As I once again attended the Brooklyn Bar AssociationAnnual Dinner Gala, I was reminded what a special eventit is. Fellow lawyers from diverse areas of practice, attor-neys working in the Court system and in government posi-tions, Judges from the Civil Court, Supreme Court,Appellate Division and the Court of Appeals all cometogether for a year ending formal affair. A formal affairindeed; the room was magnificent, the food and drink out-standing and the members of the bar in their sartorialupgrade from their normal court attire for the event.
Despite the formality of the event, what strikes me asspecial about the Annual Dinner is that, as members of the
bar, we work to bring justice to our clients and our work isoften contentious and marked by dispute, yet, for this oneevent, we all come together, take off our lawyer hats, havea cocktail, sample the hors d’ oeuvres, talk informally,introduce spouses, meet new members of the bar and taketime to recognize the outstanding achievements of theselected honorees. The dinner reminds me that we are allpart of the same profession, and that the profession is onethat strives to conduct itself in a cordial, collegial fashion,and that we rightfully see fit, once a year, to pay tribute toa select few who have distinguished themselves as out-standing attorneys and jurists.
Which brings me to the Annual Award recipients. Thisyear the Association recognized the following three attor-
neys for their accomplishments and contributions to thelegal community: Hon. Sylvia O. Hinds-Radix,Administrative Judge for Civil Matters, Supreme Court,Kings County, Hon. Ellen M. Spodek, Supreme Court,Kings County and Association Past President, RoseAnn C.Branda. The presentation of the Award to Justice Spodekwas made by her father, Hon. Jules Spodek, Supreme Court(Retired), Kings County. The presentation of the Award toJustice Hinds-Radix was made by Hon. Jonathan Lippman,Chief Judge of the State of New York. The presentation ofthe Award to RoseAnn C. Branda was made by Hon.Nancy T. Sunshine, Commissioner of Jurors and CountyClerk and a Past President of the Association.
President Andrea E. Bonina and Dinner Chair andPresident Elect Ethan B. Gerber.
Annual Award Honorees RoseAnn C. Branda, Hon. Sylvia O. Hinds-Radix and Hon. Ellen Spodek
What’s InsideBrooklyn Bar Association Annual Foundation DinnerBy Glenn Verchick, Esq. ................................................Page 1
Five Ways to Avoid a Grievance Through Better ClientCommunicationBy Manuel A. Romero, Esq. ..........................................Page 1
Medical Malpractice Cases UpdateBy John Bonina, Esq. ....................................................Page 2
The DocketBy Louise Feldman ........................................................Page 2
Legal BriefsBy Avery Eli Okin, Esq., CAE .......................................Page 2
New MembersNovember/December......................................................Page 2
Respectfully SubmittedBy Andrea E. Bonina, Esq. ............................................Page 3
Medical Materials in the Law LibraryBy Jacqueline Cantwell ..................................................Page3
Pro Bono: Good For The Resume, Good For The SoulBy John Bhuta, Esq. .......................................................Page4
State of the EstatesBy Hon. Bruce M. Balter and Paul S. Forster, Esq. ......Page5
PRELIMINARY:I was requested by the Young Lawyers Section of the
New York State Bar Association, to speak at their annu-al meeting on the issue of Ethics in the Practice of Law.The meeting was held at the NYSBA Law Center, inAlbany, on October 20, 2010. In preparation for for mylecture, I drafted the following article to provide someguidance as to how practioners can actually practice lawmore efficiently and at the same time avoid conflictswith their clients that can lead to complaints being filedwith the New York State Grievance Committee.
1) THE INITIAL CONSULTATIONWhen you first meet your prospective client, it is
always a good idea to have the client describe the prob-lem or case in great detail and listen more than speak. Iknow how hard that is for lawyers. Give the potentialclient plenty of time to give you all the relevant factors.Time spent in the initial consultation is well worth thetime saved, down the line, in having to go back to theclient to clarify details of the case. Always repeat theissues and relevant factors back to the potential client tomake sure you both are on the same page as to theissues and scope of representation. Make sure you both
By: Manuel A. Romero, Esq.
By Glenn Verchick, Esq.
Five Ways To Avoid A GrievanceThrough Better Client Communication
(Continued on page 7)
(Continued on page 6)
1. Contreras v. 357 Dean Street Corp., 77A.D.3d 604 (2d Dept. 2010). Late Notice of Claim Application Denied
The Continuous Treatment Doctrine couldnot be used to toll the 90-day period for serv-ing a Notice of Claim under the circum-stances of this case.1
Further, in denying plaintiffs’ applicationfor a late Notice of Claim, the Court held thatalthough the plaintiffs were infants, “the fac-tor of infancy alone does not compel thegranting of a motion for leave to serve a latenotice of claim.”2
Additionally, plaintiffs failed to satisfacto-rily explain their lengthy delay in seekingleave to serve a late Notice of Claim, failedto show that defendant had actual notice of
the facts within the requisite 90-day period,and failed to establish that the lengthy delaydid not substantially prejudice defendant’sability to investigate the claims.3
The length of the delay was not discussedin the Decision.42. Hillman v. Sinha, 77 A.D.3d 887 (2dDept. 2010).No Independent Cause of Action forSpoliation of Evidence
After plaintiff ceased treatment withdefendant, defendant’s office switched froma paper to an electronic medical records sys-tem, and destroyed the original medicalrecords.5
Thereafter plaintiffs commenced thisaction seeking recovery for medical mal-practice and for negligent spoliation of evi-dence.6
The Court dismissed the second cause of
BROOKLYN BARRISTER - JANUARY 20112
January 17, 2011 Monday In observance of Martin Luther King Jr. Day, the Brooklyn Bar Association, the Foundation Reading Room, the Lawyer Referral Service and the Brooklyn Bar Association Volunteer Lawyer’s Project will be closed.
January 18, 2011 Tuesday Foundation Public Education Program Auditorium 6:00 P.M.
Young Lawyers Committee Meeting Board of Trustees Room 6:00 P.M.
January 24, 2011 Monday CLE – No Fault & Maintenance Guidelines Auditorium 6:00 P.M.
January 25, 2011 Tuesday KCCBA Board of Directors Meeting Board of Trustees Room 5:00 P.M.
KCCBA Induction of Officers & Directors Auditorium 6:00 P.M.
January 27, 2011 Thursday Grievance Committee Meeting Board of Trustees Room 12.30 P.M.
18B Family Court Committee Meeting Rear Conference Room 1.15 P.M.
February 1, 2011 Tuesday CLE – Sports Law Auditorium 6:00 P.M.
February 3, 2011 Thursday Elder Law lunch study group Board of Trustees Room 1:00 P.M.
February 9, 2011 Wednesday Board of Trustees Meeting Board of Trustees Room 5:15 P.M.
Foundation Board of Directors Meeting Board of Trustees Room 5:45 P.M.
February 10, 2011 Thursday 18B Family Court Committee Meeting Rear Conference Room 1:15 P.M.
VLP Board Meeting Board of Trustees Room 5:30 P.M.
February 21, 2011 Monday In observance of President’s Day, the Brooklyn Bar Association, the Foundation Reading Room, the Lawyer Referral Service and the Brooklyn Bar Association Volunteer Lawyer’s Project will be closed.
February 23, 2011 Wednesday CLE – Family Law – Brisbane Group Auditorium 6:00 P.M.
March 9, 2011 Wednesday 18B Family Court Committee Meeting Rear Conference Room 1:15 P.M.
Board of Trustees Meeting Board of Trustees Room 5:15 P.M.
Foundation Board of Directors Meeting Board of Trustees Room 5:45 P.M.
Joint CLE with MBBA Professionalism & Civility with reception to follow Auditorium 6:00 P.M.
March 10, 2011 Thursday Elder Law Committee Meeting Board of Trustees Room 5:15 P.M.
March 15, 2011 Tuesday Foundation Law Public Education Program Auditorium 6:00 P.M.
March 16, 2011 Wednesday VLP Board Meeting Board of Trustees Room 5:30 P.M.
IF YOU HAVE ITEMS FOR INCLUSION IN THE DOCKET, PLEASE MAIL OR FAX THEM TO LOUISE FELDMAN, BROOKLYN BAR ASSOCIATION,
123 REMSEN STREET, BROOKLYN, NEW YORK 11201. FAX NO.: (718-797-1713)E-mail: [email protected]
THE DOCKETIncluded below are events which have been scheduled for the period
January 17, 2011 through March 16, 2011 Compiled by Louise Feldman
Theresa Ciccotto Elaine N. Avery David M. ChidekelPamela A. Elisofon Richard S. Goldberg Armena D. GayleFern J. Finkel Deborah Lashley Steven Jeffrey HarkavyLeardo Luis Lopez Michael S. Lazarowitz Anthony J. LambertiDino Mastropietro Joseph S. Rosato Carl J. LandicinoSteven H. Richman Hon. Frank R. Seddio Hemalee J. PatelAimee L. Richter Glenn Verchick Isaac N. Tuchman
TRUSTEES
CLASS OF 2011 CLASS OF 2012 CLASS OF 2013
BROOKLYN BAR ASSOCIATION2010-2011
Avery Eli Okin, Esq., CAEExecutive Director
Andrea E. Bonina, PresidentEthan B. Gerber, President-ElectDomenick Napoletano, First Vice President
Andrew M. Fallek, Second Vice PresidentRebecca Woodland, SecretaryArthur L. Aidala, Treasurer
Roger Bennet AdlerVivian H. AgressRoss M. Branca RoseAnn C. BrandaGregory T. CerchioneMaurice ChaytSteven D. Cohn Hon. Miriam CyrulnikLawrence F. DiGiovanna
David J. DoyagaJoseph H. FarrellAndrew S. FisherDominic GiordanoPaul A. GolinskiGregory X. HesterbergHon. Barry KaminsMarshall G. KaplanAllen Lashley
Mark A. LongoJohn E. MurphyJohn LonuzziManuel A. Romero Hon. Harold RosenbaumBarton L. SlavinHon. Jeffrey S. SunshineHon. Nancy T. SunshineDiana J. Szochet
TRUSTEES COUNCIL (Past Presidents)
NEW MEMBERS FOR NOVEMBER & DECEMBER 2010
STUDENT MEMBERS
Rebecca Oliver Alexis Padilla Lesel Spencer
By John Bonina, Esq. Brooklyn Bar Association Medical Malpractice Committee Chairman
David BellonJoan BerkSharlene Browne-LeeAnthony CornicelloEvan DenersteinSarah GrimmIlana Hanau
David HazanValerie I. HowellBrian JonesMarissa JonesRoy I. MartinSarah Moore
Congratulations to Brooklyn BarAssociation member Hon. RobertMiller, Justice, Supreme Court, KingsCounty, who was appointed byGovernor David A. Paterson to theAppellate Division, Second Department.
Congratulations to Civil CourtSupervisory Judge Peter Sweeney whohas been designated as an ActingSupreme Court Justice. Taking over asthe Supervisory Judge of Civil Courteffective January 3, 2011 is Hon. LisaOttley.
Congratulations to Brooklyn BarAssociation member, Hon. Deborah A.Dowling, who was re-elected for a 14year term to the Supreme Court, KingsCounty.
Congratulations to Brooklyn BarAssociation Past President Hon. JeffreyS. Sunshine, the Supervisory Judge forMatrimonial Matters who was elected fora 14 year term to the Supreme Court,Kings County.
Congratulations to Civil Court JudgeSylvia G. Ash who was elected to the
Supreme Court.
Congratulations to Brooklyn BarAssociation member Hon. Betty J.Williams who was re-elected to the CivilCourt of the City of New York.
Congratulations to Brooklyn BarAssociation member Harriet L.Thompson who was elected to the CivilCourt of the City of New York.
Kudos and ProfessionalRecognition
Congratulations to Brooklyn BarAssociation Past President Diana J.Szochet who has been promoted by theAppellate Division, Second Departmentto the position of Assistant Deputy ChiefAppellate Court Attorney. In her newposition Diana J. Szochet will supervisethe attorney discipline department at theAppellate Division.
Past President Manuel A. Romerowas a speaker at the NYSBA YoungLawyers Section Fall CLE Program onOctober 21 & 22 at the State Bar Centerin Albany. The topic of his program was“Ethics in Action: Rules, Problems and
(Continued on page 6)
Summary Of SecondDepartment Decisions InMedical Malpractice CasesDecided Between September 1 and November 30, 2010
(Continued on page 6)
BROOKLYN BARRISTER - JANUARY 2011 3
When Glenn Verchick suggested thatthis month’s column subject be thelibrary’s medical resources, I felt confi-dent that listing the print and online mate-rials would be simple. As I started lookingover our materials and especially afterdoing what attorneys do first, google afew medical terms and look over the firsttwo screens of listings, my original confi-dence was replaced by questions. Whatdoes an attorney need to know in order toprepare for a medical malpractice or per-sonal injury case? How can an attorneyidentify reliable sources of medical infor-mation? How to evaluate a medical study?How does an attorney coordinate legalresearch with medical research?
The first question, what does an attor-ney need to know to prepare for a medicalmalpractice or personal injury case, couldbe divided between legal and medicalissues. The legal questions for what sup-ported a medical malpractice case wereanswered by treatises and checklists. NewYork Law of Tort in section 13:46,“Checklist for Medical Malpractice,”looked helpful, but it pointed out the med-ical problem in a single phrase, “standardof care for a specific treatment.” How
does an attorney find that standard? Thatquestion led back to my original ques-tions. How can an attorney identify reli-able sources of medical information? Howcan he evaluate a medical study?
Medical literature was beyond myknowledge to evaluate. Even the lists ofrecommended articles in our print booksbrought up more questions; I did not knowthe editors’ criteria for selecting those arti-cles. What I needed was an authoritativeindex to medical literature as well as a sub-ject guide to medical specialties. Thelibrary’s medico-legal treatises had chap-ters and tables listing print medical text-books and on-line resources, but I wantedrecommendations by medical practitioners.
Two articles by librarians with litiga-tion and medical backgrounds guided meto trustworthy sources. Both can be readon the internet.
“Medico-Legal Research UsingEvidence-Based Medicine. CarolineYoung. 102 Law Library Journal 449-477(Summer 2010). http://www.aallnet.org/products/pub_llj_v102n03/2010-25.pdf
Caroline Young’s article defines evi-dence-based medicine, “the use of the cur-rent best evidence when making decisionsabout the care of individual patients. Thebest evidence comes from a thorough
search of the medical literature for articlesand other publications that cover medicalresearch and that apply to a patient’s med-ical problem ... In legal cases where med-ical evidence is utilized, finding the bestmedical evidence usually leads to thestrongest arguments.” Ms Young writesabout how medical researchers organizetheir research to find articles in medicalindexes and then how researchers evaluatethe articles. She includes three publica-tions that review and recommend medicaltitles; these subject guides are extremelyuseful for a practitioner trying to find agood introductory source. She reviewsprint and on-line indexes. This is an excel-lent article.
“Researching Medical Literature on theInternet.” Gloria Miccioli. LLRX.comSept. 22, 2008 Ms. Miccioli has made animpressive list of government, commer-cial, and educational websites. Readingher article and going to her listed websites with the insights gained from Ms.Young’s description of evidence-basedmedicine would help an attorney not onlyfind good medical articles, but direct himto experts, medical review boards, and rat-ings of medical facilities.
This left me with my final question,how to coordinate medical and legal
research? One book answered that ques-tion well. In chapter eight “Investigationof the medical facts,” of MedicalMalpractice: Discovery and Trial,Thomas Moore tells the attorney how toget medical records, what to look for inthe record, and how a legal office shouldorganize these materials for case evalua-tion. He explains how to find the stan-dard of care in medical sources and alsohow the standard of care can be uncertainor complicated by the patient’s condi-tion. For a good outline of how to planlegal research, chapter four, “LegalResearch” in ATLA’s Litigating TortCases has a table and checklist thatincludes suggestions on how to researchfor settlement.
Medical and legal materials are expen-sive. Take advantage of the Law Library’ssubscriptions to print and on-line materi-als. If you are not sure how to startresearch, or have problems using thematerials, ask the library staff for help.We take our slogan seriously, “If youdon’t find your answer in ten minutes, askfor help.” The Brooklyn Supreme CourtLibrary is open Monday-Friday, 9 am - 6pm. The Library is located in room 349 ofthe Supreme Court House, 360 Adams
Wow - what a terrific eveningDecember 6th was! The Brooklyn BarAssociation Foundation annual dinner wasa success on every level. I am deeplygrateful to annual dinner chair EthanGerber, Executive Director Avery EliOkin and the outstanding dinner commit-tee for the tremendous job they did.
It was a privilege to be on the dais withour outstanding honorees and so many dis-tinguished judges and leaders in the legalcommunity. Annual award recipient JudgeSylvia O. Hinds- Radix was introduced byChief Judge Jonathan Lippman, whopraised her leadership and work ethic.Judge Hinds-Radix spoke eloquently,thanking her family for the guidance andstrength they give her. Judge Jules Spodekwas filled with pride as he introduced hisdaughter, honoree Judge Ellen Spodek.Judge Ellen Spodek’s speech exhibited thewarmth and humor that has made her sucha beloved part of the Brooklyn communi-ty. Past President RoseAnn Branda wasintroduced by the Honorable NancySunshine, who spoke of RoseAnn’sintegrity, talent and commitment to thelegal profession. Past President Branda
accepted her award with thegrace, kindness and humilitythat has made her such a won-derful leader in our communi-ty.
President-Elect EthanGerber did an exemplary job.In addition to keeping the pro-gram moving at a lively pace,Ethan and the dinner commit-tee did an amazing job raisingfunds for the BBA Foundationthis year. Over $110,000 wasraised through sponsorshipsand patron level sponsors.President Elect Gerber thanked the com-mittee, singling out Domenick Napoletano,Hon. Frank Seddio, Grace Borrino, DavidChidekel, David Hernandez, KeithKleinick, Pery Krinsky, Carl Landicinoand Michael Lazarowitz for their extraordi-nary work on the committee.
The funds raised through the dinner sup-port the work of the Brooklyn BarAssociation Foundation, including thefunding of two scholarships. On December15th I had the pleasure of handing outscholarships from the Brooklyn BarAssociation Foundation at a ceremonyhosted by the 100 Year Association of theCity of New York at One Police Plaza. The
scholarships were awarded totwo college students, ArielElyahu, a sophomore atBinghamton University, andMatthew Kugler, a freshmanat Skidmore College, whoare pursuing pre-law degrees.The recipients and their fam-ilies expressed their thanks toour Association.
You may have noticed onyour recent dues invoice thatthe Brooklyn Bar is “goinggreen” by giving membersthe option of receiving their
routine notifications, such as CLE flyers,via email only. This option is being givenin response to many members (includingmyself) requesting that paper mailings bereduced.
For those members who are not con-vinced about the benefits of choosing to“go green,” there are business benefits thatmay be persuasive. First, reducing theamount of paper on your desk will cutdown on clutter, making it easier to beorganized. Additionally, having notifica-tions in electronic format makes them eas-ier to find when you need them and easierto file and save. Electronic notices are alsoeasier to share if you want to let people
know about a particular class or event. Ihope that many of our members will agreewith me about the benefits of going paper-less and choose this option.
There are a few notices that you will begetting over the next several weeks that Iwant to be sure you are on the lookout for.A “meet the new court employees” lunch-eon is in the planning stages. Over the nextmonths there will be many new faces inthe court system as the positions vacatedby retiring non judicial employees arefilled. I will be working to organize aninformal luncheon at the bar building soBrooklyn Bar Association members canhave an opportunity to get to know newcourt employees and hear more about anyand all changes in the courts.
On March 9th the Brooklyn BarAssociation will be hosting a joint pro-gram with the Metropolitan Black BarAssociation. This event will be a one cred-it CLE panel discussion on “Civility andProfessionalism,” featuring judicial mem-bers of the associations, followed by acocktail party. The program and party willbe free for members of the BBA and theMBBA, and I hope to see you there.
Finally, I want to wish all of theBrooklyn Bar Association members ahealthy, happy and prosperous New Year.
BROOKLYN BARRISTER EDITORIAL BOARD
B R O O K L Y N B A R P R E S I D E N T
RESPECTFULLY SUBMITTED
Brooklyn Barrister is published by Long Islander Newspapers under the auspices of the Brooklyn Bar Association. For advertising information call (631) 427-7000. Mailing address 149 Main Street, Huntington, New York 11743.Vol. 63 No. 4 January 2011. The Brooklyn Barrister (ISSN 007-232 USPS 66680) is published monthly except in August and December by the Brooklyn Bar Association. Office of publication is: Brooklyn Bar Association, 123 Remsen Street, Brooklyn,New York 11201-4212. Telephone No.(718) 624-0675. Periodical postage is paid at Brooklyn, New York and at additional mailing offices. Subscription price is $11.00 per year. POSTMASTER: Send address changes to the Brooklyn Barrister, 123 RemsenStreet, Brooklyn, New York 11201-4212.
Glenn VerchickEditor-in-Chief
Diana J. SzochetManaging Editor
Hon. Barry KaminsAssociate Editor
Hon. Allen Hurkin-TorresArticles Editor
Cecilia N. AnekweHon. Bruce M. BalterMarianne BertunaJaime J. BorerMark DiamondJason Eldridge
Paul S. ForsterHon. David FriedmanJason D. FriedmanMichael HernandezRichard KlassAnthony Lamberti
Susan MasterGregory MesserHemalee J. PatelAimee L. RichterRobert P. SantoriellaMichael Treybich
Andrea E. Bonina Esq.
By Andrea E. Bonina Esq.,President
(Continued on page 13)
Medical Materials in the Law LibraryIn print format and available on Lexis
45 North Station Plaza, Suite 404, Great Neck, NY11021
516-504-0018
139 Manhattan Avenue, New York, NY 10025212-280-3706
The New York Center forNeuropsychology
& Forensic Behavioral Science
Dr. N.G. Berrill, Director
When Jeannie Costello, Esq., ExecutiveDirector of the Brooklyn Bar Association(BBA) Volunteer Lawyers Project (VLP),asked me if I was interested in Co-Chairing the BBA Pro Bono Committeewith her in the coming year, it was an easydecision for me to say yes. Having wit-nessed first-hand the tireless efforts of theVLP staff to ensure access to justice forBrooklyn’s neediest residents, I welcomedthe opportunity to help lead the BBA com-mittee founded to support the wonderfulwork that they do.
As my first official act in this new role,I would like to encourage every attorneyreading this article to take at least one probono case through the VLP this year. Trustme, it’s for your own good!
Those who have had the pleasure of vol-unteering their legal services (eitherthrough the VLP or elsewhere) alreadyknow that pro bono service can be asrewarding for the attorney as it is for theclient. There is an element of quid pro quoto pro bono. As former Chief Judge JudithKaye recently opined in the July/August2010 issue of the New York State BarAssociation Journal:
In a sense, the act of performing probono service reaps its own reward. Asstudies have found, when people giveto others, they feel better about them-selves, better about the world. At amoment in history when society isunder attack by a tempest of unset-tling events from rising unemploy-ment to volatile stock markets to ter-rorism and beyond science, if notlogic alone, confirms that the road topersonal happiness is in renewing ourcommitment to helping others. Performing pro bono service has another
direct benefit it provides law students andattorneys with contacts and experience thatcan ultimately lead to gainful employmentand the expansion of one’s practice area.
Performing pro bono service is a fantas-tic way to get practical experience that isa key component to any successful legaljob search. Elizabeth Kane, Esq., Directorof the Public Service Programs office atBrooklyn Law School (BLS), works withcountless BLS students and recent gradswho are entering a work force that is morecompetitive than ever. Ms. Kane hasobserved that Apublic service employers[such as non-profit legal servicesproviders and government] have always
looked for pro bono experience as a signof commitment to public service. Noweven the private sector is looking at prac-tical experience in addition to gradeswhen considering candidates for entry-level positions.
Evan Denerstein, a graduate of BrooklynLaw School’s class of 2010, is now a staffattorney at the Financial Clinic, a non-profitorganization. Mr. Denerstein got his startworking with individuals in need of legalassistance as a law student volunteer at theCivil Legal Advice and Resource Office(CLARO), a successful walk-in legal clinicin Kings County Civil Court run by the VLPwith assistance from members of the BLSCLARO Student Action Group. Mr.Denerstein stated “the client-interactionexperiences and substantive law that Ilearned as a student-volunteer at CLAROdefinitely set me apart as a candidate for thestaff attorney position at the FinancialClinic.”
Performing pro bono service is also anexcellent way for attorneys to expandtheir practice into additional areas of thelaw. When Kim Zinke, Esq., a solo practi-tioner based in Bay Ridge, Brooklyn,decided he wanted to make bankruptcylaw a part of his practice, he turned to theVLP, which offers a free CLE course inbankruptcy for attorneys who commit totaking on pro bono bankruptcy clients.The VLP provided training and connectedhim to an experienced bankruptcy practi-tioner for mentoring. Now, after taking ona number of pro bono bankruptcy clientsthrough the VLP, Mr. Zinke has the prac-tical legal experience and professionalnetworking opportunities to successfullybranch out into the consumer bankruptcyarena.
Performing pro bono service is good forthe soul and the resume. Of course, thereare many more examples of individualslike Mr. Denerstein and Mr. Zinke whohave grown professionally as a result oftheir involvement with the VLP, includingmyself. For every lawyer who experiencesthe quid pro quo of pro bono, there is aclient who has received access to justicewho would otherwise not have had his orher rights protected. Whether you do it forthe greater good or for your own good (orboth), performing pro bono service is theright thing to do.
For more information on the various probono opportunities offered by the VLP,please visit their website at www.brook-lynvlp.org.
Pro Bono: Good for theResume, Good for the SoulBy John Bhuta, Esq.
To all we wish a happy, healthy, and, itshould go without saying, prosperous NewYear. We open the curtain on 2011 (do youbelieve it) with some interesting and impor-tant cases, and a very significant InternalRevenue Service pronouncement, involvingthe dismissal of a Surrogate’s Court discov-ery proceeding on the grounds of the penden-cy of active and previously instituted litiga-tion in the Supreme Court seeking the samerelief, and the imposition of sanctions and acharge for respondent’s attorney’s fees forfailing to disclose in the Surrogate’s Courtpetition the existence of the previously insti-tuted Supreme Court action; the distributionof the proceeds of a settlement of a wrongfuldeath case to both wives of a deceased citizenand domiciliary of Senegal where both wivesresided and where polygamy is permitted; asole beneficiary being allowed to receive hisbequest under the will of a New York domi-ciliary probated in New York, even thoughthe beneficiary was one of only two attestingwitnesses, because the will was executed inCanada; the continuation of a joint tenancyand the devolution of the property to the sur-viving joint tenant even though the tenantwho died had moved out and had com-menced a partition action; restrictions on theSupreme Court’s authority to direct a localDepartment of Social Services to disregardcertain expenses associated with aGuardianship in calculating an incapacitatedpersons net available monthly income; thereversal of a grant of summary judgment onthe grounds that it was based solely upon evi-dence inadmissible under CPLR §4519(Deadman’s Statute); the dismissal as timebarred of an alleged donee’s attempt to recov-
er artwork from a decedent’s estate; therelease by the Office of the New York CityMedical Examiner of a decedent's body to hisfamily for burial following an autopsy, with-out advising the family members that thedecedent's brain had been removed and wasbeing retained for further examination, andwithout affording them an opportunity todelay the burial of the decedent's remainsuntil such time as the brain could be returnedto them, giving rise to a cause of action torecover damages for a violation of the right ofsepulcher; and the new Internal RevenueService requirement that all tax return prepar-ers must obtain and exclusively use an identi-fying number prescribed by the IRS and not aSocial Security number, for returns or refundclaims filed after December 31, 2010.
Surrogate’s Court DiscoveryProceeding Dismissed on the Grounds ofthe Pendency of Active and PreviouslyInstituted Litigation in the Supreme CourtSeeking the Same Relief; Sanctions and aCharge for Respondent’s Attorney’s FeesImposed for Failing to Disclose in theSurrogate’s Court Petition the Existenceof the Previously Instituted SupremeCourt Action- In a discovery proceedingpursuant to SCPA §2103 and 2104 therespondents moved to dismiss the petition bythe administrator of the estate, the decedent’ssurviving spouse and sole distributee. Themovants asserted that the proceeding shouldbe dismissed pursuant to CPLR §3211 (a) (2)on the grounds that the Court lacked subjectmatter jurisdiction and pursuant to CPLR§3211(a) (4), on the grounds that the Courtlacked jurisdiction due to the pendency of aprior and active litigation between the sameparties before the Supreme Court. In addition,the movants sought sanctions and attorneys'
fees pursuant to 22 N.Y.C.R.R. 130-1.1,asserting that the discovery proceeding wasneedless and frivolous, and that the petitionerwillfully had failed to disclose to the Courtthe prior pending action, including theissuance of a restraining order therein. Thedecedent died intestate on November 23,2009. The estate of the decedent was allegedby the administrator to consist of certain realproperty as well as personal property therein.Letters of Administration were issued onMarch 11, 2010. The spouse asserted that thedecedent was taken without her knowledgeon October 23, 2009, by the husband of thedecedent’s niece to the niece’s home. Boththe niece and her husband were respondents.The spouse alleged that the decedent, ill andunresponsive, was returned to the familyapartment the following evening. The dece-dent was immediately hospitalized, where heremained until he died one month later.Shortly before the decedent's death, thespouse attempted to record a deed to the realproperty, dated November 2, 2009, reflectingthe transfer of the real property by the dece-dent to her. Her filing was rejected by theOffice of the City Register. The spouse thendiscovered that another deed to the real prop-erty dated November 6, 2009, transferringownership from the decedent to the respon-dent niece, had been filed on November 12,2009. The November 6, 2009 deed was nota-rized by a third respondent. Three daysbefore the decedent's death, the spouse com-menced an action against the niece and thenotary in the Supreme Court, seeking to quiettitle to the real property pursuant to RPAPL§1501, and alleging, inter alia, fraud, unjustenrichment, conversion, recovery ofchattel/replevin and trespass. On February 5,2010, the Supreme Court issued an order,directing that "there shall be a mutual
restraint on both parties with respect to the[real property] as set forth in [the spouse's]order to show cause" and that "all rents shallbe paid into court for maintenance, etc. of the[real property], including past due rent."Thereafter the spouse filed a petition for let-ters of administration in the Surrogate’sCourt pursuant to which letters of administra-tion were issued on March 11, 2010. OnMarch 18, 2010, the spouse filed the petitionto discover property withheld, seeking dis-covery of the movants with respect to the realproperty and certain personal property there-in, as well as a direction for turnover. Therespondents were the niece, her husband, andthe notary. Pursuant thereto, on April 21,2010, the Surrogate’s Court issued an Orderto Attend and Be Examined directed to themovants. At the time she commenced the dis-covery proceeding, the spouse did not informthe Surrogate’s Court of the pendency of theSupreme Court action, nor of the existence ofthe Supreme Court Order. The movantsasserted that they had incurred over $10,000in legal fees and disbursements in response tothe Surrogate’s Court discovery proceeding,and sought the imposition of both sanctionsand attorneys' fees. The spouse asserted thatthe nature of the two proceedings were dis-tinct, presenting differing theories of relief, inthat the Supreme Court action sought to quiettitle to the real property, alleging fraudulentconveyance thereof and asserting priority ofthe November 2 deed, while the Surrogate’sCourt discovery proceeding was inquisitorialin nature, seeking inquiry as to the real prop-erty and certain personal property therein anddemanding return thereof to the spouse, asadministrator of the decedent's estate. Thespouse asserted that in the discovery proceed-ing, she sought to invalidate both deeds thus
BROOKLYN BARRISTER - JANUARY 2011 5
THE STATE OF ESTATES By Hon. Bruce M. Balter and Paul S. Forster, Esq.
(Continued on page 12)
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Decisions In Medical Malpractice Cases (Continued from page 2)
Legal Briefs (Continued from page 2)
Annual Foundation Dinner(Continued from page 1)
BROOKLYN BARRISTER - JANUARY 20116
A number of Judges and Court Personnelwere recognized by the Association ontheir retirement. Brooklyn Bar AssociationPresident, Andrea E. Bonina, deliveredspecial recognition to the following retiringSupreme Court Justices: Hon Abraham G.Gerges, Hon. Alan Hurkin-Torres, Hon.Randolph Jackson, Hon. Martin Schneier,Hon. Paul H. Grosvenor and Hon. AliceFisher Rubin. President-Elect Ethan B.Gerber also recognized the retirement ofJames E. Pelzer, Chief Clerk, AppellateDivision, Thomas R. Kilfoyle, Chief Clerk,Civil Term, James Imperatrice, ChiefClerk, Criminal Term. All retiring CourtOfficers were represented by Major EricLong who received the Recognition ontheir behalf.
From the New York State Court ofAppeals, and joining Justice Lippman on
the dais, were past honoree (2001) Hon.Theodore T. Jones, Jr. and Hon. CarmenBeauchamp Ciparick.
The National Anthem was beautifullysung by Michelle Belches who is a CourtOfficer in the Appellate Division.
The dinner was a success, in large partbecause of the generosity of the manyPatrons and Sponsors and also to the hardwork of the dinner committee which ischaired by Association President ElectEthan B. Gerber and Vice Chairs Arthur L.Aidala, Andrew M. Fallek, Carl Landicino,Michael S. Lazarowitz, DomenickNapoletano and Rebecca Woodland. Inaddition, the efforts of Andrea E. Boninaand Avery Eli Okin cannot be overlookedas well as the Bar Association staff that, asusual, went above and beyond the call ofduty to pull everything together.
Practice Tips.” In January, at the NewYork State Bar Association AnnualMeeting, Past President Manuel A.Romero will be re-elected as the VicePresident for the Second District. It isexpected at the NYSBA Annual meetingthat Past Presidents David J. Doyaga andHon. Nancy T. Sunshine will be re-elect-ed as Second District Delegates to theHouse of Delegates and Past PresidentBarton L. Slavin will be elected to theHouse.
Congratulations to Brooklyn BarAssociation former trustee LaraGenovesi who was named Employee ofthe Year in Brooklyn Supreme Court. Theprincipal law clerk to Supervisory Judgefor Matrimonial Matters Hon. JeffreySunshine, Lara Genovesi was honored ina program held on November 16, 2010.
Congratulations to Brooklyn BarAssociation member Ravi Batra who wasappointed to the New York State JudicialScreening Commitee for the SecondDepartment.
Sidney Cherubin, the SupervisingAttorney of the Brooklyn Bar AssociationVolunteer Lawyers Project, will be anAdjunct Professor at Brooklyn LawSchool teaching a New York Civil CourtConsumer Law Externship. The program,which will commence in January 2011,will focus on counseling and representa-tion of clients in consumer credit cases inthe NYC Civil Court.
Avery Eli Okin, Esq., CAE, ExecutiveDirector of the Brooklyn Bar Association,has been selected to serve as the ViceChair of the Standing Committee ofExecutive Directors of the New YorkState Conference of Bar Leaders.
Professional AnnouncementsBrooklyn Bar Association Past
President 1986 – 87 Joseph H. Farrell afounding member of Conway Farrell, hasannounced his retirement effectiveDecember 31, 2010. Having celebrated his80th birthday earlier this year Joseph H.Farrell represented the Dime SavingsBank of Williamsburg, the CatholicDiocese of Brooklyn and was a PastPresident of the Catholic Lawyer’s Guild.In 1990 he received the Brooklyn BarAssociation Annual Award.
Glenn Verchick, Editor-in-Chief of theBrooklyn Barrister and a trustee, and hislaw partner Shelly Werbel haveannounced the relocation of their firmWerbel, Werbel & Verchick LLP, to 16Court Street, Suite 2801, Brooklyn, NewYork 11241. Telephone 718-485-0400.
Heard on the StreetThe Office of Court Administration has
announced openings in the CommercialDivision Clerkship Program for one andtwo years starting September 2011, at asalary of $68, 531. The application whichconsists of a resume, law school transcript,writing sample and two letters of recom-mendation from law school professors,must be filed by January 31, 2011 withLauren DeSole, Esq., Division of HumanResources, NYS Office of CourtAdministration, 25 Beaver Street, NewYork, NY 10004. Further information isavailable at www.nycourts.gov or at 212-428-2515.
BereavementsThe Brooklyn Bar Association marks
the passing of long-time memberGeraldine D. Santangelo who died onNovember 16, 2010. At the time of herpassing she was 85 years old and wasadmitted to practice in 1949.
The Brooklyn Bar Association extendsits deepest sympathy to the Cohen familyon the passing in December of David H.Cohen, a founding member of Tantleff,Cohen and Tantleff, at the age of 58.
The Brooklyn Bar Association extendsits deepest sympathy to Hon. BarryKamins and family on the passing of hismother Evelyn Levine on December 12,2010, at the age of 91.
The Brooklyn Bar Association extendsits deepest sympathy to Bartholomew T.Russo on the passing of his father,Bartolo Russo on December 23, 2010.
Legal Briefs is compiled and writtenby Avery Eli Okin, Esq. CAE, theExecutive Director of the Brooklyn BarAssociation and its Foundation. Itemsfor inclusion in “Legal Briefs” shouldbe sent to [email protected],faxed to 718-797-1713 or mailed to 123Remsen Street, Brooklyn, NY 11201-4212
action, holding that there is no independenttort for negligent spoliation of evidenceunder New York law.7
3. Lopez v. Wyckoff Heights Med. Ctr., ___N.Y.S.2d ___, 2010 N.Y. Slip Op. 07901(2d Dept. 2010). Statute of Limitations - No Relation Back
Plaintiff’s second Amended Complaint,served after the expiration of the statute oflimitations, named defendant Yvon Nazaireas a defendant for the first time.8
The claims against Dr. Nazaire were dis-missed, as they did not “relate back” to thetimely filed claims.9
‘In order for a claim asserted against a newdefendant to relate back to the date the claimwas filed against another defendant, theplaintiff must establish that 1) both claimsarose out of [the] same conduct, transactionor occurrence, 2) the new defendant is unitedin interest with the original defendant, and byreason of that relationship can be chargedwith notice of the institution of the actionsuch that he will not be prejudiced in main-taining his defense on the merits, and 3) thenew defendant knew or should have knownthat, but for a mistake by the plaintiff as tothe identity of the proper parties, the actionwould have been brought against him aswell.’ ‘The linchpin of the relation-back doc-trine is whether the new defendant had noticewithin the applicable limitations period.’10
Here, the plaintiff failed to raise a triableissue of fact as to the third prong of the rela-tion-back doctrine. The record establishesthat Nazaire was no longer working at thedefendant hospital nor employed by thedefendant professional corporation at the
time of the commencement of the actionagainst those entities, and there is no evi-dence that he had actual or constructiveknowledge within the limitations period ofthe commencement of the action againstthem. Accordingly, the plaintiff failed toraise a triable issue of fact as to whetherNazaire knew or should have known that, butfor a mistake by the plaintiff, the actionwould have been commenced against him aswell.11
4. Messiha v. Staten Island Univ. Hosp., 77A.D.3d 894 (2d Dept. 2010).Change Venue from Kings to RichmondCounty Granted
The cause of action herein arose inRichmond County and, after the action wasdiscontinued as to the defendants who didnot reside in Richmond County, no remain-ing party resided in Kings County. Under thecircumstances, the Supreme Court provi-dently exercised its discretion in granting thedefendants’ motion to change the venue ofthis action from Kings County to RichmondCounty.12
5.Dmytryszyn v. ZVI Herschman, ___N.Y.S.2d ___, 2010 N.Y. Slip Op. 08893(2d Dept. 2010).Motion to Amend Complaint to IncludePunitive Damages Claim Denied
“Punitive damages are recoverable in amedical malpractice action only wherethe defendants’ conduct evinces a highdegree of moral culpability or willful orwanton negligence or recklessness. Theplaintiff’s allegations were palpably
(Continued on page 11)
understand the scope of the representa-tion, as much as can be ascertained in theinitial consultation. You must also beready to reject the case, at the outset, andnot take on a new client if the matterconcerns issues and legal concepts withwhich you have no familiarity, have noexperience in or have never handledbefore. Rule 1.1 (b), Competence, ofthe New York Rules of ProfessionalConduct, mandates that "A lawyershall not handle a legal matter that thelawyer knows or should know that thelawyer is not competent to handle,without associating with a lawyer whois competent to handle it." It is advis-able to associate with a fellow attorney,who is competent and able to assist youand share the fee, than face a grievancebecause you accepted and mishandled amatter you were not competent to handleon your own.
You must seek to obtain the requiredlegal knowledge and skills necessary tocompetently represent your clients in thearea of law you wish to practice in. Rule1.1 (a), Competence, of the New YorkRules of Professional Conduct, statesthat "A lawyer should provide compe-tent representation to a client.Competent representation requires thelegal knowledge, skill, thoroughnessand preparation reasonably necessaryfor the representation."
You must also make a determination,at the initial consultation, that the matterand cause of action, you are about toundertake, are not "frivolous." A poten-tial client may want to get even with aneighbor and wants to commence anaction just to harass him or her. A poten-tial client may feel that he has beenwronged, in some fashion, yet there maynot be any remedy under existing law.The lawyer must be able to reject thesematters and not commence a frivolousaction. Rule 3.1 (a) provides that "Alawyer shall not bring or defend a pro-ceeding, or assert or controvert anissue therein, unless there is a basis inlaw and fact for doing so that is notfrivolous. A lawyer for the defendantin a criminal proceeding or for therespondent in a proceeding that couldresult in incarceration may neverthe-less so defend the proceeding as torequire that every element of the casebe established." Rule 3.1 (b) (1)(2)(3)of the New York Rules of ProfessionalConduct defines frivolous conduct: "Alawyer’s conduct is "frivolous" forpurposes of this rule if:
(1) the lawyer knowingly advances aclaim or defense that is unwarrantedunder existing law, except that thelawyer may advance such claim ordefense if it can be supported by goodfaith, argument for an extension, mod-ification or reversal of existing law;
(2) the conduct has no reasonablepurpose other than delay or prolongthe resolution of litigation, in violationof Rule 3.2, or serves merely to harassor maliciously injure another; or
(3) the lawyer knowingly assertsmaterial factual statements that arefalse.
Try to ascertain if you are the third, oreven the fourth lawyer, the potentialclient has consulted. Sometimes thisoccurs because their prior lawyers wereterrible, but more often than not, it isbecause the clients or their cases are terri-ble. These clients are especially quick to
complain to the Grievance Committee.The client should finally be apprised if
your representation encompasses anyAppeal process since that may incur addi-tional or separate fees. Many attorneysneglect to advise new clients that theirrepresentation and fees only pertain to theunderlying litigation and that further rep-resentation, as in post trial appeals, willnecessitate or incur further fees or a sepa-rate fee arrangement and additional costs.
2) KEEP IN TOUCH WITHYOUR CLIENT
One of the best ways to keep in touchwith a client and keep a record of main-taining proper and necessary communi-cation, is via the standard Status Letter. Itis wise to establish a policy, be it month-ly, every other month or at least 4 timesa year, of notifying a client of the statusof their matter. Preferably, notify theclient when the status has changed, toavoid the client receiving the same exactstatus letter month after month and theclient concluding that nothing is beingdone. Disciplinary Rule 1.4 (a)(3) of theNew York Rules of ProfessionalConduct requires that "A lawyershall: keep the client reasonablyinformed about the status of the mat-ter. If a client contacts the lawyer witha reasonable request for informationthe lawyer must provide it. Rule 1.4(a)(4) Communication, requires that"A lawyer shall promptly comply witha client’s reasonable requests forinformation.
The status letter has the added bene-fit of having it available to provide it tothe Grievance Committee in that rareinstance when one of your clients filesa grievance claiming they have no ideawhat’s going on with their case sincetheir lawyer never tells them anythingor ever advises them as to what isgoing on.
In addition to regularly sending statusletters, lawyers would be well served bymaking regular phone calls to theirclients. Do not wait for the client to callyou. Establish a policy of calling clientsat the end of the day, every other day orat least once a week. If the lawyer is ontrial and cannot make the phone calls orreturn a client’s call, then have your sec-retary or someone in the office make thephone calls. It is a very good idea tointroduce every member of your lawfirm and staff to the client so the clientwill be comfortable receiving phonecalls from your staff, whenever thelawyer is unavailable. By calling theclient, before the client calls the attor-ney, forces the attorney to do somethingon the file or at least review the file andillustrates to the client that you are work-ing on their case. This goes a long wayin avoiding complaints to the GrievanceCommittee as to the lawyer not activelyworking on the client’s case or lettingthem know what’s going on.
3) MANAGE CLIENT’SEXPECTATIONS THROUGHOUT ENTIRE PERIOD OF REPRESENTATION
One of the biggest challenges in anylegal action is managing the client’sexpectations. In every contact with theclient, advise the client as to what isgoing to happen next in their case.Always advise the client as to what you
are doing or are going to do, and then doit diligently and promptly. Rule 1.3 (a) ofthe New York Rules of ProfessionalConduct provides that "A lawyer shallact with reasonable diligence andpromptness in representing a client."Of course you must not neglect theclient’s cause of action and carry out thecontract of employment to the best ofyour ability and skill. Rule 1.3 (b)(c)provides that, (b) "A lawyer shall notneglect a legal matter entrusted to thelawyer." (c) "A lawyer shall not inten-tionally fail to carry out a contract ofemployment entered into with a clientfor professional services, but thelawyer may withdraw as permittedunder these rules."
Always advise the client as to what isexpected of the client as well. You willneed the client’s full cooperation to beable to represent them properly and theyshould be told to let your office know ifthey change their contact information andaddress. Incidentally, it is a violation ofthe Rules of the Courts of the State ofNew York, not to advise the Office ofCourt Administration if the lawyerchanges his or her business address andcontact information.
Always candidly advise the client ofthe strengths and weaknesses of theircase. Do not shy away from advising theclient as to any bad news in the litigationprocess.
It is a good practice to make theclient feel that he/she is an active par-ticipant in his or her own case. Rule 1.4(b) of the New York Rules ofProfessional Conduct requires "Alawyer to explain a matter to theextent reasonably necessary to per-mit the client to make informed deci-sions regarding the representation."Routinely sending the client, attorneywork product or documents serves thatpurpose. When the client receives doc-uments, pertaining to their case on aregular basis, the client realizes that thelawyer is actively working on their caseand the client is better able to makeinformed decisions. It develops confi-dence in the lawyer and the client ismore apt to follow the lawyer’s adviceor at least listen and heed the lawyer’sadvice. We must remember that it is theclient’s case. The lawyer works for the
client not the other way around. Whenthe client receives regular correspon-dence and documents the client feelsand realizes it is their case. In billablehours matters, a client will more readi-ly pay a legal fee if the client routinelysees the work being performed by thelawyer upon routinely receiving docu-ments pertaining to their case.
5) DOCUMENT EVERY SINGLE CONTACT WITHTHE CLIENT
It is wise to establish a policy of rou-tinely documenting conversations andcontact with the client. Make it a habitto note the date and time of each call orattempted call to the client and the dateand time of each call from the client.Write a few lines or a couple of wordsas to the substance of the call. On occa-sion send a latter based on those conver-sations articulating some of the issuesdiscussed. These records will go a longway when presented to the StateGrievance Committee in response to acomplaint, from a client, that the lawyeris failing to communicate or is neglect-ing their case.
CONCLUSION:I feel that the suggestions made in this
article, while appearing onerous and timeconsuming in implementation, will go along way in avoiding client dissatisfac-tion which can lead to clients filing com-plaints with the State GrievanceCommittee. Client dissatisfaction, withtheir attorneys lack of contact, feedbackor correspondence, is the major cause ofclient complaints to the New York StateGrievance Committee.
With better client communication, thelaw practitioner will avoid a potentialclient complaint to the State GrievanceCommittee, but it will also make the prac-titioner a better lawyer.
Manuel A. Romero is the ImmediatePast Chair of the New York StateGrievance Committee for the Second,Eleventh and Thirteenth JudicialDistricts. He is currently a VicePresident of the New York State BarAssociation for the Second District and isa Past President of the Brooklyn BarAssociation (2004-2005). Mr. Romero isthe principal of Manuel A. Romero, P.C.,where he concentrates his practice inplaintiff's personal injury cases, frominception to trial.
Five Ways To Avoid A Grievance (Continued from page 1)
BROOKLYN BARRISTER - JANUARY 2011 7
DUFFY & POSILLICO AGENCY INC.Court Bond Specialists
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1-800-841-8879 FAX: 516-741-63111 Birchwood Court • Mineola, NY 11501 (Across from Nassau County Courts)NYC Location: 108 Greenwich Street, New York, NY 10006
Trustee and Patron of the Dinner Hon. Frank Seddio,President Andrea E. Bonina and Patron Frank Carone
Andrea E. Bonina, President of the Metropolitan Black BarAssociation Joseph Drayton, Dinner Chair Ethan B. Gerber,Hon. Barry Kamins and Alexandra Gerber.
Hon. Karen Rothenberg, Honoree Hon. Ellen Spodek, Hon.Alice Fisher, Hon. Marsha Steinhardt and Hon. Rachel Adams.
Hon. Nancy T. Sunshine, Past President and County Clerk,Hon. Jeffrey S. Sunshine, Past President and SupervisoryJudge for Matrimonial Matters and Hon. Ann Pfau, ChiefAdministrative Judge of the State of New York.
Past President Gregory T. Cerchione and Hon. MarshaSteinhardt.
Past President Andrew Fisher, Honoree RoseAnn C. Branda andPast President Diana J. Szochet.
Mrs. Theodore T. Jones, Jr., Court of Appeals Judge Theodore T.Jones, Jr., Hon. Marsha Steinhardt, Past President Manuel A.Romero and Hon. Barry Kamins.
Brooklyn Bar Association Secretary Rebecca Woodland, Mrs.Theodore T. Jones, Jr., Camille Branda, RoseAnn C. Branda.
Catholic Lawyers Guild President Sarah Gozo andFrank Composto
A Musical background during the cocktail hour
Seated Past President Joseph H. Farrell and a guest,standing Past President Steven D. Cohn and PastPresident Paul Golinski
Patron Irma Clemente, RoseAnn C. Branda, Past PresidentLawrence F. DiGiovanna and Camille Branda
BROOKLYN BARRISTER - JANUARY 20118
Brooklyn Bar Association AnnualFoundation Dinner December 6, 2010
Retirees – seated James Pelzer, Thomas R. Kilfoyle,Standing James Imperatrice and Major Eric Long.
Honoree Hon. Ellen Spodek with her presenter and fatherHon. Jules Spodek
Presenter Hon. Nancy T. Sunshine with Honoree RoseAnn C.Branda
Chief Judge Jonathan Lippman, presenter with honoreeHon. Sylvia O. Hinds-Radix
Dais guest Hon. Michael L. Pesce, Appellate Term, Chief JudgeEastern District of New York Hon. Raymond Dearie andAdministrative Judge for Criminal Matters Hon. Barry Kamins.
Dinner Vice-Chair Carl Landicino and Past PresidentHon. Miriam Cyrulnick.
Most Reverend Frank J. Caggiano,Auxiliary Bishop of Brooklyn delivering theinvocation.
Court of Appeals Judge Carmen Beauchamp Ciparickwith Deputy Chief Administrative Judge Fern A. Fisher.
Past Presidents Hon. Barry Kamins, Hon Jeffrey S. Sunshine, Hon. Nancy T.Sunshine, Judge Jones, Chief Judge Lippman and Hon. Sylvia O’Hinds-Radix.
Hon. Barry Kamins with Brooklyn BarAssociation Treasurer and Dinner Vice-ChairArthur L. Aidala.
Dinner Chair Ethan B. Gerber with Hon. GeorgeSilver
Dinner Committee Vice Chair Domenick Napoletano, Hon. Dawn Jimenez, StevenBamundo, RoseAnn C. Branda and guest.
BROOKLYN BARRISTER - JANUARY 2011 9
Brooklyn Bar Association AnnualFoundation Dinner December 6, 2010
President Bonina, Justice Allen Hurkin-Torres and DinnerChair Ethan B. Gerber
President Bonina, Dinner Chair Gerber and retireeHon. Abraham Gerges
Patrons Ratchanok and Michael Lazarowitz, Amy Slavin and PastPresident Barton L. Slavin.
Assembly Member Joseph Lentol and Chief AdministrativeJudge Ann Pfau.
Retiring Civil Court Judge Alice Fisher Rubin withPresident Bonina and Dinner Chair Gerber
President Bonina, Hon Paul S. Grosvenor, Retiring FamilyCourt Judge and Dinner Chair Gerber
President Bonina, Hon. Martin Schneier retiring SupremeCourt Justice and Ethan B. Gerber
President Bonina, Retiring Justice Randolph Jackson withEthan B. Gerber.
Retiring Major Eric Long flanked by Andrea E. Bonina andEthan B. Gerber
Retiring Clerk James Imperatrice with Andrea E. Boninaand Ethan B. Gerber
Retiring Clerk Thomas Kilfoyle with Andrea E. Bonina andEthan B. Gerber
Retired Chief of Appellate Division James Pelzer with PresidentAndrea E. Bonina and Dinner Chair Ethan B. Gerber.
BROOKLYN BARRISTER - JANUARY 201110
Brooklyn Bar Association AnnualFoundation Dinner December 6, 2010
BROOKLYN BARRISTER - JANUARY 2011 11
insufficient to show such con-duct.”13
6. Silberstein v. Maimonides Med.Ctr., 77 A.D.3d 910 (2d Dept.2010).Disclosure - Plaintiff MustIdentify the Mohel whoPerformed Infant Plaintiff’s Bris
7. Pichardo v. Herrera-Acevedo,77 A.D.3d 641 (2d Dept. 2010).Summary Judgement Granted -Plaintiff Failed to ShowCausation
In this delayed diagnosis of coloncancer case, defendant establishedhis entitlement to SummaryJudgment by showing that, even ifhe had diagnosed decedent’s cancerat the first opportunity, the treat-ment rendered and the ultimate out-come would have been identical.14
Although plaintiff submittedopposition which indicated thatthere was a delay in diagnosis andtreatment of the colon cancer, theyfailed to raise a triable issue of factas to whether the delay in diagnosisand treatment was a proximatecause of decedent’s injuries.15
8. Eckman v. Cipolla, 77 A.D.3d704 (2d Dept. 2010).
Plaintiff sued for psychiatric andsocial work malpractice, after dece-dent died of a self-inflicted gunshotwound to the head.16
In response to defendant’s primafacie showing of entitlement torelief, plaintiff submitted an expertaffidavit which was conclusory,speculative, and unsupported by therecord.17
Defendant’s motion forSummary Judgment on plaintiff’sinformed consent claims was grant-ed, as “plaintiff was not allegingthat the decedent’s injuries anddeath were due, in whole or in part,to her having undergone ‘someaffirmative violation of [her] physi-cal integrity’ in the absence ofinformed consent.”19.
10. Sela v. Katz, 911 N.Y.S.2d 112,2010 N.Y. Slip Op. 07918 (2dDept. 2010).
Defendant hospital was grantedSummary Judgment, as a hospitalcannot be held liable for the acts ofa private attending physician.20
11. Heller v. Weinberg, 77 A.D.3d622 (2d Dept. 2010).
Summary Judgment granted, asplaintiff’s expert’s submissionswere insufficient as a matter oflaw.21
12. Kubik v. Erhart, 2010 N.Y.Slip Op. 08538 (2d Dept. 2010).Summary Judgment Denied -Wrongful Birth Case
In this wrongful birth case, defen-dants moved for SummaryJudgment, claiming that the par-ents’ expenses were covered by pri-
vate insurance and government pro-grams.22
Since plaintiffs’ recovery wouldbe limited to their personal pecu-niary loss, expenses covered byother sources such as private insur-ance and public programs are notrecoverable by them.23
Here, however, the record raiseda triable issue of fact as to whetherthe child’s extraordinary specialneeds caused the parents to incurextraordinary expenses, such asincreased utility bills, and the costof special equipment which werenot reimbursed from othersources.24
Accordingly Summary Judgmentwas denied.25
13. Lutwin v. Perelman, 76 A.D.3d958 (2d Dept. 2010).
Summary Judgment denied withrespect to conscious pain and suf-fering claims for the developmentof skins ulcers.26
However, Summary Judgmentwas granted as to plaintiff’s wrong-ful death claims, as there was noprima facie showing of causation.27
14. Fagan v. Panchal, 77 A.D.3d705 (2d Dept. 2010).
Summary Judgment was deniedin this dental malpractice case, asthe defendant’s expert assumeddefendant’s version of the events.28
As there were factual disputesbetween plaintiff and defendant asto which tooth was supposed to beextracted, defendant failed to makea prima facie showing of entitle-ment to relief.29
15. McKenzie v. Clarke, 77 A.D.3d637 (2d Dept. 2010).
Summary Judgment denied -plaintiff submitted three expert affi-davits, which were sufficient toraise triable issues of fact.30
16. Alvarado v. Beth Israel Med.Ctr., 911 N.Y.S.2d 174, 2010 N.Y.Slip Op. 08520 (2d Dept. 2010).
Summary Judgment denied, andplaintiff’s cross-motion to supple-ment the Bill of Particulars wasgranted.31
Plaintiff underwent gallstoneremoval surgery on 9/14/99 bydefendant Dr. Lo, after which a bileduct leak was discovered.32
Plaintiff underwent a second pro-cedure on 9/17 performed by a dif-ferent surgeon, and a third proce-dure that same day performed byDr. Lo who had also done the firstsurgery.33
Plaintiff sued Dr. Lo and the hos-pital alleging that they committedmalpractice by perforating plain-tiff’s intestine during the first sur-gery.34
After discovery, defendantsmoved for Summary Judgment dis-missing the complaint, presentingevidence that the perforationoccurred not during the first surgeryperformed on 9/14, but rather dur-ing the 9/17 procedure performedby a nonparty physician.35
In response to this motion, plain-tiff cross-moved for leave to amendher Bill or Particulars to include
additional theories of malpractice,including failure to remove theentire gallbladder on 9/14, whichincreased the risk of a bile duct leak,creating the necessity for the 9/17procedure.36
The Court granted plaintiff’scross-motion to supplement the Billof Particulars, and denied defen-dants’ motion for SummaryJudgment.37
17. Fiorino v. North Shore Univ.Hosp. at Glen Cove, ___ N.Y.S.2d___, 2010 N.Y. Slip Op. 08897 (2dDept. 2010).Summary Judgment Denied as toAll Parties
Plaintiff submitted proof to theeffect that defendant WinthropUniversity Hospital failed to com-ply with its own protocols, to theeffect that all patients undergoingsurgery at Winthrop based on anoutside pathology diagnosis musthave their slides reviewed by theWinthrop Department of Pathologybefore the surgery actually takesplace.38
As defendant Winthrop failed tocomply with its own policy, theyfailed to meet their initial burden onthe motion for SummaryJudgment.39
The motions of all other defen-dants were also denied, as untime-ly.40
Summary Judgment denied -defendants failed to rebut all ofplaintiff’s allegations.41
19. Callahan v. Guneratne, 910N.Y.S.2d 551 (2d Dept. 2010).
Summary Judgment denied -defendant’s expert affidavit wasconclusory and failed to rebut plain-tiff’s specific allegations.42
20. Sharp v. Weber, 77 A.D.3d 812(2d Dept. 2010).
Summary Judgment denied, asdefendant failed to make a properprima facie showing, and failed torebut plaintiff’s specific claims ofnegligence.43
21. Balcom v. Reither, 77 A.D.3d863 (2d Dept. 2010).
Expert Witness Disclosure - pre-trial rulings precluding some ofplaintiff’s experts were evidentiaryin nature, and therefore not appeal-able.44
22. Humphrey v. Kulbaski, 911N.Y.S.2d 138 (2d Dept. 2010).
In preparation for trial, plaintiffserved nine subpoenas duces tecumupon nine non-parties, includingeight healthcare providers and onehealthcare insurer, requesting allrecords in their possession pertain-ing to plaintiff John Humphrey.45
Supreme Court granted motionsto quash the subpoenas, and heldthat if any party wished to introducethe records into evidence, new sub-poenas would need to be issueddirecting that the records be sent tothe Clerk of the Court.46
Plaintiff failed to satisfy thethreshold requirement that the dis-closure sought was “material and
necessary”.47
The subpoenas had demandedproduction of “all files and records”pertaining to plaintiff’s treatmentwithout narrowing the request bytime period, type of treatment, orrelationship to the medical condi-tion which was the subject of thelawsuit.48
23. Spagnole v. Staten Island Univ.Hosp., 77 A.D.3d 816 (2d Dept.2010).Verdict and Judgment forDefendant Sustained
The Court properly declined tosubmit to the jury plaintiff’s pro-posed interrogatory regardingwhether the defendants departedfrom accepted medical practices byfailing to order a CT scan, as thattheory was not based on evidenceadduced at trial.49
24.Frenchman v. WestchesterMed. Ctr., 77 A.D.3d 618 (2dDept. 2010).Verdict and Judgment forPlaintiff Sustained
For a court to conclude as a mat-ter of law that a jury verdict is notsupported by sufficient evidence, itmust determine that there is ‘novalid line of reasoning and permis-sible inferences which could possi-bly lead rational [people] to the con-clusion reached by the jury on thebasis of the evidence presented attrial.’50
Here the jury verdict finding thatthe appellants departed from goodand accepted standards of medicalpractice in their treatment of thedecedent was supported by the testi-mony of the plaintiff’s experts and,therefore, was not irrational. Further,the jury’s findings were based on afair interpretation of the evidenceand, thus, were not contrary to theweight of the evidence. ‘Where, ashere, conflicting expert testimony ispresented, the jury is entitled toaccept one expert’s opinion, andreject that of another expert.’51
In affirming the judgment, theCourt affirmed awards of$1,000,000.00 for past pain and suf-fering, $450,000.00 for past wrong-ful death damages, $110,000.00 forfuture wrongful death damages, and$150,000.00 for loss of services, fora total award of $1,710.000.00.52
25. Schaffer v. Batheja, 76 A.D.3d970 (2d Dept. 2010). Pain and suffering damagesawarded despite evidence thatplaintiff was in a coma.
The plaintiff met his burden ofproving that Mrs. Schaffer hadsome level of awareness after beinginjured. Nevertheless, the [defen-dant] correctly contends that theawards for Mrs. Schaffer’s con-scious pain and suffering in theprincipal sum of $5,000,000 andloss of services in the principal sumof $3,000,000 were excessive, asthey deviated materially from whatwould be reasonable compensation(see CPLR 5501[c]). Under the cir-cumstances, since Mrs. Schafferwas only sporadically aware of hercondition while she remained in anursing home for slightly more thanfour years, there was only limitedproof as to the value of the servicesactually rendered by her to the
plaintiff during the marriage, andthe marriage lasted 40 years, wefind that an award of $2,500,000 forMrs. Schaffer’s past pain and suf-fering and $500,000 for the plain-tiff’s loss of services would notdeviate materially from what wouldbe reasonable compensation.53
1. Contreras v. 357 Dean Street Corp., 77A.D.3d 604, 605 (2d Dept. 2010).2. Id., quoting Arias v. New York CityHealth & Hosps. Corp., 50 A.D.3d 830,832 (2d Dept. 2008).3. Contreras, 77 A.D.3d at 605-06.4. Id. at 606.5. Hillman v. Sinha, 77 A.D.3d 887, 887(2d Dept. 2010).6. Id.7. Id. at 888.8. Lopez v. Wyckoff Heights Med. Ctr.,___ N.Y.S.2d ___, 2010 N.Y. Slip Op.07901, *1 (2d Dept. 2010).9. Id.10. Id. at *1-*2 (citations omitted).11. Id. at *2 (citations omitted).12. Messiha v. Staten Island Univ. Hosp.,77 A.D.3d 894, 895 (2d Dept. 2010) (cita-tions omitted).13. Dmytryszyn v. ZVI Herschman, ___N.Y.S.2d ___, 2010 N.Y. Slip Op. 08893,*2 (2d Dept. 2010) (citations omitted).14. Pichardo v. Herrera-Acevedo, 77A.D.3d 641, 641 (2d Dept. 2010).15. Id. at 642.16. Eckman v. Cipolla, 77 A.D.3d 704, 704(2d Dept. 2010).17. Id. at 705.18. Id.19. Brady v. Westchester CountyHealthcare Corp., ___ N.Y.S.2d ___, 2010N.Y. Slip Op. 08886, *2 (2d Dep’t 2010)(quoting Karlsons v. Guerinot, 57 A.D.2d73, 82 (4th Dept. 1977))20. Sela v. Katz, 911 N.Y.S.2d 112, 2010N.Y. Slip Op. 07918, *1-*2 (2d Dept.2010).21. Heller v. Weinberg, 77 A.D.3d 622,623 (2d Dept. 2010).22. Kubik v. Erhart, 2010 N.Y. Slip Op.
08538, *1 (2d Dept. 2010).23. Id.24. Id. at *1-*2.25. Id. at *2.26. Lutwin v. Perelman, 76 A.D.3d 958,960 (2d Dept. 2010).27. Id.28. Fagan v. Panchal, 77 A.D.3d 705, 706(2d Dept. 2010).29. Id.30. McKenzie v. Clarke, 77 A.D.3d 637,638 (2d Dept. 2010). 31. Alvarado v. Beth Israel Med. Ctr., 911N.Y.S.2d 174, 2010 N.Y. Slip Op. 08520, *1(2d Dept. 2010).32. Id.33. Id.34. Id.35. Id.36. Id.37. Id. at *1-*2.38. Fiorino v. North Shore Univ. Hosp. atGlen Cove, ___ N.Y.S.2d ___, 2010 N.Y.Slip Op. 08897, *1 (2d Dept. 2010).39. Id.40. Id. at *2.41. Wall v. Flushing Hosp. Med. Ctr., ___N.Y.S.2d ___, 2010 N.Y. Slip Op. 08725,*2 (2d Dept. 2010).42. Callahan v. Guneratne, 910 N.Y.S.2d551, 553 (2d Dept. 2010).43. Sharp v. Weber, 77 A.D.3d 812, 814(2d Dept. 2010).44. Balcom v. Reither, 77 A.D.3d 863, 864(2d Dept. 2010).45. Humphrey v. Kulbaski, 911 N.Y.S.2d138, 139 (2d Dept. 2010).46. Id.47. Id. 48. Id. at 139-40.49. Spagnole v. Staten Island Univ. Hosp.,77 A.D.3d 816, 816 (2d Dept. 2010).50. Frenchman v. Westchester Med. Ctr.,77 A.D.3d 618 (2d Dept. 2010) (quotingCohen v. Hallmark Cards, 45 N.Y.2d 493,499 (1978)).51. Frenchman, 77 A.D.3d at 619 (quotingRoss v. Mandeville, 45 A.D.3d 755, 757(2d Dept. 2007)).52. Frenchman, 77 A.D.3d at 618. 53. Schaffer v. Batheja, 76 A.D.3d 970, 972(2d Dept. 2010) (citation omitted).
Decisions In Medical Malpractice Cases (Continued from page 6)
requiring inclusion of the real property in thedecedent's gross estate, and that the discoveryproceeding sought information unrelated tothe relief sought in the Supreme Court action.HOLDING- The Court dismissed the dis-covery proceeding, imposed sanctions, andgranted respondents the fair and reasonablelegal fees incurred on the motion. The Courtopined that pursuant to CPLR §3211(a) (2), aparty may move to dismiss a cause of actionon the grounds that "the court has not juris-diction of the subject matter of the cause ofaction." The Court noted that the subject mat-ter jurisdiction of the Surrogate's Courtextends to all matters concerning the affairsof a decedent, and that the power of theSurrogate's Court to determine issues relatingto the affairs of a decedent includes itsauthority to determine a decedent's interest inproperty alleged to belong to her gross estate,as well as the rights of others claiming aninterest in such property. The Court statedthat questions as to ownership of assetsalleged to be part of a decedent's estate fre-quently arise in the context of proceedings forthe discovery of assets. The Court pointed outthat the disputed property, both real and per-sonal, was located in Kings County and wasalleged to constitute the primary assets of thedecedent's estate. In the Court’s view, thequestion of title to the real property wasdeterminative of what assets, if any, theadministrator might marshal and distribute,and so found it without question that theCourt had subject matter jurisdiction.Accordingly, the Court denied movants'application to dismiss the discovery proceed-ing pursuant to CPLR §3211(a) (2) for lack ofsubject matter jurisdiction. With regard to theapplication to dismiss the proceeding on thegrounds that the separate action was pending,the Court was more receptive, pointing to itsbroad discretion to do so. The Court, whileacknowledging that there must be substantialidentity as to both the parties and the causesof action asserted in the respective actions inorder to merit dismissal pursuant to CPLR§3211(a)(4), stated that the concept of causeof action is fluid, that the two competingactions need not be identical. The Courtfound that where the identity of the action-able wrongs alleged in each proceeding arethe same and the issues raised in the subse-quent action would be disposed of in the prioraction, dismissal pursuant to CPLR§3211(a)(4) is warranted. The Court statedthat it is not necessary that the precise legaltheories presented in the first proceeding alsobe presented in the second proceeding. TheCourt found the spouse's argument unpersua-sive that the two matters were distinguish-able. In the Court’s view, the actionablewrong alleged in both the discovery proceed-ing and the Supreme Court action was thewrongful transfer of the real property to theniece, and that the relief requested was adetermination of rightful ownership of thereal property. The Court found that thespouse sought in both actions to gain title tothe real property, whether by a determinationthat her deed had priority or by a determina-tion that the real property was an asset of thedecedent's estate, of which she was the soledistributee. Since the single desired result ofboth proceedings initiated by the spouse waspossession of the real property, the Courtfound that the causes of action asserted inboth the Supreme Court action and the dis-covery proceeding were substantively identi-cal. While acknowledging that dismissal pur-suant to CPLR §3211(a) (4) also required afinding that the parties to both proceedingsare substantially identical, the Court rejectedthe spouse’s argument that the inclusion ofthe niece’s husband in the discovery proceed-ing only made the two matters distinct sincethe joinder of an additional defendant, initself, need not result in the defeat of such a
motion. Since title to the real property ulti-mately would be determined, in either pro-ceeding, to reside in either the niece or thespouse, whether as decedent's sole distributeeor under the deed to her, the Court found thatthe inclusion of the niece’s husband as a partyto the discovery proceeding did not affect thedetermination of the rights of the parties dis-puting ownership of the real property. TheCourt also rejected the spouse’s assertion thather own diverse status in the two proceedingsmilitated against dismissal. The Court recog-nized that the spouse initiated the SupremeCourt action, in her individual capacity, toquiet title to the real property prior to thedeath of the decedent and that in the discov-ery proceeding the spouse was acting as fidu-ciary of the decedent's estate, seeking to dis-cover property alleged to be withheld by themovants, and acknowledged that a party act-ing in her individual capacity is distinct fromthe same party acting in a representativecapacity. However, the Court pointed toexceptions to the general rule where strictadherence otherwise would result in a legalabsurdity. The Court determined that the testto be applied is whether a determination inthe first proceeding would be res judicata inthe second. The Court stated that the doctrineof res judicata acts to preclude future litiga-tion between the same parties, or those inprivity with the parties, of a cause of actionarising out of the same transaction or series oftransactions as a cause of action that waseither raised or could have been raised in aprior proceeding. In the Court’s view, privitybetween parties to separate actions requires aconnection between the two such that theinterest of the nonparty can be said to havebeen represented in the prior proceeding, asfor example if the party would personallybenefit if the relief she seeks is granted in thefirst proceeding, she may not circumvent thedoctrine of res judicata by later relitigatingher claims in her representative capacity.Similarly, the Court stated that there areinstances in which a party suing in a repre-sentative capacity, but personally benefitingif a recovery is procured in either action, maybe barred by an adverse decision in the prioraction from instituting the second action.
In determining that there was a fundamen-tal identity of interest between the spouse asan individual party to the Supreme Courtaction and her role as a fiduciary in the dis-covery proceeding, the Court noted that bothactions were commenced by the spouse, thatthe spouse had not occupied a defensive orresponsive posture in either matter, that con-trol of all litigation had resided with thespouse, and that her goal remained the samein both proceedings, to wit, recovery of theproperty of her deceased husband.Consequently, the Court found there to be amutuality of beneficial interest between thespouse as an individual in the Supreme Courtaction, and as a fiduciary in the discoveryproceeding, sufficient to establish privity andoperate as an exception to the general rule.The Court stated that maintenance of separateand simultaneous actions, for redress of thesame alleged wrong, was unnecessary andduplicative, and that to permit such a courseof action would undermine the interests ofjudicial economy, and permit the spouse mul-tiple bites of the judicial apple. The Courtalso determined that the Supreme Courtaction had priority in that where both tri-bunals, whose interference has been invoked,have equal or concurrent jurisdiction, itshould continue to be exercised by that onewhose process was first issued. The Courtfound it undisputed that the spouse institutedthe discovery proceeding several months fol-lowing commencement of the Supreme Courtaction and some six weeks subsequent to theentry of the Supreme Court injunctive order,thereby giving the Supreme Court action pri-
ority over the discovery proceeding.Accordingly, the Court declined to exercisejurisdiction over the discovery proceeding,and dismissed the discovery proceeding inaccordance with the provisions of CPLR§3211(a) (4). The Court agreed with themovants that the spouse's discovery proceed-ing was frivolous and duplicative, and thatthe spouse had violated her duty of candor tothe Court by failing to disclose the pendencyof the Supreme Court action and the extantSupreme Court order. The Court noted thatthe spouse had initiated the discovery pro-ceeding by application for an order to attendand be examined, which the Court viewed asan ex parte proceeding akin to an order toshow cause which was initially presented tothe Court without notice to the movants. TheCourt opined that pursuant to SCPA §203,proceedings in Surrogate's Court are specialproceedings, and as such are governed byArticle 4 of the CPLR. The Court pointed outthat pursuant to CPLR §402, where there isno adverse party, a petition must state theresult of any prior application for similarrelief and shall specify the new facts, if any,that were not previously shown, to guardagainst 'judge-shopping' by a petitioner whois disappointed with the results of a priorapplication for the same relief. The Court wastroubled by the fact that the spouse's applica-tion on the discovery petition was not sup-ported by any such representation or affirma-tion. The Court added that while the spouse,as fiduciary, owed the utmost candor to theCourt, counsel for the spouse was an officerof the court, and as such owed a duty of can-dor to the Court pursuant to his professionalethical obligations. The Court pointed outthat pursuant to the strictures of DisciplinaryRule 7-102(a)(3) found in 22 NYCRR§1200.33(a)(3), an attorney shall not know-ingly fail to disclose that which he is requiredby law to reveal. The Court stated that whileit expected no less than zealous representa-tion of parties by their respective counsel, itnevertheless had to be able to rely on the hon-esty and forthrightness of such counsel in theconduct of litigation before it, which expecta-tion included, and demanded, accurate andtimely disclosure of prior related proceedingsand the results thereof, as well as the exis-tence of concurrent related proceedings andany controlling orders therein.
The Court ruled that the failure of thespouse and her counsel to advise the Court ofthe pendency of the Supreme Court action,and the restraining order issued therein, con-stituted a material omission of fact, and thatwhen an attorney misleads the court, whetherby a misrepresentation or a pregnant omis-sion that is misconduct. In the Court’s view,the discovery proceeding appeared to havebeen initiated by the spouse as a means ofmoving determination of the disposition ofthe real property to a speedy conclusion.Absent full disclosure by her counsel regard-ing the prior Supreme Court action, the Courtsaid it was left with the distinct impressionthat the spouse sought relief in theSurrogate’s Court that she felt was not forth-coming, perhaps quickly enough to suit her,in the prior proceeding. The Court found suchactions offensive, both as an attempt to cir-cumvent the strictures of the Supreme Courtorder and as an attempt to manipulate theSurrogate’s Court into providing unwittinglythat which had not been satisfactorilyobtained elsewhere. The Court noted that hadthe spouse and her counsel been forthcomingabout the previously-instituted SupremeCourt action and the outstanding order there-in, fulfilling their duty of candor to this Court,the application for an order to attend and beexamined likely would have been declined atthe outset. The Court emphasized that litiga-tion that wastes the Court's time is deemed tobe frivolous. The Court stated that pursuant
to 22 N.Y.C.R.R.130-1.1, the Court has dis-cretion to award costs or sanctions upon aparty or attorney who engages in frivolousconduct. The Court noted with dismay theuncontested fact that the spouse's counselwas notified by movants' counsel of the friv-olous and duplicative nature of the discoveryproceeding, yet declined to withdraw the dis-covery petition despite respondents’ urging.The Court found that the spouse and hercounsel had failed to meet the requirementsof CPLR §402 by not disclosing the penden-cy of a previously-instituted action upon sub-mission of their ex parte order herein, andthat said failure violated the duty of candorowed to the Court and constituted frivolousconduct. Accordingly, sanctions were award-ed against counsel for the spouse in theamount of $500.00 to be deposited with theLawyer's Fund for Client Protection, and themovants were granted the fair and reasonablelegal fees incurred for the motion. Matter ofWagner, N.Y.L.J. 10/28/10, p. 32, c. 3 (Surr.Ct., Kings Co., Surr. López Torres)
Proceeds of a Settlement of a WrongfulDeath Case Distributed to Both Wives of aDeceased Citizen and Domiciliary ofSenegal Where Both Wives Resided andWhere Polygamy is Permitted- In a pro-ceeding to allocate and distribute the pro-ceeds of a cause of action arising from thedecedent's death, his survivors included twospouses to whom he was legally marriedunder the laws of Senegal of which he was acitizen and domiciliary and where both wivesresided and where polygamy is permitted,and by eleven children. The two spouses andchildren always were, and remained citizensand domiciliaries of Senegal and all lived atthe same address in Dakar, Senegal.Jurisdiction was acquired over the two spous-es and all children, and they defaulted. Thedecedent died at the age of 42, when, whileattempting to enter an elevator, he fell downthe shaft and was struck by the elevator'scounterweight mechanism. The underlyingaction was commenced and venued in theSupreme Court, Bronx County based on thedecedent's residence at the time of his death.The Supreme Court approved a compromiseand referred all issues relating to the paymentof liens and to the allocation and distributionof the proceeds to the Surrogate’s Court. Thepetitioner proposed to distribute a singlespousal share, to be divided by the two spous-es. HOLDING- The Surrogate’s Courtapproved the proposed distribution. TheCourt opined that as the decedent died adomiciliary of Senegal, the subject matterjurisdiction of the court was based on SCPA§206, as the underlying wrongful death andother causes of action were commencedagainst a New York domiciliary. The Courtfound there to be an apparent conflictbetween EPTL §5-1.2 (a) (2), EPTL §4-1.1(a) (1) and DRL §6, and the law of Senegalwhich raised the question of whether the pro-posed distribution of one spousal share of thewrongful death proceeds, to be dividedbetween the two spouses which would bepermitted under the laws of Senegal, com-ported with, or was in conflict with, the dis-tributive scheme of New York law and itspublic policy. The Court stated that underEPTL §5-4.4, wrongful death damages aredistributed to the persons entitled theretounder EPTL §4-1.1 and EPTL §5-4.5. TheCourt noted that while EPTL §4-1.1(a) (1)identifies one class of distributees as a spouseand issue, EPTL §5-1.2 (a) (2) disqualifies asurviving spouse where it is satisfactorilyestablished to the court that the marriage wasbigamous under section six of the DomesticRelations Law. The Court also found it to beuncontroverted that the law of Senegal per-mitted polygamy and, therefore, did not pro-vide a similar disqualification for bigamous
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The State of Estates (Continued from page 5)
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BROOKLYN BARRISTER - JANUARY 2011 13
Street, Brooklyn. The Library offers freeLexis and Westlaw and a document deliv-ery service at Click on Libraries to get afull description of services and locationsthroughout the state.
Lexis searchingLexis contains medical files in a num-
ber of libraries. Some files are duplicatedin several libraries; others are not whichcan mean missing valuable resources.Some listed files have not been updatedsince 1997. When using a Lexis file,always go to the information file for adescription of the file’s contents, searchhints, and last update.
After signing into Lexis, select theLegal tab, click Expert Witness Analysis,Jury Verdicts & Settlements to find thefollowing libraries, Jury Verdicts &Settlements, Expert Witness Directories,and National Jury Verdicts & Settlements.Some of the same information is availablein the two topical libraries Medical andMedical Malpractice. To find those topi-cal libraries, from the Lexis Legal tab,click on area of law by topic, more selec-tions. The Medical and MedicalMalpractice libraries are then listed.Clicking on those file names will bring upan opening page listing sub-libraries. Nextto each sub-library’s heading is a viewmore link. Click on view more to get thefull contents of the library. More medicalreference material is available from click-ing through the Legal tab to the Referencelibrary to the sub-library Medicine.
Dictionaries: Print.Also check the Lexis Libraries
American Jurisprudence Proof ofFacts. 3d Series. Attorney’s IllustratedMedical Dictionary. Rochester, NY: WestGroup, 2002. R 121 .A44 2002. Reserve
Attorney’s Dictionary of Medicine.New York: LexisNexis. R 121 .S329.Updated annually. Available in Lexis.
Blakiston’s New Gould MedicalDictionary. New York : McGraw-HillBook Company, Inc. 1949. R 121 .B621949 Reserve
Blakiston’s Gould Medical Dictionary .4th ed. New York McGraw-Hill BookCo., 1979. R 121 .B62 1979. Reserve
Stedman’s Medical Dictionary 25th ed.Baltimore, MD : Williams & Wilkins,1990. R 121 .S8 1990. Reserve
New York Damages Awards: PersonalInjury & Intentional Torts. Eagan, MN:West. Annual Reserve KFN 5311 .N48
VerdictSearch: New York New York:ALM Media Properties. KFN 5051.1 .N42
What’s It Worth. MatthewBender.Annual. Available in Lexis
Law Reviews and JournalsJournal of Health & Life Sciences Law.
Lexis only.The Journal of Law, Medicine & Ethics
– Scholarly, policy oriented articles.Hardcopy and Lexis.
Journal of Health Politics, Policy andLaw.– Scholarly, policy oriented articles.Hardcopy only.
Medical Trial Technique Quarterly.Oriented toward the attorney preparing fortrial. This journal should be used more byBrooklyn attorneys. Text not available inLexis, but articles can be found throughLegal Resource Index (LRI) and Index toLegal Periodicals (ILP) files in Lexis. ILPfile seems to have a two year lag on index-ing; LRI looks more current
Medical Malpractice TreatisesAmerican Law of Medical Malpractice
3d. Steven E. Pegalis. Eagan, MN:Thomson West. Updated annually. KF2905.3 .P43 2005.
Harney’s Medical Malpractice. NewYork: LexisNexis. Available in Lexis.
Medical Malpractice. David W.Louisell and Harold Williams. Revised byGordon L. Ohlsson. New York:LexisNexis. KF 2905.3 .L68 Available inLexis.
Medical Malpractice in New York.Albany, NY: New York State BarAssociation. Available in Loislaw.
Medical Reference --LexisCenter for Medicare & Medicaid
ServicesDiagnostic Statistical Manual of Mental
DisordersHealth Care Atlas DirectoryHGPO DirectoryMedical Device Register. Not updated
since 1997Medical Device Register, International
Edition. Not updated since 1997Memory, Trauma Treatment and the
LawMosby’s Medical Drug ReferenceOccupational Injuries and Illness AMA
Guides HandbookPhysician’s Desk Reference for
Prescription DrugsProduct Development Directory. Not
updated since 1996
Medical Reference- Print –See Young’s articles for subject guides.
Campbell’s Operative Orthopaedics.
10th ed. S. Terry Canale, ed. Philadelphia: Mosby, 1998. RD 731 .C32.
Cecil Textbook of Medicine. 22nd ed.Lee Goldman and Dennis Ausiello, eds.Philadelphia, Saunders, 2003. RC 46.C423 2004.
Harrison’s Principles of InternalMedicine. 16th ed. New York: McGraw-Hill, 2004. RC 46 .H333 2005.
The Merck Manual of Diagnosis andTherapy. Whitehouse Station, N.J.: MerckResearch Laboratories, 1999. RC 55 .M41999.
PDR for Nonprescription Drugs,Dietary Supplements, and Herbs. 31st ed.Montvale, NJ: PDR Network. Annual RS75 .P5 2010.
PDR: Guide to Drug Interactions, SideEffects, and Indications. 64th ed.Montvale, NJ: PDR Network. Annual.RM 302 .P37 2010
Saunders Manual of Medical Practice2d ed. Robert E. Rakel. New York: W.B.Saunders Co., 2000. RC 55 .S325 2000.
Medico-Legal Treatises Attorney’s Medical Advisor. Eagan,
MN: Thomson,West. RA 1051 .R87. Notupdated since 2004.
Attorney’s Medical Atlas. Eagan, MN:ThomsonWest. Annual. RA 1019 .A871994. User guide refers to Attorney’sMedical Advisor. Color illustrations onlaminated pages and black and whiteimages for copying
Courtroom Medicine. New York:LexisNexis. RA 1011 .C68. Available inLexis.
Courtroom Toxicology: Environmental& Industrial Toxins. Marshall Houts,Rancall C. Baselt, Robert H. Cravey. NewYork: LexisNexis. RA 1228 .H68Available in Lexis.
Lane Medical Litigation Guide. FredLane. Eagan, MN: ThomsonWest, 2010-.Organization of hospitals, variety of andqualifications of medical experts andother types of medical personnel. Medicalevidence, includes specimen awards,drawings, excerpts of medical testimonyand related articles. RA 1031 .L29.Reserve
Lawyers’ Guide to Medical Proof.Marshall Houts. New York: LexisNexis.Updated annually. Chapter 103 lists rec-ommended medical treatises and how touse medical literature in preparing a case.KF 8964 .H6. Available on Lexis.
Lawyers’ Medical Cyclopedia ofPersonal Injuries and Allied Specialties.6th ed. New York: LexisNexis. Updatedannually. Chapter three, MedicalInformation Sources Part II, Hospital andMedical records, looks extremely helpful.RA 1022 .U76 L38 Available in Lexis.
Medical Information Systems forLawyers, 2d. J. Stanley McQuade. Eagan,MN:West. Updated annually. RA 1051.M3877 1993.
Patient Care Decision-Making: A LegalGuide for Providers. Claire C. ObadeEagan: MN: ThomsonWest,1991.Updated annually. KF 3825 .O21991
Proving Medical Diagnosis andPrognosis. Marshall Houts. New York:LexisNexis. Updated since 1988, refer-ences to Attorney’s Textbook of Medicine.RA 1053 .H6 Available in Lexis.
TrialATLA’s Litigating Tort Cases.
Roxanne Barton Conlin and Gregory S.Cusimano, eds. Eagan, MN:ThomsonWest, 2003. Chapter four,“Legal Research” describes how toorganize legal research for tort litigation.KF 8925 .P4 A94 2003
Causes of Action. Eagan, MN:ThomsonWest. Suggested subject head-ings in index: medical evidence, hospi-tals or medical institutions, medical his-tory, medical practice guides. Includesprima facie case elements, defenses, ref-erences to ALR. Always check supple-ment for superseding articles. Updatedannually. KF 8863 .S53
Evidence in New York State andFederal Courts. Robert A. Barber andVincent C. Alexander. West’s New YorkPractice Series. Eagan, MN:ThomsonWest, 2001- KFN 6030 .B37
Hospital Law Manual. Wolters Kuwer.KF 3825 .A6 A85
Jury Instructions on Medical Issues.Ronald W.Eades New York: LexisNexis.Available in Lexis.
Litigating Minor Impact Soft TissueCases. Karen K. Koehler and Michael D.Freeman. AAJ Press, Thomson West. KF78925 .P4 K64 2008 3
Malingering and Deception inLitigation Kevin Foley. Loislaw.
Medical Malpractice: Discovery andTrial. 7th ed. Thomas A. Moore. NewYork: Practising Law Institute, 2002- .KF 8925 .M3 M66 2002
Medical Malpractice: Checklists andDiscovery. D. Danner, et al. Coordinateswith Lane Medical Litigation Guide.Chapters six and seven on discoverychecklists and strategy looks very help-ful. Includes pattern interrogatories forspecific circumstances and experts.KF8900 .D326 1994.
New York Elements of an Action.Thomas B. Merritt. West’s NY PracticeSeries. Eagan, MN: Thomson, West.Annual. KFN 6012. N49 Reserve.
New York Law of Torts. Lee S.Kreindler. West’s New York PracticeSeries. Eagan, MN: Thomson West,1997. KFN 5310 .N494 1997. Reserve
New York Pattern Jury Instructions.Eagan, MN: Thomson, West. Annual.Includes verdict sheets. KFN 6047 .A65A84 Reserve.
New York Pattern Jury InstructionsCompanion Handbook. Michael A.Rosenhouse Eagan, MN: ThomsonWest,Annual. See chapter. five for suggestedpattern jury instructions in differenttypes of medical malpractice cases. KFN6047 .A65 A841.
New York Tort Citator. James K.O’Sullivan, ed. East Islip, NY :VerdictSearch. Updated annually. KF 5310 .A59N492.Reserve
New York Workers’ CompensationMedical Fee Schedule. “Effective Dec. 1,2010.” Annual. HD 7103.65 .U65 N7Lock-Up #1
Proving Mental & Emotional Injuries.John D. Winer, Robert Boyers, RichardB. Pesikoff and Richard T. Goldberg.Costa Mesa, CA : James Publishing,2005- . KF 8925 .P4 W5 2005.
Psychiatric and PsychologicalEvidence. 3d ed. Daniel W. Shuman.Thomson West A book that should beused for more cases outside of medicallitigation.KF 8965 .S58 2005.
Medical Materials in the Law Library (Continued from page 3)
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marriages. While acknowledging that thecourts of New York narrowly interpret theterm ‘a spouse‘ as it appears in EPTL §4-1.1(a)(1) and DRL §6(1) to exclude same-sexpartners in New York State and same-sexpartners who validly entered into civil unionsunder the laws of another state from theintendment of those statutes, it found suchcase law distinguishable from the situationpresented, involving a heterosexual marriageby persons never domiciled in New YorkState who validly entered into a marriageunder the laws of a sovereign nation wherethey were always domiciled. Nonetheless, theCourt found that case law and DRL §6 pre-cluded the term ‘a spouse‘to include morethan one spouse as a statutorily recognizeddistributee under EPTL §4-1.1(a) (1).However, inasmuch as there was no disputethat the decedent was survived by (at least)one spouse and issue, and the underlying pur-poses of EPTL §5-4.4 and EPTL §4-1.1 weresatisfied, the Court found that the class of dis-tributees who were entitled to prove they suf-fered pecuniary injuries was identified, there-by foreclosing other potential classes of dis-tributees from seeking a share of the settle-ment proceeds. The Court opined that inas-much as New York statutes and public policypermit the distribution of only one spousalshare where a decedent is survived by aspouse and issue, any interest of New YorkState in enforcing its distribution statute issatisfied by the award and distribution of onespousal share (albeit to be shared by twowives in accord with the law of Senegal),with the remaining proceeds distributed to thedecedent's ten children who were under theage of 21 at the time of his death. The Courtfound that the state's interest in protecting thedistributive shares of infants also was met, asthe single spousal share to be divided by thetwo spouses neither enlarged the spousalshare nor diminished the proposed shares tobe paid to the children. The Court also point-ed out that New York State has not, bystatute, enunciated any interest in how theone spousal share is divided after it is award-ed pursuant to EPTL §4-1.1(a) (1), and statedthat it could not discern any such state inter-est. Consequently, the Court ruled that thesingle spousal share could be paid out to thetwo spouses in the shares requested in thepetition. The Court cautioned, however, thatthe result reached might very well be differ-ent if, at the time of either marriage, any ofthe three parties involved was not a domicil-iary of a jurisdiction that recognized a polyg-amous marriage. Matter of Diba, N.Y.L.J.,7/15/10, p. 40, col. 1 (Surr. Ct., Bronx Co.,Surr. Holzman)
Sole Beneficiary Allowed to Receive HisBequest Under the Will of a New YorkDomiciliary Probated In New York, EvenThough the Beneficiary Was One of OnlyTwo Attesting Witnesses, Because the WillWas Executed In Canada- The only benefi-ciary of a Will propounded for probate in anuncontested proceeding was the decedent'snephew, a Canadian citizen. The nephewserved as one of two attesting witnesses to theinstrument. The petitioner requested a deter-mination that EPTL §3-3.2(a) (1) was inap-plicable to void the bequest to the nephew, asthe propounded instrument was executed inOntario, Canada. The decedent's distributeeswere two sisters and two nephews, one ofwhom was the nephew beneficiary, whichnephews were the children of a predeceasedsister. The propounded instrument was exe-cuted in Bradford, Ontario, Canada, while thedecedent was visiting the beneficiarynephew, and was witnessed by two witness-es, one of whom was the said nephew. Thedecedent's two sisters were served anddefaulted. A waiver and consent to probatewas filed by the decedent's other nephew.HOLDING- The will was admitted to pro-bate and the nephew was allowed to receive
his legacy. The Court stated that EPTL §3-3.2 was enacted to discourage the use of abeneficiary as an attesting witness in NewYork, and to ensure that there is no incentivefor an attesting witness-beneficiary to testifyother than truthfully about the will executionceremony. Nonetheless, the Court found thatvoiding or diminishing the bequest to thenephew would not foster the statutory pur-pose. The Court noted that pursuant to EPTL§3-5.1(c) a will executed outside of NewYork is valid in New York provided that itwas validly executed in the jurisdiction wherethe will was executed, so that a will with onlyone attesting witness executed in a jurisdic-tion where one witness is sufficient would bevalid in New York). The Court pointed outthat there was one attesting witness who isnot a beneficiary, and the bequest to an attest-ing witness-beneficiary is void underCanadian law only where the beneficiaryexercised undue influence over the testator.The Court also took note that no interestedparty was contesting the will or requested thatthe nephew testify in support of the will.Consequently, under the facts of the case,including that the will was executed inCanada and that the bequest to the nephewwould not automatically be void underCanadian law, the court did not apply the pro-visions of EPTL §3-3.2 which otherwisewould have reduced the nephews bequest tohis intestate share. Matter of Alford, 2010N.Y. Slip Op. 51707 (Surr. Ct., Bronx Co.,Surr. Holzman 10/5/10)
A Joint Tenancy Continued and theProperty Devolved To the Surviving JointTenant Even Though the Tenant WhoDied Had Moved Out and HadCommenced a Partition Action- Brundageand Slobey acquired title to an improved par-cel of property located as joint tenants withright of survivorship. Brundage and Slobeylived together at a house located on the prop-erty for more than 30 years. After moving outof the house located on the property,Brundage commenced an action againstSlobey seeking a partition and sale of proper-ty. In May 2006 Brundage passed away, andin November 2006 Slobey passed away. TheSupreme Court substituted the executor ofBrundage's estate and the administrator ofSlobey's estate as the plaintiff and the defen-dant, respectively. The parties entered into astipulation, in which they agreed that a refer-ee should ascertain and report, inter alia, onthe legal status of the joint tenancy. The ref-eree issued a report in which he found, interalia, that the joint tenancy of Brundage andSlobey with respect to the property was sev-ered prior to Brundage's death. The SupremeCourt rejected the referee’s finding and dis-missed so much of the complaint as soughtthe partition and sale of the property.Brundage’s Executor appealed. HOLDING-The Appellate Division affirmed. The Courtstated that a joint tenancy is an estate held bytwo or more persons jointly, with equal rightsto share in its enjoyment during their lives,and creating in each joint tenant a right of sur-vivorship. The Court recognized that the con-tinuance of the joint tenancy depended uponthe maintenance of the unities of title, interestand possession, and that the destruction ofany of these unities leads to a severance of thetenancy, and to the creation either of a tenan-cy in common or of several tenancies.However, the Court rejected the plaintiff'scontention, that Brundage had destroyed theunity of possession or the unity of interest bymoving out of the house located on theProperty or commencing the partition action.The Court found that at the time of her deathboth Brundage and Slobey each were stillentitled to common possession of the entireproperty, and that neither of them was exclu-sively seized of any portion of the property.Thus, the Court ruled, the right of survivorship
was not severed prior to Brundage's death andthat Slobey succeeded to the whole propertyoutright. Goetz v. Slobey, 76 A.D.3d 954 (2dDept., 2010)
Supreme Court Lacks Authority toDirect a Local Department of SocialServices to Disregard Certain ExpensesAssociated With a Guardianship inCalculating an Incapacitated Persons NetAvailable Monthly Income- In the course ofa guardianship proceeding pursuant toMental Hygiene Law article 81, there was anadjudication of incapacity and a guardian wasappointed. In its order appointing theguardian and specifying the guardian's pow-ers, the Supreme Court directed the guardianto set aside certain sums for the payment oflegal and other fees associated with theguardianship proceeding, as well as for hisown compensation. The Supreme Court fur-ther directed the local Department of SocialServices (DSS), the agency entrusted with thedistribution of Medicaid funds for the countyin which the incapacitated person (IP)resided, to disregard those sums in calculat-ing the IP’s net available monthly income(NAMI) for the purpose of determiningMedicaid eligibility. The DSS appealed,arguing, inter alia, that the Supreme Courtexceeded its authority in directing it to disre-gard these sums. HOLDING- The SupremeCourt Order was reversed. The AppellateDivision stated that since the Medicaid pro-gram is funded jointly by the federal govern-ment and by the state and its counties, eachstate is permitted to establish its own eligibil-ity criteria for Medicaid coverage. The Courtnoted that New York's regulations regardingthe calculation of an individual's NAMI forthe purpose of determining an individual'sMedicaid eligibility contain an extensive listof income and resource “disregards,” but thatthe list includes no provision for disregardingan individual's expenses, even where thoseexpenses are non-discretionary expensesrelated to the condition contributing to theindividual's need for Medicaid assistance.The Court pointed out that an agency's inter-pretation of its own regulations, includingMedicaid eligibility regulations, is entitled toconsiderable deference and will be upheldunless it is “unreasonable,” “irrational, arbi-trary, or capricious” The Court found that theDSS's interpretation of its regulations wasreasonable and, thus, that the Supreme Courthad improvidently exercised its discretion indirecting the DSS to disregard expenses asso-ciated with the guardianship in calculatingher NAMI. In re Deanna W, 76 A.D.3d 1096(2d Dept., 2010)
The Grant of Summary JudgmentReversed on the Grounds That it WasBased Solely upon Evidence Inadmissibleunder CPLR §4519 (Deadman’s Statute);an Alleged Donee’s Attempt to RecoverArtwork from a Decedent’s EstateDismissed as Time Barred- The petitionersought a declaration that he was the owner ofa 1,100-pound bronze sculpture, by the notedsculptor Jacques Lipchitz, known as The Cry.The petition set forth additional claims sound-ing in conversion, replevin and constructivetrust, and called for ancillary relief under theSurrogate's Court Procedure Act. Petitionerclaims that the sculpture was gifted to hisassignor, by the decedent. The gift allegedlywas effected by way of a handwritten instru-ment which read: “I gave this sculpture ‘TheCry’ to my good friend … in appreciation forall he did for me during my long illness. Withlove and my warm wishes for a Happy Future,…/October 2, 1997, New York.” The writingwas on the back of a photograph of the sculp-ture. According to the donee's deposition, thedecedent gave him the writing in October1997. The donee further testified that at thattime, the sculpture was being stored at a ware-
house in New York at his expense. Accordingto the donee, the sculpture remained at thewarehouse until 1998 when the respondent,the decedent's son and executor of her will,had it removed from the warehouse and placedwith a New York-based art gallery. The doneetestified that he did not remember authorizingrespondent to remove The Cry from the ware-house. The decedent died in July, 2003, andher will was admitted to probate in August,2003. By letter from counsel in March, 2004,the donee asserted his claim of ownership ofthe sculpture and demanded its immediatedelivery by the decedent's estate. This letterrepresented the donee's first such demandupon respondent. In September, 2005, thedonee sold his purported interest in the sculp-ture to petitioner. Respondent's counselinformed petitioner's counsel by letter inOctober, 2005 that the sculpture had been sold“over a year ago.” In July, 2006, petitionerbrought the proceeding. Respondent movedand petitioner cross-moved for summary judg-ment. Surrogate's Court denied respondent'smotion and granted petitioner's cross motion,finding that the decedent intended to and didmake a gift of The Cry to the donee whoaccepted it. The estate appealed. HOLDING-The Court reversed the grant of SummaryJudgment in favor of the petitioner, and dis-missed the proceeding. The Court stated thatthe elements of a gift are intent on part of thedonor to make a present transfer, actual or con-structive delivery to the donee, and acceptanceby the donee, and that the proponent of a gifthas the burden of proving each of these ele-ments by clear and convincing evidence. TheCourt noted that the requirement of deliverymay be satisfied by physical delivery of thegift itself or a constructive or symbolic deliv-ery such as by an instrument sufficient todivest the donor of dominion and control overthe property, and that what is sufficient to con-stitute delivery must be tailored to suit the cir-cumstances of the case. The Court acknowl-edged that a gift instrument, such as the onealleged, would be an appropriate vehicle forthe symbolic delivery of a gift consisting of amonumental work of art such as The Cry.However, the Court found that CPLR §4519stood as a bar to summary judgment in favorof petitioner. The Court opined that a partymoving for summary judgment must suffi-ciently demonstrate entitlement to judgment,as a matter of law, by tendering evidentiaryproof in admissible form. In the Court’s view,the record did not support petitioner's assertionthat the decedent's delivery of the gift instru-ment to the donee was undisputed. The Courtpointed out that the fact of the gift, includingdelivery, specifically was denied in respon-dent's answer. The Court noted that the donee'stestimony was the only evidence of the dece-dent's delivery of the gift instrument to him,and held that this testimony was inadmissibleunder CPLR §4519, because the donee wasthe person from whom petitioner derived hisinterest. The Court stated that evidence that isinadmissible under CPLR §4519 cannot beused to support a motion for summary judg-ment, and held therefore that it was error forthe Surrogate’s Court to grant petitioner's crossmotion for summary judgment. The Court alsodenied respondent’s motion for summaryjudgment on the grounds that the display of thesculpture in the gallery and later on loan to thegovernment of France was not dispositive onthe issue of whether the decedent had relin-quished dominion and control over the sculp-ture and only raised triable issues of fact.However, while not granting the respondent’smotion for Summary Judgment, the Court diddismiss the petition on Statute of Limitationsgrounds. The Court stated that while declara-tory judgment actions typically are governedby a six-year statute of limitations underCPLR §213(1), if the underlying dispute couldhave been resolved through an action or pro-
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ceeding for which a specific, shorter limita-tions period governs, then such shorter periodmust be applied. The Court noted that peti-tioner also availed himself of the remedy ofclaims sounding in conversion and replevin,and accordingly held that the proceeding wassubject to the three-year statute of limitationsfor such claims. The Court pointed out thatconversion is the unauthorized assumption andexercise of the right of ownership over goodsbelonging to another to the exclusion of theowner's rights, and that the basis of an actionfor conversion is the denial or violation of theplaintiff's dominion over, rights to, or posses-sion of property. The Court stated that a con-version cause of action accrues upon theoccurrence of some affirmative act such asasportation by the defendant or another person,denial of access to the rightful owner, or asser-tion to the owner of a claim on the goods, saleor other commercial exploitation of the goodsby the defendant. Even assuming there was agift, the Court found that the affirmative act ofasportation required occurred no later than1998, when respondent had The Cry removedfrom the New York warehouse without thedonee's permission, delivered it to the NewYork art gallery, and then loaned it to theFrench Government, all in the name of thedecedent’s family. The Court found it immate-rial whether petitioner was aware of respon-dent's acts in that accrual of the cause of actionran from the date the conversion took place,and not from discovery or the exercise of dili-gence to discover. In the Court’s view, peti-tioner's conversion claim thus was time-barred. The Court also found the replevinclaim similarly barred, since where replevin issought against the party who converted theproperty, the action accrues on the date of con-version. The Court also rejected petitioner’s
assertion that the statute of limitations wasrestarted in 2004 when respondent purported-ly sold The Cry, holding that notwithstandingthe loan of The Cry to the French Governmentin the interim, respondent's assumption andexercise of the right of ownership of the sculp-ture remained unbroken from 1998 until thepurported sale in 2004. The Court also foundunavailing petitioner’s argument that his con-version and replevin claims were no longerbefore the court by the time it had rendered itsdecision. Petitioner claimed to have discontin-ued those claims by way of a letter to the courtsubmitted while the motion was sub judice.The Court noted that except where specifical-ly superseded by the SCPA, the CPLR appliesto proceedings in Surrogate's Court, and thatby operation of CPLR §3217, the conversionand replevin claims could only be discontin-ued by stipulation, order or notice servedbefore joinder of issue or within 20 days afterservice of the petition, whichever is earlier,none of which were found by the Court to haveoccurred. Consequently, the Court ruled thatpetitioner's purported discontinuance of thoseclaims was ineffective. Accordingly, thedecree of the Surrogate's Court, New YorkCounty which granted petitioner's crossmotion for summary judgment finding that thedecedent's inter vivos gift of certain art workwas valid, and denied respondents' motion forsummary judgment dismissing the petition,was reversed, and respondent's motion wasgranted to the extent of declaring that petition-er's claim of ownership of The Cry and hisclaims for damages were barred by the statuteof limitations. Mirvish v. Mott, 75 A.D.3d 269(1st Dept., 2010)
Brief brief:The Release by the Office of the New
York City Medical Examiner of aDecedent's Body to his Family for BurialFollowing an Autopsy, Without Advisingthe Family Members That the Decedent'sBrain had Been Removed and was BeingRetained for Further Examination, andWithout Affording Them an Opportunityto Delay the Burial of the Decedent'sRemains Until Such Time as the BrainCould be Returned to Them, Gives Rise toa Cause of Action to Recover Damages Fora Violation of the Right Of Sepulcher-Shipley v. City of New York, 2010 N.Y. SlipOp. 06786 (2d Dept., 2010)
New Internal Revenue ServiceRequirement That All Tax ReturnPreparers Must Obtain and ExclusivelyUse an Identifying Number Prescribed Bythe IRS and not a Social Security Number,For Returns or Refund Claims Filed AfterDecember 31, 2010- For tax returns orrefund claims filed after December 31,23010, tax return preparers must obtain andexclusively use an identifying number pre-scribed by the IRS, rather than a social secu-rity number (SSN), as the identifying numberto be included with the tax return preparer’ssignature on the tax return or claim forrefund. Prior to these final regulations, theidentifying number of a tax return preparerwas the tax return preparer’s SSN or an alter-native number as prescribed by the IRS. Thealternative number that the IRS had pre-scribed is referred to as a PTIN. AfterDecember 31, 2010, tax return preparers canonly use a PTIN (or other number that theIRS prescribes in the future as a replacementto the PTIN) and may not use an SSN as apreparer identifying number unless the IRSdirects otherwise. For tax returns or claims
for refund filed before January 1, 2011, theidentifying number of a tax return preparerwill remain the preparer’s SSN or PTIN.Under the final regulations, a tax return pre-parer must sign and furnish a PTIN on a taxreturn or claim for refund if the tax return pre-parer has primary responsibility for the over-all substantive accuracy of the preparation ofthe tax return or claim for refund. If a signingtax return preparer has an employmentarrangement or association with another per-son, then that other person’s employer identi-fication number (EIN) also must be includedon the tax return or refund claim.
Tax return preparers who are required butfail to include a PTIN on a tax return orrefund claim, or fail to include the EIN of anyperson with whom they have an employmentarrangement or association, are subject to apenalty under IRC §6695(c), unless the fail-ure to include an identifying number is due toreasonable cause and not due to willful neg-lect. The regulations provide that, in applyingfor a PTIN, tax return preparers must pay auser fee that the IRS prescribes in forms,instructions, or other guidance. The proposedregulations also provided for the IRS to pre-scribe the manner for renewing a PTIN,including the payment of a user fee. ThePTIN number can be obtained online atwww.IRS.gov or by filing Form W-12. Thereis a fee of $64.25. 26 CFR 1.6109-2 (2010-46 I.R.B, November 15, 2010, p. 651)
Compiled by Hon. Bruce M. Balter,Justice of the Supreme Court, State ofNew York, and Chair, Brooklyn BarAssociation, Surrogate's CourtCommittee, and Paul S. Forster, Esq.,Chair, Brooklyn Bar Association,Decedent's Estates Section.
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