.

The Brooklyn Bar Association extendsits deepest sympathy to Robert J. Mussoand family on the passing of his father An-thony Musso on July 9, 2014.

The Brooklyn Bar Association extendsits deepest sympathy to Past President Mar-shall G. Kaplan on the passing of his wifeGloria Kaplan on July 15, 2014.

The Brooklyn Bar Association extendsits deepest sympathy to Paul R. Gross andfamily on the passing of David M. Grosson May 30, 2014. A longtime member ofthe BBA he had been a founding member ofLeopold, Gross & Sommers, P.C.______________________________

Legal Briefs is compiled and written byAvery Eli Okin, Esq., CAE the Executive Di-rector of the Brooklyn Bar Association andits Foundation. Items for inclusion in“Legal Briefs” should be emailed [email protected], faxed to 718-797-1913 or mailed to 123 Remsen Street,Brooklyn, NY 11201-4121.

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JULY, 2014 BROOKLYN BARRISTER, Page 3

Brooklyn Barrister is published by Everything Brooklyn Media, LLC, under the auspices of the Brooklyn Bar Association. For advertising information call (718) 422-7410. Mailing address 16 Court Street, Suite 1208, Brooklyn, New York 11241.Vol. 66 No. 10 July, 2014. The Brooklyn Barrister (ISSN 007-232 USPS 066880) is published monthly except in August and December by the Brooklyn Bar Association. Office of publication is: Brooklyn Bar Association, 123 RemsenStreet, Brooklyn, New York 11201-4212. Telephone No. (718) 624-0675. Periodical postage is paid in Brooklyn, New York and at additional mailing offices. Subscription price is $11.00 per year. POSTMASTER: Send address changes tothe Brooklyn Barrister, 123 Remsen Street, Brooklyn, NY 11201-4212.

BROOKLYN BARRISTER EDITORIAL BOARDGlenn VerchickEditor-in-Chief

Diana J. SzochetManaging Editor

Aimee L. RichterArticles Editor

Cecilia N. AnekweHon. Bruce M. BalterJaime J. BorerMark DiamondJason EldridgePaul S. ForsterJason D. Friedman

Anthony LambertiHemalee J. PatelRobert P. SantoriellaMichael TreybichAlexis VigilanteShelly WerbelGregory Zenon

It’s been an exciting start to my presidency.I recently returned from beautiful Cooperstown,New York where I attended the NYSBA Houseof Delegates’ meeting with the rest of theBrooklyn delegation. This year’s delegationconsisted of Second District Vice PresidentDomenick Napoletano, Immediate Past Presi-dent Andrew M. Fallek, Past Presidents StevenD. Cohen and John Lonuzzi, Former TrusteeSteven D. Richman and Justice Ellen M.Spodek. Though we had a full agenda, the mostimportant issue debated at this year’s meetingwas the Chief Judge’s recently-enacted Manda-tory Pro-Bono reporting requirements.

As you all know, effective May 1, 2013,section 118.1(e)(14) of the Rules of the ChiefAdministrator (22 NYCRR Part 118) now re-quires all New York attorneys to report thefollowing information on their biennial regis-tration forms: (a) the number of hours that theregistrant voluntarily spent providing unpaidlegal services to poor and underserved clientsduring the previous biennial registration peri-

od; and (b) the amount of voluntary financialcontributions the registrant made to organiza-tions primarily or substantially engaged inproviding legal services to the poor and un-derserved during the previous biennial regis-tration period. It is not secret that thesemandatory pro-bono reporting requirements

have not been well-received by the practicingbar. Earlier this year the Brooklyn Bar Asso-ciation passed the following resolution in op-position to these requirements:

“While the Brooklyn Bar Association sup-ports the voluntary pro bono services by itsmembers as evidenced by its creation and fi-nancial support of a volunteer lawyers projectthat provides free legal services to the poorand underserved and supports adequate publicfunding of organizations engaged in providinglegal services to the poor and underserved, theAssociation strongly opposes mandatory re-porting of pro bono services and mandatoryreporting of financial contributions to organi-zations engaged in providing legal services aswell as any form of mandatory pro bono serv-ice for members of the New York State Bar.”

This hot-button issue is now before theNYSBA House of Delegates and was on thefocal issue on the June agenda in Cooper-stown. NYSBA is considering what positionto take on the issue, and a lively debate was ex-pected at the House meeting. Unfortunately, amotion to table this agenda item was passeddespite healthy opposition from those of us

who believe that further delaying the debate isnot the answer. The item has now beenrescheduled for the November House of Dele-gates’ meeting, where we hope to finally voteon a resolution. In the meantime, the NYSBAExecutive Board reports that they are in con-stant contact with OCA and working diligentlywith the Chief Judge to address the concernsthat the practicing bar has raised over thesemandatory reporting requirements. I hope tohave some good news to report on the issueafter the November meeting in Albany.

On a much lighter note, the BBA enjoyedits first-ever CLE held at Yankee Stadium inJuly. Thanks to the generosity of one of ourmost dedicated sponsors, RVM, Inc., a largegroup of Brooklyn Bar Members attended aCLE on July 21st in the Board Room at Yan-kee Stadium followed by a baseball game inRVM’s luxury suite. Although my belovedYankees fell to the Texas Rangers by a scoreof 4-2, we had a terrific time. For those of younot familiar with RVM, Inc., they are a datasolution and eDiscovery company providing a

R E S P E C T F U L L Y S U B M I T T E D

President Rebecca Rose Woodland, Esq.

By: Rebecca Rose Woodland, Esq.

Please turn to page 10

—————————————— PRESIDENT’S MESSAGE —————————————

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Page 4, BROOKLYN BARRISTER JULY, 2014

T H E S T A T E O F E S T A T E S

After normalizing for a short period of time,weather patterns have begun deteriorating intochoppy flows again, and we expect extremeevents in the months to come. To tide youthrough the storms, we provide some interest-ing cases involving the award of additionalfees to the attorney for the estate who did sub-stantial work in an estate involving a personalinjury action, over and above merely obtainingthe appointment of a fiduciary and compromis-ing the cause of action; an action by the suc-cessor executor seeking disgorgement andrestitution against the attorneys for the formerfiduciary found to state a cause of action to re-cover for the fees paid out of the estate to saidattorneys to defend the former executor whowas removed for cause; denial of an applica-tion by the proponent of a Will to examine,pursuant to SCPA §1404, a putative objectant;the appointment, with limited authority, of asuccessor co-executor who opposed the pro-bate of the instrument under which he wasnamed; denial of summary judgment in a pro-bate proceeding in light of contested facts re-garding testator’s knowledge of the existenceand effect of ‘boiler plate’ language in theresiduary clause of the propounded Will pur-porting to exercise a power of appointment; de-nial of an application for an open commissionto examine a non party out of state witness in aprobate proceeding on the grounds that themovant had failed to establish that the testimo-ny was necessary and that the testimony wouldbe unavailable without the issuance of thecommission; the application of the doctrine ofequitable deviation to reform a trust to permitthe trustees to invest generally and be governedby the prudent investor standards of EPTL §11-2.3, rather than be restricted to the investmentproscriptions under the terms of the decedent’sWill; a determination that in a same-sex mar-riage the spouse of the biological mother of achild born during the marriage is the child’sparent under the common law of New YorkState; and the denial by the divorce Court of anapplication to enforce pendente lite automaticorders prohibiting the change of beneficiarydesignations violated by the plaintiff spousewho died before the divorce was granted, onthe grounds that the divorce action abated byreason of the death of the plaintiff spouse.

Additional Fees Awarded to the Attorneyfor the Estate Who Did Substantial Work inan Estate Involving a Personal Injury Ac-tion, over and Above Merely Obtaining theAppointment of a Fiduciary and Compro-mising the Cause of Action- A proceeding tofix attorney’s fees pursuant to SCPA §2110 wasfiled by the attorney for the estate. The Peti-tioner had been retained by a negligence firmto probate the decedent’s Will and obtain Let-ters Testamentary for the executor so that thefirm could prosecute a cause of action. There-after the estate attorney became heavily in-volved in a Will contest, extensive research,motion practice, conferences and negotiationsthat were necessary to settle the probate dis-pute prior to the distribution of the proceedsfrom the cause of action. The interested partieseither submitted waivers consenting to the feerelief sought by the Petitioner or were cited andthere were no objections by them to the reliefrequested. HOLDING- The relief requestedwas granted. The Court stated that the tradi-tional criteria in judging the reasonableness oflegal fees includes the time spent, the difficul-ties involved in the particular matter, the natureof the services, the amount involved, the pro-fessional standing of counsel, and the resultsobtained. the Court added that it was its policythat a law firm representing an estate in a per-sonal injury action also was charged with per-forming the necessary work to obtain the ap-pointment of the fiduciary and to complete acompromise proceeding necessary to settle thecause of action at the conclusion of the matter.Acknowledging that some personal injury at-torneys choose to hire separate counsel to han-dle the proceedings in the Surrogate’s Court,the Court stated that it would not generallygrant a separate and additional fee for such es-tate attorney for the work that was the respon-sibility of the personal injury firm, unless itwas demonstrated to the Court that the workdone by such estate counsel was completelyseparate and apart from the normal and cus-

tomary work associated with obtaining the ap-pointment of a fiduciary and compromising thecause of action. In the case at bar, the Courtfound that the work undertaken by the estate at-torney was well above the customary work as-sociated with obtaining letters testamentaryand compromising the personal injury action.Accordingly, there having been no objection tosaid relief, either in writing or otherwise, andafter considering all the relevant factors in thefixation of legal fees, the Petitioner’s SCPA§2110 application to fix her attorney’s fees wasgranted. Matter of Tumminia, N.Y.L.J.6/18/14, p. 24, c.3 (Surr. Ct., Richmond Co.,Surr. Gigante)

An Action by the Successor ExecutorSeeking Disgorgement and RestitutionAgainst the Attorneys for the Former Fidu-ciary Found to State a Cause of Action toRecover for the Fees Paid out of the Estateto Said Attorneys to Defend the Former Ex-ecutor Who Was Removed for Cause- An ac-tion was brought to recover damages againstattorneys and law firms who represented an ex-ecutor of the decedent’s estate who was re-moved for cause, alleging malpractice, breachof fiduciary duty, fraud and breach of trust, andseeking disgorgement and restitution of attor-neys’ fee and expenses. In his Will, the dece-dent left the bulk of his estate to his daughters.The decedent named his brother as executor.After contested estate proceedings, including acontested accounting, the brother’s letters tes-tamentary were suspended and he was sur-charged in excess of $1,025,000 for his lootingand mismanagement of the estate. Those sanc-tions were affirmed on appeal. The plaintiffwas substituted as executor. In the capacity asexecutor, the plaintiff commenced the actionagainst various attorneys and firms who hadrepresented the brother in the contested estateproceedings. The various attorneys and firmsmoved pursuant to CPLR §3211(a) to dismissthe various causes of action, including thoseseeking disgorgement and restitution of attor-neys’ fee and expenses, some of which weregranted. Both sides appealed. HOLDING- TheSupreme Court was reversed insofar as it dis-missed the cause of action seeking disgorge-ment and restitution of attorneys’ fee and ex-penses. The Appellate Division stated that anattorney represents the administrators individu-ally and not the estate itself and that according-ly, an attorney may recover fees from the estateonly where the services rendered benefit theestate. The Appellate Division opined thatwhere a plaintiff asserts a cause of action forrestitution, the essential inquiry is whether it isagainst equity and good conscience to permitthe defendant to retain what is sought to be re-covered. The Appellate Division added that indetermining whether the equitable remedy iswarranted, a court should look to see if a bene-fit has been conferred on the defendant undermistake of fact or law, if the benefit still re-mains with the defendant, if there has been oth-erwise a change of position by the defendant,and whether the defendant’s conduct was tor-tious or fraudulent. The Appellate Divisionnoted that the plaintiff alleged that the defen-dants’ fees for representing the decedent’sbrother as executor were paid from estate as-sets even though those services were not bene-ficial to the estate and were, in fact, adverse toit. Thus, the Appellate Division concluded thatplaintiff had pleaded facts sufficient to assert acause of action for restitution, and that accord-ingly, the Supreme Court had erred in grantingthat branch of the defendants’ motion whichwas to dismiss the cause of action whichsought disgorgement and restitution of attor-neys’ fees from them. Betz v Blatt, 116 A.D.3d813 (2nd Dept., 2014) [Authors’ note: it wouldappear that SCPA §2110 might have been amore efficient vehicle for plaintiff in that notonly does it give the Surrogate power to fixfees, taking into consideration, inter alia, thebenefit to the estate of the services rendered,but also specifically provides for disgorgement(SCPA §2110(3))]

Application by the Proponent of A Will toExamine, Pursuant To SCPA §1404, A Puta-tive Objectant Denied- In a contested probateproceeding, the proponent moved for an Orderto conduct an oral examination pursuant toSCPA §1404 of the decedent’s survivingspouse, and for a determination as to whetherthe surviving spouse had standing to object tothe offered Will. The proponent argued that

there were special circumstances that warrant-ed the examination of the surviving spouse.The Proponent also argued that the survivingspouse was not adversely affected by the Willand thus did not have standing. The survivingspouse opposed the motion and additionallyopposed the extension of the Preliminary Let-ters Testamentary, arguing there was no longera need for the preliminary letters. The decedentdied survived by his spouse and by three chil-dren from a prior first marriage. One of the saidchildren was the named fiduciary in the pro-pounded Will of the decedent. The Will madereference to two documents, a prenuptial and apostnuptial agreement, executed copies of nei-ther of which were produced, only a copy of anunexecuted postnuptial agreement with thespouse’s opposition papers, which was not con-sidered by the Court. HOLDING- The appli-cation for a SCPA §1404 examination of thesurviving spouse was denied, the survivingspouse was found to have status to object toprobate of the Will, and the Preliminary LettersTestamentary were extended. The Court opinedthat SCPA §1404 is liberally construed to allowa party to intelligently decide whether or not tofile objections to a Will. The Court stated thatSCPA §1404(4) sets forth in relevant part:“Any party to the proceeding, before or afterfiling the objections to the probate of the will,may examine any or all of the attesting wit-nesses, [and] the person who prepared thewill... as to all relevant matters which may bethe basis of objections to the probate of the pro-pounded instrument.” the Court pointed outthat the surviving spouse did not draft the pro-pounded Will or sign the Will as a witness. TheCourt acknowledged that while the survivingspouse may have been present at the Will exe-cution ceremony, an SCPA §1404 examinationwas not the correct discovery mode for exam-ining her. The Court added that typically, SCPA§1404 exams are used by those contemplatingobjecting to the offered Will, which was not thecase at bar, where the proponent of the Willwas seeking to conduct an examination of a po-tential objectant. The Court disagreed thatthere were special circumstances that warrant-ed the examination of the surviving spouse,and found that SCPA §1404 examinations,while liberally construed, are not applicable inthe case at bar. The Court also ruled that thesurviving spouse had standing to object to theoffered Will. The Court rejected proponent’sargument that the surviving spouse was not ad-versely affected by the Will and thus did nothave standing. The Court pointed out that if theWill were admitted to probate the survivingspouse essentially would not gain anything, butthat if the Will were not admitted to probate,the surviving spouse would stand to inherit herintestate share, which would be greater than thebequests made to her under the Will. The Courtdisagreed with the position of the survivingspouse that there no longer was a need for pre-liminary letters. The Court found that a fiduci-ary was necessary to continue to marshal assetsand prevent waste to the estate. Matter ofLivornese, N.Y.L.J. 5/29/14 (Surr. Ct., Rich-mond Co., Surr. Gigante)

Successor Co-Executor Who Opposedthe Probate of the Instrument under WhichHe Was Named, Appointed With LimitedAuthority- Two applications were filed for theappointment of a preliminary executor. Onesought extension of the preliminary letters tes-tamentary previously issued to the decedent’sson who was one of the nominated executorsunder the decedent’s Will. The other applica-tion sought the revocation of the preliminaryletters issued to the son and the issuance of pre-liminary letters testamentary solely to the dece-dent’s nephew, the nominated successor execu-tor. The decedent was survived by his wife andtwo children. The decedent nominated his wifeand his son as co-executors. In the event thatone of the nominated co-executors could notact or ceased to act, the decedent nominated hisnephew and his tax attorney to act as successorto either of them. The decedent’s daughter wasdisinherited in the propounded instrument andfiled objections to its probate. She alleged thatthe propounded Will was the product of undueinfluence by the decedent’s son and that thedecedent lacked testamentary capacity. Shefurther alleged that her brother was isolatingher mother in order to unduly influence her aswell. The surviving spouse and the son wereappointed preliminary co-executors. Subse-

quent to the appointment, it was brought to theattention of the Court that the spouse was un-able to serve in her fiduciary capacity. The sonthereafter sought an extension of the prelimi-nary letters testamentary without notice to thenominated successor executors. The nephewsought the revocation of the son’s preliminaryletters based on the lack of notice. The sonsought the denial of preliminary letters testa-mentary to the nephew on the grounds that thenephew had filed an affidavit supporting theobjections of the decedent’s daughter in whichhe averred that the Will being offered for pro-bate was essentially the product of undue influ-ence on the part of the son and that the dece-dent lacked testamentary capacity. In the pro-bate proceeding, a motion was made to excludethe spouse and the son from each other’s depo-sitions. In support of the motion, the nephewprovided an affidavit in which he stated: “I amsupporting [the daughter] in her objection tothe admission of the probate of [the decedent’s]Will because I believe that he would not havedisinherited [the daughter] if he was not suffer-ing from the onset of dementia and he and [hiswife] had not been pressured to do so by [theson].” The nephew further averred that when-ever he and the decedent discussed the dece-dent’s Will, the decedent always told him thathis children were being treated the same. Healso averred that he was convinced that the sonwas alienating the spouse from the rest of thefamily. The nephew recited the multiple occa-sions which he explained were examples of in-cidents when the son alienated the decedentand his spouse from relatives. HOLDING-The application to revoke the son’s preliminaryletters was denied. The Court stated that therehad been confusion with regard to the status ofthe spouse and her ability to act as a fiduciary.The Court added that when it had concludedthat the spouse was unable to act and ascer-tained that an application to extend preliminaryletters testamentary was pending, a Decisionwas issued ordering the application be on no-tice to the successor executors. The Court saidthat SCPA §1412 (2) (a) gives it discretion re-garding when notice of the application for pre-liminary letters should be given and specifical-ly provides that notice may be given before orafter the issuance of letters. The Court pointedout that not every breach of fiduciary duty war-rants the removal of a fiduciary, and found thatthe son’s failure to provide notice of the appli-cation for an extension of preliminary lettersdid not warrant the drastic remedy of revoca-tion or denial of letters to a nominated execu-tor. In light of all of these factors, the Court de-clined to revoke the preliminary letters testa-mentary issued to the son and granted his ap-plication to have tem extended. As to thenephew’s application, the Court stated that itwas entirely plausible that the nephew wouldbe called as a witness in the probate proceed-ing. The Court opined that the testator’s choiceof fiduciary must be given great deference andthe Surrogate’s power to refuse to grant lettersis limited. The Court added, however, that anominated fiduciary is not compelled to acceptthe office, as the duty to propound the Willrests under a moral obligation but it is not animperative legal duty. The Court opined that anexecutor has a duty to make reasonable effortsto establish the instrument naming him or heras executor. The Court noted that while thenephew wanted to act as preliminary executor,at the same time he had made clear that he be-lieved that the decedent’s Will was invalid. TheCourt said that a nominated fiduciary may re-nounce the appointment which may be expressor implied, in writing, or by matter outside ofthe Court. The Court added that a renunciationof the appointment of executor also may be im-plied from the circumstances. The Court notedthe authority in other states to the effect thatwhere a co-executor questioned the validity ofa Will, he was found to have constructively re-nounced the appointment. The Court found thatthe nephew impliedly had renounced his rightas a nominated preliminary executor to partici-pate in the proceeding to probate the dece-dent’s Will. The Court, however, stated that itwas loathe to deprive the nephew of the right toparticipate in the administration of the estate aspreliminary executor as it was the decedent’swish that he be appointed. The Court, pointingto SCPA §1412 (4) (a), stated that it was em-powered to limit the authority of a preliminary

By: Hon. Bruce M. Balter and Paul S. Forster, Esq.

Please turn to page 8

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In my profession as an attorney, I have previously repre-sented Bob Davis in purchasing and selling property. In this-last-transaction, Bob retained my services to sell his buildingon 31st Avenue, sale price $7,500,000.00. Bob appeared inmy office one Wednesday morning with the informationand documents to sell his property. The real estate brokerthen faxed over the relevant information, such as the namesof the purchasers and their attorney, and my secretary, Joan,prepared the contract, which was· forwarded to the pur-chaser’s attorney.

The procedure referred to has been followed manytimes in the past, without a problem ensuing. That what fol-lowed was not, and could not be anticipated.

With the aid of the real estate broker, John Lee, the con-tracts were executed, the down payment was given to me,a title search was ordered by the purchaser’s attorney and amortgage commitment was issued to the purchaser, allwithin a period of three weeks. Everything was progressingsmoothly, and without any problems until r ceipt of the ti-tlsearch. The search did disclose a deed, the copy of whichhad been given to me by my client. But, there was a priordeed, in which one Jason Zucker held a one half interest inthe property, which interest had not, been transferred to myclient, Bob.

When confronted, my client produced an agreement,signed by Jason, and proof of payment, stating. that Jason-had transferred his one half interest to Bob, upon payment.I then inquired as to the execution, and delivery of a deed.Bob did not appear to understand. He did advise. that Jasonwas now deceased, and had no known heirs.

I then informed Bob that we had to make an applicationto the court, prove payment, and have Jason’s.one half in-terest transferred to him. Bob disagreed, ‘’I have writtenproof that I paid. That’s sufficient. Are you trying to pad yourfee by creating additional work? Sell my building, and I’ll payyou as we greed, and we’ll be done, and you’ll never see meagain.” His behavior and attitude was not only arrogant andpersistent, but also appeared to be threatening.

Finally after continued discussion, he stormed out of myoffice, still venting his anger. “I’ll get another opinion. Bob re-turned several days later. No further discussion or coercionwas required, when he made his reappearance. I assumedthe second opinion weighed in my favor. He contritelyagreed to rnak·e the required application. We then con-tacted my associates, Jack Kane and George Kelly, Esqs., whowere specialists in such proceedings. Bob made a paymentto Jack and George, and they then proceeded with the ap-plication. They drew the necessary documents, advertised,and retained a special investigative agency, as required, tosearch for Jason Zucker, and if deceased, his heirs. Everythingwas proceeding smoothly, until this point, when events un-folded, which, as I had previously mentioned, were not an-ticipated.

Weeks passed, when Jack called me, and excitedly ad-vised that-the private investigator, Michael North, was miss-ing, and has been missing for more than. one week. I re-sponded that he could be on one of his investigations, whichtook him out of the city. He’ll turn up when he’s finished.Don’t worry. One hour later, Jack called again. Michael didturn up — murd_ered, in a desolate section of the city, nor-mally not frequented by Michael. No evidence was found asto who committed the crime, or the reason for the crime.His wallet, and other valuables, were not 111taken. We didfind a crumpled slip of paper hidden in his jacket with thename, “Land”, no address, and no further explanation. Wethen checked his desk at the office, and found no additionalinformation, except another scrap of paper, with almost il-legible writing. Again the name of “Land”, and also myclient’s name, Bob Davis.

The next day, Jack called me excitedly. His partner,George Kelly, was now missing.

George had called Jack the night before, and told himthat Michael North had called him. That he had importantinformation to discuss with Jack. George then said hewould call back. George never did call back, and is now alsomissing. His missing is out of character for George. Every-one, including his wife, Elsie, know where he is at all times.We contacted the police, who were unable to locateGeorge, despite the passage of three weeks. Captain Bellwas the officer in charge, and one morning called. “Georgewas found. That is, his body was found in a one car collisionon the Gowanus.” Jack and I then went to the morgue, toidentify George. We found, among his personal effects, awritten notation similar to Michael’s, “Land”, and BobDavis.

It was apparent, that the deaths of Michael and George,were somehow linked to the search and proceedings in theDavis matter. To obtain additional information, and to con-firm our suspicions, I called Bob, who finally responded. I ad-vised him of the deaths. His response, “You are getting tooinvolved. I do not need or want this investigation to contin-ue. I can handle this matter myself. Return the file.” I re-sponded, that two people are now deceased, and we mustfind a reason for their deaths. Why did they die? What didthey uncover? Who is “Land”, and how is he involved.” Bobresponded that he will come to my office for the file, whichmust be delivered to him. “I do not need to know more.Your services are no longer retained.”

I did not hear further from Bob, for more than twoweeks, when he suddenly, without an appointment, ap-peared in my office, one evening. “I’ve come for my files.Give it to me.” I ‘replied, “I’ll be more than happy to deliverthe files to you, but first I require answers concerning he twodeaths, and o/ho is “Land”. He replied, “I do not know whyor who caused their deaths, and I do not know a ‘Land”.“Without those answers”, I responded, “I cannot give youthe file.

George was my friend and I knew Michael. I feel re-

sponsible for their deaths. I know they’re tied in withyour sale. The police are also investigating their deaths.”He then left with this admonition. “You do not want toknow why they died, and who “Land” is. It would serveyou well, to give me the files. I will be back.”

For·the next few weeks I did not hear from Bob, andneither did the police, who sought him to question him.Bob did not respond, and could not be located. He wasnow missing. Did he meet with foul play?

Several days later Jack anxiously called, and said hemust meet with me. He had gathered information thatappeared to be very important and enlightening. I prod-ded him further, but he said we had to sit down, and dis-cuss this information. He suggested we meet in his office,because he had all the records and information. I agreedto meet him in his office in one half hour. The half hourpassed, and I arrived at Jack’s office, rang the bell and en-tered. There was no one in the outer office, since it waspast office hours. I then proceeded to his office, whichwas next to George’s old office. I entered and found Jacksitting at his desk, apparently waiting for me. I greetedJack with no response. He had to hear me. I was onlythree or four feet from him. I again greeted Jack, my oldfriend, and again, no response. I slowly approached Jack,and found a lifeless form. Apparently, he just died, mo-ments before I arrived. His body was still warm. He

was holding a pen in his hand with a written notationscrawled on a pad. Look up “Land” in City Register’s Of-fice. Use NYC.GOV website........ Very important. The BobDavis file was missing.

I called “911”, and the authorities soon appeared. A sub-sequent autopsy, revealed the cause of death was a needlein his neck, laced with dioxin poison. Captain Bell later con-firmed that the same type of poison needle injection, wasalso responsible for the earlier two deaths. Again, no printsor DNA of any nature was found, similar to the other twodeaths. The perpetrator left no clues.

Captain Bell and his associate, Lt. Jackson of the 33rdPrecinct, then called me to their office, to question meabout the three deaths. At the outset, they questioned meas though I was the perpetrator, or somehow involved in thethree murders. I denied all accusations, and advised them ofthe close relationship, and retention of the services in rep-resenting my client, Bob Davis.

Bell, then again, was interested in meeting with Bob,and asked questions about Bob. His business, his addressand other real estate transactions. Despite knowing Bobthrough several transactions, there was very little I actuallyknew about him.

Bell then appeared concerned and asked if I would likepolice protection. This offer surprised me, and alarmed me,but my immediate response, was a declination of the pro-tection. My response was made without a thorough consid-eration of the events of the past few weeks.

We then parted, and I gave Bell and Jackson my cardwith my address and phone number, and that I was alwaysavailable, and would not leave the city.

The next day my secretary, Joan, and I sat at her desk,and searched. the City Register’s files, and recordings of alldocuments on the internet for “Land”. The city had the pastyear linked up with the internet and Joan had on severalprevious occasions, obtained copies of documents for sev-eral of my pending transactions.

After much time and effort, and adapting to the re-quirements of the City Register and internet, we found· thefollowing, a Marcus Land purchased property throughoutthe city, as did Land LLC and Land, Inc. Interestingly, Land LLC,by an earlier deed, owned Bob’s property, which was trans-ferred to Bob’s seller prior to the transfer to Bob and JasonZucker.

Joan then examined all the deeds to Land, Land LLC, andLand Inc. They were recently dated, none earlier than tenyears previously. We then attempted to examine the trans-actions for any apparent relationship between Land or itsderivative and the other parties to the transactions.

This took the rest of the day and the morning after. Wefound transfers to and by Land throughout the city, withinthe period of ten years. There were always different attor-neys, different title companies, and different addresses. Thesignatures on the deeds and other documents did appearsimilar. We then examined the documents further for infor-mation on the sellers with their names and address. What isthe present status of these sellers? Joan copied all namesand addresses with the intent to follow through with this re-search.

The next day I arrived early to continue the researchwith Joan, but Joan did not appear, and I could not reach herat home or other numbers previously given me.

The phone then rang. Bob Davis was no longer missing.He was on the other end and again demanded the files, andnow the cancellation of the contract, return of the downpayment and the research conducted by Joan and me. I re-sponded that I had not conducted any research, and there-fore could not turn over what I did not have. He replied,“That’s strange, Joan told me that you and she did searchthe internet and the City Register records.” “What do youmean Joan told you?” He replied, “She is with me now.Would you like to speak to her?” Joan then got out thephone. I recognized her voice, though she was hysterical andalmost out of control. “Art, 111give him what he wants. Heis threatening me with a needle.” Bob then grabbed thephone. I pleaded with him to release Joan. She knew noth-ing. “When you deliver the file and cancel the contract.” I re-sponded and advised him that I would call the purchaser’sattorney, but I interjected, we must also contact the real es-tate broker, John Lee. He is sure to ask for his brokeragecommission, and take legal action against you, if he is notpaid.

“First call the attorney. I’ll call you back within thehour.” I then placed my call to Stanley Flynn, the attorneyfor the purchaser. I’ve had other deals with Stanley, and he

has at all times been cooperative, but this was a differentmatter. We’ve never had a cancellation of a contract for noobvious legal reason. Nevertheless, I had to make the ef-fort. Though the hour was late, Stanley was still in his of-fice. I came to the point quickly. “Stanley, we have to can-cel the Bob Davis Contract. My client does not wish to sell.I’ll return the down· payment and all incidental expensesincurred by your client.” Stanley’s response was, “No waywill my clients cancel. They’ve made all the necessaryarrangements for the funding, and have, in fact, negotiat-ed with prospective tenants.” I again pleaded with Stanley,to no avail. He was adamant and said he would pursue thismatter further even if he had to commence lawsuit, andhe hung up.

Bob called a few moments later I told him I couldn’treach the attorney. “Release Joan, and I will again call himin the morning. I will also immediately forward all materialsI have.” His response, “Don’t bother calling Stanley, anddon’t call the broker. I’ll handle this matter myself’, and hehung up. No further discussion about releasing Joan.

The next day I arrived early in my office. I intended tomake another call to Stanley. As I was dialing, the otherphone rang. It was Bob. “See, I told you not to bother Stan-ley. He released the file to me, no charge, and wished mewell. His clients and the broke also agreed. Now, give meyour file “Where is Joan?,” I responded. “You’ll see hersoon. Don’t worry ‘so much.” He then hung up, and thephone rang again. This time it was Captain Bell, sarcasti-cally asking why all my friends are suddenly passing away,victims of a poison needle injection. He.said, “StanleyFlynn was found dead this morning, and John Lee is in crit-ical condition at General Hospital. I want you to come tomy office immediately, and bring your client, Bob Davis.” Iresponded immediately, Of course, without Bob; and wasled to Captain Bell’s office. He was at his desk with Jacksonat his side. “Where is Bob Davis?” I replied, “I don ‘t knowand have no control over Bob.” I then advised Bell of myprevious conversations with Bob, and my research withJoan. He was quite impressed and concerned, as was thelieutenant. I pleaded for the return of Joan, and theyagreed to work on this aspect of the case, and make it atop priority. Again, Bell advised me to remain available, butit appears they no longer suspect me. As I was leaving, hetold Jackson to begin their search for Joan. Lt. Jackson thenwalked downstairs with me, and handed me his card.“Meet me at McDonald’s on Nostrand Avenue in one hour.Don’t tell anyone.” The hour passed, and.as instructed Iwin McDonald’s with a cup of coffee for myself and forJackson. He soon appeared, and sat down with me. Hisconversation was to the point. “Don’t rely on the captain.Your client has many contacts, and there are influentialpeople involved. Names that would astound you.I’ve been after them for some time. I must have your co-operation.” I responded, “How can I help?” “You have thefile and all the research. Meet with Bob, with the file anddocuments. Wear a wire, and get Bob to talk. He appar-ently seems to like you, and may be willing to talk to youand negotiate.” My response, “He is willing to negotiate,because of the contract, and all the information andrecords, which he wants, and I don’t think Bob likes me, orfor that matter anyone. I’m still here because he may needme, or use me. I hope he feels the same about Joan.”

We attached the “bug”, and I returned to my office tocall Bob. It took several calls over a few hours, but I finallyreached him and incidentally again spoke to Joan. She was,for the moment, still alive. He consented to meet in my of-fice later that day. I called the lieutenant who agreed to waitin the adjoining room. Bob promptly appeared, and we satdown-to- talk. He demanded the file and research. I asked,“Why is that so important to you. The contract was can-celed. It cost some lives, but now you can proceed as youplanned. Satisfy my curiosity, “Who is “Land”, and how areyou involved with him, and all the properties owned by“Land.” He hesitated, and then finally spoke. “I made atremendous mistake by offering to sell the 31st Avenueproperty with Jason still listed as owning a 50% interest. Ithought we had disposed of his interest, as we had done onall the other occasions.” “Other occasions”, I interrupted.“Yes,” he continued. “We have managed in our way to ac-cumulate many properties over the years. Your research didcover some parcels, but there are many, many more. Youcannot believe the people I represent, in theses acquisitions.Their names appear constantly in the New York Times, WallStreet Journal and Barrons, and other similar papers. For ex-ample, you know Harold Miles” I interrupted, “The HaroldMiles who just contracted to rebuild the Village into de-sirous condos, each condo selling for at least two million dol-lars?” ‘That’s my Harold, and he is only part of the consor-tium. There are others as well known and even more suc-cessful than Harold, including Marcantonio Landry.” TheCEO of Acme Properties International. I responded, Yes, theMarcantonio Landry. I have all the names in my ledger in theoffice. I made them rich, powerful, famous and successful.Because of this mistake we have to be very careful, and mustremove and eliminate any possible leaks: Incidentally, weare now inclined to relocate-our transactions out of the city,because of the recent connection between the city records,and the city website, which you and Joan have proven canbe disastrous. We will now concentrate in the adjoiningstates. Your research with Joan has persuaded us to makethis move.” “I’m happy for you,” I responded,” but I followedthrough on my part of the agreement. I have the contractand the research, and the complete file on the 31st Avenueproperty. Now how about releasing my secretary.” His re-sponse was to be expected. He drew a needle, the longestI’ve ever seen, and said he can’t do that. That the loose endsrequire my demise and roan’s. “So” I exclaimed, “You arethe murderer,” and with that I yelled for the lieutenant tocome in, and he complied with gun drawn. “Thank you,Lieutenant. Without you, I would have been the next vic-tim.” The lieutenant then turned to me and whispered

words I will not soon forget. “I’m afraid you still are a victim,and so is Bob.” With that he shot Bob point blank. “You see,Art, my associates and I do not forgive mistakes, and thismistake would have ruined them. Incidentally, meet my as-sociates,” and with that two well dressed “gentlemen” en-tered the office. Jackson introduced them. “Art, meet HaroldMilts, and Marcantonio Landry. His friends call him Marcus.They are here for the files, and the research, and to cover allof Bob’s mistakes, which, as you see lying next to you, arenot-forgiven.” Harold then spoke. “Jackson, you talk toomuch. Take the files and the research, and complete yourjob so that we can get the hell out of here.”

Harold then turned to me, “Art, I respect your ability asa lawyer, but you must understand that we have no otherchoice. There is just too much at stake.” The lieutenant thenresponded, “I will, of course, finish all the loose ends. I havethe files and research and also the tapes, which recordedthis meeting.” With that, he physically removed the bugfrom my jacket.

“I now expect the conglomerate to increase my shareand position.” “Of course things have changed.” Haroldand- Marcus then responded. “Now finish the job, andlet’s get out of here.

Remember Joan is waiting for us.”The lieutenant then took Bob’s needle, and slowly

approached me. “Art, give me all the papers you were togive· Bob. We’ll take care of Joan later, and that will rem-edy this mistake.”

With Bob I had a slight chance. He was about my sameheight and weight. The lieutenant was a more severe, andimposing threat. He was at least 6’4”, and weighed 100pounds more than me. I thought this was the end. If I onlyhad a weapon, could protect myself Why did I trust him?

There was no possibility of warding off the lieutenantand the poison needle.

Jackson continued to approach me, apparently enjoyingthe moment of my impending demise. .”Art, I have to makeit appear that Bob jabbed you with a needle, as he did theothers, and unfortunately for you, I entered the room toolate to protect you, but in time to disarm and shoot him.’’ Hecontinued his menacing approach to me, with thatdamned· needle at his ready, and within one or two feetfrom my neck, the lieutenant suddenly stopped talking andwalking, looked quizzically at me, with a glazed, surprisedexpression, and he fell to the floor; all 6’ 4” 260 pounds, andhe was dead on contact with the floor. I then turned, and·ob-served Captain Bell, with a smoking revolver in hand, andseveral policemen at his, side. He was apparently talking tome; but I didn’t hear him or understand him for an instant,and didn’t hear the revolver fire. Then I heard and under-stood. “The lieutenant was on the force for more than fif-teen years”, said Captain Bell. “We worked together for overten years; I was his friend, confidant and’ mentor. We so-cialized and spent together with our wives and children. Heeven saved my life. He exhibited promise and ability, andwould have gone far. About a year ago, his personality anddemeanor changed. He became distant and defensive. Hemade and received mysterious phone calls, and when ques-tioned as to the caller, would ‘shrug and signify the call wasnot important. He would also disappear for hours withoutexplanation. I had no altemative but to have him followed.We suspected that he was involved in some ill-conceived orillicit scheme, and when he met privately with you in Mc-Donald’s, without advising me; his superior, we followedhim. We then followed you and he to your office in lime tosave your life, but not Davis, which is no loss. My partnerand my friend has turned out to be a murderer and a thief.His greed and misguided ambition proved to be his undoing,and sadly his demise.” I could be wrong, but it appearedthat Captain Bell wiped away a tear.

The captain continued, “The tapes, together with yourdocuments and papers in Davis’ office, will be invaluable.”The captain then ordered his men to handcuff Harold andMarcantonio, and take them into custody. It will be inter-esting to see how theses affluent and influential gentle-men, will fare against the evidence.

Marcantonio, or Marcus, whichever name you prefer,then spoke to Bell for the first time. “Joan and the completefiles and documents are not in Davis’ office. If I help in res-cuing Joan, and recovering all the files, and records, how willI benefit?” Harold then added, “Marcus, of course, includesme in volunteering the information, and request for lenien-cy.” Marcus responded, “I’d never forget you, Harold,’’ and inan undertone to Harold, “We’re rich. We won’t go to Jail.”

Bell reluctantly agree with the admonition, “Wherewere you when ‘your cohorts threatened Art?”

Marcus then directed us to the consortium’s Pied-a-terre, which was located in the revitalized area of the cityknown as Dumbo, with a warning that several “employees”are entrenched in the apartment. Incidentally, the view ofthe Manhattan sky fne was spectacular. The doorman, onBell’s demand opened the front door, and we proceededinto the elevator to the penthouse apartment. At Bell’s di-rection the police then, without notice, kicked the front dooropen, surprised Harold and Marcus’ henchmen, (employ-ees), who were handcuffed, and rescued Joan. The apart-ment was, of course, a duplex, well appointed with import-ed fumishings, and expensive paintings. Bob Davis, Harold,Marcus and all the others, ‘(all their names are in the files),did extraordinarily well, in their illicit endeavors.

We found Joan strapped to an old bridge chair. Appar-ently, they did not want to damage their expensive furni-ture. She was alive, and as well as could be expected. Shewas in the center of the livingrooin, with tape over hermouth. I carefully took the tape off her mouth, while the po-lice cut the rope. She was crying with relief.

The police then conducted a search of the apartment,and found the documents, records and files, to implicate allthe principals, not only in their scheme to attain wealth and

Please turn to page 11

By: Arthur Susnow, Esq.

Fiction Contest Winner: THE CLIENT FROM HELL

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Page 6, BROOKLYN BARRISTER JULY, 2014

Forensic Evidence CLE And Yankees Home Game

Vinnie Brunetti, CEO of RVM, Inc., BBA Immediate Past President Andrew M. Fallek, BBA President Rebecca Rose Woodland, and Trustee Steven J. Harkavy

Lainey Fallek and Rebecca Rose Woodland

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JULY, 2014 BROOKLYN BARRISTER, Page 7

Interview with Paul Hale, Esq.Paul Hale is a civil rights attorney special-

izing in Section 1983 false arrest and exces-sive force cases throughout the five boroughs.He has been litigating in the field for the past7 years. I had the chance to sit down withPaul to discuss his practice, background, andadvice for other young attorneys.

Why did Paul Hale come to New York?“Well, it’s New York,” he explained. Bornand raised in Texas, Paul then attended Uni-versity in Connecticut and moved to NewYork City in 1999, taking a job with MadisonSquare Garden to stay afloat. He then at-tended Fordham Law School and was admit-ted to the New York Bar in 2006. As Pauldiscussed his post-law school experience, hiseyes widened: “After law school, I took asomewhat unorthodox approach. I took thenext year off to travel around the world.Highlights were Egypt and India; seeing thepyramids and the Taj Mahal - stunning beau-ty next to extreme poverty,” Hale said.

From the outset of our interview, Paul’s fo-cused sense of justice was apparent. Creditinghis travels abroad and his law school almamater, Fordham, Paul developed the desire tofight for the rights of those less fortunate thanhim. “Many Fordham graduates get on a ‘biglaw firm track’but after traveling and seeing theworld, I knew I didn’t want to sit in an office allday. My travels gave me a great perspective onlife and made me realize how lucky we are tolive in a free society. Fordham really cultivatedthe seed. As a Jesuit University, it instilled inme the value of social justice and giving to thecommon good,” Hale said.

His travels continued to develop his inter-est in civil rights, especially systems in de-veloping societies. “Travel taught me twoimportant things, 1) we have an amazing ju-dicial system in the United States and itshould be admired and protected; and 2) alarge part of the world lacks access to a jus-

tice system that treats citizens fairly.”After returning from his travels, Hale

began volunteering for the Brooklyn BarVolunteer Lawyers Project (VLP) and, in2006, received the Christopher SlatteryYoung Professional Award for his pro bonoservice. Each year, the VLP honors ayoung professional who has demonstratedan outstanding commitment to providing

pro bono legal services. Paul’s dedicationto pro bono is another example of his pas-sion for the defense of civil rights.

“While at the VLP I was also driven towardsolo practice by other volunteers, especiallyJimmy Lathrop and Nazar Khan. I actuallygot my first civil rights case through the VLP.And I really enjoy being a solo practitionerand connecting withother solos. You’re

around so many smart, competent, and effi-cient people who are a pleasure to deal with. Ithink this also comes from the litigation cul-ture. It’s exciting and takes a certain breed.You have to think on your feet and be ready forthe next surprise” Hale said.

Regarding Section 1983 law, Hale en-courages other attorneys to get into the prac-tice area: “There are so many interesting is-sues, especially today: the NSA spying onemails and phone calls; the NYPD’s stop andfrisk policy; the militarization of the police;and cameras, cameras everywhere. It’s al-ways changing and the issues affect every-one in our society. I see this in jury selectionall the time. So many potential jurors getdismissed because of bad run-ins with thepolice. In our system of checks and bal-ances, civil rights attorneys are the last lineof defense against overreaching authority,and we need more of them.”

What other advice does Paul have for at-torneys just getting started in a solo practice?“Get the engine running on both the frontand back ends. In the beginning, you have totake on a larger number of smaller cases inorder to generate income. I took on a lot ofthese types of cases in different practiceareas early on. At the same time, I made aconscious decision to specialize in civilrights litigation. Keep in mind, these are big-ger cases that take more research, time, andeffort to bring to fruition. But eventuallyyou make a shift from smaller “front end”cases to almost entirely “back end” cases.”

Lastly, we discussed the risk involved inbuilding one’s own practice and the difficultyof dealing with the concept of not knowingwhere your next meal will come from. Paulwas confident in his advice: “There is defi-nitely risk involved but it decreases as you es-tablish yourself. If you can afford the risk,take it. Take it as soon as you can but be veryaware you will need to have lots of patience,tough skin and a great sense of humor.”

By: Daniel R. Antonelli, Esq.

Civil rights attorney, Paul Hale, Esq.

BBA President Rebecca Rose Woodland and Trustee Armena GayleForensic Evidence CLE And Yankees Home Game:

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T H E S T A T E O F E S T A T E Sexecutor “in any manner that the court deemsadvisable for the effective protection of therights of all persons who may have an interestin the estate of the decedent.” Accordingly, theCourt granted the nephew’s application to beappointed preliminary executor, but his actionsas such were restricted solely to the adminis-tration of the estate. The Court ruled that hav-ing effectively renounced his right to partici-pate in the proceeding to probate the Willwhich he believed to be invalid, the nephewwould have no authority to participate in anyway in that matter other than as a possible wit-ness. Matter of Lublin, 43 Misc.3d 721 (Surr.Ct., Nassau Co., Surr. McCarty, 12/19/13)

Summary Judgment Denied in a ProbateProceeding in Light of Contested Facts Re-garding Testator’s Knowledge of the Exis-tence and Effect of ‘Boiler Plate’ Languagein the Residuary Clause of the PropoundedWill Purporting to Exercise a Power of Ap-pointment- Decedent was survived by fivenieces and nephews. Among decedent’s assetswas a power of appointment over the remain-der of a marital trust created for decedent bythe Will of her predeceased husband. Upon de-fault of her exercising the power, objectant, theson of the pre-deceased husband, was entitledto the trust remainder. Objectant filed objec-tions and served discovery demands on the pre-liminary executors. When the preliminary ex-ecutors did not comply with his discovery de-mands, objectant moved to deny probate, or al-ternatively, to compel discovery. The prelimi-nary executors responded to objectant’s motionwith a motion to summarily dismiss his objec-tions to probate. Objectant opposed summaryjudgment on the grounds that there existedquestions of fact, and that the motion was pre-mature because discovery was not complete.His objections were based on the claim that theWill was executed by mistake in that decedentdid not understand the extent of her property orthe fact that the residuary clause referred to theexercise of a power of appointment. The clausein full provides: “FIFTH: All the rest, residueand remainder of my property and possessions,real, personal and mixed, tangible and intangi-ble of every nature and wheresoever situate, ofwhich I may die seized or possessed or towhich I may be entitled, including any lapsedbequests, and any property over which at thetime of my death I may have the power of ap-pointment or other disposition (all such proper-ty hereinafter sometimes referred to as my“residuary estate”) shall be divided into somany equal shares so that there shall be onesuch share for each niece or nephew of minewho is then living and one such share for thethen living issue, collectively of each niece ornephew of mine who does not survive me andI give, devise and bequeath one such share toeach such niece or nephew who shall surviveme, and one such share to the then living issuecollectively of each niece or nephew who doesnot survive me.” The preliminary executors ar-gued that, as a matter of law, decedent effec-tively exercised the power of appointment overthe marital trust in favor of her nieces andnephews, even though the language in Para-graph Fifth did not specifically refer to themarital trust. In support, they referred to EPTL§10-6.1(a) which creates a presumption that apower of appointment is exercised by a doneewho declares she is exercising all powers thatshe has, or by a will in which the donee dis-poses of all of her property. The preliminaryexecutors also relied on the draftsperson’s dep-osition testimony that although he possessedneither notes of his conversations with dece-dent nor any independent recollection of dis-cussing anything with her, it would have beenhis practice to discuss her donative intent and“to explain to her what was going on.” Objec-tant did not dispute the fact that under EPTL§10-6.1(a), a donee need not refer to a specificpower of appointment to exercise it. However,he pointed out that he was not seeking a con-struction of the plain meaning of the words inthe residuary clause, but was raising the issuesof whether decedent knew the extent of her as-sets and whether she signed the Will by mis-take. He alleged that the decedent signed theWill unaware that the draftsperson had inserteda provision exercising powers of appointment.He further contended that the decedent did noteven know she was the donee of a power, thusmaking such a provision, even had she seen at,

meaningless to her and leaving her in the posi-tion of not realizing the Will would affect ob-jectant’s interest in the trust, an interest whichshe did not want to extinguish. Objectantclaimed that decedent’s actions and statementsfrom the time of her husband’s death in 1983until her own death in 2009 evidenced both herbelief that under the trust established by herhusband, his son’s interest in the remainderwas absolute and, additionally, that decedentwanted to honor such arrangement. Objectantpointed to a pattern of behavior exhibitingdecedent’s consistent treatment of him as theunconditional remainderman. He referred tothe testimony of the draftsperson, who also wasthe trustee of the marital trust, confirming thatwhen objectant purchased his home, decedentconveyed her desire to the trustee that objectantshould be permitted to borrow the money fromthe trust, rather than going to a bank for a mort-gage. The draftsperson also confirmed thatdecedent agreed with his policy, as trustee, tosend the trust’s annual statements not only toher, but also to objectant. Objectant pointed outthat decedent neither requested a change in thatpractice, nor the addition of her nieces andnephews after she executed the Will, eventhough her nieces and nephews would have re-placed objectant, if decedent had exercised herpower in their favor. Objectant also submittedan affidavit by decedent’s long time financialadvisor testifying that after many conversationswith decedent he understood she believed thather stepson would inherit the remainder of thetrust on her death. Objectant submitted an ad-ditional affidavit by his estate planning attor-ney who testified that after speaking informal-ly to one of the co-executors who was the dece-dent’s friend for many years, he believed herdeposition would reveal evidence confirmingdecedent’s lack of knowledge of the power ofappointment and of her lack of any intent to re-move objectant as the remainderman. As fur-ther evidence of decedent’s ignorance that thepower of appointment would be addressed inher Will, objectant noted that decedent gave thedraftsperson a handwritten list of her assetswhich did not mention the trust or a power toappoint the remainderpersons. Objectant alsoreferred to the draftsperson’s testimony that heroutinely included in the residuary clause ageneral exercise of any and all powers of ap-pointment, unless the client told him to elimi-nate such language. Objectant reasoned that ifdecedent did not know she was the donee ofsuch power, she would not have known to tellthe draftsperson not to include the provision.Objectant maintained that given the draftsper-son’s routine practice to include such language,it would have been easy for the provision to beincorporated in the lengthy residuary clausewithout decedent’s suspecting it was there, orknowing what it’s effect would be. Objectantadded that the draftsperson’s lack of any inde-pendent recollection of discussing this provi-sion with decedent lent support to this proposi-tion. Objectant argued that there were ques-tions of fact regarding decedent’s intent andunderstanding, and contended that as discoveryonly was in its preliminary stage, allowing himto depose the preliminary executors and com-plete his discovery would permit him to re-spond more effectively to the motion andwould shed further light on the outstandingquestions.

HOLDING- The objectant’s motion forpreclusion was denied and the proponent’s mo-tion for summary judgment was held inabeyance. The Court opined that the party of-fering a Will for probate has the burden ofproof to show, satisfactorily, that the testatorunderstood the nature and extent of her proper-ty and the provisions of her Will, and that thedocument spoke the language of the testatorand expressed the testator’s will. The Courtadded that to sustain an objection of mistake asa ground to deny admission of a Will to pro-bate, it must be shown that either the decedentdid not understand the provisions of the Will orthat the drafting attorney erred in misinterpret-ing the testator’s instructions. The Court notedthat the burden of showing decedent signed theinstrument by mistake falls to the objectant, butthat if a mistake is established, the Court hasthe power to refuse probate to the relevant partof the Will. The Court acknowledged that sum-mary judgment may be sought any time afterissue is joined, but that since summary judg-ment is the procedural equivalent of a trial, if it

appears that facts essential to justify oppositionmay exist but cannot then be stated, the Courtmay deny the motion or order a continuance topermit discovery. Based, inter alia, on thedraftsperson’s lack of any independent recol-lection of discussing whether decedent under-stood the contents and effect of the residuaryclause; the absence of any mention of the mar-ital trust in the handwritten list of assets pre-pared by decedent; and the affidavit allegingthe co-executor had relevant knowledge whichwould shed light on whether decedent intendedto exercise her power of appointment or knewshe had such power, the Court ruled that thepreliminary executors’ motion for summaryjudgment be held in abeyance pending comple-tion of their depositions and the outstandingdocument discovery. Matter of Obermeyer,N.Y.L.J. 3/31/14, p. 17, c. 2 (Surr. Ct., NewYork Co., Surr. Mella)

Application for an Open Commission toExamine a Non Party Out of State Witnessin a Probate Proceeding Denied on theGrounds That the Movant Had Failed to Es-tablish That the Testimony Was Necessaryand That the Testimony Would Be Unavail-able Without the Issuance of the Commis-sion- In a probate proceeding, a motion wasmade by the objectant, one of the decedent’sdaughters, for an Order issuing an open com-mission to a person authorized to conduct dep-ositions in the State of Florida to compel thedecedent’s son to appear at a deposition. Oppo-sition to the motion was been filed by the dece-dent’s other daughter who had cross-petitionedfor probate. The decedent was survived by hiswife and three children, two daughters and ason. The decedent’s Will was offered for pro-bate by the spouse. Objections to probate werefiled by one of the decedent’s daughters. Pre-liminary letters Testamentary were granted tothe spouse. The other daughter, the successorexecutor named in decedent’s Will, filed across-petition for probate, indicating that thespouse no longer had the capacity to serve asexecutor and asking that the Court appoint heras the successor executor, and that the petitionfiled by the spouse be withdrawn. A guardianad litem was appointed to represent thespouse’s interests. Preliminary letters testa-mentary then were issued to the cross-petition-ing daughter. The issue underlying the frictionbetween the daughters was ownership of thedecedent’s home, which at one time was heldby the decedent, the spouse, and the objectingdaughter as joint tenants. During decedent’slifetime, the joint tenancy was severed by thedecedent and the spouse, creating a tenancy-in-common among the three owners. The object-ing daughter maintained that it was decedent’slongstanding intent for his home to pass to herin its entirety so as to benefit a private schoolof which the daughter was the principal. Thedaughter claimed that her sister and others un-duly influenced the decedent to pressure himinto changing the deed to his home to a tenan-cy-in-common. The objecting daughter assert-ed that her brother’s testimony was crucial tothe probate proceeding as he had knowledge ofthe undue influence practiced by their sisterupon the decedent in connection with the dece-dent’s estate plan.

The objecting sister argued that it was un-likely that her brother voluntarily would appearat a deposition in the proceeding and that thathis testimony was material to the proceeding.In support of her position, movant referenced aconversation among counsel during a Courtconference in which counsel for the petitioningsister agreed with counsel for the objecting sis-ter that the brother had been generally uncoop-erative in the estate administration, and thatcounsel for the petitioning sister did not ver-bally object when counsel for the objecting sis-ter indicated his intent to seek an open com-mission. In opposition, the other sister arguedthat the motion was procedurally improper inthat it did not demonstrate that the brother’stestimony could not be obtained without the in-tervention of the Court. HOLDING- The mo-tion for an open commission was denied. TheCourt stated that a Court may issue an opencommission to enable a party to depose a wit-ness outside of New York State where neces-sary or convenient. The Court opined that theparty seeking the commission must demon-strate that the testimony sought is necessaryand that it would be unavailable without the is-suance of a commission. The Court added that

the proof in support of such application shouldbe in the form of affidavits of the party or per-son having knowledge of the facts rather thanby unverified, unsupported hearsay statements,and should demonstrate that it would be im-practical to depose the witness in New York, orthat it would not be effective to serve the wit-ness with a subpoena outside of New York. TheCourt found that the movant had not takensteps to establish that the son’s testimony wasnecessary or that the son had refused to providetestimony in New York. The Court noted thatdespite the vigorous opposition to her motionon the grounds that her brother’s testimony wasnot necessary and that she had not shown thathe would not be willing to testify, movant hadnot provided any evidence on either point. TheCourt ruled that reference to a single conversa-tion among counsel did not rise to the level ofevidence required for the issuance of an opencommission. The Court held that the movantmust file affidavits or other evidence demon-strating the necessity of her brother’s testimo-ny as well as his unavailability to testify inNew York. The Court acknowledged that thebrother’s testimony might well be necessaryand that it was possible that he would refuse toappear for a deposition in New York, but statedthat these were not presumptions to be made bythe Court without any supporting evidence.The Court noted that the open commission is apractical and effective procedure to obtain dis-covery of an out-of-state witness but added thatit is a burdensome and expensive procedurewhich often results in further litigation over theallocation of expenses. Consequently, the mo-tion was denied without prejudice to renewupon movant’s submission of documents show-ing that an open commission was necessary.Matter of Jacobs, N.Y.L.J. 6/7/13, p. 21, c. 3(Surr. Ct., Nassau County, Surr. McCarty)

The Doctrine of Equitable Deviation Ap-plied to Reform a Trust to Permit theTrustees to Invest Generally and Be Gov-erned By the Prudent Investor Standards ofEPTL §11-2.3, Rather Than Be Restricted tothe Investment Proscriptions Under theTerms of the Decedent’s Will- In an uncon-tested proceeding, petitioners, the co-trusteesof a certain trust under the decedent’s Will,asked the Court to reform the Will under thedoctrine of equitable deviation. Under the Will,the testator bequeathed a portion of his estate tohis trustees, to hold the same, in trust, and topay the net income therefrom quarterly to hiswife during her life. Testator further providedthat, upon her death, the trustees were to trans-fer two-thirds of the remainder to the then liv-ing descendants of decedent, per stirpes, andthe balance thereof to the then living descen-dants of his wife, per stirpes. The pertinent partof the Will provided in relevant part “MyTrustee shall have with respect to any and allproperty, real or personal, which shall at anytime be held in any trust hereunder, whetherconstituting principal or income, the followingpowers exercisable in the sole and absolutediscretion of my Executor or Trustee, as thecase may be, without authorization by anycourt...To invest and reinvest any such proper-ty solely in obligations of the United States ofAmerica that have a maturity date of not morethan five years from the date of purchase. Thetrustees had followed the specific direction andinvested solely in United States Obligations.However, they represented that the incomefrom United States Obligations over the pastten years had decreased dramatically and that itwas no longer in the best interests of the cur-rent beneficiary or the remaindermen to followthe investment restriction contained in the Will.They argued that diversification would furtherthe testator’s primary intent, which was to en-sure the financial welfare of his wife anddaughter. In addition, they argued that a diver-sified investment portfolio might increase trustincome and principal appreciation with a mini-mal amount of increased risk. The trustees,therefore, asked the Court to reform the trustinstrument to allow for an investment strategythat would permit diversification of the invest-ment of trust assets and likewise satisfy the re-quirements of the Prudent Investor Act (EPTL§11-2.3). HOLDING- The Court granted theapplication. The Court stated that under thedoctrine of equitable deviation, Courts have thepower to alter the administrative provision of aWill when: (1) there has been an unforeseen

Continued from page 4

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THE FOLLOWING SUMMARY OF SECOND DEPARTMENT DECISIONS IN

MEDICAL MALPRACTICE CASESDECIDED BETWEEN APRIL 1, 2014

AND MAY 31, 2014WAS PREPARED BY

BROOKLYN BAR ASSOCIATIONMEDICAL MALPRACTICE COMMITTEE

CHAIRMAN JOHN BONINACole v Karanfilian, 2014 NY Slip Op

03225 [117 A.D.3d 670] (2d Dept. 2014).This case involved a delayed diagnosis of a

malignant myxoid round cell liposarcoma.Decedent presented to his PCP in July 2001with a lump on his left forearm, and was sentfor an X-ray which was performed that Augustat defendant New Rochelle Radiology Associ-ates, P.C. Thereafter in January 2002, decedentunderwent an MRI of the left forearm and asecond X-ray also at New Rochelle Radiology.

In October 2002, decedent’s dermatologistobserved a lump on the forearm, and referredhim to a surgeon, defendant Dr. Karanfilian.Dr. Karanfilian felt it was myositis calcificansor hematoma, and told decedent he could havethe lump removed, but that there was no needfor immediate surgery. Decedent opted not tohave the surgery.

From November 12, 2002 through May 4,2005, decedent had no contact with Dr. Karan-filian. On May 4, 2005, decedent returned toDr. Karanfilian to have the lump removed, be-cause a new dermatologist was concernedabout the lump. The lump was removed onMay 16, 2005, and analysis of the tumor indi-cated it was a “round cell liposarcoma.” Thecancer returned in 2007, and decedent and hiswife commenced suit in September 2007.

Both Dr. Karanfilian and the radiology de-fendants moved for summary judgment onstatute of limitations grounds. Both motionswere granted. With respect to Dr. Karanfilian’smotion, the Court noted that there was no con-tinuous treatment, holding as follows:Theplaintiffs failed to show that there was a con-tinuous course of treatment. There was noshowing that Karanfilian ever undertook tocontinue to treat the decedent’s lump condi-tion. Nor was there any showing of any con-templation of further treatment for the lumpcondition, as evidenced by the fact that thedecedent did not schedule any other appoint-ment with Karanfilian until he returned to seehim in 2005, because his new dermatologist ex-pressed concern and suggested he see a sur-geon. Karanfilian’s statement to the decedent to

return if there were any changes in his condi-tion does not indicate that further treatment wascontemplated (see Nykorchuck v Henriques, 78NY2d 255 [1991]; Casale v Hena, 270 AD2d680 [2000]). Further, the May 4, 2005, visitcannot be considered a part of continuing treat-ment since the decedent initiated this returnvisit with Karanfilian only at his dermatolo-gist’s suggestion that he see a surgeon (seeMassie v Crawford, 78 NY2d 516, 519 [1991]).Under these circumstances, where the decedenthad no knowledge of a medical condition and,therefore, had no reason to expect ongoingtreatment for it from Karanfilian, there is noreason to apply the continuous treatment doc-trine (see Young v New York City Health &Hosps. Corp., 91 NY2d 291, 296 [1998];Nyko-rchuck v Henriques, 78 NY2d 255[1991]; Davis v City of New York, 38 NY2d257 [1975]; Robertson v Bozza & Karafiol, 242AD2d 613 [1997]). (emphasis added)

Further, with respect to the radiology defen-dants, the Court dismissed the case on statute oflimitations grounds holding that

“In general, the continuous treatment doc-trine does not apply to a diagnostician, such asa radiologist, who renders discrete, intermittentmedical services, unless the diagnostician has acontinuing or other relevant relationship withthe patient or acts as an agent for the physicianor otherwise acts in relevant association withthe physician” (Kaufmann v Fulop, 47 AD3d682, 684 [2008] [internal quotation marksomitted]). Here, the single MRI reading byBennett did not constitute continuing treatment.Bennett did not read any other MRIs belongingto the decedent and there was no future expec-tation that there would be MRIs or X rays takenafter the January 30, 2002, MRI (see McDer-mott v Torre, 56 NY2d 399 [1982]; Elkin vGoodman, 24 AD3d 717 [2005]; Sweet vAustin, 226 AD2d 942, 943-944 [1996]; Noackv Symenow, 132 AD2d 965, 966 [1987]).

Romano v. Persky, 2014 NY Slip Op03501 [117 A.D.3d 814] (2d Dept. 2014).

Plaintiff sued claiming that defendant de-parted from good and accepted medical prac-tices in perforating his esophagus during amedical procedure. The injury required an ad-ditional surgical procedure, which allegedly re-sulted in phrenic nerve damage and diaphragmparalysis on his left side.

During discovery, plaintiff demanded pro-duction of all still or moving photographs takenduring the November 4, 2005 surgery. Defen-dant responded that he was not in possession ofany such photographs, but during his depositionhe testified that it was his custom and practice totake intraoperative photographs during such pro-cedures, but that there were no photographs inhis chart. He had not conducted a search for any

photos taken during the procedure. Plaintiffs move to strike defendant’s answer

for failure to comply with the demand to pro-duce intraoperative photographs. This motionwas denied, but the Court did preclude defen-dant with respect to any such photographs, not-ing as follows:

. . . the Supreme Court improvidently exer-cised its discretion in denying that branch of theplaintiffs’ motion which was pursuant to CPLR3126 for the imposition of the sanction ofpreclusion against Persky for his failure tocomply with the plaintiffs’ discovery demandfor photographic images taken during the sub-ject procedure. As a sanction against a partywho “refuses to obey an order for disclosure orwilfully fails to disclose information which thecourt finds ought to have been disclosed,” acourt may issue an order “prohibiting the dis-obedient party . . . from producing in evidencedesignated things or items of testimony”(CPLR 3126 [2]; see Holloway v Station BarCorp., 112 AD3d 784 [2013]). The nature anddegree of the sanction to be imposed on a mo-tion pursuant to CPLR 3126 is a matter restingwithin the discretion of the court (see Edwards vPrescott Cab Corp., 110 AD3d 671 [2013]).Here, on the record presented, in light of Per-sky’s usual practice to take intraoperative photo-graphs and his admitted failure to search for, andif found, to produce such photographs pursuantto the plaintiffs’ discovery request, the sanctionof preclusion is appropriate. Accordingly, theSupreme Court should have granted that branchof the motion to the extent of precluding Perskyfrom offering any evidence at trial based uponphotographic images of the subject procedureshould they become available.

Vaccaro v. Weinstein, 2014 NY Slip Op 03825[117 A.D.3d 1033] (2d Dept. 2014).

Discovery – further deposition precluded.A Preliminary Conference Order indicated

that the deposition of defendant Steven Weinsteinwas to be held at the office of his attorneys inNassau County. After that deposition, plaintiffsmoved to compel an additional deposition of We-instein, and Supreme Court granted that relief. Incorrespondence, the attorneys for plaintiffs insist-ed that the deposition take place in Queens,where the action was venued, and defense coun-sel insisted that it take place at his office in Nas-sau County. On the date of the deposition, de-fendant was present at his lawyer’s office in Nas-sau County, and plaintiffs’ counsel was at the of-fice of a court reporting service in Queens.

Thereafter plaintiff moved to strike defen-dant’s answer for failure to comply with theCourt’s Order, or in the alternative impose costsand sanctions and compel him to appear for adeposition in Queens. Defendant cross-movedfor a protective order precluding any further dep-

ositions based on plaintiffs’ failure to appear forthe deposition in Nassau County. Supreme Courtdenied plaintiffs’ motion, and granted defen-dant’s motion to preclude any further deposi-tions, and the Appellate Division affirmed, hold-ing that this was a proper exercise of discretion.

Dien v. Seltzer, 2014 NY Slip Op 02744[116 A.D.3d 910] (2d Dept. 2014).

Defendant’s summary judgment motion wasdenied in this delayed diagnosis of oral squa-mous cell cancer case. In opposition, plaintiffsubmitted affirmations of a physician with ex-perience in the diagnosis and treatment of headand neck cancers, and a dentist with experiencein the diagnosis of oral cancer and lesions, whoopined that in light of the stage and level of dif-ferentiation of the injured plaintiff’s tumor atthe time of her diagnosis, it was both detectableand diagnosable at the time she was treated bydefendant, that defendant should have referredher for a biopsy, and that had he done so, plain-tiff would not have required the majority of pro-cedures and treatments that she was required toundergo. Accordingly, defendant’s motion forsummary judgment was properly denied.

DeLaurentis v. Orange Regional Med.Ctr.-Horton Campus, 2014 NY Slip Op

03474 [117 A.D.3d 774] (2d Dept. 2014). Defendant hospital was granted summary

judgment, based upon plaintiff’s “speculativeand conclusory” expert affirmation. Plaintiff’sexpert failed to identify or define the applicablestandard of care, or set forth the manner inwhich the conduct of defendant’s nursing staffdeviated from that standard of care. The asser-tions of plaintiff’s expert were unsupported bycompetent evidence tending to establish the es-sential elements of medical malpractice andwere thus insufficient to defeat the summaryjudgment motion.

Fink v. DeAngelis, 2014 NY Slip Op03648 [117 A.D.3d 894] (2d Dept. 2014).

Following surgery at defendant hospital,plaintiff’s private attending physician pre-scribed antibiotics upon suspicion of infection.Upon discharge, the attending physician or-dered Levaquin, which allegedly caused plain-tiff to suffer severe complications ultimately re-sulting in intestinal damage. Defendant hospi-tal’s summary judgment motion was denied.Although it established prima facie that the pre-scription was written by a private attendingphysician and that its employees did not com-mit independent acts of negligence, in opposi-tion plaintiff, through her physician’s affirma-tion, raised a triable issue of fact as to whether

Medical Malpractice Update

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T H E S T A T E O F E S T A T E Schange in circumstances and, as a result, (2) thetestator’s main objectives would be frustrated,if strict compliance with the direction were re-quired. The Court opined that a testator’s spe-cific intent with respect to an investment may bedisregarded in order to effectuate his general in-tention with respect to beneficiaries. The Courtnoted that since the trust was created interest ratesof United States of America obligations had de-creased significantly. The Court found that the tes-tator’s primary concern was the welfare of his wifeand daughter, and concluded that the decedent did

not anticipate that such a substantial change in eco-nomic conditions would occur and produce insuf-ficient income for his beneficiaries. The Court heldthat strict compliance with the Will restrictionwould frustrate the decedent’s primary objective.Accordingly, the Court ruled that application of thedoctrine of equitable deviation was warranted, andreformed the Will by deleting the phrase, “solely inobligations of the United States of America thathave a maturity date of not more than five yearsfrom the date of purchase,” and by adding thephrase, “so long as the trustees invest in a mannerconsistent with the Prudent Investor Act as set

forth in EPTL §11-2.3.” Matter of Muir, N.Y.L.J.6/7/13, p. 21, c. 1 (Surr. Court, New York County,Surr. Anderson)

Brief briefs: In a well reasoned and erudite De-cision, it was determined that in a same-sex mar-riage the spouse of the biological mother of a childborn during the marriage is the child’s parentunder the common law of New York State. WendyG-M v. Erin G-M, 2014 N.Y. Slip Op. 24122(Sup. Ct., Monroe Co., Justice Dollinger, 5/7/14)

The divorce Court denied an application toenforce pendente lite automatic orders pro-hibiting the change of beneficiary designations

violated by the plaintiff spouse who died be-fore the divorce was granted, on the groundsthat the divorce action abated by reason of thedeath of the plaintiff spouse. A.V.B. v. D.B.,2014 N.Y. Slip. Op. 24124 (Sup. Ct., Westch-ester Co., Justice Marx, 4/17/14)_________________________________

Compiled by Hon. Bruce M. Balter, Jus-tice of the Supreme Court, Kings County,Chair, Brooklyn Bar Association, Surro-gate’s Court Committee, and Paul S.Forster, Esq., Chair, Brooklyn Bar Associa-tion, Decedent’s Estates Section.

Continued from page 8

the prescribing of Levaquin was contraindi-cated by normal practice.

Castelli v. Westchester County HealthCare Corp., 2014 NY Slip Op 02737[116 A.D.3d 898] (2d Dept. 2014).Summary judgment denied – plaintiff

raised questions of fact via their expert physi-cian’s affidavit.

Fudge v. North Shore-Long Is. JewishHealth Servs. Plainview & ManhassetHosps., 2014 NY Slip Op 03481 [117

A.D.3d 783] (2d Dept. 2014).Dismissal of plaintiff’s case during

plaintiff’s opening statement overturned –new trial ordered before different judge.

The Supreme Court erred in, suasponte, directing the dismissal of the com-plaint insofar as asserted against the defen-dants Peter Pervil and Charles Farber dur-ing the plaintiff’s counsel’s opening state-ment. The Supreme Court erroneously inter-rupted the plaintiff’s counsel’s presentation ofhis opening statement, and issued an anticipa-tory ruling that Pervil and Farber were not li-able to the plaintiff. The Supreme Court’s de-termination to dismiss the complaint insofaras asserted against these defendants was basedupon pure conjecture and surmise, withoutany legal basis, and absent any evidentiaryproof.

This Court has observed that “[a] dismissalof a complaint after the opening statement of aplaintiff’s attorney is warranted only where itcan be demonstrated either (1) that the com-plaint does not state a cause of action, (2) that acause of action that is otherwise stated is con-clusively defeated by something interposed byway of a defense and clearly admitted as a fact,or (3) that the counsel for the plaintiff, in his orher opening statement, by some admission orstatement of fact, so completely compromisedhis or her case that the court was justified inawarding judgment as a matter of law to one ormore defendants” (Beshay v Eberhart L.P. #1,69 AD3d 779, 781 [2010] [emphasisadded]; see Westchester Mall, LLC v Hedvat,104 AD3d 678, 679 [2013]; Ballantyne v Cityof New York, [*2]19 AD3d 440, 440-441[2005]). Here, the Supreme Court directed thedismissal of the complaint during the openingstatement by the plaintiff’s attorney and notafter it. In any event, none of these three crite-ria was satisfied here.

Moreover, this Court has held that “[a]court’s power to dismiss a complaint, suasponte, is to be used sparingly and only whenextraordinary circumstances exist to warrantdismissal” (Onewest Bank, FSB v Fernandez,112 AD3d 681, 682 [2013] [internal quotationmarks omitted]; see U.S. Bank, N.A. v Razon,115 AD3d 739 [2014]; HSBC Bank USA,N.A. v Taher, 104 AD3d 815, 817 [2013]).Here, there were no extraordinary circum-stances warranting sua sponte dismissal of thecomplaint insofar as asserted against Perviland Farber.

The Supreme Court violated the doctrineof law of the case by completely disregardinga prior order, issued by a justice of coordinatejurisdiction, that had concluded that triable is-sues of fact existed as to whether Pervil andFarber departed from the accepted standards

of care and whether such departures were aproximate cause of the injuries sustained bythe plaintiff’s decedent.

In view of Justice Hart’s improper conductin this matter, we deem it appropriate to remitthe matter to the Supreme Court, QueensCounty, for further proceedings on the com-plaint before a different Justice.

Valenzuela v. Wyckoff Hgts. Med. Ctr.,2014 NY Slip Op 02927 [116 A.D.3d

1037] (2d Dept. 2014).Verdict and judgment for defendant re-

instated. A jury verdict should not be set aside as

contrary to the weight of the evidence unlessthe jury could not have reached the verdict byany fair interpretation of the evidence (seeLolik v Big V Supermarkets, 86 NY2d 744,746 [1995] DiMarco v Custom C.A.S., Inc.,106 AD3d 684, 685 [2013] Nicastro v Park,113 AD2d 129, 134 [1985]). “It is for the juryto make determinations as to the credibility ofthe witnesses, and great deference in this re-gard is accorded to the jury, which had the op-portunity to see and hear the witnesses”(Exarhouleas v Green 317 Madison, LLC, 46AD3d 854, 855 [2007] see Babajanov v YunSang Ma, 77 AD3d 862 [2010] Salony v Mas-tellone, 72 AD3d 1060 [2010]). Here, the dis-puted testimony of the parties and their med-ical experts presented issues of credibilitywhich were for the jury to resolve (see Velonisv Vitale, 57 AD3d 657, 658 [2008] Murray vManiatis, 21 AD3d 1012, 1013 [2005] An-grand v Stern, 8 AD3d 218, 219 [2004] Kaplanv Nadler, 289 AD2d 454, 455 [2001]). In par-ticular, the testimony of the Anim defendants’expert board-certified pediatrician providedthe jurors with a reasonable basis for drawinga conclusion contrary to that reached by theplaintiffs’ expert regarding whether Anim de-parted from good and accepted medical prac-tice by not ordering a chest X ray on January23, 2004, or by not admitting the infant to thehospital on that date.

Kelly v. Fenton, 2014 NY Slip Op 02753[116 A.D.3d 923] (2d Dept. 2014).Summary judgment denied. In moving for summary judgment, defen-

dant relied upon an affirmation of a physicianwho was not licensed or authorized to practicein New York State. This did not constitutecompetent evidence, and thus the motion forsummary judgment was denied.

Lee v. Fenton, 2014 NY Slip Op02765 [116 A.D.3d 945] (2d Dept. 2014).

Trueba v. Diflo, 2014 NY Slip Op02768 [116 A.D.3d 948] (2d Dept.

2014).Defendants’ summary judgment motions

were properly denied. In each of these cases, a deceased organ

donor’s kidney was transplanted into theplaintiffs. Although the hospital at which theorgan donor died, Stony Brook Hospital hadindicated that decedent died of bacterialmeningitis, it later turned out that he died of T-cell lymphoma. In Lee, plaintiff’s decedentcontracted the cancer and died as a result. InTrueba, plaintiff had the kidney removed andunderwent chemotherapy.

Although the NYU defendants established

prima facie that they did not depart from goodand accepted medical practices by relyingupon the diagnosis of the doctors at StonyBrook to the effect that the deceased organdonor died from bacterial meningitis, plaintiffraised triable questions of fact in oppositionby submitting affidavits from medical expertswhich raised a question of fact as to whetherthe NYU defendants departed from acceptedmedical practices when they accepted anorgan for transplant from a donor whosesymptoms, as reflected in an informationgiven to the NYU defendants, were inconsis-tent with a diagnosis of bacterial meningitis.

Collazo v. State of New York, 2014 NYSlip Op 03792 [117 A.D.3d 980] (2d

Dept. 2014).In this Court of Claims action, the Appel-

late Division increased the award for plain-tiff’s damages from $1,600.00 to $4,300.00.The Appellate Division decision does not dis-cuss the facts of the underlying case.

Medical Malpractice UpdateContinued from page 9

wide array of services to law firms. VincentBrunetti, the company’s president, and JudyMines, the Business Development Executive,were gracious and generous hosts. The in-formative CLE program focused on Meta Dataand how information which we might believeto have been deleted from our hard drives,smart phones and printers can rather easily berecovered by a forensic expert. We all oweVinny and Judy of RVM our thanks for spon-soring this informative CLE and wonderful ex-perience in their luxury suite.

While on the subject of Continuing LegalEducation, some of you may have heard thatour CLE Director, Meredith Simmons is leav-ing New York for California at the end of July.Meredith is heading back home to work with

her dad at his law practice. While we con-gratulate Meredith and wish her the very best,we sure will miss her here at the BBA.Meredith has done a stellar job over the past22 months running our CLE department.Meredith leaves some big shoes to fill. Thegood news is that I’ve already formed a com-mittee to look for a new CLE Director. TheCLE Director Search Committee, co-chairedby Past Presidents Steve Cohn and AndreaBonina, has been hard at work looking at ap-plications and interviewing candidates. I ex-pect to announce in my next column the hir-ing of a new CLE Director.

With that, I hope that everyone enjoyswhat’s left of the summer and gets some well-deserved rest. I look forward to sharing somemore good news with you in my next column.

RESPECTFULLY SUBMITTEDContinued from page 3

pating in the attorney emeritus program. Lawstudents from Brooklyn Law School will also bepresent to give out forms, direct litigants to com-puter based services, provide guidance and ad-vice and handle certain operational matters.

All you have to do is get trained and show up.We anticipate that the first training session will beheld in late September so if you would like to par-ticipate we need you to sign up now. To do so, con-tact Louise Feldman of the BBAat 718-624-0675 x209 or by email at [email protected].

If all this seems too easy and you are askingyourself whether you really want to deal with

“pro se” litigants, even for a limited period oftime, be assured that the self-represented willbe screened initially to determine suitability forthe program and the center’s goal is to maxi-mize the number of participants who can behelped during the limited lunch hour. Thoughpart of the training will teach you how to intel-ligently and compassionately deal with probono litigants, we anticipate that the goals ofthe program will be best achieved by thelawyers doing most of the talking and the liti-gants doing most of the listening. __________________________________

Andrew M. Fallek is the Immediate PastPresident of the Brooklyn Bar Association.

Continued from page 1

New “Lunch Hour” Pro Bono Program to Assist The Self-Represented in Kings

Supreme Court Makes It Easy to Do Pro BonoWork Volunteer Now For Free Training

Advertise in the LEGAL SERVICES DIRECTORY.

[email protected] [email protected]

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JULY, 2014 BROOKLYN BARRISTER, Page 11

standing, but the crimes perpetrated by their henchmen,employees and principals, such as Davis, and the lieutenant.

I recommend you follow the trial of these well known,affluent gentlemen. I may be a witn ss for the prosecution. Iwill ask Joan to remind me to put in a “good word” forHarold and Marcus.

Months have passed since the Bob Davis incident. Theconspirators are out on bail awaiting trial. The newspapers,through their sources have the names of the conspirators,and the alleged crimes perpetrated to build their huge in-vestments. The crime reporters have had a field day, writ-ing daily news articles and taking photographs, which ap-pear on the front pages of the newspapers. The articles re-nouncing the conspirators, conversely have depicted Joanand me as the heros. As a result my practice has increased.Clients are flocking to retain the “hero” lawyer.

Captain Bell has also done well. He has received a wellearned commendation, awarded by the Police Commission-er and the mayor for saving lives and capturing the culprits.

One summer morning, I heard Joan arguing in the outeroffice, and then I heard what can only be described as aloud and resounding and ominous thud. Something orsomeone had fallen to thefloor. I ran to the outer officeand found poor Joan unconscious and lying on the floor.Standing next to her was Norman Brown. I never metBrown, but I recognized him from the countless newspa-per articles and pictures as one of the alleged conspirators.Brown nervously began talking. “I want to talk to you inyour office,” and with a threatening motion, he forced meback to my office. Joan was still lying where she had fallen,barely moving, and I couldn’t help her. In my office hebegan immediately talking nonstop. “I was doing very wellwith the group. I didn’t make the money that Ralph andMarcantonio, and a few of the others made, but I was con-tent. I bought a home in Connecticut, took vacations withmy wife, and my three boys had an excellent college edu-cation. Now I have nothing. All my assets have been at-tached, and my house is in foreclosure. It’s your fault. Youwere told to cancel the contract and return the money.Why didn’t you? If you had followed instructions, Davisand the others would still be alive. Lieutenant Jackson wasmy cousin. We were as close as brothers, and I miss him.

We both did well. Our only obligation was to convincesellers to sell and transfer their property. The poisonedneedle was convincing. It was simple and well worth therisk. We actually enjoyed our work. The sellers were oldand not well, and usually had no heirs. We did a service forall concerned. The tenants and all the other inhabitants ofthe neighborhood were forced to live in unheated, dilapi-dated buildings, badly in need of repairs. Entire neighbor-hoods suffered, and required the infusion of young blood,and we accommodated. We repaired and renovated build-ings, built and improved neighborhoods, and the economyof the city. For example, Harold’s condos in the village willhave a lasting affect on the city economically and other-wise.

If not for our presence, the city would sink deeper anddeeper into a hell hole of a depression, from which itwould never recover. We should have received a com-mendation,and not Captain Bell for shooting my cousin. Ithen felt compelled to speak. “You have not been giventhe power or the.authority to decide who should live, andwho should die, for your own illegal and illicit purposes.You have committed heinous crimes.” Brown continued. “Idoubt if he even heard me. “We performed a service tothe city and all we had to use was the needle. They hard-ly felt the injection. It was like, taking blood for a test. Mycousin and I were as proficient with the needle as Davis.

With that, Brown reached into his pocket and with-drew a needle; and began approaching me with the samesmile and obvious enjoyment as his cousin, LieutenantJackson. Captain Bell, of course, was not here, and again Ithought. this is it, my demise is only moments away. How-ever, he suddenly stopped, and deja vu, with the same ex-pression as Lt. Jackson, he fell to the floor. This time, I didhear a shot and looked towards the outer office. Joan wasleaning against the door for support, holding a smoking re-volver in her trembling hands. We both just stood therefor a few minutes, unable to speak. I walked over to her,and helped her sit down. I asked her where she learned toshoot like that. She answered in a quiet, steady voice, “Ipurchased a revolver, obtained a license, and practiced onthe firing range. I vowed that the kidnaping and threatswould not happen again.” She was right. It almost, but did-n’t happen again. Brown was lying there. We called “911”and Captain Bell, and this incident ended. Will there beany more incidents? I intend to purchase a revolver, obtaina license, and practice on the firing range with Joan. I willbe ready for the next “incident”.

In response to our calls, Patrolmen, an ambulance withparmedics, and Captain Bell promptly arrived at my office.Bell’s associate, Alex Jones, (Jackson’s replacement) also ar-rived with the captain, and was introduced to Joan and me.Regarding the body lying on the floor of my office in thesame position as Jackson’s and Davis’, Bell didn’t articulate,but his body language clearly indicated, “Again!” He then ina calm, surprisingly, almost inaudible whisper began, “I seeyou met Brown. I should have anticipated his response tothe death of Jackson. They were cousins, and very close.” Iresponded, “I know, they were like brothers.” The captaincontinued. “Brown would visit often with Jackson. They ap-peared to enjoy each others company.” I interrupted again.“They were doing well in their avocation, and they enjoyedtheir ‘ work. Brown told me. You can ask him. Oh, I’m sorry,

he’s dead.” The captain paid little attention to my attempt-ed humor, and continued. “I have copies of all the files, doc-uments and reports, taken from the penthouse apartment-for you to read. It will provide you with interesting reading.”

In the past ten years, the consortium, through illicit andcriminal acts, have acquired a portfolio of real estate prop-erty which include vacant land ready for development. Forexample, Harold Miles’ condo development in the Village,office buildings, apartment houses, commercial propertiesand strip centers, all clearly described and set forth in thefiles and reports. Please return the files and reports, whenyou have finished.” Bell then handed me several thick files/and left with the patrolmen, ambulance paramedics, Jones,and the body.

At home that evening, I sat down in the den, chosean uncomfortable chaiso I wouldn’t doze off, and in-structed my wife, Helen, not to disturb me, and beganreading the files and reports.

Ten years ago Harold Miles was a struggling real estatebroker. He maintained a one man office on a side street, ina middle class neighborhood, in Brooklyn. Bob Davis wasin the roofing business, and also did minor repairs tohomes, to supplement his income.

One fall day, an elderly woman in her late 80’s, Mrs.Curtis, contacted Harold to sell her home. Her husbandwas deceased, and she had no heirs. The house requiredminor repairs, and Harold called upon Davis to make therepairs. They soon digressed from discussion of the repairs,to discussing the status of the owner. Her age, a deceasedhusband, and no heirs, intrigue, them. They could pur-chase the property, and resell, and make a profit. One ofthe two then exclaimed, “We can easily take title withoutpayment, and have Mrs. Curtis’ pass away sooner than sheanticipated. There is no one? I repeat, no one to questionthe demise of this elderly woman.” The other partyagreed, and the next day they paid a visit to Mrs. Curtis ather home.

They were prepared with what became the standardprocedure, to cause the sudden demise of another, thepoison needle injection. Which perpetrator originated theneedle injection)s not clear.

Mrs. Curtis offered tea and cookies, which they readi-ly accepted. As they sat in the kitchen, drinking the tea,and eating her cookies, and discussing the contemplatedsale of her house, either Harold or Davis approached Mrs.Curtis from behind and injected her with the deadly nee-dle. She fell to the floor and passed away immediately.They were pleased with the swiftness and effectiveness ofthe poison, which they had researched. They compliment-ed each other on their “success”. Harold then produced adeed, running to one of his corporations, (Marcus was notyet involved), forged her signatur and as a notary, took hersignature. Mrs. Curtis house was now their property. Thefile did state that they arranged for a proper burial for Mrs.Curtis .

Davis, soon after the transfer of ownership, made theminor repairs to the house, and Harold, within a fewmonths, sold the house, and they were in business.

The hour was late, and I was ready to lay aside the files,for another day. What troubled me, however, was the re-cent deaths of my friends. Was I responsible? If I had im-mediately complied with Davis’ demand for the file and re-search, would they be alive today?

With this incentive to determine my culpability, I con-tinued, and rapidly turned the pages of the reports past theintervening years, to the immediate date, when Davis ap-peared in my office to sell the property on 31st Avenue. Thefiles and reports painstakingly-revealed the cause of thedeaths of my friends, and set forth the names of the victims,dates of occurrence, and locale of their untimely deaths.The reports were so well written that the prosecutor wouldhave no problem in establishing beyond a reasonable doubt,the guilt of the perpetrators and cohorts.

Davis and the others, determined that the investigator,Michael North, must die, because North uncovered a majordiscrepancy in title to a certain commercial property. His ex-amination of the city records disclosed a death certificate ofthe former owner, one Eric Herman. Mr. Herman passedaway two months prior to his supposed execution of a deed,delivering title to Land, LLC. Harold Miles was the notary.The property is now valued in excess of $10,000,000. WhenBrown followed North, and examined the docunents, whichNorth had requisitioned, North’s fate was sealed. Browncornered North as North was entering his auto, and at gun-point, made him drive to a “desolate section” of the cityunder a bridge. Once there, North, of course expired, bylethal injection.

To compound North’s death, Brown had observed himmaking a phone call on his cellphone, prior to leaving the cityoffice, and with his phone in Brown’s possession, he deter-mined that the call was made to George Kelly. This onephone call spelled the ultimate demise of my friend, Kelly.

The reports continued. Brown phoned Jackson, (one ofthe mysterious phone calls), and agreed to meet him in theevening in Kelly’s office, when Kelly was alone. The lieu-tenant then made a late evening appointment with Kelly onthe pretext that he was a prospective client. The cousins ap-peared in the office, bound and gagged Kelly, and forciblydrove him to their penthouse apartment in Dumbo. He re-mained in the apartment, bound and gagged, probably inthe same bridge chair as was Joan, until his demise a fewweeks later. Kelly, during this period, gave the cousins all theinformation and records he and North were able togather,including copies of the records taken from the city website.Kelly was then taken to the Gowanus, injected with the nee-dle, and had a one car “fatal” collision.

The next day, Jackson received another “mysterious”phone call, this time from Davis. He explained, “An exami-nation of Kelly’s records revealed he had disclosed and de-livered records and information to his partner, Jack Kane,prior to his apprehension, which records and informationwill endanger the consortium. Therefore, we now have toeliminate Jack Kane.” There was hesitation between thesehenclunen, and it appears that even these killers were’loathe to inject another person, so soon after the previous

injections, but they rationalized, in their twistedminds, thatthey had no other choice, and this caper would be relative-ly simple.

Kane always worked alone, and stayed at his office lateinto the evening. Like many atttomeys, he was a workaholic.His wife often complained that working hard and long hourswould ultimately kill him, at a young age. She was right.

One evening Davis and Jackson picked the lock onKane’s front door and confronted Kane with the needle.Kane was a feisty son-of-a-gun, but he was match for thelieutenant, who injected him, and then sat-him down at hisdesk. They gathered all the records and files, deleted all in-formation in the computer. Fortunately, they left immedi-ately, because I entered the office a few minutes later andfound Kane’s body, still warm, sitting in his chair. Davis andthe lieutenant missed the written notation, scrawled on thepad.

The next few days were relatively quiet. There were nopoison injections, and no calls from Davis. The reports dis-closed Harold and Marcus made explicit demands on thehenchmen. They were adamant, and in no uncertainterms, made it palpably clear to the henchmen that theconglomerate, and its vast holdings must be preserved atany price. They demanded Davis, Jackson and Brown elim-inate all records and information which might destroy theconglomerate, and in addition, any person or persons whomay have had access to, or even the probability of gainingaccess to such information and records. They were partic-ularly po ‘d with Davis, and accused him of stupidly precip-itating this crises. Why didn’t Jason Zucker transfer his one-half interest years ago, before he died? He was under theircontrol. He was one of them. Davis had no logical explana-tion, and he resolved to satisfy Harold and Marcus, andsomehow get back into their good graces. (Davis knewwhen you were out of grace with Harold and Marcus, yourlife was in jeopardy.)

The records indicated that he voluntarily agreed to ob-tain all of the attorney for the purchaser ‘s records and files,and would force the purchasers to cancel the 13th Avenuecontract, and the broker to waive any commission, and de-liver all his files to Davis. His attorney, Art, would subse-quently be disposed oat the appropriate time. In the mean-timhe planned to, kidnap his secretary, Joan, and in that waycontrol Art, and require him to cooperate. Harold and Mar-cus agreed. It appears that they were giving Davis one moreopportunity to correct his multiple mistakes and ineptitude.

The next day Davis and Brown appeared in StanleyFlynn’s office. He was a single practitioner, and did not havea secretary. Documents and other required papers wereprepared by Flynn. It was relatively easy. They entered his of-fice at 10:00 A.M., and he was lone. By 10:15 A.M. they co-erced him into turning over all the 13th Avenue records, filesand other documents. To insure no repercussions and com-plaints from Harold and Marcus, he was dead by 10:30 AM,and they were pleased. Davis was pleased that they werepleased. Perhaps his mistakes and ineptitude will be forgiv-en. He had Flynn’s documents and files, and deadmen did-

n’t talk.The next proposed victim was the real estate broker.

Harold, from past experience, as a broker, knew John Let;and the location of his office and thefiles. With this knowl-edge, henchmen cornered Lee, and demanded the files.Lee, however, was not an easy opponent. He was a force tobe reckoned with. Lee was agile, lithe and experienced inthe art of self defense. Lee was too much for Davis, butBrown was as tough and strong as his cousin and finallyoverpowered him and knocked John down, apparently un-conscious. Brown then raised the needle and began lower-ing it towards the neck, and actually touched the skin, whenJohn suddenly jumped up and ran out of the office. He wasnot unconscious. He is now in intensive care in General Hos-pital. Marcus and Harold were, again, displeased. John hadsurvived. Although the files maintained by Lee on the 31stAvenue property were in their possession Brown and Daviswere warned that they must eliminate Lee within the nextfew days.

The next project delegated to Davis was to convince thepurchasers to cancel their contract. This was rather easy. Thehenchmen entered the purchasers’ outer office, requesteda. meeting with the purchasers, who immediately appearedand invited them into the office.

Before they had an opportunity to speak, the pur-chasers informed them that they would cancel the contractand deliver all the copies of the 31’1 Avenue documents intheir possession. Ther was no further discussion. The pur-chasers did not even request the return of the down pay-ment. It was apparent that the purchasers were awareofthe deaths of the attorneys, investigator and Lee’s hospi-talization. However, Harold and Marcus were again dis-pleased with Davis. “The purchasers are still alive. One daythey may have the courage and opportunity to testifyagainst the consortium. They have to be eliminated for thewell being of the consortium. We cannot permit anyone tosurvive who is a potential threat to the consortium, and itsvast holdings. The henchmen, without hesitation, agreed tocomply, especially Davis. He was clearly concerned about hisstatus. However, Davis and the others did not have the op-portunity to proceed against the purchasers, and the pur-chasers will testify as will the real estate broke; when he re-covers.

The hour was late, and I had completed that portion ofthe report, which directly affeced me. I closed the report tocontinue another day. To read about the recent deaths ofactive and vibrant friends for the sole purported purpose ofprotecting the conglomerate and its assets was agonizing.However, there is a glimmer of satisfaction in realizing that Idid not contribute to their deaths. Davis’ threats and de-mands for immediate compliance was for the sole purposeof protecting himself and reestablishing his position in theconsortium. Whether I immediately complied with his de-mands or delayed, did not factor into the outcome. Myfriends were marked for death. Davis controlled me toprove to Harold and Marcus he had reaffirmed and main-

F i c t i o n C o ntest W i n n e rTHE CLIENT FROM HELL

By: Arthur Susnow, Esq.

Continued from page 5

Please turn to page 12

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THE CLIENT FROM HELL

tained control over the 31st Avenue mistake. His ultimate.death proved his efforts were unavailing.

The next day I arrived early in my office with the thickreports, and told Joan to cancel all appointments, and tomonitor all phone calls. I then continued to read the re-ports following the acquisition of Mrs. Remsen’s property.The very next purchase was similar to Mrs. Remsen’s, ex-cept the sellers were an elderly husband and wife, who re-linquished their ownership in an apartment house toHarold’s corporation, and, as expected were never heardfrom again. They simply disappeared.

The following acquisitions were similar, until a meet-ing with Marcantonio. Marcantonio held a 30% interestwith an elderly gentleman, Robert Stem, in several com-mercial properties. Harold and Davis were introduced toRobert, and immediately made their usual plans for acqui-sition, until their introduction to Marcantonio. On meetingthe youthful Marcantonio Harold and Davis were resignedto abandon their plans, and proceed elsewhere, until Mar-cantonio suggested a private meeting with them. He wasfriendly and cordial, and insisted they call him Marcus, asdo all his fiiends, and he new that they would be friends.Marcus then inexplicably advised the two that he wasaware of their illicit takeover plans arid he tacitly admittedtht was how he now owns the 30% interest, and was ac-tually in the process of increasing his interest when theyapproached Robert. He admired their methods and pro-cedure to acquire property, and was eager to merge hisproperties with all the properties owned by the consor-tium, and properties to be acquired in the future. Haroldand Davis, after much private discussion between themagreed reluctantly. It’s possible, and highly likely, they weresubsequently plg on disposing of Marcus at a later date,until Marcus proved to be an invaluable associate. RobertStem soon after disappeared.

Thereafter, the consortium acquired additionalproperties in a similar manner, and the threesomebuilt a huge portfolio, which today is comparable tothe portfolio of other renowned real estate investors.Every so often they brought a new member into theconglomerate, when desirable, together with this newmember’s real estate holdings. It is not clear if thesenew members were aware of the means employed bythe threesome to acquire real estate. It is clear that atthis stage, the consortium had accumulated vast anddiverse real estate properties.

There were certain acquisitions and/or other maneu-vers by the consortium that did standout from the others.One such acquisition was the purchase of commercialproperty, in the Bronx. Davis for some unexplained reasonwas enamored with this property, and actually paid the fullprice. The property thereafter proved to be a real loser.Marcus and Harold directed Davis to resolve this problem.They were fast becoming disillusioned with Davis. In thepast he had precipitated other problems, which they hadto resolve. In this instance, though, Davis’ solution satisfiedthe consortium, and also brought in additional funds tothe consortium.

He transferred title to the property to an inactive cor-poration, and then made an application for two simulta-neous first mortgages, and arranged to execute the mort-gage documents for the two mortgages on the same, dayin separate offices, so that neither mortgage lender hadknowledge of the other. No payment was ever made oneither mortgage, and the property was abandoned. Thefunds received by the consortium for the two mortgageloan far exceeded the price paid by the consortium. Atleast this aspect of the purchase, and profit derived,pleased Harold and Marcus and the others. Davis waseven congratulated.

One problem did arise. One of the mortgage brokersbecame aware of the transaction and confronted Davis.He demanded payment from the consortium for his guar-anteed silence. He subsequently disappeared, and wasnever heard from again.

I continued leafing through the reports, and as ex-pected there were additional transactions which propertywas acquired apparently in a normal standard transaction,with attorneys, title searches and closings. There was al-ways an underlying aspect and suspicion,to question theauthenticity of the transfer. But, no one complained. Attimes, no one survived to make a complaint. The seller orsellers often disappeared. An attorney would die unex-pectedly.

In one transaction, an attorney, age 35, died of a heartattack, according to the report. In another transfer, thetitle company representative vanished after the docu-ments were submitted to the city for recording.

I must, however, qualify this failure to complain, be-cause in one transaction, the seller did complain, and ar-gued vociferously and violently with Davis. It appearedthat they would come to blows. The police had to be sum-moned and Lt. Jackson responded. He listened to argu-ments from both side in separate rooms. He then hand-cuffed Davis and the seller with the admonition “this dis-pute can only lead to violence, and may only be resolvedat the precinct.” He then drove off with Davis and-the sell-er. The next day, Davis and the seller reappeared for clos-ing, and Land, LLC purchased the property. The seller wassullen and quiet, at this last meeting, and meekly consent-ed to the transfer on Davis’ terms. Within a few days hedisappeared.

Harold and Marcus were pleased with the settlementof the dispute, and transfer of ownership. The property

was valuable and the price paid was well below the mar-ket value. They specifically praised Lt. Jackson, who pre-sumably then became an active member of the consor-tium. Brown soon followed as a member. Davis’ role wasdiminished.

The members of the consortium appeared to enjoyeach others company, and·the growth and prosperity ofthe consortium. They held many functions and dinners,traveled together on cruises and golf outings at the coun-try club. Pictures were taken, and many pictures were an-nexed to the reports. One picture caught my attention. Itwas slightly out of focus, and in black and white, but itclearly depicted the lieutenant standing on the golf coursewith Davis, Harold and Marcus, with golf clubs in hand.This picture taken with members of the consortium didn’tseem to concern the lieutenant.

I continued browsing through the pictures for no par-ticular purpose, when another individual in one of the pic-tures caught my eye. With a magnifying glass, my suspi-cions were confirmed. I recognized this individual. For ver-ification, I called Joan into my office, and she came runningwith gun drawn. “Joan, put the gun away. I have a pictureto show you.” Then, she spoke, “You yelled for me. Ithought another hoodlum was about to needle you.” Joanplaced the gun down, and examined the picture with themagnifying glass. “That’s Inspector Alex Jones. Why is hein that picture with that group?” “I don’t know,” I re-sponded. “Call Captain Bell and tell him to come down tomy office, alone.”

Bell responded, and we showed him the picture withAlex. His response was unexpected.

“This picture with Alex and the group is no surprise.We know he’s a member of the consortium, and has beenfor quite some time. I am about to divulge informationwhich you must swear will never be passed on to another.Not even to your wife, Art, or your husband, Joan. I amwaiting for your response.” “Yes”, we both exclaimed atthe same time! “We will not tell another soul.

What is it?” Joan continued, “Captain, I am not mar-ried. Do you have any eligible young cops interested in get-ting married....,. The captain seemed to ignore Joan, andhe continued. “Alex is our undercover man in the consor-tium. We have been aware of their illicit and illegal activ-ities for quite sometime. The disappearance of sellers; at-torneys, and others, and the use of the needle injections.We required proof, and Alex volunteered. When we firstmet, I couldn’t acknowledge that I was aware of the illegalactivities of the consortium, because Jackson was with us.At other meetings, Harold and Marcus were present. I re-ceived the Mayor’s commendation, which was rightlyAlex’s, but I had to quietly accept the commendation.

Incidentally, Alex saved your lives. We followed youand Jackson when we received an urgent call from Alex.The consortium was determined to liquidate you andJoan. He also saved many other lives. There are sellers andothers in the report who were reported missing and pre-sumed dead. They are not dead. Alex saved their lives, andthey will testify. He will remain undercover until the trialends.” When Bell finished, Joan and I stood there in shock.We couldn’t believe that an unknown savior actually pro-tected us and saved our lives. How do we begin to showour appreciation? Bell read our minds. “Alex is aware ofyour gratitude. A thank you and a hug is sufficient. He is adevoted officer of the law, and does not expect more. It’shis job, and incidentally Joan, he is not married. You’ll soonmeet him.” Bell continued”Alex also contributed more in-sight into your former client, Bob Davis. He was marked forelimination months ago.

The consortium could no longer accept the mistakes,compounded by the 31’’ Avenue fiasco, his ineptitude,and arrangements made with sellers, and others, to thedetriment of the consortium.

Alex saved lives; Davis also saved lives for payment,however. He would threaten the sellers and others withthe needle, and when no other member was present, heextorted payment for their lives, and permitted them todisappear, alive and well. Many of these people have re-turned to testify. Bell fmished, and again exacted a prom-ise to keep Alex a secret. He left with the reports andfileswhich I had finished examining. Joan and I again madeBell promise to introduce us to Alex, so that we could per-sonally thank him for saving our lives. The Trial has beenset down for a date certain. I again suggest you closely fol-low this trial, because if you own real estate in New York,it is fairly certain that sometime in the future, the consor-tium was prepared to make you an offer which you couldnot voluntarily refuse.

“Art, Alex Jones called me last night. You rememberAlex. He’s the youngman who saved our lives. “Joan, thatconsortium matter was only a few months ago. Of courseI remember Alex. I wouldn’t soon forget a hero.” Art, I waskidding. I knew you’d remember Alex, even though you’vebeen so busy representing normal clients with normalmatters in the months following the consortium fiasco.”Joan, I knew you were kidding. Why did Alex call?” “Art,Captain Bell promised, to introduced us, and we’ve hadseveral dates. Art, we seem to care for each other, and I’dlike you to meet him, and he’d like to meet you. Art, that’sAlex at the door. Hi Alex, come in and meet Art. How’s yourleg?”” Joan, the leg is fine. I’ll be back on fulltime dutywithin a couple of months. Hi Art, we finally meet” “HelloAlex. How do I express my appreciation for saving our lives.You were some kind of a hero.”” Thanks, Art, you and Joanhandled yourselves quite capably. Joan and I have beendating, and we care for each other. Art there is a greatpossibility that you may in the very near future, be invitedto a wedding.”” Alex, that’s great news. You know I care forJoan like a daugter.” I know Art. It’s been a real pleasure tomeet you. We’ll see you soon.”

By: Arthur Susnow, Esq.

Continued from page 11


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