The Nathan R. Sobel Kings CountyAmerican Inn of Court celebrated it’sannual dinner and installation ceremony
Monday, June 16 at Red Gravy restau-rant in Brooklyn Heights. CherylChambers, Associate Justice of the Ap-
pellate Division, 2nd Department, ad-ministered the oath of office.
Visit us at www.brooklynbar.org
Hon. Theodore T. Jones, Jr. Memorial Golf Outing
What’s InsideThe DocketCompiled by Louise Feldman ...................................................... 2
New Members, April 2014 ............................................. 2
Legal BriefsBy Avery Eli Okin, Esq., CAE ...................................................... 2
Respectfully SubmittedBy Andrew M. Fallek, Esq. ........................................................... 3
The State of EstatesBy Hon. Bruce M. Balter and Paul S. Forster, Esq. .................... 4
Across My DeskBy Barton Slavin, Esq. ................................................................. 5
Survey of Settlements & VerdictsBy Hon. Donald Scott Kurtz, Esq. and Shelley Werbel, Esq. ..................................................................... 5
Please turn to page 11
Seated left-to-right: President-Elect Rebecca Rose Woodland, Past-President Hon. Nancy T. Sunshine, Past-President Hon. Barry Kamins, Second-Vice-President Hon. Frank R. Seddio.Standing left-to-right: Past-President Barton L. Slavin, Hon. George Silver, Lainey Fallek, President Andrew M. Fallek, T. J. Jones, Jr. See more photos on page 5. Photos by Mario Belluomo
The Nathan R. Sobel Kings CountyAmerican Inn of Court Annual Dinner
BROOKLYN BARRISTERFICTION CONTEST WINNER
ARTHUR SUSNOW, ESQ.for: “The Client From Hell”
HONORABLE MENTIONJACQUELINE MCMAHON SMITH, ESQ.
for: Book Chapter submission(To be published in July)
The Nathan R. Sobel Kings County American Inn of Court Annual Dinner held its annu-al dinner at the Red Gravy Restaurant on Atlantic Avenue. Pictured (from left to right):Jeff Feldman, executive director, Hon. Ellen Spodek, immediate past president,Jon Besunder, Hon. Cheryl E. Chambers, Hon. Miriam Cyrulnik, Dave Chidekel, presi-dent, and Hon. Arthur M. Schack. Photos by Rob Abruzzese.
Page 2, BROOKLYN BARRISTER MAY, 2014
IFYOU HAVE ITEMS FOR INCLUSION IN THE DOCKET, PLEASE MAILOR FAXOR EMAILTHEM TO LOUISE FELDMAN, BROOKLYN BAR ASSOCIATION,
BROOKLYN BAR ASSOCIATION 2012-2013Andrew M. Fallek, PresidentRebecca Woodland, President-ElectArthur L. Aidala, First Vice-President
Hon. Frank R. Seddio, Second Vice PresidentAimee L. Richter, SecretaryDavid M. Chidekel, Treasurer
Avery Eli Okin, Esq., CAE: Executive Director
CLASS OF 2014Marianne E. BertunaJoseph R. CostelloPamela ElisofonFern FinkelDewey GolkinDino MastropietroSteven H. Richman
CLASS OF 2015Frank V. CaroneFidel F. Del ValleLara GenovesiRichard S. GoldbergJaime LathropAnthony W. Vaughn, Jr.Glenn Verchick
CLASS OF 2016Elaine N. AveryArmena D. GayleDavid J. HernandezRichard KlassAnthony J. LambertDeborah LashleyJoseph S.Rosato
Roger Bennet AdlerVivian H. AgressAndrea E. BoninaRoss M. BrancaRose Ann C. BrandaGregory T. CerchioneMaurice ChaytSteven D. CohnHon. Miriam CyrulnikLawrence F. DiGiovanna
David J. Doyaga, Sr.Joseph H. FarrellAndrew S. FisherEthan B. GerberDominic GordanoPaul A. GolinskiGregory X. HesterbergHon. Barry KaminsMarshall G. KaplanAllen Lashley
Mark A. LongoDomenick 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 APRIL 2014
IBRAHIM ABOHAMRACLAUDIA AVINGRAHAM DICKSONCHRISTOPHER DONADIOGARY ELIASJOSEPH FANRENEE FINNMICHAEL FRANCIS
JEFFREY GRECOJUDIE ILUSMICHAEL KOZEKELAN LAYLIEVSUSAN MAURODAVID PANTALEONIKRISTA PREUSSDOMENIC ROMANO
SHALIZ SADIGJILL TEITELGAIL TORODASH
STUDENT MEMBERSJESSICA RICKARDS CHARMAIN REID
LEGAL BRIEFS
Included below are events which have been scheduled for the period
May 29, 2014 through July 4, 2014
Compiled by Louise Feldman
May 29, 2014 Thursday CLE — Family Court Committee
Auditorium, 6:00 PM
June 5, 2014 Thursday 18B Family Court Committee
Center Room, 1:00 PM
June 9, 2014 Monday CLE — Ethics co-sponsored by
the Trial Academy
Auditorium, 6:00 PM
June 10, 2014 Tuesday VLP CLE with Fern Finkel
Board of Trustees Room, 12 Noon
June 11, 2014 Wednesday Brooklyn Bar Association/
Foundation Board Meetings
Brooklyn Borough Hall, 5:15 PM
Brooklyn Bar Association Induction
of Officers & Trustees
Brooklyn Borough Hall, 6:00 PM
June 17, 2014 Tuesday BWBA Board of Directors Meeting
Board of Trustees Room, 5:30 PM
June 19, 2014 Thursday CLE Forensic Accounting
Auditorium, 6:00 PM
June 23, 2014 Monday CLE Elder Law
Auditorium, 6:00 PM
July 4, 2014 Friday In observance of Independence Day
the Brooklyn Bar Association Building
including the Volunteer Lawyer Project,
the Lawyer Referral Service, and the
Foundation Library will be closed.
THE DOCKET JUDICIAL RECOGNITIONCongratulations to Brooklyn Bar Asso-
ciation Member Hon. Joanne Quinoneswho was honored by the Latin AmericanLaw Students Association (LALSA) ofFordham Universit School of Law withthe 2014 Andrew A. Rivera AlumniAchievement Award at their annual alum-ni dinner held on March 28, 2014.
Word has reached the Brooklyn BarAssociation from Brooklyn Women’s BarAssociation President Holly Peck thatHon. Lisa Ottley, the Supervisory Judge,New York City Civil, Kings County willbe the recipient of the 2014 Beatrice M.Judge Recognition Award which will bepresented at the BWBA 96th Annual Din-ner which will be held on Wednesday May28, 2014 at the Brooklyn Botanic Garden.Also being honored that night with theSybil Hart Kooper Award are Maria Cof-finas, Eleni Coffinas and Gigi Coffinas.
KUDOS AND PROFESSIONALRECOGNITION
Congratulations to Brooklyn Bar Asso-ciation member Lizette Colon who was arecipient of the Ruth E. Moskowitz Awardwhich was presented by the SupremeCourt of Kings County Gender FairnessCommittee at the celebration of Women’sHistory Month on March 27, 2014.
Congratulations to Brooklyn Bar Asso-ciation member Lisa Schreibersdorf, themanaging attorney of Brooklyn DefendersServices who is being honored at 2014 An-nual Dinner Dance of the Kings CountyCriminal Bar Association on Saturday,April 26, 2014 at Russo’s on the Bay.
BEREAVEMENTSThe Brooklyn Bar Association extends
its deepest sympathy to the Cahill Familyon the passing of long-time memberJames Cahill, Sr. on March 13, 2014 atthe age of 82.
The Brooklyn Bar Association extendsits deepest sympathy to the WeinsteinFamily — Zeva, Irwin, Vicky and Hon.Helene Weinstein on the passing of Hon.Murray Weinstein on March 15, 2014 atthe age of 85. A former member of theNYS Assembly he was a founder of theBrooklyn-based law firm — Weinstein,Chayt and Bard and one of only five life-time members of the Brooklyn Bar Asso-ciation.
The Brooklyn Bar Association extendsits deepest sympathy to the Lashley Famiy— Jill, Ivy and Mark — on the passing oftheir father Allen Lashley on March 24,2014 at the age of 82. A member of theBrooklyn Bar Association for over 50years he was a past president of the Brook-lyn Bar Association in 1992-1993. He wasthe recipient of the Association’s AnnualAward at the Foundation Annual Dinner in2012.
Legal Briefs is compiled and written byAvery Eli Okin, Esq.,CAE the ExecutiveDirector of the Brooklyn Bar Associationand its Foundation. Items for inclusion in“Legal Briefs” should be emailed [email protected], faxed to 718-797-1713 or mailed to 123 Remsen Street,Brooklyn, NY 11201-4212.
MAY, 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. 8 May, 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.
Cecilia N. AnekweHon. Bruce M. BalterJaime J. BorerMark DiamondJason EldridgePaul S. ForsterJason D. Friedman
Anthony LambertiHemalee J. PatelRobert P. SantoriellaMichael TreybichAlexis VigilanteShelly WerbelGregory Zenon
Approximately one year has passed by sincemy first column. The last twelve months werepart “Apprentice,” part “West Wing” and part“House of Cards,” with a good dose of “Parksand Recreation” and “Curb Your Enthusiasm”thrown in. There was some glitz. How could Ihave known that my position as president wouldpermit me to spend face time with U.S.Supreme Court Associate Justice Antonin Scaliaon not one but two separate occasions duringthe course of a year, once at our building at 123Remsen Street and once at the Brooklyn Acad-emy of Music courtesy of Brooklyn LawSchool event; or that I would meet both Asso-ciate Justices Samuel Alito and Ruth BaderGinsburg during the BBA’s group admission tothe United States Supreme Court?
It was quite an honor to be in the room atthe Moscone Center in San Francisco whenAttorney General Eric Holder delivered amajor policy statement on drugs and sentenc-ing and former Secretary of State and presi-dential hopeful Hillary Clinton addressed theABA House of Delegates. Did I mention thatafter giving out a BBA award at the meetingof The Hundred Years Association at OnePolice Plaza, I attended a luncheon at a weath-ered downtown Irish pub with a small groupthat included an Imperial Russian princesswearing a ring with the Romanov crest? To
quote, Avery Okin, “only in America.” I learned quickly that the office of Brook-
lyn Bar president carries with it certain privi-leges. Many people who didn’t know myname before I became president startedaddressing me as “Mr. President.” Now thatmy term is over and they still don’t know myname I guess they will either refer to me as“Mr. Immediate Past President” (my new titlefor the next year) or not speak to me at all.
There were a lot more politics (with a
small “p”) than I had expected. Bedouin fam-ilies have years to study their environment andlearn the location of the springs, the quicksandand the traditional tribal boundaries. I learnedalong the way. Avery is a pretty good minesweeper so I avoided major carnage, but I didget nicked by a few IED’s along the way.
At my induction, I said I would be takinga closer look at how we do business at theAssociation with an eye towards makingimprovements and freshening up the way wedo things. I am sure it came as a surprise tomany in the BBA office when, during the firstfew months, I insisted on reviewing virtuallyall documents that BBA sent out.
As I said in my President’s Report at theAnnual Meeting, Avery and I made manychanges. Board minutes and relevant docu-ments for upcoming Board meetings are nowdelivered to Board members much earlier topermit them to study them and prepare for themeetings. The Lawyer Referral Service andthe Continuing Legal Education programdirectors are now performing much morerigorous cost benefit analyses with a goal ofmaximizing profits. We are no longer doingbusiness with the software vendor whose
products were supposed to make our websitemore interactive for our members and simpli-fy or billing and event registration. We wentback to our old software and continue to lookfor software that will actually meet our needs.
The office operations have been reorgan-ized. Louise Feldman is now Director ofMembership and Social Media. With theaddition of Massiel Ventura as a full timeemployee of the Association, we now have afull time trained accountant keeping track ofour income and expenses.
We completed an environmental abate-ment program in the basement which willassure that the building is safe for those comehere to work and visit. As part of that effort,Tom Visco removed several dumpsters worthof “stuff” that had accumulated in the base-ment over the last hundred years.
There were some surprises during myterm. One day, Marie Alfano, whose 44 yeartenure with the BBA made her the longestserving BBA employee, came into AveryOkin’s office and advised him that she wouldbe retiring the following month to join her sonand daughter in law who were moving to
R E S P E C T F U L L Y S U B M I T T E D
President Andrew M. Fallek, Esq.
By: Andrew M. Fallek, Esq.
Please turn to page 8
PRESIDENT’S MESSAGE
Hon. Loren Baily-Schiffman, Hon. Kenneth Sherman, Hon. Pamela Fisher. See page 7for more photos. Photo by Mario Belluomo
The daily weather maps appear to show the vac-uum and cold of space forming dimples and pock-ets deep into the near earth atmosphere, so we ex-pect the unusual weather conditions to persevere. Totide you through the storms and general weathervariations, we alert you to the new New York StateEstate Tax regime, and offer some interesting casesinvolving the necessity of presenting to the jury thefactual issue of whether a confidential relationshipexists; the authority of an administrator to examineand retrieve the contents of a safe deposit box with-out further Order of the Court; a finding that aclaimed gift of real estate was not complete becausethe donee did not clearly and convincingly acceptthe deed at the time it was delivered to him; a find-ing that no ademption of a testamentary bequest ofreal estate occurred when a deed for the subjectproperty, executed by an attorney-in-fact in her ownfavor prior to the decedent’s death, was invalidatedafter the decedent’s demise; the grant of limited let-ters of administration to a surviving spouse to com-mence a discovery proceeding regarding a lifetimetransfer of property which under the decedent’s tes-tamentary plan otherwise would have gone to her,despite the terms of a prenuptial agreement underwhich the surviving spouse waived all rights to beappointed a fiduciary of the decedent’s estate; theeffectiveness of a waiver of the right of electioncontained in a stipulation of settlement of divorce,even though the divorce was not finalized before thedecedent’s death; the denial of an attempt to reversea change in a death certificate by the Medical Ex-aminer who amended the cause of death to suicidefrom accidental; the lack of standing of decedents’relatives to enforce cemetery perpetual care agree-ments purchased by decedents, and the limitation ofrelief to a plaintiff who had individually purchasedperpetual care for his relatives to enforcement of theagreements, but not to a return of the amounts paidor to damages; and the rejection for lack of a dili-gent search of an application for a finding of deathby reason of absence.
We expect that over the coming months therewill be a plethora of articles written and courses of-fered to explain in depth the new New York EstateTax regime. The highlights are as follows.
1. For decedent’s dying after 4/1/14 the amountexempt from New York State Estate Tax will rise inincrements:
4/1/14 – 3/31/15 $2,062,5004/1/15 – 3/31/16 $3,125,0004/1/16 – 3/31/17 $4,187,5004/1/17 – 3/31/18 $5,250,000and for decedent’s dying after 12/31/18 the New
York State Estate Tax exemption will equal the Fed-eral Estate Tax exemption.
2. The new estate tax regime achieves the ex-emption by allowing in the years shown a creditagainst the estate tax equal to what would be the taxon the ‘exempt’ amount for that year. The newregime has what variously has been termed a‘notch’ or ‘cliff’, but which we prefer to character-ize as a steep slope, to describe what happens to thecredit once the taxable estate exceeds the ‘exempt’amount. (Once the taxable estate exceeds 105% ofthe ‘exempt’ amount the credit vanishes entirely.)For taxable estates between 100% and 105% of the‘exempt’ amount, by reason of the steep plunge inthe credit, it appears that the estate tax rate exceeds100%, in that the amount of the additional estate taximposed exceeds the amount of the increase in thetaxable estate. It has been calculated by some com-mentators that the marginal estate tax rate for tax-able estates between 100% and 105% of the ‘ex-empt’ amount rises as high as 252% in some cir-cumstances. One solution which has been suggest-ed for such estates is to make sure the professionalsare well compensated, since the tax saved will bemore than the fees paid. Alternatively, for taxableestates which might come to be between 100% and105% of the ‘exempt’amount, it might be advisableto draft a formula charitable bequest clause for theexcess over 100% of the ‘exempt’amount, since thetax saved will be more than the bequest.
3. Until 3/31/14, New York State did not have agift tax. Under the new law, gifts taxable for Feder-al Gift tax purposes made after 4/1/14 but before1/1/19 will be added to the New York State TaxableEstate Tax if made within three years of death whilethe decedent was a New York resident. (parentheti-cally, the recent Court of Appeals decision, Gaiedv.New York State Tax Appeals Tribunal, 22 N.Y.3d592 (2014) which held that for those who spendmore than 183 days in New York State residen-cy requires utilization of a residence in NewYork State, not mere ownership of a residence,
will come into play.)The Issue of Whether a Confidential Rela-
tionship Exists Is a Factual Issue Which Must BePresented To the Jury- Petitioner, as the executorof decedent’s estate, commenced a proceedingseeking to recover property allegedly belonging tothe estate from his brother and his brother’s wife,the respondents. The Decedent had moved in withrespondents after being diagnosed with Alzheimer’sdisease, and resided with them until her death. Peti-tioner challenged approximately $127,000 in trans-fers made by decedent to or for the benefit of re-spondents, alleging lack of capacity and undue in-fluence. Surrogate’s Court granted respondents’motion for summary judgment dismissing the peti-tion, but the Appellate Division reversed on appeal.It found that, although respondents were entitled tosummary judgment on the issue of capacity, triableissues of fact existed with respect to petitioner’sclaim of undue influence. The matter proceeded totrial and after finding, as a matter of law, that a con-fidential relationship existed between respondentsand decedent, the trial Court sent the question ofundue influence to the jury, which rendered a ver-dict against respondents. On the ensuing appeal, theAppellate Division concluded that a new trial wasnecessary. It held that, although petitioner intro-duced evidence that might support a factual deter-mination that a confidential relationship existed, re-spondents were entitled to have the jury consider allthe evidence regarding decedent’s relationship withrespondents and determine as a factual matterwhether decedent maintained the ability to exercisefree will. The petitioner appealed.
HOLDING- The Court of Appeals affirmed,holding that the Appellate Division correctly haddetermined that the issue whether a confidential re-lationship existed between the decedent and re-spondents was a factual issue which should havebeen submitted to the jury. Matter of Nealon, 22N.Y.3d 1045 (2014)
An Administrator Has the Authority to Ex-amine and Retrieve the Contents of a Safe De-posit Box without Further Order of the Court-The administrator commenced a proceeding seek-ing an order to compel the respondent, Capital OneBank, to give the administrator access to a safe de-posit box leased by the decedent without furtherdelay for the purposes of obtaining an inventory andremoving contents. The administrator also soughtan award against Capital One Bank and/or itsbranch manager for the administrator’s attorneylegal fees and the costs incurred in commencing theproceeding. The Court deemed the petition to be inthe nature of SCPA§2103 turnover relief. Letters ofadministration without any limitations had issued tothe administrator. The administration petition listedassets of $38,000, and as a result the “Certificate ofAppointment of Administrator,” an official form is-sued by the Court, bore the notation: “Limitations:These letters authorize the collection of a total of$38,000. The collection in excess of that amountmust be authorized by further order of the Surro-gate.” The administrator avers that she and hercounsel went to the Capital One branch where thesafe deposit box was located and attempted to gainaccess to the box, but were refused after the branchmanager consulted with its legal department.HOLDING- The Court stated that it appeared thata clarification of the administrator’s authority withrespect to examining and retrieving the safe depositbox contents was warranted so that she might pro-ceed with the proper administration of the estatewithout delay. In the Court’s view, the oft-quotedmaxim that a fiduciary stands in the shoes of itsdecedent was a good starting point in summarizingthe authority of any fiduciary, such as an adminis-trator. The Court pointed out that under EPTL §11-1.1(b) (5) a fiduciary has the authority to take pos-session of any property owned by an estate, includ-ing a safe deposit box. The Court added that the re-lationship of the lessor (the bank) and the lessee (thebox renter) with respect to a safe deposit box is oneof bailor/bailee and the relationship between thetwo is governed by the law of contracts, whether ex-press or implied. The Court stated that it was clearthat Capital One should permit access to the admin-istrator for the purposes of identifying the contentsof the box, since she stood in the shoes of the dece-dent, and should allow the administrator to with-draw from the box property not exceeding the valueof the limitations contained in her letters. The Courtnoted that on the return date of the application,counsel for Capital One sought a court order direct-ing access to the safe deposit box, which the Courtrejected. The noted that as a Decree had issuedgranting letters of administration to the administra-tor with authority to collect up to $38,000 in assets,another Court Order was not necessary to permit the
administrator to exercise her rights and responsibil-ities as a fiduciary. In the Court’s view, if that wereso, duplicitous applications would waste the Court’stime and overly tax the Court’s limited resources.Accordingly, the Court stated that its Decision con-stituted the interim Order of the Court directingCapital One to permit the administrator access tothe safe deposit box within ten (10) days of the de-cision, and to allow the removal of property valuedat no more than $38,000. The Court added that in-sofar as Capital One had not had an opportunity toanswer the petition, it was given time to do so, andthe administrator time to file a reply thereto. Matterof Hamilton, N.Y.L.J. 1/29/14, p.17, c.1 (Surr. Ct.,Bronx Co., Surr. Malave-Gonzalez)
AClaimed Gift of Real Estate Was Not Com-plete Because the Donee Did Not Clearly andConvincingly Accept the Deed at t h eTime it Was Delivered to Him- The three plaintiffsand the defendant were siblings and were the chil-dren of the decedent, who died in October, 2009.Inter alia, plaintiffs sought a judgment declaringthat the defendant fraudulently diverted plaintiffs’interest in the decedent’s real property. The com-plaint sought an Order declaring that the decedent’salleged gift of her home to the defendant by a quit-claim deed was null and void, and directing theKings County Clerk’s office to strike the deed fromits records. Atrial was conducted without a jury. TheCourt made findings of fact. The decedent was thesole owner of the subject premises. The decedent’sWill left her entire estate to her four children equal-ly. It was claimed by the defendant that his motherhad transferred title to the subject premise to him bya deed executed in October, 2003, but it was notuntil September 24, 2009, shortly before the dece-dent’s death, that the defendant recorded the deedwith the Kings County Clerk’s office. In 2007 thedecedent obtained a mortgage on the subject prem-ise in the amount of $200,000.00 to refinance a priormortgage. At that time, the prior mortgage had abalance due of approximately $157,000.00. Themortgage closing occurred in the defendant’s pres-ence at the subject premise. The decedent continuedto pay the mortgage on the subject premise for sometime after October, 2003, when the gift was allegedto have been made. On June 22, 2009, while thedecedent was recovering from a stroke, the defen-dant obtained the decedent’s signature on a Powerof Attorney, giving him the power to act on her be-half. The decedent’s grandson testified that since thetime he lived at the subject premises in the 1980’suntil the decedent’s death, the decedent and the de-fendant had a troubled relationship, with constantarguments. The grandson also testified that in June,2009, he found the decedent to be unaware of hersurroundings. The decedent’s financial advisor tes-tified that she and the defendant had a tenuous rela-tionship that bordered on her fearing the defendant.It only was on the day of the decedent’s funeral thatthe defendant informed his siblings that their moth-er had transferred the house to him. The defendanttestified that he purchased a blank deed form fromStaples and that he entered all the handwritten dataon the deed with the help of an attorney. He also tes-tified that before recording the deed, and after thedecedent allegedly signed it, he crossed out severalterms of the deed, including the date and certain textrelating to allowing his mother and sisters to resideat the premises at a reasonable rent. Defendant al-leged that in 2009 the decedent initialed the changeson page 1 of the deed next to the date “October 8,2003”. The defendant testified that in 2003 he wasnot ready to own the subject premise because hewas receiving Medicaid and he could not own realproperty under his name. When pressed duringcross-examination about the nearly six year gap be-tween the execution and the recording of the deed,the defendant asserted his Fifth Amendment rightagainst self-incrimination. The plaintiffs claimed,among other things, that their mother’s alleged giftof her home was not properly accepted by the de-fendant, and that the purported gift was a product ofthe defendant’s undue influence. The defendantclaimed that their mother willingly gave him thesubject premise as a gift and that she willingly en-trusted him with a power of attorney to manage herincome and assets. HOLDING- The decedent hadnot made a valid gift of the subject premises to thedefendant. The Court pointed out that by his ownadmission, the defendant had not accepted hismother’s alleged 2003 gift of the subject premisesuntil the day in 2009, he recorded the deed. TheCourt opined that to make a valid inter vivos gift thedonor must intend to make an irrevocable presenttransfer of ownership, there must be a delivery ofthe gift, either by a physical delivery of the subjectof the gift or a constructive or symbolic delivery,and there must be acceptance by the donee. The
Court added that the delivery required must be suchas to vest the donee with control and dominion overthe property and that intention or mere words can-not supply the place of an actual surrender of con-trol and authority over the thing intended to begiven. The Court noted that the proponent of a gifthas the burden of proving each of these elements byclear and convincing evidence. The Court statedthat, as he was the proponent of the gift, it was thedefendant’s burden to show clearly and convincing-ly that his mother made an irrevocable presenttransfer of ownership of her home to him, that shehad made a physical or symbolic delivery of the giftto him, and that he had accepted the gift. The Courtfound that the defendant had failed to do so. Whileacknowledging that the decedent allegedly had ex-ecuted the deed in 2003, and that the defendant keptpossession of it after it was executed, the Courtfound that the defendant had not accepted the gift atthe time of the delivery of the deed. Pointing to thedefendant’s own testimony, the Court found that thedefendant did not decide to accept the gift until Sep-tember 24, 2009, almost six years later, when herecorded it. The Court added that by that time hismother had suffered a stroke and was incapacitated.Consequently, crediting the defendant’s own testi-mony regarding the circumstances surrounding thepurported gift, the Court ruled that the defendanthad not clearly and convincingly accepted the al-leged gift at the time it was delivered. Accordingly,the Court found that the decedent had not made avalid inter vivos gift of the subject premise to the de-fendant. Inasmuch as it had found the profferedinter vivos gift of the subject premise had not beenaccepted, the Court stated that it was unnecessary tofind that the transaction was the product of undueinfluence to void the gift.
The Court also directed the Kings CountyClerk’s office to strike the quitclaim deed from itsrecords. Juliano v. Juliano, 2014 N.Y. Slip Op.50205 (Sup. Ct., Kings Co., Justice Rivera, 2/17/14)
No Ademption of a Testamentary Bequest ofReal Estate Occurred When a Deed for the Sub-ject Property, Executed by an Attorney-In-Factin her own Favor Prior to the Decedent’s Death,was Invalidated After the Decedent’s Demise-The decedent and her husband purchased the sub-ject real property as tenants by the entirety. The hus-band predeceased the decedent, and thereafter thedecedent executed a Will wherein she specificallydevised the real property to her two daughters,Brenda and Marcia, in equal shares subject to a lifeestate devised to Brenda. The residuary clause ofthe Will provided that Brenda and Marcia eachwould share 50 percent of the net estate. Brenda,who resided in the premises with the decedent, sub-sequently became her mother’s attorney-in-fact. Insuch role, Brenda executed a deed transferring theproperty to herself three months before the dece-dent’s death. Marcia thereafter commenced severalproceedings including a proceeding to compelBrenda to account as attorney-in-fact. In that pro-ceeding, the Court found the aforementioned deednull and void. Marcia then brought the instant con-struction proceeding seeking a determination thatthe specific devise of the real property hadadeemed. Marcia contended that, since the realproperty was deeded to Brenda before decedent’sdeath, the deed was not void ab initio, and that thedeed was not set aside until after her death, decedentwas not seized of the subject real property at thetime of her death. Consequently, Marcia posited thatthe specific devise in the Will had adeemed and thatthe real property must pass in accordance with theresiduary clause in the Will. As Marcia and Brendaeach were to share 50 percent of the residuary es-tate, the effect of any such ademption would solelybe the extinguishment of the life estate granted toBrenda. Brenda contended that, since the Court hadalready decreed that the pre-death transfer of theproperty was invalid, the property should be dis-posed of to Brenda and Marcia in equal fifty percentshares subject to Brenda’s life estate pursuant to theintent of the testator as set forth in her Will. Marciamoved for summary judgment granting the petitionand Brenda opposed the motion and by cross mo-tion, sought dismissal of the petition. HOLDING-Marcia’s motion to declare the devise to haveadeemed was denied and Brenda’s cross motionwas granted. The Court stated that the principle ofademption is longstanding and summarized it as oc-curring when property that is the subject of a spe-cific disposition is not in existence at the testator’sdeath because it has been lost, sold, exchanged ordestroyed or otherwise changed in nature (unlesssuch change is in name or form only).
The Court noted that in applying the rule ofademption in cases where changes to such property
By: Hon. Bruce M. Balter and Paul S. Forster, Esq.
Please turn to page 8
Ingrid Barclay, asuspended attor-
ney
(December 26, 2013)
By decision andorder of the Courtdated November 21,2012, the respondent
MAY, 2014 BROOKLYN BARRISTER, Page 5
Across My DeskBarton Slavin, Esq.
It seems a counterintuitive proposition, butone of the most common Attorney errors relate tothe I.O.L.T.A Escrow Account. As a Member ofthe Grievance Committee for the 2nd Department,I have been presented with many cases whereerrors were made related to Escrow Accounts.This article presents and addresses recurring prob-lems together with simple solutions. The Commit-tee takes no position on the content of this article.
1. Deposits into the wrong account: The At-torney used the deposit slip for the Operating Ac-count or Escrow #2 rather than the deposit slip forEscrow #1. Then the Attorney issued checks from#1 when the money was in Operating or #2, andthe checks bounced. This could have been pre-vented by clearly segregating the deposit slips.Also, this could have been prevented by the use of“for deposit” rubber stamps where the account isclearly delineated on the top of the stamps so thatthe correct account stamp is used. The BankTeller should see that there are different numberson the deposit slip as opposed to the back of thecheck. Using a deposit stamp lessens the possi-bility of error at this clerical point in the bankingprocess. Color coding will be discussed below.
2. Personal funds in the Account: Escrow isto maintain “funds or other property belong to an-other person.” [The Rules of Professional Con-duct, Rule 1.15(a).] As a general rule, “personalfunds” are not allowed to be maintained in the Es-crow Account and may not be used to pay the cus-tomary expenses of the operations of a law office,home and personal expenses as that would becommingling and in violation of Code of Profes-sional Responsibility (DR 9-102 (a), (b)(1) (22NYCRR 1200.46)). The question that arises con-cerns the Attorney’s fear that there is no “cushion”in the account in the event that the Bank improp-erly charges for checks (maybe $115), a wiretransfer (perhaps $35) or some other servicecharge ($16 for audit services). Without some“personal funds” available for these charges therecould be a conversion of Client funds and possi-bly a bounced check, in violation of Rule. Rule1.15(b)(3) of this Rule provides as follows:“Funds reasonably sufficient to maintain the ac-count or to pay account charges may be depositedtherein.” http://www.nycourts.gov/rules/jointap-pellate/NY-Rules-Prof-Conduct-1200.pdf. Thus,if the Attorney maintains $250 in the account topay for these improper Bank Charges, the Attor-ney is not commingling nor improper use of theEscrow Account. The monthly bank statementsshould be reviewed for unauthorized charges toavoid these problems.
3. Writing a check on the wrong account:The situation presents itself that on Monday, theAttorney, in a huge rush, thinks she is writing acheck from the Operating Account which has“blue” checks. On Tuesday, Attorney attends aReal Estate Closing and brings her Escrow Ac-count check book with her, also with “blue”checks. Unknown to the Attorney is that on Mon-day she wrote a check from Escrow, not Operat-
ing. Therefore, the Escrow was short for the Clos-ing on Tuesday, and she had no idea that the ac-count was short. On Thursday the checks bounced,triggering an audit by the Grievance Committee.The recommendation is that all accounts have dif-ferent colored checks; that all accounts have colorcoded deposit stamps and that deposit slips aremaintained in color coded envelopes. It is easy touse an appropriately colored marker to identify en-velopes for different accounts. Had the Operatinghad blue checks, Escrow green checks and Dis-bursement tan colored checks, then the likelihoodof an error would have been greatly reduced. As asuggestion, all checking accounts should have dif-ferent color checks and the rubber deposit stampsbe color coded or in different shapes. My IOLTAdeposit stamp has a cover that has to be removed touse while the Operating Account stamp is similar toa Notary stamp.
4. Maintenance of Financial Books andEscrow Ledger: Rule 1.15(d) requires that At-torneys warehouse the general books of the busi-ness for seven (7) years. These papers include thebank statements, deposit slips, retainer agree-ments, O.C.A. filings on negligence and othercases and similar financial papers. These “booksand accounts” may be digitalized by a “mediumthat preserves an image of the document that can-not be altered without detection.” (Rule1.15(d)(3). So, upon closing a file you may scanthe papers, save it to backup, the cloud, etc., andbe in compliance with the Rules. A question thatarises concerns if handwritten general ledgers andescrow books are in compliance with the Rulesfor maintaining records of transactions. The an-swer to that question is – yes. The Rules requirethat you maintain a General Ledger reflecting theoverall account and separate Ledgers for eachClient. The latter is acceptable in electronic (ie:QuickBooks) or paper format. An old fashionedmarble notebook or Record Book with numberedpages, using one (1) page for each Client, is incompliance with the Client Ledger Rule. (DR 9-102 (d) (1), (2) and (9)). Perhaps the most impor-tant part of the Rule is to preserve the identity ofthe funds within the account.
5. Leaving a Law Firm: If you are a Mem-ber of a Firm and have signatory authority on theAccount, you should remove your name as an au-thorized signatory. If your name is part of theFirm’s Name, and the name of the Firm Changes,you should follow up and see that the Escrow Ac-count is modified accordingly.
This article is not meant to discuss all permu-tations of Escrow Accounts, and seeks to addresscommon issues that face attorneys in their dailypractice. The Brooklyn Bar Association’s Griev-ance Committee will be pleased to answer anyquestions that you may have concerning EscrowAccounts and the operation of a Law Office. Wehave CLE programs on these topics. Please checkthe web site and look at the CLE videos available.Please do not hesitate to contact the Author or anyother Executive Board Member.
LEFT-TO-RIGHT: James Caffrey, Steven Bamundo,John Elefterakis, Hon. Donald Scott Kurtz.
LEFT-TO-RIGHT: Trustee Steven J. Harkavy, Lizette Colon, Adam Kalisk and guest.See more photos on page 6. Photos by Mario Belluomo
RIGHT: Trustees Joseph S. Rosato, Pres-ident-Elect Rebecca Rose Woodland,Hon. Marsha Steinhardt and Hon. BernardGraham. See more photos on page 5.
Hon. Theodore T.Jones, Jr. Memorial
Golf Outing
Page 6, BROOKLYN BARRISTER MAY, 2014
Chelsea Beshore, Scott Moll. Richard Wingrad, Roger Guardia.
Past-President John Lonuzzi, Head Pro Casey O’Reilly and guest. Marvin Salenyer, Hon. Zachary Carter.
Jay Berman, Steven Crow, Jeffrey Saltiel. Photos by Mario Belluomo
Hon. Theodore T. Jones, Jr. Memorial Golf Outing
MAY, 2014 BROOKLYN BARRISTER, Page 7
Photos by Mario Belluomo See more photos on page 9.
Hon. Theodore T. Jones, Jr. Memorial Golf Outing
Columbian Lawyers Association Installation Ceremony
Hon. Mark Partnow, Hon. David Vaughan, Hon. Robert Musso and their respective spouses. Photos by Mario Belluomo
T H E S T A T E O F E S T A T E Shave occurred, Courts have solely looked for thefact of change itself, with neither the reason for thechange nor the intent of the decedent regarding thedisposition of the property in its modified formbeing of import. The Court opined that what isdeemed significant, was whether or not the specificproperty that was to be transferred by the Will wasavailable for disposition, with the cause for suchfailure being irrelevant and the rule being appliedwithout regard to extraneous issues or facts.
The Court added that as a result of factual situa-tions where the application of the rule of ademptionwas perceived to be arguably inequitable, contraryto a testator’s apparent intentions, or at odds with therealities of the marketplace, over the years, severallegislative exceptions were been carved out of thegeneral applicability of the law to certain scenarioswhere the exact item specifically disposed of couldnot be distributed as set forth in decedent’s will. TheCourt found that while the facts before it did not fallwithin any of the statutory exceptions, the factsclearly and fundamentally were distinguishablefrom the cases where an ademption was found tohave occurred. While acknowledging that the dece-dent did not have record title to the subject premis-es at the time the instrument was admitted to pro-bate, the Court stated that the estate had recoveredtitle, and the property was available to be disposedof pursuant to the terms of the Will. The Court heldthat although the decedent did not have record titleto the subject real property at the time of her deathdue to its transfer by power of attorney to Brenda,Brenda’s deed was voidable at the time of the dece-dent’s death, and consequently, the decedent’s estatestill had an equitable interest in the real property.The Court pointed out that Marcia, in her role as fi-duciary, had asserted the estate’s equitable claimsand, as a result, recovered title to the property for theestate. The Court found that the subject propertytherefore was unchanged in substance, existing inits original character, and, most importantly, avail-able for distribution pursuant to the Will. In thecourt’s opinion, the fact that the specifically devisedproperty was available and capable of being distrib-uted in exact accord with the terms of the Will at theend of the administration of the estate certainly
trumped the fact that it was not so capable at thetime of decedent’s death. The Court stated that Mar-cia, as fiduciary, had a duty to recover any estateproperty that was wrongfully in the possession ofanother. That being done, the Court reasoned, sheshould not then be allowed to dispose of same in amanner that not only was contrary to the provisionsof decedent’s Will but also was to her own personalbenefit. The Court added that to the extent she con-tended that Brenda should be required to forfeit herlife estate due to her actions as attorney-in-fact, itfound no statutory or common law authority to existin support of such position. Accordingly, Marcia’smotion for summary judgment on her petition seek-ing a determination that the specific devise of realproperty under the decedent’s Last Will and Testa-ment adeemed was denied and summary judgmentwas granted to Brenda on the issue. Matter of Hill,N.Y.L.J. 2/7/14, p. 21, c. 2 (Surr. Ct., Queens Co.,Surr. Kelly)
Limited Letters of Administration Grantedto a Surviving Spouse to Commence a DiscoveryProceeding Regarding a Lifetime Transfer ofProperty Which Under the Decedent’s Will Oth-erwise Would Have Gone to Her, Despite theTerms of a Prenuptial Agreement Under Whichthe Surviving Spouse Waived all Rights t be Ap-pointed a Fiduciary of the Decedent’s Estate-The decedent’s surviving spouse applied for limitedletters of administration in her deceased husband’sestate. The decedent was survived by the spouse andtwo daughters from a prior marriage. The daughters,nominated co-executors, had been granted prelimi-nary letters testamentary under a 2006 Will. Thesurviving spouse was propounding a 2009 Will.There also was a 2008 Will filed in the Court. Sixyears before the decedent’s death, he and the sur-viving spouse executed a prenuptial agreementwherein each waived all marital rights. Any interestpetitioner might have in the estate arose from one ofthe two propounded wills. The 2009 instrument pro-pounded by the surviving spouse, gave her an own-ership interest in decedent’s apartment. The 2006Will propounded by decedent’s daughters, whichgave the surviving spouse a possessory interest inthe apartment for one year and a right of first refusalin its sale thereafter. The surviving spouse alleged
that, in 2010, the daughters used a 2005 power of at-torney, given to them prior to decedent’s marriage topetitioner, to transfer the apartment (as well as mostof decedent’s other property) to a trust establishedby them for their ultimate benefit as remainder ben-eficiaries. Accordingly, the surviving spouse soughtlimited letters of administration in order to reclaimfor the estate the apartment and other personalty be-queathed to her in the 2009 Will, by challenging the2010 transfer to the trust. The daughters challengedthe surviving spouse’s standing to seek such lettersof administration. In their view, the prenuptialagreement prohibited the surviving spouse from re-ceiving any interest in, or fiduciary appointment for,the estate. The prenuptial agreement specificallyprovided that “Each party does hereby agree not topetition, accept, apply for or seek appointment ordesignation as conservator, committee, custodian,guardian, personal representative, executor, admin-istrator, trustee or any other similar position with re-spect to the person, the Property or the estate of theother party in any jurisdiction.” HOLDING- Thesurviving spouse was granted limited letters of ad-ministration. The Court stated that it was undisput-ed that, in the event of decedent’s marriage to thesurviving spouse, the prenuptial agreement extin-guished any marital rights of decedent and the sur-viving spouse that ordinarily flow by law to a sur-viving spouse. However, the Court pointed out thatcertain provisions of the prenuptial agreement madeclear that the decedent and the surviving spouse rec-ognized that either of them could thereafter volun-tarily confer benefits upon the other, whether bylifetime gift or by Will. In the Court’s view, the pro-visions contemplating the possibility of such gifts orbequests shed light on whether the application for fi-duciary appointment that was before the Court wasprohibited by the prenuptial agreement. The Courtacknowledged that a literal reading of the only onearticle of the prenuptial agreement would requirethe Court to deny the surviving spouse’s petition forfiduciary appointment. However, in the Court’sview, a review of the various articles of the prenup-tial agreement together militated against such a lit-eral reading. The Court opined that where the agree-ment is clear and unambiguous, the intent of the par-ties is gleaned from the four corners of the writingwith a practical interpretation of the language em-ployed, so that the parties’ reasonable expectationsare realized. The Court found that the shared prem-ise of the competing petitions in the probate pro-ceeding was that, in and by his Wills of 2006 and2009, decedent freely chose to give his wife inter-ests in his apartment, a choice he clearly establishedin the prenuptial agreement. The Court found thatthe article prohibiting fiduciary appointment couldnot have been intended to render nugatory anyproperty interest that one of the parties might even-tually choose to confer at some later time upon theother. The Court reasoned that such would be the ef-fect if that article were construed to deny a claimantthe only means to protect a bequest under the cir-cumstances alleged by the surviving spouse. TheCourt opined that under SCPA §702 (8) and (9),limited letters may issue to a petitioner who seeks torepresent an estate in relation to a matter in whichshe has a stake where the fiduciaries already in of-fice cannot, should not, or will not act because of aconflict of interest. The Court stated that the daugh-ters’ conflict in relation to the apartment was patentin that the transfer that the surviving spouse propos-es to challenge on behalf of the estate enriched thetrust that inures to the daughters’ benefit as remain-der beneficiaries. The Court added that the transferthat benefitted the daughters by necessity depriveddecedent’s spouse of property the decedent clearlyindicated that he wished the surviving spouse to re-ceive. Accordingly, the surviving spouse was grant-ed limited letters of administration to commence anSCPA2103 discovery proceeding with regard to thetransfer under the daughters’ power of attorney ofdecedent’s interests in the apartment and relatedpersonalty, the assets in which she had a claim asbeneficiary under the instrument that she had of-fered for probate. Matter of Rattner, N.Y.L.J.3/21/14, p.21, c.3 (Surr. Ct., New York Co., Surr.Anderson)
A Waiver of the Right of Election Containedin a Stipulation of Settlement of Divorce Effec-tive Even Though the Divorce Was Not FinalizedBefore the Decedent’s Death- The executor askedthe Court to determine the validity and effect of theexercise of a purported right of election by the re-spondent-surviving spouse. The decedent and therespondent were married in 1982. They had onechild during their marriage, who predeceased thedecedent. The decedent and the respondent separat-ed in 1992 and remained separated until the dece-dent’s death. According to the respondent, he had
been asking for a divorce for a number of years butthe decedent had consistently refused to grant his re-quest. However in 2012, at a time when she knewshe was dying, the decedent commenced a divorceaction. Her counsel drafted the eleven-page Stipula-tion which was signed by both the decedent and theRespondent on or about December 17, 2012. TheRespondent was not represented by counsel. TheStipulation signed by the respondent stated that “thehusband has been advised of his right to counsel buthas chosen to represent himself.” There was nomention of the respondent in the decedent’s Will.The respondent asserted a right of election. The ex-ecutor moved for summary judgment, alleging thatthe decedent was divorced at the time of her deathand, therefore, the respondent was not entitled to hisstatutory right of election. The respondent crossmoved for summary judgment in his favor recog-nizing his right of election arguing he was not di-vorced at the time of death because the divorce ac-tion abated when the decedent died. He further con-tended that he was not represented by counsel whenhe signed the stipulation of settlement of divorce,and that he did not fully understand the terms of thestipulation, which if he had, he would have notsigned. Finally, respondent contended that he wasinduced by fraud to sign the stipulation when thedecedent failed to disclose that she was dying. Theexecutor argued that the stipulation was signed byboth parties and that there was consideration whenthe decedent and the respondent lived apart, makingit a valid contract. HOLDING- The application toassert the right of election was dismissed. The Courtopined that a separation agreement is a contract sub-ject to the principles of contract construction and in-terpretation and where the contract is clear and un-ambiguous on its face, the Courts must determinethe intent of the parties from within the four cornersof the instrument. The Court stated that the decedentand the respondent entered into a contract whenthey both signed the stipulation. The Court notedthat a waiver of the right of election is effectivewhen it is in writing and subscribed by the makerthereof, and acknowledged or proved in the mannerrequired by the laws of the state for the recording ofa conveyance of real property. The Court held thatthe respondent had waived his right of election inaccordance with EPTL §5-1.1-A (e), by reason ofthe following language of the stipulation, “[e]achparty hereby irrevocably releases and waives andrelinquishes any and all rights which he or she maynow have, or may hereafter acquire, as the otherparty’s spouse, under the present or future laws ofany jurisdiction or under any will or testamentarywriting now or hereafter in existence to share inand/or to act as executor or administrator or trusteewith respect to the other party’s estate. This provi-sion shall constitute a mutual waiver by the partiesto take under any existing will or testamentary writ-ing of the other and to take against each other’s willor testamentary writings, now or hereafter in force,under present or future laws of any jurisdiction, andwithout limiting the foregoing, to relinquish any andall rights provided in Sections 4-1.1 and 5-1.1 of theEPTLof the State of New York and any similar pro-vision of law of this or any other jurisdiction.” TheCourt pointed out that the stipulation was in writing,signed by the respondent, notarized and acknowl-edged by him. The Court added that the stipulationalso could be construed as a renunciation underEPTL §2-1.11 (b). The Court rejected respondent’sargument that he did not have counsel and did notunderstand the implication of his signature. TheCourt noted that the respondent had been requestinga divorce from the decedent for years and his failureto obtain an attorney when he signed the Stipulationcould not be used to allow him to invalidate his con-sent. The Court stated, “Consensus tollit errorem”- a person can not object to something he has con-sented to. The Court also rejected the respondent’sfraud allegation. The Court stated that the dece-dent’s alleged misrepresentations or omissions con-cerning her health were not material to the respon-dent’s decision as to whether to enter into any set-tlement agreement at all with the decedent and, thus,would not warrant the equitable remedy of rescis-sion. The Court added that although it was makinga determination as to the invalidity of the exercise ofthe right of election, the parties still were married atthe time of decedent’s death, and therefore, the re-spondent remained the surviving spouse of thedecedent. The Court stated that the respondent hadnot been disqualified under EPTL §5-1.2 and couldpursue any and all remedies he might have againstthe decedent’s estate. Matter of Vinci, N.Y.L.J.2/6/14, p. 31, c. 2 (Surr. Ct., Richmond Co., Surr.Gigante) [Authors’note, it is an interesting questionwhether the language of the stipulation was neces-
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Florida. Her departure was a major loss butsparked a significant reorganization of our of-fice operations.
There were also disappointments. I spent agood part of my summer of 2013 preparing tobe the moderator of the debate between theDistrict Attorney candidates in the DemocraticPrimary, but the two person debate never hap-pened when one of the candidates cancelled atthe last minute.
There were moments of ambivalence as well.The Brooklyn Bar Association VolunteerLawyers Project, which was formed by our As-sociation, and which has made its home at 123Remsen Street for its entire existence, has grownconsiderably over the years and needed addition-al space that our building couldn’t provide. It de-cided to rent space elsewhere in downtownBrooklyn and while we are tremendously proudof their success, we will miss them.
I did my part to bring our leadership closertogether, albeit unintentionally. Apparently,there is nothing like outside criticism of the As-sociation or the president to unite people whomight not ordinarily agree on anything. Myskin was pretty thick before this year but I mustadmit that I developed a lot more callouses thisyear and I was glad to have people around tosupport me in those situations where I wascompelled to “take one for the team.”
Spending quality time with many of thejudges and lawyers in Brooklyn was one of thebest parts of the job. When you see the samepeople two or three nights a week — eventhose who you really didn’t know at all — youeventually start to share experiences and get toknow each other. Call me naïve but I do be-lieve relationships were formed.
I know it sounds like a cliché but the num-ber of people who helped me perform my jobreally is too long to list. The BBA staff, Exec-utive Director Avery Eli Okin, LRF directorRoseann Heibert, CLE Director MeredithSymonds, Louise Feldman and Marie Alfano
all did as much and more than I asked of them.And I asked a lot. I suspect I involved my Ex-ecutive Board in more decisions than mostother presidents and I thank Rebecca, Arthur,Frank, Amy and David for their help.
There are many judges to thank but I have togive special thanks to the Hon. Barry Kamins,Hon. Marsha Steinhardt and Hon. Ellen Spodek,for their counsel, and Administrative JudgeLawrence Knipel for his assistance on so manymatters over the course of the year.
Lastly, the year would not have gone near-ly as smoothly without help from ImmediatePast President Domenick Napoletano and pastpresidents Steve Cohn, Nancy Sunshine, JohnLonuzzi and Gregory Cerchione.
I started my July 2013 column with a storyabout an umbrella that I brought with me on abusiness trip to Cooperstown so I thought Imight revisit the subject in my last column aspresident. Mark Twain once wrote, “A bankeris a fellow who lends you his umbrella whenthe sun is shining, but wants it back the minuteit begins to rain.” Lawyers are not fair weath-er friends to their clients. Lawyer jokes to thecontrary, we always put the client first andwork hard to put the client’s best foot forward— sometimes to our own personal detriment.As your bar president, I treated the bar and itsmembers as my client, and I endeavored everyday to present your best case. Thanks to all ofyou for giving me the honor of representing you.
RESPECTFULLY SUBMITTEDContinued from page 3
Advertise in the Brooklyn Eagle’sLEGAL SERVICESDIRECTORY.
T H E S T A T E O F E S T A T E Ssarily specific enough to waive the respondent’srights to exempt property under EPTL §5-3.1.]
Attempt Denied to Reverse a Change in aDeath Certificate by the Medical ExaminerWhoAmended the Cause of Death to Suicide fromAccidental- The Medical Examiner amended theautopsy report of the decedent to change the causeof death from accidental to suicide. The petitionerbrought a CPLR Article 78 proceeding to review theamended determination, which proceeding was dis-missed. The petitioner appealed. HOLDING- TheAppellate Division affirmed the dismissal. The Ap-pellate Division ruled that the Medical Examiner
had a rational basis in the record for its determina-tion, including the nature of the injuries the MedicalExaminer observed and her review of the dece-dent’s text messages. While conceding that compet-ing inferences could be made from the record, theAppellate Division stated that it could not concludethat the Medical Examiner’s amended determina-tion was arbitrary and capricious. The Appellate Di-vision also rejected as without merit the petitioners’contentions that the Medical Examiner was pre-cluded from reopening her determination or thatprinciples of res judicata barred her from amendingthe autopsy report. Matter of Cavaliere, 114 A.D.3d677 (2nd Dept., 2014)
Brief briefs:Decedents’ relatives were held to lack standing
to enforce cemetery perpetual care agreementspurchased by decedents. In a related case, decidedsimultaneously, the plaintiff, who had purchasedperpetual care for his family members, was ruledto be entitled to enforce the agreements, but not toa return of the amounts paid, or to damages. Luck-er v. Bayside Cemetery, 114 A.D.3d 162 (1stDept., 2013)
An application for a finding of death by reasonof absence was rejected for lack of a diligentsearch. After setting forth the principles and con-
siderations involved in such a proceeding, theCourt found that there was not a scintilla of evi-dence to show that any efforts, diligent or other-wise, had been made to locate the absentee, by theestate or by anyone else, and consequently dis-missed the proceeding without prejudice. Matterof Seals, 2014 N.Y. Slip Op. 50335 (Surr. Ct., ErieCo., Surr. Howe, 3/10/14)___________________________________
Compiled by Hon. Bruce M. Balter, Justice ofthe Supreme Court, Kings County, Chair, Brook-lyn Bar Association, Surrogate’s Court Commit-tee, and Paul S. Forster, Esq., Chair, BrooklynBarAssociation, Decedent’s Estates Section.
Continued from page 8
Hon. Theodore T. Jones, Jr. Memorial Golf Outing
Young Lawyers Section members flanked by CLE Director Meredith O. Symonds and Executive Director Avery Eli Okin, President Andrew M. Fallek, rear-center. See page 12.
This third installment of our column bringsyou a cross-section of the types of cases beingsubmitted to us by attorneys who bring or de-fend matters in Kings County Supreme Court.Plus, it shows the varied results that may be ob-tained, by way of verdict or settlement in ourCounty. It also shows the multitude of mattersthat our Justices in the Supreme Court mustdeal with on a regular basis.
As usual, we ask for everyone’s help inkeeping this column alive, so that it can be aregular feature, several times a year, in theBrooklyn Barrister. To that end, we ask all youwho practice in Kings County to assist us fromtime to time, by submitting your cases for in-clusion in this column. We are seeking all sizerecoveries’ not just the giant ones, but mediumand small ones too. We also want to includedefense verdicts, so any case you send us willbe greatly appreciated and reported on.
Therefore, if in the past year you have set-tled a case or tried one to verdict in SupremeCourt Kings County, or if in the future youhave a case that concludes and you wish toshare your results, please email the case’s de-tails to [email protected] so it canbe included in an upcoming issue. In the mean-time, please allow us to extend our heartfeltthanks of all you who have already submittedcases, or will in the future provide us with con-tent. And, if you have submitted a case, buthaven’t seen it reported on as yet, since there isspace limitation for each issue, just have pa-tience and stay tuned for upcoming editions.
Salvatore G. Dileonardo v. Chaim Drebin,Stuart L. Lucks, Solomon Lucks,
Igor M. Shulman and Ross Bederman a/k/aRostislav Bederman
Defendant’s Attorney(s): Joseph M.Glatstein, Esq. of White Fleischner &Fino, LLP [Attorneys for Defendants,Igor M. Shulman & Ross Bederman],Donna Geoghan, Esq. of Kelly Rode &Kelly, LLP [Attorneys for Defendants,Stuart L. Lucks and Solomon Lucks] andFred Lutzen, Esq. of James G. Bilello &Associates [Attorneys for Defendant,Chaim Drebin]
Insurance Carrier(s): Geico for Drebin, Shulman& Bederman; State Farm Mutual AutomobileInsurance Co. for Lucks and LucksPretrial Demand: $750,000Pretrial Offer: NoneType of Action: Automobile Accident —Rear-end collisions involving 3 or 4 vehicles
Jury Findings on Liability: Defenseverdict after 6 days of trial and jury delib-erating for 5 hours. Jury found that De-fendants, Drebin, Shulman and Luckswere negligent, but their negligence wasnot a substantial factor in causing the ac-cident. The jury found that Plaintiff’s ini-tial impact with the vehicle in front of himand his resulting short stop from that im-pact, were the substantial factors thatcaused his accident.
Facts on Liability and Damages: OnSeptember 28, 2009, the Plaintiff, a 73 year oldbarber, was traveling in the left lane of the BeltParkway when he claims his vehicle was struckin the rear by the vehicle owned and operatedby Chaim Drebin and he was then pushed into
a non-party vehicle in front of him. Plaintiffalso claimed that the rear-end collision byDrebin was started by vehicles behindDrebin’s. Namely, Plaintiff claimed that theShulman/Bederman Porsche SUV rear-endedthe vehicle in front of it, which was the Lucks’vehicle and that the Lucks’ vehicle then rear-ended Drebin’s vehicle. Shulman concededrear-ending the Lucks’ vehicle, however hecontended he was only traveling at 15 to 20mph at the time, when he saw and heard Lucks’vehicle contact the rear of Drebin’s vehicle.Shulman claimed he saw brake lights and bothsaw and heard the accident in front of him, be-fore he had any contact with the Lucks’ vehicle,and although he braked, due to the heavy rainand wet roadway, he was not able to stop hisvehicle in time. Shulman further claimed thatLucks’ vehicle was following Drebin too close-ly and that Lucks’ stopped abruptly. Counselfor all Defendants contended that the damageto the vehicles was not consistent with Plain-tiff’s claims, as he had almost no damage to therear of his vehicle and much damage to thefront of his vehicle, which was more consistentwith a front end collision by Plaintiff. Defensefurther contended that Plaintiff originallyclaimed that he stopped in time and that therewas a foot or so between him and the non-partyvehicle in front of him, before the collision inhis rear. However, on cross-examination,Plaintiff changed his testimony a number oftimes as to how many impacts he felt and heconceded, for the first time, that after the acci-dent he observed damage to the rear-end of thevehicle in front of him.
Plaintiff claimed injuries to his knee with amedial meniscus tear requiring meniscectomyand chondroplasty. He also claimed shoulder im-pingement with rotator cuff injury to his rightshoulder and lumbar herniated disc. He furtherclaimed that he will one day require a total kneereplacement and that he has walked with a canesince the accident. Plaintiff’s expert was EricSenat, M.D., orthopedic surgeon and defenseexpert was Alan J. Zimmerman, M.D., orthope-dic surgeon. After 6 days of trial the juryreturned a defense verdict, as stated above.
This case was submitted by Defendant’scounsel, Joseph M. Glatstein, Esq.
Huu Thien Tran, as Administrator of Estate of Khanh Toan Tran, Deceased,
and Zhu Ai Chen v. Worthington Industries, Inc., Worthington
RESULT: $3,750,000 - SETTLEMENTONE DAY BEFORE JURY SELECTION Index #: 4777/2010Judge: Hon. Donald Scott KurtzPlaintiff’s Attorney(s): Jay W. Dankner, Esq.of Dankner, Milstein & Ruffo, P.C.
Defendant’s Attorney(s): Eric Berger,Esq. of Cozen O’Connor
Type of Action: Products Liability
Facts on Liability and Damages: Thisproducts liability action sought compensationfor the family of Khanh Toan Tran, who died atthe age of 40 as the result of burns he sustainedwhen the contents of a cylinder of MAPP gas,manufactured by Defendant, WorthingtonCylinders Wisconsin, LLC, leaked and wasignited, causing an explosion and setting himon fire. The incident occurred on January 27,2008 when Mr. Tran was in the course of reno-vating the kitchen of a house he had purchasedin Brooklyn, New York. Part of the project ne-cessitated the gutting of the kitchen and solder-ing water pipes. He utilized the MAPP gas todo so and the gas was contained in a yellowcylinder approximately 12 inches in height, to
which a torch would be attached. Plaintiffclaimed that unbeknownst to Mr. Tran, a defectexisted in the cylinder which changed the nor-mally ductile metal into a brittle state. Thisbrittle state could cause a crack or opening inthe neck of the cylinder and MAPP gas wouldthen escape. If an ignition source existed, therequirements of the “fire triangle” (flammablesubstance, ignition source and oxygen) wouldbe present, a large fireball would result. This iswhat occurred when Mr. Tran attempted to ig-nite the torch and he was immediately engulfedin flames and sustained second and third degreeburns over all areas of his body which was notcovered by clothing. He was immediatelyrushed to Staten Island University Hospital’sburn unit and placed in a medically inducedcoma. He survived for 30 days and left a wife,37, and two young sons, 3 and 1 years of age.Mr. Tran was employed by the U.S. Postal Ser-vice earning approximately $40,000 per year atthe time of his death.
Plaintiffs’ counsel named the WorthingtonDefendants, as the designer and manufacturerof the cylinder and the local hardware storewhere the cylinder had been purchased on theday of the incident, as the retailer.
Plaintiffs’ experts claimed that the brazeused to construct and assemble the cylinderparts contained phosphorus, which was contra-indicated for use of the 1008 steel used by Wor-thington, since it could diffuse into the metaland embrittle it, turning it glass-like and likelyto crack if subjected to a low energy force orimpact. The Defendants disputed the phospho-rus could embrittle a low-carbon steel, such asthe one used in the cylinder. They alleged thatMr. Tran tripped and fell onto the torch-cylin-der assembly thereby bending the torch andcausing the crack in the neck. Ultimately, aftermany in Court pre-trial negotiations, the settle-ment was ultimately finalized at JAMS, justone day before Jury Selection was to begin.
Plaintiffs’ experts, who would have beencalled to testify at trial, were Karl Puttlitz,Ph.D. (Forensic Metallurgist), Richard Hoff-man (Metallurgist Engineering), Robert G. Za-losh, Ph.D. (Mechanical Engineering) and AlanLeiken, Ph.D. (Economist).
Evelyn Bravo, an Infant by her MNG,Guadalupe Bravo v.
564 Seneca Avenue Corp., WyckoffHeights Medical Center,
Sounder Rajan Eswar, MD, et al.
RESULT: $950,000 SETTLEMENT DUR-ING PRE-TRIAL SETTLEMENTCONFERENCE — $475,000 for the Trip andFall cause of action and $475,000 for theMedical Malpractice cause of actionIndex #: 14435/05Judge: Hon. Donald Scott KurtzPlaintiff’s Attorney(s): David J. Hernandez, Esq.of Law Offices of David J. Hernandez &
AssociatesDefendant’s Attorney(s): James J.Collins, Esq. of McCabe, Collins,McGeough & Fowler, LLP, attorneys forDefendant 564 Seneca Avenue Corp. andRobert Devine, Esq. for Ivone, Devine &Jensen, LLP, attorneys for Defendant,Sounder Rajan Eswar, MD.
Pretrial Demand: $900,000Pretrial Offer: On the Trip and Fall - $75,000prior to Appeal, $125,000 after AppealType of Action: Trip and Fall and subsequentMedical Malpractice
Facts on Liability and Damages: Infanttripped and fell on staircase in residential build-ing. He required surgery for the injuries sus-tained. During the surgery Plaintiff alleged the
surgeon, Dr. Eswar deviated from acceptedmedical practice causing further injury to theinfant. Dr. Eswar settled his case for $475,000.The Defendant landowner made a summaryjudgment motion which was granted by thetrial court. Plaintiff perfected and argued anappeal to the Appellate Division Second De-partment. Plaintiff prevailed on the appeal andthe Supreme Court decision was reversed,sending the matter back for trial. At that point,extensive negotiations began and finally, priorto jury selection the trip and fall matter settledfor $475,000 out of the $500,000 policy insur-ing the premises.
This case was submitted by Plaintiff’s coun-sel, David J. Hernandez, Esq.
Alexsander Malamud, Haya Malamud, asAdministrator of the Estate of Yafim Malamud, Deceased and
Haya Malamud, Personallyv. Stefanie M. Stathopoulos
and Peter Stathopoulos
Note: Claims of Alexsander and HayaMalamud, personally were settled before trial.This trial was only for the wrongful death ofYafim Malamud, deceased.
RESULT: SETTLEMENT DURINGTRIAL - $250,000 Index #: 9265/09Judge: Hon. Mark PartnowPlaintiff’s Attorney(s): Gary Pillersdorf,Esq. and Heidi Wickstrom, Esq. of Gary Pillersdorf & Associates, P.C.Defendant’s Attorney(s): Greg Nelson, Esq.of Morris, Duffy, Alonso & FaleyInsurance Carrier: GeicoPretrial Demand: $1,000,000Pretrial Offer: No offer prior to assignmentto Judge PartnowType of Action: Motor Vehicle, hit in the rear
Facts on Liability and Damages: On Au-gust 25, 2007, the Malamud family was travel-ing in their vehicle northbound on the WestSide Highway. While stopped at a red light,their vehicle was struck in the rear by the vehi-cle owned by Peter Stathopoulos and beingoperated by Stefanie Stathopoulos. All partiesin the Malamud vehicle claimed injuries andAlexsander and Haya Malamud settled prior totrial during discovery. Alexsander settled for$30,000 and Haya settled for $10,000 for theirrespective injuries. Yafim Malamud, then 65years of age, however, developed paralysis ofhis extremities, following the accident, alongwith neck and back problems which includedbulging and herniated discs at C4-5 and C6-7which necessitated fusion surgery at C6-7 anda follow-up surgery to correct the paralysis. Hepassed away after the two surgeries and theclaim was brought for Wrongful Death.
Trial was on damages only, since summaryjudgment on liability had been granted in Sep-tember 2011. Causation of decedent’s backinjuries was the issue disputed by the Defen-dants, however, the wrongful death case settledafter jury selection and after both sides com-pleted their openings.
This case was submitted by Plaintiff’s coun-sel, Heidi Wickstrom, Esq.
_____________________________
The Hon. Donald Scott Kurtz is Justice ofthe Supreme Court of the State of New York,Kings County and presides in the City TrialReadiness Part and/or the Jury CoordinatingPart. Shelly Werbel is a member of the EditorialBoard of the Brooklyn Barrister and is Of Counselto White Fleischner & Fino, LLP. If you wish tosubmit an interesting verdict or settlement to beconsidered for publication, please contact ShellyWerbel at [email protected].
By: Hon. Donald Scott Kurtz, JSCand Shelly Werbel, Esq.
Newly installed president, DavidChidekel, gave warm regards toChambers noting “I will be for theInn what Cheryl Chambers has beenfor decades: a mentor.” Chidekelalso displayed his gratitude to outgo-ing president Brooklyn SupremeCourt Justice Ellen Spodek. “Many
of us appreciate Hon. Spodek for herleadership and intelligence, but herpersonality alone is enough,” hesaid.
To show gratitude for all of herwork and dedication to the Inns, Innadministrator Lucinda Di Salvo waspresented with a special gift from theInn Masters.
Continued from page 1
The Nathan R. Sobel Kings County American Inn of Court Annual Dinner
Perry Silver, Mark A. Longo, Jon Klein, Sheridan Chu and Steve Williamson.
The Nathan R. Sobel Kings County American Inn of Court Annual Dinner held itsannual dinner at the Red Gravy Restaurant on Atlantic Avenue. Pictured (fromleft to right): Jeff Feldman, executive director, Hon. Ellen Spodek, immediatepast president, Jon Besunder, Hon. Cheryl E. Chambers, Hon. Miriam Cyrulnik,Dave Chidekel, president, and Hon. Arthur M. Schack. Photos by Rob Abruzzese.
Page 12, BROOKLYN BARRISTER MAY, 2014
Monday, June 9th: Cutting Edge Topics in Ethics (2 Ethics Credits)Wednesday, June 18th: Updates in the NY Estate Tax and GiftLaws (2 Professional Practice Credits)Thursday, June 19th: Forensic Accounting in a Litigation Environ-ment (2 Professional Practice Credits) *Indicates courses that offer basic training in skills and practice.
For more information, contact Meredith D. Symonds, Esq. [email protected] or (718) 624-0675, ext. 206
Don’t Forget Our Buy 3 Get 1 Free Deal!!!The Buy Three Get One Free Special will be applied to a fourth CLE of equal or less-er value. If attendee has not pre-registered for the fourth CLE, a $20 registration feemay be held until the CLE department has confirmed that the attendee has paid in fullfor three other courses.
Summer is Around the Corner! Take Care of Your CLE Needswith Our Selection of Recorded Programs!
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Litigation Skills — Professional Ethics — Business Development
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UPCOMING CLE COURSES AT THEBROOKLYN BAR ASSOCIATION
SPRING 2014 CLE Courses
Immediate Past-President Domenick Napoletano and Steven Crow.
