1 T H E O F F I C I A L P U B L I C A T I O N O F T H E B R O O K L Y N B A R A S S O C I A T I O N BROOKLYN BARRISTER 2010 Brooklyn Bar Association NOVEMBER 2010 VOL. 63 NO. 3 NYSBA Honors Brooklyn Volunteer Lawyers Project The Brooklyn Bar Association Volunteer Lawyers Project was honored as one of the premiere pro bono programs of New York State at a gala ceremony held in the Rotunda of the State Supreme Court on October 25, To celebrate National Pro Bono Discoverability Of A Personal Injury Plaintiff s Facebook And Myspace Pages By Glenn Verchick, Esq. To what extent are a personal injury plaintiff s self-restricted private pages of his or her social networking websites, such as Facebook and MySpace, discoverable? The question was recently addressed in a well reasoned and thoroughly researched decision by Justice Jeffrey Arlen Spinner, of the Supreme Court, Suffolk County. In Romano v. Steelcase, 1 the Court ultimately held that plaintiff s private, self-restricted MySpace and Facebook pages, as well as deleted and historical data from such sites, were discoverable where plaintiff had put her physical condition and loss of enjoyment of life in issue and where her right to privacy concerns were outweighed by the defendants need for the discovery. In Romano, plaintiff sued defendants alleging that she sustained personal injuries as a result of defendants negligence. The exact nature and extent of the plaintiff s injuries in Romano are not detailed in the decision but it is revealed that plaintiff claimed to have, sustained permanent injuries as a result of the incident and that she can no longer participate in certain activities or that these injuries have effected her enjoyment of life. 2 She also claimed to be, largely confined to her house and bed 3 but is depicted on the public portion of her Facebok page as, smiling happily in a photograph outside the confines of her home. 4 Defendants took the position that the portions of the plaintiff s Facebook and MySpace pages, to which they had free access, painted a picture of plaintiff s postaccident life that was contrary to her claims of physical limitations and loss of enjoyment of life, which were being made in her case. As such, defendants argued that plaintiff s restricted information (Continued on page 9) Week, the New York State Bar Association, the New York State Courts and the Office of the Mayor of the City of New York presented the VLP with a 2010 Pro Bono Service Award for its innovative programming to assist Brooklyn residents facing overwhelming legal issues related to consumer debt. CLARO, the weekly consumer debt clinic in Kings County Civil Court, which originated with the VLP in 2006 in partnership with a pro bono student action group at Brooklyn Law School, has now been replicated city-wide. The VLP also partners with the NYS Access to Justice Program in conducting the Consumer Debt Volunteer Lawyer for a Day program in Civil Court, under the direction of the VLP s Robert Jacovetti. The award, accepted by VLP Executive Director Jeannie Costello and Supervising Attorney Sidney Cherubin, was presented to the VLP by the Hon. Jeffrey Oing, Supervising Judge of New York County Civil Court. BBA President Andrea Bonina and Executive Director Avery Eli Okin were in attendance at the ceremony; NYSBA President Stephen P. Younger praised Ms. Bonina and the BBA for their ongoing support of pro bono programs through the VLP. From left to right: VLP Pro Bono Coordinator Jessica Spiegel; VLP Supervising Attorney Sidney Cherubin; the Hon. Jeffrey Oing, Supervising Judge, New York County Civil Court; Deputy Mayor Carol Robles-Román; VLP Executive Director Jeannie Costello. Brooklyn Bar Association Foundation, Inc. Annual Dinner Monday, December 6, 2010 Marriott Brooklyn Bridge Hotel To Be Honored With The Association s Annual Award: Hon. Sylvia O. Hinds-Radix Administrative Judge for Civil Matters Supreme Court, Kings County Hon. Ellen Spodek Justice, Supreme Court, Kings County Rose Ann C. Branda Past President Brooklyn Bar Association And Honoring the Retirement of Judicial and Non-Judicial Court Personnel For further information see What s Inside Volunteer Lawyers Project Receives Award at Kick-Off event...page 1 Discoverability of a Personal Injury Plaintiffs Facebook and Myspace Page By: Glenn Verchick, Esq...Page 1 The Docket By: Louise Feldman...Page 2 Legal Briefs By Avery Eli Okin, Esq., CAE...Page2 New Members October Page 2 Respectfully Submitted By: Andrea Bonina, Esq....Page 3 Roll Call By: Diana J. Szochet, Esq....Page 3 Insurance Resources in the Brooklyn Supreme Court Library By: Jacqueline Cantwell...Page 4 The State of Estates By: Hon. Bruce M. Balter and Paul S. Forster, Esq...Page 5 Fifth Annual Liz Padilla Race By: Jessica Spiegal...Page 6
2 2 THE DOCKET Included below are events which have been scheduled for the period November 23, 2010 through February 1, 2011 Compiled by Louise Feldman November 23, 2010 Tuesday KCCBA Board of Director s Meeting Board of Trustees Room 5:00 P.M. KCCBA CLE Program Auditorium 6:00 P.M. November 25, 2010 Thursday In observance of Thanksgiving the & & Brooklyn Bar Association, the November 26, 2010 Friday Foundation Reading Room, the Lawyer Referral Service and the Brooklyn Bar Association Volunteer Lawyers Project will be closed November 29, 2010 Monday Landlord & Tenant CLE Auditorium 6:00 P.M. December 6, 2010 Monday Brooklyn Bar Association Foundation, Inc., will hold its Annual Dinner at the NY Marriott at the Brooklyn Bridge Hotel 6:00 P.M. Reception Hour and 7:30 P.M. Dinner December 8, 2010 Wednesday 18B Family Court Screening Committee Rear Conference Room 1:00 P.M. Board of Trustees Meeting 5:00 P.M. Board of Trustees Room VLP Recognition TD Bank Montague and Court St 6:00 P.M. December 9, 2010 Thursday CLE Mediation Program Auditorium 6:00 P.M. December 10, 2010 Friday CLE Joint program Academy of Trial Lawyers and BBA 2010 Annual Update Auditorium 9:00 A.M. December 15, 2010 Wednesday BWBA Holiday Party.Auditorium 5:00 P.M December 16, 2010 Thursday VLP Board Meeting Board of Trustees Room 4:00 P.M. December 20, 2010 Monday KCCBA Board of Directors Meeting Board of Trustees Room 5:00 P.M. KCCBA Holiday Party Auditorium 6:00 P.M. December 24, 2010 Friday In observance of the Christmas Holiday the Brooklyn Bar Association, the Foundation Reading Room, the Lawyer Referral Service and the Brooklyn Bar Association Volunteer Lawyers Project will be closed BROOKLYN BARRISTER - NOVEMBER 2010 Judicial Recognition NEW MEMBERS FOR OCTOBER 2010 Cynthia Fisher Michelle Hua LEGAL BRIEFS Congratulations to Brooklyn Bar Association member Hon. Noach Dear who has been designated an Acting Supreme Court Justice assigned to the Civil Term of Kings Supreme. Congratulations to Brooklyn Bar Association Past President Hon. Barry Kamins who has been appointed Co- Chair of the New York State Permanent Sentencing Commission. Co-Chairing the Commission with Judge Kamins is Hon. Cyrus Vance, Jr. the District Attorney of New York County. Kudo s and Professional Recognition The New York Times Sunday Magazine on October 3, 2010 published their Annual Super Lawyers supplement. Over twenty Brooklyn Bar Association members were selected. Included were President Andrea E. Bonina and her law partner and brother John Bonina, Past Presidents Gregory T. Cerchione, Rose Ann C. Branda, David Doyaga, Sr., Paul A. Golinski and Trustees Dino Mastropietro and Joseph Rosato. Three partners at Kramer, Dillof, Carmine A. Rubino, Judith Livingston and Thomas A. Moore as well as both name partners at Gurfein Douglas LLP, Evelyn Laporte Michael Scott Mosberg STUDENT MEMBERS Laura L. Cruz Richard A Gurfein and Preston J. Douglas were selected. Also singled out for Super Lawyers status were Brooklyn Bar Association members Helene Blank, Martin Edelman, Hon. Kenneth Tisker, Andrew S. Garson, Louis Grandelli, David J. Hernandez, Gregory M. Messer, Richard E. Mischel, Kenneth P. Nolan and Devon Reiff. Congratulations to Brooklyn Bar Association Volunteer Lawyers Project Executive Director Jeannie Costello and managing Attorney Sidney Cherubin who accepted an award at the celebrate Pro Bono Celebration Week Kick-Off held on October 25, 2010 in the Rotunda of New York County Supreme Court. The Volunteer Lawyer Project was recognized for its work in consumer credit issues in partnership with CLARO and NYS Courts Access to Justice Program by Carol A Robles-Roman, Deputy Mayor for Legal Affairs and Stephen P. Younger, President of the New York State Bar Association. Heard on the street The Judicial Council of the Second Circuit has announced a vacancy for a Bankruptcy Judge based in Brooklyn. (Continued on page 9) Olga Statz Anna Vidiaev December 31, 2010 Friday In observance of the New Year the Brooklyn Bar Association, the Foundation Reading Room, the Lawyer Referral Service and the Brooklyn Bar Association Volunteer Lawyers Project will be closed January 5, 2011 Wednesday BBA Mentoring Program Auditorium 6:00 P.M. January 6, 2011 Thursday CLE - Power of Attorney Law Auditorium 6:00 P.M. January 10, 2011 Monday CLE - Tort Law Section Auditorium 6:00 P.M. January 11, 2011 Tuesday CLE - Debt Collection Auditorium 6:00 P.M. January 12, 2011 Wednesday Board of Trustees Meeting Board of Trustees Room 5:15 P.M. Judiciary Night Auditorium 6:00 P.M. January 17, 2011 Monday In observance of the Martin Luther King Birthday Holiday Brooklyn Bar Association, the Foundation Reading Room, the Lawyer Referral Service and the Brooklyn Bar Association Volunteer Lawyers Project will be closed. January 18, 2011 Tuesday Young Lawyers Committee Meeting Board of Trustees Room 6:00 P.M. Foundation Public Education Program Auditorium 6:00 P.M. January 24, 2011 Monday CLE No Fault Divorce Auditorium 6:00 P.M. February 1, 2011 Tuesday CLE Sports Law Auditorium 6:00 P.M. IF YOU HAVE ITEMS FOR INCLUSION IN THE DOCKET, PLEASE MAIL OR FAX THEM TO LOUISE DEVLIN-FELDMAN, BROOKLYN BAR ASSOCIATION, 123 REMSEN STREET, BROOKLYN, NEW YORK FAX NO.: ( ) BROOKLYN BAR ASSOCIATION Andrea E. Bonina, President Ethan B. Gerber, President-Elect Domenick Napoletano, First Vice President Avery Eli Okin, Esq., CAE Executive Director TRUSTEES Andrew M. Fallek, Second Vice President Rebecca Woodland, Secretary Arthur L. Aidala, Treasurer CLASS OF 2011 CLASS OF 2012 CLASS OF 2013 Theresa Ciccotto Elaine N. Avery David M. Chidekel Pamela A. Elisofon Richard S. Goldberg Armena D. Gayle Fern J. Finkel Deborah Lashley Steven Jeffrey Harkavy Leardo Luis Lopez Michael S. Lazarowitz Anthony J. Lamberti Dino Mastropietro Joseph S. Rosato Carl J. Landicino Steven H. Richman Hon. Frank R. Seddio Hemalee J. Patel Aimee L. Richter Glenn Verchick Isaac N. Tuchman Roger Bennet Adler Vivian H. Agress Ross M. Branca RoseAnn C. Branda Gregory T. Cerchione Maurice Chayt Steven D. Cohn Hon. Miriam Cyrulnik Lawrence F. DiGiovanna TRUSTEES COUNCIL (Past Presidents) David J. Doyaga Joseph H. Farrell Andrew S. Fisher Dominic Giordano Paul A. Golinski Gregory X. Hesterberg Hon. Barry Kamins Marshall G. Kaplan Allen Lashley Mark A. Longo John E. Murphy John Lonuzzi Manuel A. Romero Hon. Harold Rosenbaum Barton L. Slavin Hon. Jeffrey S. Sunshine Hon. Nancy T. Sunshine Diana J. Szochet
3 The Brooklyn Bar Association Foundation will hold its annual dinner on Monday, December 6 at the New York Marriott at the Brooklyn Bridge Hotel. President-Elect Ethan B. Gerber, who is the dinner chair, has been hard at work with the Annual Dinner Committee. With his leadership and our terrific honorees, I am certain this year s dinner will be a huge success. We are honoring three exceptional individuals this year, each of whom has been unfailingly supportive of the Association and the Foundation: Hon. Justice Sylvia Hinds-Radix, Hon. Justice Ellen Spodek and Past President Rose Ann Branda. Judge Hinds-Radix is the Administrative Judge for Civil Matters in Kings County. In this capacity she has been extremely receptive to our members and has worked to improve our court systems. Judge Spodek was instrumental in starting the CLARO program with the BBA Volunteers Lawyers Project, which has provided extraordinary assistance to consumers burdened by debt. Past President Rose Ann Branda lead our organization in The Following Attorneys Were Disbarred By Order Of The Appellate Division, Second Judicial Department: William P. Fitzgerald (September 28, 2010) On March 9, 2010, the respondent pleaded guilty in the County Court, Suffolk County, to four counts of grand larceny in the second degree, a class C felony; eight counts of grand larceny in the third degree, a class D felony; grand larceny in the fourth degree, a class E felony; and scheme to defraud in the first degree, a class E felony. By virtue of his felony convictions, the respondent ceased to be an attorney and counselor-at-law pursuant to Judiciary Law 90(4)(a) and was automatically disbarred as of March 9, Andrew McGee, admitted as Andrew Briscoe McGee (September 28, 2010) On June 2, 2009, the respondent pleaded guilty in the Criminal Court of the City of New York, Richmond County, to the crimes of driving while intoxicated, in violation of Vehicle and Traffic Law , and aggravated driving while intoxicated, in violation of Vehicle and Traffic Law (a), both misdemeanors. The convictions were for two separate offenses committed on December 16, 2008, and BROOKLYN BARRISTER - NOVEMBER B R O O K L Y N B A R P R E S I D E N T RESPECTFULLY SUBMITTED Brooklyn Bar Association Foundation Annual Dinner By Andrea E. Bonina Esq., President an exemplary fashion during her presidency and has continued to given her time and leadership to our organization through chairing the Family Law Section. As you may be aware, our court system is losing many dedicated, experienced and valued court employees who elected to participate in an early retirement program this year. In recognition of their years of outstanding service, the Brooklyn Bar Association Annual Dinner Committee unanimously voted to recognize these retirees at this year s dinner. James Pelzer, Chief Clerk of the Appellate Division, Second Department, who retired this summer, will be representing the non-judicial employees of the Appellate Courts who are retiring. Thomas Kilfolye, Chief Clerk of Civil Term of the Supreme Court will be representing the retirees of 360 Adams Street. James Imperatrice, Chief Clerk of the Criminal Term of the Supreme Court, will represent the retirees of 320 Jay Street, including the Deputy Chief, and Major Eric Long will represent the retiring uniform January 26, 2009, respectively. On March 19, 2010, the respondent pleaded guilty in the Supreme Court, Richmond County, to driving while intoxicated in violation of Vehicle and Traffic Law Pursuant to Vehicle and Traffic Law 1193(1)(c)(ii), that offense constitutes a class D felony in view of the respondent s two prior convictions. By virtue of his felony conviction, the respondent ceased to be an attorney and counselor-at-law pursuant to Judiciary Law 90(4)(a) and was automatically disbarred as of March 19, The Following Attorneys Were Suspended From The Practice of Law By Order Of The Appellate Division, Second Judicial Department: Barry R. Feerst, admitted as Barry Roy Feerst, a suspended attorney (September 28, 2010) On October 25, 2001, the respondent pleaded guilty to the federal felony of conspiracy to defraud the United States. On November 7, 2008, he was sentenced to a term of three years probation, on condition that he participates in 75 hours of community service. By decision & order on motion of the Appellate Division, Second Judicial Department, dated July 22, 2009, the respondent was suspended pursuant to court officers. In addition, as is our tradition, judicial members of the BBA in good standing who are retiring will be recognized. This year we will be recognizing Supreme Court Justices Hon. Abraham Gerges, Hon. Allen Hurkin- Torres, Hon. Randolph Jackson, Hon. Martin Schneier, as well as retiring Family Court Judge Paul H. Grosvenor and retiring Civil Court Judge Hon. Alice Fisher Rubin. Along with the Brooklyn Bar Association membership, I am deeply grateful for the extraordinary service of both the retiring judicial members and the retiring non-judicial court employees. They will be greatly missed. With these spectacular honorees there is no question that our annual dinner will be the event to attend in December, and I am looking forward to being a part of what is sure to be a terrific evening. I have been asked what the difference is between the Association and the Foundation, and the short answer is that the Brooklyn Bar Association serves its Judiciary Law 90(4)(f) as a result of his conviction of a serious crime. Following a disciplinary hearing, the respondent was found guilty of having been convicted of a serious crime, in violation of Code of Professional Responsibility DR 1-102(A)(3),(4) and (7). He was suspended from the practice of law for an additional one year, commencing immediately, and continuing until further order of the Court. Koston Hui Feng, admitted as Koston F. Pelly (September 28, 2010) Following a disciplinary hearing, the respondent was found guilty of engaging in a pattern of converting funds entrusted to him as a fiduciary, incident to his practice of law; failing to safeguard funds entrusted to him as a fiduciary; using his attorney escrow account for purposes unrelated to his practice of law; and failing to maintain required records for his attorney escrow account. In determining an appropriate measure of discipline to impose, the Court considered the absence of any prior history as well as respondent s explanation that he was unfamiliar with the rules governing escrow accounts; that he opened three accounts: a checking account, an escrow account and a money market account; and that he did not realize at the time that transferring escrow members and the legal community and the Brooklyn Bar Association Foundation serves the public. The Foundation does important work that benefits the Brooklyn community. Each year the Foundation awards two scholarships to children of public employees, which assist these young scholars in pursuing careers in the legal field. This year these scholarships will be awarded at a ceremony at 1 Police Plaza on December 15. The Programs for the Public lecture series sponsored by the Foundation provides important information on issues ranging from foreclosures and bankruptcy to elder law and patient rights to members of the public for free. The Foundation also operates our library, which is a fantastic resource for our members. Finally, the Foundation supplies significant funding for the Volunteer Lawyers Project through a yearly donation. The funds raised by our annual dinner support these endeavors and make it possible to continue making a positive difference in our community. I truly hope that all of our members will support the Foundation through attending and sponsoring our annual dinner. funds back and forth between accounts was improper. Moreover, when apprised by the Grievance Committee that his escrow practices were improper, the respondent immediately ceased such practices. Under the totality of the circumstances, the respondent was suspended from the practice of law for a period of six months, commencing October 29, 2010, and continuing until further order of the Court. In addition, the respondent was directed to make restitution to the New York State IOLA Fund of the interest generated by depositing fiduciary funds into his money market account. Eric A. Stewart, admitted as Eric Allen Stewart (October 13, 2010) The respondent was immediately suspended from the practice of law, pending further proceedings, upon a finding that he was guilty of professional misconduct immediately threatening the public interest based on his failure to cooperate with the Grievance Committee and other uncontroverted evidence of professional misconduct. The Following Suspended Attorneys And/Or Voluntary Resignors Were Reinstated As Attorneys And BROOKLYN BARRISTER EDITORIAL BOARD Glenn Verchick Editor-in-Chief Diana J. Szochet Managing Editor Andrea E. Bonina Esq. ROLL CALL Hon. Barry Kamins Associate Editor Hon. Allen Hurkin-Torres Articles Editor Cecilia N. Anekwe Hon. Bruce M. Balter Marianne Bertuna Jaime J. Borer Mark Diamond Jason Eldridge Paul S. Forster Hon. David Friedman Jason D. Friedman Michael Hernandez Richard Klass Anthony Lamberti (Continued on page 4) Susan Master Gregory Messer Hemalee J. Patel Aimee L. Richter Robert P. Santoriella Michael Treybich Brooklyn Barrister is published by Long Islander Newspapers under the auspices of the Brooklyn Bar Association. For advertising information call (631) Mailing address 149 Main Street, Huntington, New York Vol. 63 No. 3 Novebmer The Brooklyn Barrister (ISSN 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 Telephone No.(718) Periodical postage is paid at Brooklyn, New York and at additional mailing offices. Subscription price is $11.00 per year. POSTMASTER: Send address changes to the Brooklyn Barrister, 123 Remsen Street, Brooklyn, New York
4 4 The New York Center for Neuropsychology & Forensic Behavioral Science [ Over 20 Years \ Providing Consultation to Attorneys & the Courts on Psycho-legal Matters Criminal Cases: Competency Issues, Criminal Responsibility, Extreme Emotional Disturbance, Risk Assessment, Sex Offender Workups & Dispositional Planning Dr. N.G. Berrill, Director Matrimonial & Family Court Cases: Custody/Visitation, Neglect/Abuse, Termination, Delinquency, Family Violence, & Adoptions Civil Cases: Competency Issues, Head Trauma, Sexual Harassment, Discrimination, Immigration, & Post-Traumatic Stress Disorders BROOKLYN BARRISTER - NOVEMBER 2010 Insurance Resources in the Brooklyn Supreme Court Law Library By Jacqueline Cantwell, Senior Law Librarian The West s New York Practice Series has issued a new title, New York Insurance Law by Anne M. Payne and Joseph Wilson. Insurance Law is volume 31 in a series that emphasizes practice-oriented material for an attorney; the text sections are brief, but extensively footnoted. It seems to be more of a case finder than an explanation of insurance. After scanning the table of contents, the footnotes summarizing cases and the index, I realized that I did not know enough about insurance to write an informative review. This was an opportunity for me to learn what the library had on insurance. All of the practice oriented insurance volumes refer to the two major treatises on insurance, Appleman and Couch. These are essential explanations of insurance. The Library has both sets in hard copy; Appleman is also part of our Lexis subscription in the Insurance Library section. The Lexis insurance resources are extensive; do not neglect them. New York Jurisprudence revised its insurance law section this summer. Six volumes now cover insurance, 68 68A, 69, 70, 70A and 71. The index in the last volume is very detailed, but still check the main index. For example, title insurance under the insurance chapter index has one entry, but in the general index title insurance entries take up two columns with references to the chapters on real property and abstracts. While NY Jur is not equivalent to the Appleman and Couch treatises, it does direct the researcher to pertinent NY Insurance Law and cases. In the reading room s open stacks, West s New York Insurance Law is shelved beside Insurance Law Practice (KFN 5290.I ) from the New York State Bar (NYSBA). Updates are on Lois Law through the public access computers. The two books should be used together and topical materials applied when necessary. For example, a footnote introducing NYSBA s Chapter 34 Title Insurance: What Every New York Lawyer Should Know, refers to Real Estate Titles, 3d ed, by the same author, James Pedowitz. After a day of reviewing insurance materials, I would make the following suggestions. Use Appleman and Couch to get background understanding of your topic. The indexes to both titles are comprehensive and prove how complex an issue can be. Once you have an understanding of the topic, find New York state law and cases interpreting these issues. Use NY Jur for New York general background, West s Insurance Law for cases, and NYSBA Insurance Law Practice for essays by practicing attorneys. Do not neglect topical materials. You can find those references either through annotations or the library catalog. For example, automobile insurance is covered well in all the books already mentioned, but checking Arthur V. Lynch s The New York No-Fault Threshold and Weitz on Automobile Litigation and the No-Fault Handbook might give you that extra edge to win your case. And you should also check How Insurance Companies Settle Cases ( KF N ). The Brooklyn Supreme Court Library is open Monday-Friday, 9 am - 6 pm. The Library offers free Lexis and Westlaw and a document delivery service at Click on Libraries to get a full description of services and locations throughout the state. Comprehensive Diagnostic & Treatment Services Roll Call (Continued from page 3) Counselors-At-Law By Order Of The Appellate Division, Second Judicial Department: Priya G. Bhatt, voluntary resignor (October 12, 2010) client; and failing to cooperate with the Grievance Committee (2) Failing to adequately oversee the activity in an escrow account upon which he/she was the signatory 26 Court Street, Suite 912, Brooklyn, NY North Station Plaza, Suite 404, Great Neck, NY Manhattan Avenue, New York, NY Rene G. Garcia, a suspended attorney (October 12, 2010) Andrew P. Jones, admitted as Andrew Paul Alexander Jones, a suspended attorney (October 12, 2010) Gerard P. McLoughlin, admitted as Gerard Peter McLoughlin, a suspended attorney (October 12, 2010) At A Recent Meeting of the Grievance Committee For The Second, Eleventh And Thirteenth Judicial Districts, The Committee Voted To Sanction Attorneys For The Following Conduct: Failing to timely re-register as an attorney with the New York State Office of Court Administration (6) Neglecting a legal matter; failing to maintain adequate communication with a Escrow irregularities including failing to maintain a contemporaneous ledger or similar record of deposits into, and withdrawals from, his/her escrow account; drawing escrow checks for business expenses; and making cash withdrawals This edition of ROLL CALL was compiled by Diana J. Szochet, Assistant Counsel to the Grievance Committee for the Second, Eleventh and Thirteenth Judicial Districts and Past President of the Brooklyn Bar Association. To Advertise in The Brooklyn Barrister Call (866)
5 By Hon. Bruce M. Balter and Paul S. Forster, Esq. THE STATE OF ESTATES We wish you all a meaningful Thanksgiving season, and we give thanks for all we have, including the myriad opportunities our society offers us. Our humble contribution to your blessings are the following interesting and important cases, and New York State Department of Taxation and Finance pronouncements, involving the admission of a 50-year old will to probate despite the sole surviving witness having no recollection of the will signing having occurred; the validity a waiver of the right of election signed only by the surviving spouse; a limitation on the depositions of medical personnel in a probate proceeding; leave being granted by the Surrogate to the Department of Social Services in a Surrogate s Court Accounting Proceeding to apply in the Supreme Court to vacate that Court s determination allocating the entire proceeds of a cause of action to wrongful death; the absence of authority of a Surrogate to limit the amount from a settlement which can be put into a statutory supplement needs trust; the refusal by the New York State Department of Taxation and Finance to issue an Advisory Opinion on the valuation of a contract and mortgage as of a decedent s date of death, on the grounds that that is the executor s responsibility, subject to later audit; and a change in New York State Department of Taxation and Finance policy, now requiring resident trusts, not otherwise subject to New York State income tax, nonetheless to file New York State Income Tax Returns, even if no tax is shown as due. A 50-year Old Will is Admitted to Probate Despite the Sole Surviving Witness Having no Recollection of the Will Signing Having Occurred- The decedent, a physician, married his first wife in On September 12, 1958, he purportedly executed a document that petitioners, his daughters, sought to probate as his will. The first wife died in 1981, and in 1988, the decedent married again. His second wife survived him and objected to probate. The decedent died in 2006 leaving an estate valued at approximately $28 million. Two months after her husband's death, the surviving spouse found the almost 50-year-old four-page document in their home, which the decedent s children then sought to have probated as his will. Three witnesses signed the will, Harry Grayer, Esq., Barbara Sammons, and Mary Ann Schuder. Grayer was the decedent's attorney. There was an invoice from Grayer in the record, dated the day the will was executed, charging the decedent for professional services rendered Re: Preparation of Will, etc. The two other witnesses, Sammons and Schuder, worked in the decedent's medical office at the time the will was signed. All three of the witnesses' signatures appear at the end of the will, underneath an attestation clause, which recites: The above instrument was on the 12th day of September, 1958 in the Borough of Manhattan, County, City and State of New York, subscribed by SEY- MOUR LIONEL HALPERN, the Testator above named in the presence of us and of BROOKLYN BARRISTER - NOVEMBER each of us, and at the same time and place, the above instrument was published and declared by the said Testator to be his Last will and Testament and thereupon each of us at the request of the said Testator and in his presence and in the presence of each other have hereunto signed our names as witnesses thereto, and wrote the places of our respective residences alongside our names. The will made a number of minor bequests to relatives and charitable organizations. With the exception of those bequests, the first wife and the decedent s eldest daughter were the sole beneficiaries under the will, with a provision made for any after-born children. The decedent and his first wife thereafter had a second daughter and a son. Ms. Sammons, the only surviving attesting witness, was deposed. Ms. Sammons, who was 69 years old, testified that she recognized her signature at the end of the will and that she remembered living at the address listed next to her signature in However, she also testified, more than 15 times, in response to a variety of questions, that she had no memory of the events of September 12, 1958, because they occurred 50 years before the deposition. Handwriting experts authenticated decedent's signature at the end of the will, as well as that of his attorney, Mr. Grayer. The surviving spouse filed objections to probate, asserting that the will was not duly executed. The proponents moved for summary judgment to admit the will to probate, and the objectant cross-moved for summary judgment as well. The court held a hearing and concluded that the inability of the surviving witness to remember the execution of the will 50 years before when she was 20 years old was insufficient to rebut the presumption of due execution and that there was no material issue of fact as to the due execution of the will, and admitted the will to probate. The objectant appealed. HOLDING- Over a strong dissent, the Appellate Division affirmed the Surrogate. The Court stated that before admitting a will to probate, Surrogate's Court must be satisfied that the execution of the will was valid. The Court noted that the proponent has the burden of demonstrating, by a preponderance of the evidence, that a purported will was duly executed, and that if an attorney-drafter supervises the execution of a will, there is a presumption of regularity that the will was properly executed. The Court added that a valid attestation clause raises a presumption of a will's validity. Nonetheless, the Court acknowledged that it is incumbent upon Surrogate's Court to examine all of the circumstances surrounding the execution of the document in order to ascertain its validity. The Court pointed out that the determination whether to dismiss objections and admit a will to probate is within the discretion of Surrogate's Court, and that its determination should not be overturned absent a showing of an abuse thereof. The Court found the will to have been executed fully in accordance with Decedent Estate Law 21 which then governed. The Court found that the decedent had signed the will at the end of the document; that there was an attestation clause (Continued on page 8) Diana C. Gianturco ATTORNEY AT LAW P.O. BOX 419 LONG BEACH, NY Tel: Fax: Text: APPEARANCES IN QUEENS COUNTY
6 6 BROOKLYN BARRISTER - NOVEMBER th Annual Liz Padilla Memorial 5k By Jessica Spiegal For the fifth consecutive year, hundreds of friends and supporters of the Volunteer Lawyers Project came together on October 2 to enjoy a beautiful fall day in Prospect Park and to honor the memory of an extraordinary colleague. With over 300 individuals participating in the 5 th Annual Liz Padilla Memorial 5k, and many more cheering from the sidelines, it was clear that the yearly run/walk has become an eagerly-anticipated event for many in the legal community. Brooklyn Borough President Marty Markowitz was on hand to present a proclamation to VLP Executive Director Jeannie Costello, and to Liz s parents Kathy and David Padilla. Liz was a Staff Attorney at the Volunteer Lawyers Project in June, 2005, when she was tragically killed in a cycling accident while on her way to work. The 5k in her name was begun in 2006 to celebrate Liz s legacy as a compassionate advocate and an accomplished athlete. This year marked the first appearance of an official Brooklyn Bar Association team, led by BBA President and Race Co-Chair Andrea Bonina. Other teams included Team Slattery/Appelle, organized by VLP Board President James T. Slattery; Team Letica, led by VLP Board Member Terri Letica; Team Patterson Belknap; Team Legal Eagles, comprised of associates from Alston & Bird LLP; Team MedLaw, from the law firm of Bonina and Bonina; Team SNR Denton; Team CLARO, representing the VLP s consumer debt clinic; and staff and participants from On Your Mark, a non-profit that provides programs for adults and children with disabilities. The race was followed by a pee wee race always a highlight of the day for the kids and adults alike and the presentation of trophies to runners in several categories. In addition to supporting the VLP s ongoing work assisting Brooklyn s neediest residents, proceeds from the 5k fund the Liz Padilla Memorial Fellowship, allowing an aspiring public interest lawyer from Cornell Law School (Liz s alma mater) to spend a summer as an intern at the Volunteer Lawyers Project. Mark your calendars now the next Liz Padilla Memorial 5k will be held Sunday, October 2, Members of the Brooklyn Bar team included Steven Catalano, Mark Longo, Gregory LaSpina, Glenn Verchick, Ethan Gerber, Andrea Bonina, Ben Verchick and Arielle Gerber. Liz s parents, David and Kathy Padilla, with BBA President Andrea Bonina, Borough President Marty Markowitz, VLP Executive Director Jeannie Costello, and New York State Senator Kevin Parker. Pee wee racers dash for the finish line.
7 BROOKLYN BARRISTER - NOVEMBER th Annual Liz Padilla Memorial 5k The CLARO team, made up of volunteers from the VLP s consumer debt clinic at Kings County Civil Court. Members of the Slattery/Appelle Team included Erin Appelle; VLP Board President Jim Slattery, Yvonne Robinson, Linda Slattery, Maggie Appelle, and Shannon Appelle. Runners take off from the starting line at the 5th Annual Liz Padilla Memorial 5k. Members of Team Letica (from left): Daniel Bush, Matt Slootsky, VLP Board Member Terri Letica, Jamie Letica, Alison Meyer and Nick Letica Once again this year, staff and race participants from On Your Mark, a program for disabled children and adults, joined in the fun. Race winners celebrate at the conclusion of the 5k.
8 8 BROOKLYN BARRISTER - NOVEMBER 2010 The State Of Estates (Continued from page 5) stating that he did so in the presence of three attesting witnesses and that he declared the document to be his last will and testament; and that the decedent's lawyer prepared the will, served as an attesting witness, and billed the decedent, on the date of the execution of the instrument, for the services rendered. The cover page of the will also contained the lawyer s letterhead. Ms. Sammons identified her signature and address on the document, and a handwriting expert verified the signatures of the decedent and the lawyer. In the Court s view, the Surrogate's Court correctly concluded that the proponents demonstrated a prima facie showing of due execution of the will, as it contained a valid attestation clause, and was executed under an attorney's supervision, despite the fact that the sole surviving witness testified that she did not remember the will's execution 50 years prior. The Court noted that upon the presumption of due execution, the burden then shifted to the objectant to produce evidentiary proof in admissible form to rebut the presumption and raise a material issue of fact. The majority rejected the dissent's position that a trier of fact could reasonably infer, from the sole surviving witness's deposition testimony, that the formalities set forth in the attestation clause had never taken place. In the Court s view, the excerpts from the EBT relied on by the dissent, read in context, also could be interpreted that she could not confirm the statements made in the attestation clause because she didn't remember an event almost 50 years earlier, when she was approximately 20 years old. The Court concluded that given all of the evidence submitted to the Surrogate, to wit: the objectant's delivery of the will, which she found in the decedent's closet; the invoice from the attorney-drafter, dated the same day the will was purportedly executed; the signature of the supervising attorney at the end of the will (authenticated by a handwriting expert); the admission of the attesting witness that she too signed the will and that her address at the time was correctly set forth next to her signature; and the authentication of the decedent and the attorney's signatures at the end of the will by a handwriting expert, it was not an abuse of the court's discretion to have granted the proponent's motion for summary judgment admitting the subject will to probate. The gist of the dissent was that the majority had vitiated the principle that the court s function on a motion for summary judgment is issue finding, not issue determination and had in effect weighed the evidence and found that the better conclusion was that the decedent executed the will in accordance with the statutory requirements, which in the dissent s view was improper. Matter of Halpern, 76 A.D.3d 429 (1 st Dept., 2010) Waiver of the Right of Election Valid Even Though it Was Signed Only by the Surviving Spouse- The decedent and his surviving spouse objectant had entered into two prenuptial agreements, one in 2001 and one in The agreements, which contained the same terms, provided, inter alia, that the objectant waived her rights to the decedent's estate. In the 2001 agreement, the objectant's acknowledgment did not follow exactly the language of the Real Property Law, and the agreement was not acknowledged by the decedent. The decedent died in 2008 and a petition was filed to probate his will. The surviving spouse filed objections to probate and a notice of election as the surviving spouse of the decedent. In response, the petitioner moved pursuant to CPLR 3211(a) to dismiss the objections on the ground that the objectant lacked standing based upon the prenuptial agreements in which she waived her rights to the decedent's estate. The objectant contended that the motion should be denied because the prenuptial agreements were not properly acknowledged and were invalid due to fraud in the execution. The objectant requested, if the court was not inclined to deny the petitioner's motion on the papers, that the court hold an evidentiary hearing on the validity of the acknowledgments of the prenuptial agreements. The Surrogate's Court, without a hearing, granted the petitioner's motion to dismiss the objectant's objections and dismissed her notice of election, on the ground of lack of standing, and admitted the will to probate. The objectant appealed. HOLDING- The Surrogate was sustained. The Appellate Division stated that EPTL A(e)(2) provides that a waiver or release of a surviving spouse's right to an elective share of the estate of the deceased spouse must be in writing and subscribed by the maker thereof, and acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property. The Court pointed out that there is no requirement that a certificate of acknowledgment contain the precise language set forth in the Real Property Law only that it be in substantial compliance with the statute. The Court noted that there are two aspects to an acknowledgment, an oral declaration of the signer of the document and a written certificate, prepared by one of a number of public officials, generally a notary public. The Court found that on the 2001 agreement, the objectant's acknowledgment substantially complied with the requirements of the Real Property Law. The Court rejected the objectant's contention, that the decedent was required to have also properly acknowledged the 2001 agreement. The Court stated that a waiver of the right of election is effective whether unilateral in form, executed only by the maker thereof, or bilateral in form, executed by both spouses. The Court also rejected the objectant s contention that the 2001 agreement was invalid due to fraud in the execution and, therefore, she had standing to object to probate of the will and the right to elect against the estate. The Court found the objectant's allegations of fraud in the execution to be insufficient as a matter of law. In light of its determination that the 2001 agreement was valid, the Court did not address the objectant's contentions that the 2006 agreement was invalid. Matter of Abady, 76 A.D.3d 525 (2d Dept., 2010) Depositions of Medical Personnel Limited in a Probate Proceeding- In a probate proceeding proponent submitted a self-proving affidavit of the attesting witnesses stating that the decedent was of sound mind, memory and understanding and was not incompetent. In addition, proponent presented the testimony of five disinterested witnesses who each attested to the decedent's capacity on the date of execution, and also presented evidence that the decedent was aware of the assets passing under his will and knew that objectants were the natural objects of his bounty but consciously decided not to make a bequest to them. Medical records submitted by objectants showed that while decedent was terminally ill and initially confused and disoriented upon his admission to the hospital, his cognitive facilities quickly improved and he was lucid on the days before and on the date he made the will. Objectants requested the decedent's medical records almost a year after they commenced depositions, and did not seek further discovery until four months after they received the medical records. The objectants also raised a question as to which of the two attorneys present had supervised the execution of the will. The proponent moved for summary judgment and the objectants moved for further discovery to depose medical personnel who attended the decedent in the hospital. The Surrogate ruled that objectants' motion for further discovery to depose medical personnel amounted to a fishing expedition, and granted the motion for summary judgment admitting the will. The objectant appealed. HOLDING- The Surrogate was affirmed. The Appellate Division ruled that the proponent had met his burden of establishing the decedent's testamentary capacity with the self-proving affidavit of the attesting witnesses stating that the decedent was of sound mind, memory and understanding and was not incompetent. The Court found no triable issue of fact in the medical records relied upon by the objectants. The Court agreed with the Surrogate that further discovery of the medical personnel would have been a fishing expedition. The Court stated further that proponent established prima facie due execution of the will with the affidavits and testimony of the attesting witnesses and attorneydrafter. The Court opined that where the attorney-drafter supervises the execution of the will, there is a presumption of regularity that the will was properly executed in all respects. The Court added that the attestation clause and self-proving affidavit gave rise to a presumption of compliance with all statutory provisions and constituted prima facie evidence of the facts attested to therein by the witnesses. The Court found that there was no inconsistency in the evidence regarding which of the two attorneys present had supervised the execution of the will and held that in any event such a discrepancy would be insufficient to overcome the presumption of due execution raised by the selfproving affidavit. Matter of Schlager, 74 A.D.3d 405 (1 st Dept., 2010) Leave Granted by the Surrogate to the Department of Social Services in a Surrogate s Court Accounting Proceeding to Apply in the Supreme Court to Vacate That Court s Determination Allocating the Entire Proceeds of a Cause of Action to Wrongful Death- In a proceeding to judicially account for the settlement proceeds obtained pursuant to an Order of the Supreme Court, the New York City Department of Social Services (DSS) moved for an extension of time to file objections to the account as it neither appeared nor filed objections on the return date of the citation that was served upon it. The administrator, one of the decedent's nine children, opposed the motion. The only item listed in schedule A of the (Continued on page 10)
9 BROOKLYN BARRISTER - NOVEMBER Printing for the Profession quick printing letterhead - business cards forms - four-color work fast turnaround specialty printing (866) Hold The Date Judiciary Night Wednesday, January 12, p.m. Association Meeting Hall Discoverability Of A Personal Injury Plaintiff s Facebook And MySpace Pages (Continued from page 1) on her Facebook and MySpace sites were discoverable. For those not familiar with social networking sites such as MySpace and Facebook, it should be related that such sites allow a user, at his/her own discretion, to post information about themselves, such as biographical information, hobbies, likes, dislikes, photographs and other personal information to share with people visiting their site. The user can choose to post information for all to see or post information to be viewed by invitation only. In Romano, plaintiff had both public and restricted postings on both her Facebook and MySpace pages. Since defendants were blocked from the restricted portions of the plaintiff s sites, they asked for authorization from plaintiff to view such portions. The plaintiff objected to the request. Defendants made a motion for authorization to view the restricted portions and any previously deleted postings. In support of the motion, defendants argued that, based on the freely accessible portions of plaintiff s sites (which showed plaintiff post-accident engaged in an active lifestyle which included trips to Pennsylvania and Florida), it could be inferred that the private portions would lead to discoverable information. Legal Briefs The term is for 14 years and the current salary is $160,080. Applications are available at The deadline for submission of completed applications is December 3, Lake George New York attorney Howard L. Krantz, as part of a will contest, is attempting to locate the files of deceased attorney Christopher Prudente of 16 Court Street. Howard Krantz may be contacted at or at Bereavements The Brooklyn Bar Association extends it s deepest sympathy to Leonard C. Spector and family on the passing of his father Abraham Spector on August 4, In opposition to the motion, plaintiff argued that the private content of her social networking sites was protected by her Fourth Amendment right to privacy and this right outweighed defendants need for the information. The decision in Romano carefully analyzed the Fourth Amendment and the protections it provides and compared those protections to the material claimed by plaintiff to be protected there under. The Court concluded that because of the nature of social networking sites, particularly the fact that the sites advise users that they cannot guarantee that restricted information will remain private, plaintiff could not successfully argue that she had a reasonable expectation of privacy. The Court stated: Thus, when the plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature of these social networking sites else they would cease to exist. 5 With regard to guiding precedent, the opinion states that, there is no New York case law directly addressing the issues raised by this application, there are (Continued from page 2) The Brooklyn Bar Association extends its deepest sympathy to Cindy Mendelson and family on the passing of her father Hyman Mendelson on October 14, The Brooklyn Bar Association extends its deepest sympathy to Sara Gozo on the passing of her aunt Zina Caputo on October 18, 2010 Legal Briefs is compiled and written by Avery Eli Okin, Esq. CAE, the Executive Director of the Brooklyn Bar Association and its Foundation. Items for inclusion in Legal Briefs should be ed to faxed to or mailed to 123 Remsen Street, Brooklyn, NY instructive cases from other jurisdictions. 6 The Court carefully analyzed and discussed cases on point from other jurisdictions and, in addition, provided a succinct primer on social networking sites. The Romano decision is a must-read for the personal injury bar as it is an early guideline for pursuing, and defending against, discovery of a plaintiff s social networking site. Note to the plaintiff s bar: there is nothing in the Romano decision that would prohibit a plaintiff from obtaining disclosure of the private pages of a defendant s social networking site, assuming a showing is made that defendant s position in the course of defending the case is inconsistent with information contained on defendant s public portions of their site. In addition, the Romano case does not stand for the proposition that a defendant in a personal injury case be given unqualified access to a plaintiff s restricted content on his or her social networking site. The case implicitly limits discovery of a litigant s private restricted Facebook or MySpace pages. According to Romano, a defendant must first make a showing that content in the public portion of a plaintiff s Facebook or MySpace page is inconsistent with a position taken by plaintiff in the law suit. Then, and only then, can discovery of the private restricted portions be considered. In this regard, the Court in Romano compared the limitations and disabilities claimed by plaintiff in the lawsuit with the public portions on the plaintiff s two sites and concluded: Thus, it is reasonable to infer from the limited postings on plaintiff s public Facebook and MySpace profile pages, that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence. 7 Therefore, before a defendant can delve into a plaintiff s private site content, a defendant must first establish that an inference can be drawn from plaintiff s unrestricted site content that material useful in defending the case is likely to be contained in the private portions. With the ever growing use of online networking sites and the increasing use of computer online research and investigation by lawyers who practice in the field of personal injury litigation, we will no doubt see more cases defining the discoverability of a party s self-restricted on line postings in personal injury cases. 1 Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (S.C. Suff. Cty., Sept. 21, 2010, J. Jeffrey Arlen Spinner) 2 Id. at Id. at Id. at Id. at Id. at Id. at 655. DUFFY & POSILLICO AGENCY INC. Court Bond Specialists BONDS * BONDS * BONDS * BONDS Administration Appeal Executor Guardianship Injunction Conservator Lost Instrument Stay Mechanic s Lien Plaintiff & Defendant s Bonds Serving Attorneys since 1975 Complete Bonding Facilities IMMEDIATE SERVICE! FAX: Birchwood Court Mineola, NY (Across from Nassau County Courts) NYC Location: 108 Greenwich Street, New York, NY 10006
10 10 BROOKLYN BARRISTER - NOVEMBER 2010 The State Of Estates (Continued from page 8) account of the administrator was the sum of $300,000, in settlement of causes of action alleging wrongful death and personal injury. In the Supreme Court order the $300,000 settlement was approved, the entire settlement proceeds were allocated to the wrongful death cause of action, and the personal injury and wrongful death causes of action were discontinued. The citation served upon DSS in the Surrogate s Court proceeding sought to disallow the claim of DSS, in the sum of $87,903.76, or such other amount as it may claim, on the ground, inter alia, there were no estate assets to satisfy said claim. In regard to its failure to timely file objections to the account, DSS pleaded law office failure. The administrator argued that because DSS was not only personally served, but also faxed and mailed copies of the citation, the motion should be denied. In essence, the administrator contended that DSS failed to demonstrate a reasonable excuse for the delay and a meritorious claim. HOLDING- The Surrogate treated DSS's application as a motion to be excused for its failure to file timely objections and for an extension of time to file objections to the account. The Court opined that after the expiration of the time fixed to file a pleading, the court may extend the time to file it, in the interests of justice, notwithstanding that the default was caused by law office failure, provided that the application satisfies the requirements of CPLR The Court found that DSS moved promptly, and prior to the entry of a decree or order, to rectify its failure to interpose timely objections to the account, and that the default was neither willful nor did it prejudice the administrator. The Court noted however, that the objections DSS planned to file would be without merit unless the Supreme Court Order, dismissing the personal injury action and allocating the entire recovery to the wrongful death action, were modified. The Court pointed out that wrongful death damages recovered belong to the decedent's distributees, individually, for the pecuniary injuries suffered by them as a result of the decedent's death, and that only if a portion of the recovery is allocated to the decedent's conscious pain and suffering would there be an estate asset subject to the DSS claim. The Court noted that EPTL was amended in 2005 to facilitate, after the Supreme Court approves the amount of a wrongful death compromise, the expeditious payment of counsel fees and funeral and medical expenses incurred as a result of the acts causing the wrongful death, while holding in abeyance issues as to allocation and distribution, which are to be determined in a Surrogate's Court proceeding after jurisdiction is obtained over all the parties affected by a determination of those issues. The Court pointed out that while EPTL 5-4.6(a) grants authority to the Supreme Court to approve the amount of damages and subdivision (d) provides that such determination is conclusive as to the adequacy of the compromise, subdivision (a) (2) envisions that a proceeding will be commenced in the Surrogate's Court for allocation and distribution of the settlement proceeds. The Court opined that in most cases, the statute appears to work as intended, but noted that the matter sub judice illustrated the issues that can arise where the Supreme Court, without notice to potential creditors of the estate, allocates the entire settlement proceeds to wrongful death. The Court pointed out that EPTL does not contain any provision governing the persons over whom jurisdiction should be obtained in those instances where the Supreme Court order directs such an allocation. The Court stated that prior to the entry of the Supreme Court Order the administrator did not request that any notice be given to DSS of the proposed wrongful death allocation. As a result the Court found that both the DSS and the court thereby were left in a quandary, to wit: while on the one hand the Surrogate's Court lacked jurisdiction to modify orders entered by other courts, the DSS, which represents the taxpayers of New York City, never had the opportunity to be heard on the issue of allocation between personal injuries and wrongful death. The Court noted that the administrator, who benefitted from the wrongful death allocation, drafted the order requesting the allocation embodied in the Supreme Court Order, without disclosing to the Supreme Court that the DSS had a claim which it would be unable to recover in the event that the entire settlement proceeds were allocated to wrongful death. The Court opined that as a general rule, where a compromise is contemplated, the defendant is concerned only about the total amount that is to be paid to settle all of the causes of action alleged in the complaint and does not care about the allocation of the settlement proceeds between the wrongful death and personal injury causes of action. The Court stated that it only is in the exceptional case, such as where a statute or insurance policy limits liability to an amount less than the proposed settlement amount except in wrongful death cases that a defendant might insist upon a certain allocation prior to consenting to the total amount of the settlement. The Court suggested that as a general rule, where the complaint alleges both wrongful death and personal injury causes of action, the Supreme Court Order should only authorize the amount of the settlement for both causes of action and leave all allocation issues to the Surrogate's Court for determination after jurisdiction is obtained over all necessary parties in an accounting proceeding. In order to give the DSS an opportunity to have its interests heard, the Court held both the accounting proceeding and the motion in abeyance so that DSS might move in the Supreme Court for such relief as it deemed appropriate. Otherwise, the Court stated, the Supreme Court Order made any grant of leave to DSS to file late objections in the accounting proceeding pointless because, in light of the wrongful death allocation, such objections would have to be dismissed on the ground that DSS had no right to recover from the decedent's distributees, individually, for services provided to the decedent. The Court suggested that DSS might seek solely, or in the alternative, (1) reconsideration of the allocation issue by that Court; (2) vacatur of the allocation portion of that Court's order and transfer of that issue to the Surrogate s Court, or (3) other similar relief. The Court gave the DSS approximately six weeks to present an appropriate application to the Supreme Court, in the absence of which the Court authorized the administrator's counsel, upon the submission of an affirmation stating that he had not been served with papers in connection with the Supreme Court order, to settle an order denying the DSS motion. Matter of Torres, 28 Misc.3d 677 (Surr. Ct., The Bronx Co., Surr. Holzman, June 2, 2010.) Surrogate Lacks Authority to Limit the Amount From a Settlement Which Can be Put into a Statutory Supplement Needs Trust- Petitioner, as administratrix of the estate of her husband, commenced a proceeding seeking, inter alia, an order confirming the settlement of an action seeking damages for his wrongful death and conscious pain and suffering, and approving her proposed distribution of the net proceeds of that settlement. Among other things, the spouse sought to have her entire distribution placed in a statutory supplemental needs trust (SNT). After the petition was filed, the Surrogate and petitioner's attorney exchanged correspondence concerning the proposed SNT. The attorney explained in a letter to the Surrogate that petitioner receives benefits from the County Department of Social Services (DSS), and she did not want her inheritance to affect her eligibility for such benefits. The attorney also forwarded to the Surrogate a Waiver and Consent executed by DSS consenting to the establishment and terms of the proposed SNT. The Surrogate responded in a letter stating, inter alia, that [w]hile [he] underst[ood] the underlying reason for the request, the present sheltering of available resources' and payback to the government providers only a future possibility, [he could] not in good conscience approve the transfer of the entire balance [i.e., petitioner's intestate share] to [an SNT]. The Surrogate further stated that he was willing to approve an SNT funded with only $100,000 of petitioner's share, and he would add a provision for an annual accounting to the proposed trust instrument. Petitioner's attorney agreed to add the annual accounting provision but would not consent to the Surrogate's proposed limitation of $100,000 to fund the trust because that limitation would effectively render petitioner ineligible for Medicaid. In his final correspondence with petitioner's attorney concerning the SNT, the Surrogate wrote: In the end, I believe that I have a responsibility to the public fisc that takes priority. I recognize that to have someone pay from their own resources when somehow, [some way] we can get the government to pay is an old-fashioned thought but it is a thought that I agree with. The Surrogate further stated that [i]f [his] only choice is to establish a trust with the entire amount or to decline the request [his] inclination would be the latter. Consistent with that inclination, the Surrogate denied the petition to the extent that it sought the approval of any SNT funded by petitioner's entire share of the net proceeds of the settlement. The estate appealed. HOLDING- The Surrogate was reversed. The Appellate division concluded that the Surrogate should have granted the petition in its entirety, thereby approving the proposed SNT for the benefit of petitioner, whom it found without dispute to be a disabled person eligible for an SNT. The Court opined that an SNT is a discretionary trust established for the benefit of a person with a severe and chronic or persistent disability that is designed to enhance the quality of the disabled individual's life by providing for special needs without duplicating services covered by Medicaid or destroying Medicaid eligibility. In the Court s view it is a planning device authorized by federal and state law to shelter the assets of a severely disabled person for the dual purpose of securing or maintaining eligibility for state-funded services, and enhancing the disabled person's quality of life with supplemental care paid by his or her trust assets. According to the Court, the SNT is designed to address the unique and difficult situation faced by severely disabled individuals with assets that are sufficient to end their Medicaid eligibility but insufficient to account for their medical costs. The Court noted that under the pertinent statutes, 42 USC 1396(d) (4) (A) and Social Services Law 366(2) (b) (2) (iii) (A), neither the corpus nor the income of an SNT is considered a resource or income available to the disabled trust beneficiary. The Court pointed out that such favorable treatment is extended to an SNT as long as the trust documents are in conformance with the requirements of EPTL (a)(5), as well as the applicable regulations of the Department of Social Services, which provide among other things that the SNT must contain the assets of such a disabled individual, be established for the benefit of the disabled individual while such individual was under sixty-five years of age by a parent, grandparent, legal guardian, or court of competent jurisdiction, and must provide that upon the death of the individual the state will receive all amounts remaining in the trust up to the total value of all medical assistance paid on behalf of such individual. The Court found that there was no dispute that petitioner was disabled and under 65 years of age, or that the proposed SNT was in conformance with the statutory requirements. The Court acknowledged that since petitioner was an adult with no parent, grandparent, or legal guardian to establish the SNT for her benefit, the assistance of the Surrogate with respect to the SNT was required, and recognized that the decision whether to establish or approve an SNT is a discretionary determination for the Surrogate, and that the Surrogate had a legitimate concern that the ultimate goal of Medicaid is that the program be the payer of last resort. The Court concluded, however, that the Surrogate abused its discretion in conditioning its approval of the SNT upon petitioner's agreement to limit the funding of the trust to $100,000. In the Court s view, the federal and state legislation governing the establishment and operation of SNTs allows a disabled person who receives a lump sum of money to maintain Medicaid eligibility by transferring the funds into an SNT, provided that, in exchange, the State is given a priority interest in the balance of the SNT upon the beneficiary's death. The Court opined that a SNT thus represents a bargain struck between the SNT beneficiary and the State. The Court found that in refusing to approve the funding of the proposed SNT with a sum greater than $100,000, the Surrogate skewed the balance fashioned by the Legislature in favor of the State and to the detriment of petitioner. The Court stated that by placing a limitation on the funding of the SNT, the Surrogate ensured that petitioner would lose her eligibility for Medicaid, a result which it found inconsistent with the public policy underlying SNTs and the Surrogate's function in approving and supervising their establishment. The Court ruled that it is appropriate for the Surrogate to seek assurance that a proposed SNT complies with the controlling law and rules regarding Medicaid eligibility, which is consistent with the func- (Continued on page 11)
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Offices (full/part time) at 110 Wall St., 11th Floor (800) Serving The Legal Profession For Over 25 Years The State Of Estates (Continued from page 10) tion of the Surrogate to assure that the best interests of the incapacitated person are promoted. However, the Court held that it would be a clear dereliction of that duty for the Surrogate to deliberately overlook provisions of a proposed SNT if such provisions were inconsistent with statutory guidelines and thus would bar an incapacitated person from receiving Medicaid benefits by its establishment. To do so, the Court held, would permit the diverting of assets from the ownership or title of the incapacitated person to another legal entity with no consequent benefit to the incapacitated person. The Court noted further that none of the pertinent statutes or regulations supports a limitation upon the amount of money that may be used to fund an SNT, and that none of the cases construing those statutes and regulations had imposed such a limitation. The Court opined that in fact it appeared that Congress considered and rejected a limitation on the amount of money used to fund an SNT. In the Court s view, the proposed SNT funded by petitioner's entire intestate share appropriately protected the needs and interests of both petitioner and the State, consistent with the purpose of the Medicaid SNT and the public policy underlying its creation. Accordingly, the Court ruled that the order insofar as appealed from should be reversed and the petition granted in its entirety. Matter of Woolworth, 76 A.D.3d 160 (3d Dept., 2010) New York State Department of Taxation and Finance Refuses to Issue an Advisory Opinion on the Valuation of a Contract and Mortgage as of a Decedent s Date of Death, on the Grounds That That is the Executor s Responsibility, Subject to Later Audit- Decedent died a resident of New York State. Decedent sold three parcels of real property consisting of approximately 155 acres, along with the mineral resources of those parcels. Under the contract of sale, purchaser paid a specified amount per acre at closing for the real property. Purchaser also agreed to pay an additional specified amount per acre for mineral resources, a portion of which was paid at closing. Payment of the remainder of the per-acre price for mineral resources was due at the time all necessary municipal, state and federal permits to mine the parcels were obtained, and was expressly conditioned on purchaser obtaining those approvals. Interest was due on the remainder of the per-acre price for mineral resources, until the necessary permits were received. If despite its best efforts, purchaser did not receive the necessary permits by the 99th year after the closing, the balance due to the sellers would be based on the fair market value of the property at that time. Purchaser executed a mortgage to secure the debt due in the future under the contract. The mortgage stated that the amount of the debt secured was a fixed amount, which was approximately the amount of the remainder of the per-acre price for mineral resources, multiplied by the number of acres. At the time of Decedent s death, no payments had been made under the mortgage. The estate sought advice from the New York State Department of Taxation and Finance as to the valuation of the contract and mortgage for inclusion in the estate tax return. DETERMINATION- The Department declined to provide a valuation of the assets. The Department stated that it is the estate s responsibility to establish the fair market value of assets for purposes of preparing a New York State estate tax return, if required. The Department noted that with the exception of the applicable exclusion amount, New York s estate tax is conformed to the IRC with all amendments enacted on or before July 22, The Department noted that Tax Law section 954(a) provides that [t]he New York gross estate of a deceased resident means his federal gross estate as defined in the internal revenue code (whether or not a federal estate tax return is required to be filed), and that Internal Revenue Code (IRC) section 2031 defines the gross estate to include the value at the time of death of all property of a decedent, whether real or personal, tangible or intangible, wherever situated. The Department stated that under Tax Law 961(a)(3), a final federal determination as to the value of any item of property or interest in property determines the value of that property or interest in property for purposes of New York s estate tax, unless the final determination is shown by a preponderance of the evidence to be erroneous. The Department ruled that the contract and mortgage were property owned by decedent at the time of her death, and therefore their value is properly includible in her gross estate for both federal and New York State estate tax purposes. The Department stated that the value of property includible in a decedent s gross estate is its fair market value at the time of the decedent s death, unless the executor elects the alternate valuation date under IRC section 2032, which is defined as the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts. The Department ruled that determining the valuation of specific property is an issue of fact, and thus not an appropriate matter for an Advisory Opinion, and that it is the duty of the executor, with the assistance of professional appraisers if necessary, to estimate the fair market value of the property for purposes of filing New York State and federal estate tax returns. According to the Department, the valuation submitted by the executor then would be subject to review on an audit of the estate tax return. New York State Department of Taxation and Finance, Office of Counsel, Advisory Opinion Unit, (TSB-A-10(4)M, Estate Tax, September 28, 2010) New York State Department of Taxation and Finance Policy, Changed to Require Resident Trusts, Not Otherwise Subject to New York State Income Tax, Nonetheless to File New York State Income Tax Returns, Even if no Tax is Shown as Due- Under New York State Tax Law, a resident trust is: a trust created by the will of a decedent who was domiciled in New York State at the time of his or her death; an irrevocable trust that consists of property of a person domiciled in New York State when the property was transferred to the trust; a revocable trust consisting of property of a person domiciled in New York State at the time the property was transferred to the trust if it has not later become irrevocable; or a revocable trust that has later become irrevocable if the trust consists of property of a person domiciled in New York State when it becomes irrevocable. The resident status of the fiduciary does not affect the resident status of a trust. Under a policy previously described in TSB-M-96(1)I, Resident Trusts, a resident trust that was not subject to tax because it met the conditions described in section 605(b)(3)(D) of the Tax Law was not required to file a New York State Income Tax Return. Under section 605(b)(3)(D) of the Tax Law a resident trust is not subject to New York State personal income tax if all of the following conditions are met: All the trustees are domiciled in a state other than New York. The entire corpus of the trust, including real and tangible personal property, is located outside of New York State. All income and gains of the trust are derived from or connected with sources outside of New York State, determined as if the trust were a nonresident trust. However, effective for tax years beginning on or after January 1, 2010, the policy in TSB-M-96(1)I has been revoked, and a resident trust that meets the conditions of section 605(b)(3)(D) of the Tax Law still will be required to file a New York State fiduciary income tax return if it meets the filing requirements for resident trusts, to wit: if the trust: is required to file a federal income tax return for the tax year; had any New York taxable income for the year; had tax preference items for minimum income tax purposes in excess of the specific deduction; or is subject to a separate tax on lump-sum distributions. There is no longer any exception to this filing requirement for resident trusts that are not subject to tax because they meet the conditions of section 605(b)(3)(D) of the Tax Law. New York State Department of Taxation and Finance, Office of Tax Policy Analysis, Taxpayer Guidance Division, (TSB-M- 10(5)I, Income Tax, July 23, 2010) Compiled by Hon. Bruce M. Balter, Justice of the Supreme Court, State of New York, and Chair, Brooklyn Bar Association, Surrogate's Court Committee, and Paul S. Forster, Esq., Chair, Brooklyn Bar Association, Decedent's Estates Section.
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