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THE
OFFICIAL
PUBLICATION
OF
THE
BROOKLYN
BAR
ASSOCIATION
BROOKLYN BARRISTER
©2014 Brooklyn Bar Association
September 2014

VOL. 66 NO. 11
SAVE THE DATE 
Monday, December 8, 2014
Brooklyn Bar Association Foundation, Inc.
Annual Dinner
BBA Welcomes
Danielle Levine,
New Director of CLE
By: Gregory Zenon, Esq.
at the
Brooklyn Bridge Marriot Hotel
2014 ANNUAL AWARD RECIPIENTS:
Hon. Jenny Rivera,
Associate Judge, NYS Court of Appeals
Hon. Randall T. Eng,
Presiding Justice, Second Department
D
Danielle Levine
anielle Levine, the new Director of Continuing Legal Education at the Brooklyn
Bar Association, is a systems thinker. She has
worked in fields as diverse as taxation, healthcare, education, psychology, personal injury, domestic violence, and nonprofits, among others,
always analyzing her objectives in terms of
legal issues and organization. Despite being a
recent Brooklyn Law School graduate (2013),
the range of her work in the legal profession,
spanning years, is expansive, making her an
ideal choice for a job that involves coordinating
education in every single area of the law.
For Levine, much of the appeal of the
job stems from the combination of educa-
Hon. George J. Silver,
Supreme Court, Civil Term, NY County
Andrea Bonina,
Past President 2010-2011
Invitations and Sponsorship Opportunities to Follow
and Online at www.brooklynbar.org
Please turn to page 7
Tailoring A Firm For Value-Added Marketing
By: Joel A. Rose, Esq.
Clients retain lawyers to resolve business and
legal problems and to assist them in achieving
both immediate and long-term objectives. As
such, lawyers must approach client marketing in
a way that encourages them to understand their
clients’ business goals and identify opportunities
that add value to the work performed.
This kind of marketing is considerably different from the “waiting-for-the-client-to-callwith-a-legal-problem” approach.
Partners in the more profitable law firms have
learned that delivering quality legal services is
merely the price of admission to attract and retain
client business in today’s marketplace. For many
lawyers, the world has never appeared to be as
hostile, bewildering, or unstable as it does today.
These perceptions result from the complexities
and uncertainties of a changing economic, professional, and competitive environment in which
most law firms now find themselves.
Mergers and acquisitions have reduced the
number of existing and potential clients. Many
business corporate clients have experienced financial distress, others have joined with larger
and better-managed organizations, and many
have gone out of business. Cost-conscious clients
are less loyal to established law firm relationships. In addition to retaining individual attor-
neys in different firms to perform specific legal
work, it is commonplace for business and corporate clients to negotiate fees, seek volume discounts, and, for certain types of matters, propose
flat fees and contingency/risk forms of billing.
To cope with these competitive pressures,
partners must learn how to position themselves
by emphasizing the qualitative differences between theirs and competing firms that are also
capable of delivering quality services. To rise
above the competition, partners must be prepared to tailor their marketing efforts to satisfy
the specific needs and expectations of existing
and potential clients.
Lawyers are being forced to adjust their attitudes about their own role in marketing the
firm. At some firms, it’s a change requiring palpable modifications to the firm’s culture.
The Client Factor:
Consultants are perennially employed to
plan and develop marketing strategies for educating attorneys about how they can use
their legal abilities and business expertise to
resolve clients’ legal needs and to add value
to their business objectives. For many attorneys, switching from the traditional method
of marketing legal services to the value-added
approach requires a whole new understanding
of their clients.
They must learn about their clients’ businesses, their expectations, and the trends affecting them and their legal problems. Further, attorneys must learn to be creative in figuring out
how their expertise and the capabilities of their
firm can assist clients in satisfying their goals.
Except for those fortuitous instances when
highly profitable opportunities favor attorneys
who just happen to be in the right place at the right
time, the consistently successful rainmakers agree
that marketing legal services requires the “right
mind-set.” To create this mind-set, attorneys must
constantly be aware of their surroundings and the
needs and objectives of those individuals and organizations with whom they come in contact.
In the simplest terms, attorneys must keep their
antennae extended to scan the environment and be
sensitive to opportunities that may be presented either directly or indirectly. Also, they must be prepared to demonstrate how their expertise and/or
the accomplishments of other members of their
firm can add value to the situation at hand.
What’s Inside
Tailoring A Firm for Value-Added Marketing
By Joel A. Rose, Esq. .......................................... Pg. 1
BBA Welcomes New CLE Director
By Gregory Zenon, Esq. ..................................... Pg. 1
The Docket
Compiled by Louise Feldman ............................ Pg. 2
New Members ................................................... Pg. 2
Legal Briefs
By Avery Eli Okin, Esq., CAE ............................ Pg. 2
Respectfully Submitted
By Rebecca Rose Woodland, Esq. .................... Pg. 3
The State of Estates
By Hon. Bruce M. Balter and Paul S. Foster .... Pg. 4
First Department Supports
Dismissing Parking Tickets
By Dennis Boshnack, Esq. ................................... Pg. 5
The ABCs of CLEs
By Gregory Zenon, Esq. ................................... Pg. 7
Spade Work:
The successful marketing of legal services
does not happen overnight. A considerable
amount of behind-the-scenes effort must be invested to convey the impression that the firm’s
marketing efforts follow a logical and smooth
Visit us at www.brooklynbar.org
Page 2, BROOKLYN BARRISTER
SEPTEMBER, 2014
THE DOCKET
Included below are events which have been scheduled for the period
October 13, 2014 through December 31, 2014
Compiled by Louise Feldman
October 13, 2014
Monday
In observance of Columbus Day the
Brooklyn Bar Association Building including
the Volunteer Lawyer Project, the Lawyer
Referral Service, and the Foundation
Library will be closed.
October 14, 2014
Tuesday
BBA/BWBA Joint CLE - Medical Malpractice
Auditorium, 6:00 PM
October 21, 2014
Tuesday
CLE - Decedents Estates
Auditorium, 6:00 PM
October 22, 2014
Wednesday
BBA/City Bar Judiciary Committee Meeting
To review Supreme Court Candidates
Auditorium, 5:00 PM
Foundation Public Education Program —
Elder Law
Board of Trustees Room, 6:00 PM
October 28, 2014
Tuesday
Tuesdays with Talmud
Nathan R. Sobel Inns of Court Masters Meeting
Nathan R. Sobel Inns of Court CLE
Auditorium, 6:00 PM
November 7, 2014
Friday
NYS Trial Academy - Annual Update
Auditorium, 9:00 AM
November 11, 2014
Tuesday
In observance of Veterans Day the
the Volunteer Lawyer Project, the
Lawyer Referral Service, and the Foundation
November 12, 2014
Wednesday
Brooklyn Bar Association Board &
Foundation Meetings
November 18, 2014
Tuesday
November 25, 2014
Tuesday
Thurs/Fri
JUDICIAL RECOGNITION
Congratulations to Brooklyn Bar
Association member Hon. George J.
Silver, Supreme Court Justice in the
First Judicial District who will be presented with The Harlan Fiske Stone
Memorial Award at the New York City
Trial Lawyers Alliance Eightieth Annual Banquet on Thursday October 23,
2014. This cocktail and buffet reception will be held at the Tribeca
Rooftop, 2 Desbrosses Street in New
York City. Journal and gala information is available from President Shelly
K. Werbel 212-487-9700 and Andrea
Hill at 718-624-8923.
KUDOS
AND
PROFESSIONAL
RECOGNITION
ceremony and installation of new officers. Installed for the 2014-2015 year
were Lisa A. Becker, President,
Grace M. Borrino, Vice President,
Stephen Spinelli, Secretary, Joseph
R. Vasile, Corresponding Secretary
and Margaret M. Stanton, Treasurer.
PROFESSIONAL
ANNOUNCEMENTS
Brooklyn Bar Association member
Michael Gunzburg has announced
the immediate relocation of Michael
Gunzburg, P.C. to 950 Third Avenue,
11th Floor, New York, NY. The office
telephone number is 212-725-8500.
FAMILY MATTERS
On Monday, September 15, 2014
the Brooklyn Women's Bar Association hosted its annual membership
party at the Brooklyn Bar Association.
Lead by President Hon. Marsha
Steinhardt the BWBA honored
Andrea Composto.
Congratulations to Brooklyn Barrister Editorial Board Member Shelly
Werbel who will be honored by the Institute of Jewish Humanities at their
Thirty Five Annual Testimonial Dinner
on Wednesday, December 17, 2014.
The testimonial dinner will be held at
The Museum of Jewish Heritage.
Word has reached the BBA that
earlier this month the Bay Ridge
Lawyers held their “passing the gavel”
Congratulations to Brooklyn Bar
Association Abayomi Ajaiyeoba on
her recent engagement to Richard
Whint.
BEREAVEMENTS
The Brooklyn Bar Association extends its deepest sympathy to Barry
Jacobson on the passing of his father
Murray Jacobson on September 10,
2014 just a few days shy of his 95th
birthday.
___________________________
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 emailed to [email protected],
faxed to 718-797-1913 or mailed to
123 Remsen Street, Brooklyn, NY
11201-4121.
NEW MEMBERS
MONTH OF AUGUST 2014
LAUREN BROWN
ANDREW GOUNARDES
ALISSA RODRIGUEZ
MARGO CERESNEY
PHILIP MILLER
KRISTIN YORK
Nathan R. Sobel Inns of Court Masters Meeting
SARAH CORSTANGE
Nathan R. Sobel Inns of Court CLE
Auditorium, 6:00 PM
November 27 & 28 2014
LEGAL BRIEFS
In observance of Thanksgiving the Brooklyn
Bar Association Building including the
Volunteer Lawyer Project, the Lawyer
December 2, 2014
Tuesday
VLP Board Meeting,
December 8, 2014
Monday
Brooklyn Bar Association Foundation Dinner
Marriott at the Brooklyn Bridge Hotel, 6:00 PM
December 23, 2014
Tuesday
December 25, 2014
Thursday
In observance of Christmas Day the
the Volunteer Lawyer Project, the Lawyer
IF YOU HAVE ITEMS FOR INCLUSION IN THE DOCKET, PLEASE MAIL OR FAX
OR EMAIL THEM TO LOUISE FELDMAN, BROOKLYN BAR ASSOCIATION,
123 REMSEN STREET, BROOKLYN, NEW YORK 11201.
FAX NO.: 718-797-1713 • E-mail: [email protected]
STUDENT MEMBERS
JEREMY M. IANDOLO
CHARLES MACHADO
ALYSHA PIZARRO
CARMELLE ROBILLARD
BROOKLYN BAR ASSOCIATION 2014-2015
Rebecca Rose Woodland, President
Aimee L. Richter, Second Vice President
Arthur L. Aidala, President Elect
David M. Chidekel, Secretary
Hon. Frank R. Seddio, First Vice President
Hon. Frank V. Carone, Treasurer
Avery Eli Okin, Esq., CAE: Executive Director
TRUSTEES
CLASS OF 2015
Michael Farkas
Fidel F. Del Valle
Lara Genovesi
Richard S. Goldberg
Jaime Lathrop
Anthony W. Vaughn, Jr.
Glenn Verchick
CLASS OF 2016
Elaine N. Avery
Armena D. Gayle
David J. Hernandez
Richard Klass
Anthony J. Lamberti
Deborah Lashley
Joseph S. Rosato
CLASS OF 2017
Marianne Bertuna
Joseph R. Costello
Stefano A. Filippazzo
Dewey Golkin
Hemalee J. Patel
Steven J. Harkavy
Jeffrey Miller
TRUSTEES COUNCIL (Past Presidents)
Roger Bennet Adler
Vivian H. Agress
Andrea E. Bonina
Ross M. Branca
Rose Ann C. Branda
Gregory T. Cerchione
Steven D. Cohn
Hon. Miriam Cyrulnik
Lawrence F. DiGiovanna
David J. Doyaga, Sr.
Andrew M. Fallek
Joseph H. Farrell
Andrew S. Fisher
Ethan B. Gerber
Dominic Gordano
Paul A. Golinski
Gregory X. Hesterberg
Hon. Barry Kamins
Marshall G. Kaplan
Mark A. Longo
Domenick Napoletano
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
SEPTEMBER, 2014
BROOKLYN BARRISTER, Page 3
—————————————— PRESIDENT’S MESSAGE —————————————
R E S P E C T F U L LY S U B M I T T E D
By: Rebecca Rose Woodland, Esq.
I hope you all had a great and restful summer
and are ready to usher in fall. I am so pleased to
announce some exciting news that foretells a great
fall season at the BBA.
You may recall from my prior column that our
former CLE Director, Meredith Simmons left New
York for California at the end of the summer to
work with her father at his law practice. To fill the
large shoes Meredith left behind, we formed a
search committee to look for a new CLE Director.
The committee, co-chaired by Past Presidents Steve
Cohn and Andrea Bonina took applications and interviewed candidates through the summer. Thanks
to the tireless efforts of the search committee and
our Executive Director, Avery Eli Okin, a new CLE
Director was found.
I am pleased to welcome our new CLE Director Danielle A. Levine to the Brooklyn Bar Association team. Danielle, a graduate of the University of Rochester who earned her JD in 2013 from
Brooklyn Law School, was an excellent choice
for the position. Not only did she have the resume
and credentials for the job, but she came highly
President Rebecca Rose Woodland, Esq.
recommended highly by the Dean of Brooklyn
Law School as well as the outgoing CLE Director,
Meredith Simmons. We owe a debt of gratitude
to the search committee and our Executive Director for working so hard over the summer to fill
such an important position.
Danielle has hit the ground running and picked
up where Meredith left off. Within days of her hiring, she was already hard at work organizing a number of programs for the fall. The first was a program
presented by Past President, Kings County Clerk
and Commissioner of Jurors, the Honorable Nancy
T. Sunshine. Commissioner Sunshine and several
of her staff at the Kings County Clerk’s Office presented a very informative CLE on E-filing. It wasn’t too long ago that E-filing was first introduced by
OCA, and it has now become the prevalent filing
method in most counties within NYC. Kings County has one of the most effective and efficient E-filing departments in the state, which is no surprise
considering that it is being overseen by Commissioner Sunshine. The program, which was well-attended, was a stellar success.
Danielle also organized hugely successful threepart Bankruptcy CLE presented by BBA Past President David Doyaga, who chairs the Bankruptcy
Committee, and BBA member Gregory Messer. An
annual event, this CLE is a popular mainstay at the
BBA and is one that our members look forward to.
This year’s installment proved to be highly educational and informative.
Another early fall success in the CLE arena was
our second baseball event of the year, this time at
Citifield. The Immigration and Sports Law Committee, chaired by Sana Harris, held a fantastic
evening of CLE, baseball and cracker jacks on September 17 2014 at Citifield. At a sold-out event,
participating members earned one professional
practice credit at a program titled “Covering the
Bases”, which concentrated on immigration law
and other issues related to representing foreign athletes. After an informative and entertaining program, everyone in attendance made their way outside and watched our hometown Mets play the
Florida Marlins. Unfortunately the Marlins won a
tight 4 to 3 game, however, everyone who attended
this great event was a winner. CLE credits and
baseball? How can you beat that?
With the fall upon us, we have a lot on our
agenda here at the Brooklyn Bar Association. Of
course, the Annual Dinner is just around the corner. The Annual Dinner will once again be held at
the Brooklyn Bridge Marriott Hotel on Monday,
December 8th at 5:30 PM. As always, this is THE
event of the year, so be sure to mark your calendars and hold the date. We’re working on putting
together a terrific slate of honorees for this year.
You won’t want to miss this year’s party.
BROOKLYN BARRISTER EDITORIAL BOARD
Glenn Verchick
Editor-in-Chief
Diana J. Szochet
Managing Editor
Aimee L. Richter
Articles Editor
Cecilia N. Anekwe
Hon. Bruce M. Balter
Jaime J. Borer
Mark Diamond
Jason Eldridge
Paul S. Forster
Jason D. Friedman
Anthony Lamberti
Hemalee J. Patel
Robert P. Santoriella
Michael Treybich
Alexis Vigilante
Shelly Werbel
Gregory Zenon
Brooklyn Barrister is published by Everything Brooklyn Media, LLC, under the auspices of the Brooklyn Bar Association. For advertising information call (718) 422-7410. Mailing address 16 Court Street, Suite 1208, Brooklyn, New York 11241.
Vol. 66 No. 11 September, 2014. The Brooklyn Barrister (ISSN 007-232 USPS 066880) is published monthly except in August and December by the Brooklyn Bar Association. Office of publication is: Brooklyn Bar Association, 123 Remsen Street, Brooklyn, New York 11201-4212. Telephone No. (718) 624-0675. Periodical postage is paid in Brooklyn, New York and at additional mailing offices. Subscription price is $11.00 per year. POSTMASTER: Send address changes
to the Brooklyn Barrister, 123 Remsen Street, Brooklyn, NY 11201-4212.
T H E
S TAT E
By: Hon. Bruce M. Balter
and Paul S. Forster, Esq.
Although the pundits have predicted a warmer than
normal winter, there are signs that the arctic vortex again
is forming. To keep you occupied as you while away the
hours, here are some interesting cases involving the disqualification of a murderer from indirectly inheriting the
victim’s assets through the estate of the victim’s daughter who post-deceased the victim and was the wife of
the murderer; an unsuccessful attempt to disqualify the
petitioner’s attorney in a probate proceeding on the
grounds that the attorney drafted the propounded instrument; the denial to probate of a ‘hospital’ Will for lack
of ‘publication’; a Court direction that a non-party witness provide a statement of the reasons for the changes
he made to his deposition transcript as set forth on the
errata sheet submitted by the witness; the necessity of
bringing a summary holdover proceeding for recovery
of possession of real estate held in a trust in the name of
the trustees rather than in the name of the ‘trust’; the necessity of obtaining jurisdiction over the fiduciary of the
decedent’s estate, rather than over the tenant or the decedent’s distributees in order to terminate a decedent’s
tenancy; the denial to probate of a copy of a ‘lost’ Will
based upon the presumption of revocation of a Will last
known to have been in the decedent’s possession but not
found after death; and the admission to probate of a
‘lost’ Will which last was known to be in possession of
the attorney-drafter. Your attention also is directed to the
Technical Memorandum issued August 25, 2014 by the
New York State Department of Taxation and Finance,
Taxpayer Guidance Division, which succinctly summarizes the amendments to the New York State estate tax
which were effective April 1, 2014. TSB-M-14(6)M,
which can be found at the Department’s website
(www.tax.ny.gov).
Murderer Disqualified from Indirectly Inheriting the Victim’s Assets through the Estate of the Vic-
Advertise in
The Barrister’s
LEGAL
SERVICES
DIRECTORY
.
Contact Alice
(718) 643-9099
or
[email protected]
tim’s Daughter Who Post-Deceased the Victim and
Was the Wife of the Murderer- Deanna and Brandon
were high school sweethearts who married in 2007. In
late 2008 Brandon killed his mother-in-law, the decedent, by strangling her to death. The decedent’s Will bequeathed her entire estate to Deanna, her only child.
Brandon was indicted for the crime of murder in the
second degree for causing the death of his mother-inlaw. Deanna, who was not criminally charged in connection with the decedent’s death, stood by Brandon
and believed in his innocence. Approximately 14
months after her mother’s death, Deanna died intestate
of an accidental drug overdose. Although her mother’s
Will had been admitted to probate, none of the mother’s
estate had been distributed to Deanna prior to Deanna’s
death. Deanna was survived by one distributee, her husband Brandon. Deanna’s estate consisted only of funds
received as the beneficiary of her mother’s retirement
plan and the expected inheritance from her mother’s estate. Approximately ten months after Deanna’s death,
Brandon pleaded guilty to manslaughter in the first degree, in connection with the death of his mother-in-law.
During the plea proceeding Brandon admitted to entering his mother-in-law’s home for the purpose of taking
her jewelry. While Brandon was in the decedent’s bedroom taking jewelry from her jewelry box, his motherin-law returned home and the two got into a physical
fight. Brandon placed his mother-in-law in a choke hold
and squeezed as his mother-in-law was resisting and
scratching him. Brandon admitted that he intended to
cause his mother-in-law serious physical injury, but asserted that he did not intend to kill her. Brandon agreed
to waive his right to appeal at the plea proceeding. However, Brandon subsequently moved for leave to file a
late notice of appeal from the judgment of conviction,
and his motion was granted. The initial executor of his
mother-in-law’s Will commenced a proceeding for judicial settlement of the account of the estate. The decedent’s estranged sister objected to the account, arguing
that Brandon forfeited his interest in any property which
would pass to him from his mother-in-law’s estate
through Deanna’s estate, due to his conviction for causing his mother-in-law’s death. The sister sought a decree
adjudging her to be the sole heir of the decedent, and directing the distribution of the decedent’s estate assets to
her, after the deduction of certain expenses. The executor moved to dismiss the objections, and the sister crossmoved for summary judgment on the objections. The
Surrogate’s Court denied the executor’s motion and
granted the sister’s motion in part. The Court concluded
that Brandon forfeited any claim to assets inherited
through Deanna’s estate that were attributable to his
mother-in-law’s estate. The Court directed the distribution of the decedent’s estate assets to the administrator
of Deanna’s estate, solely for the purpose of paying any
outstanding creditors of Deanna’s estate, and directed
the administrator of Deanna’s estate to file a petition for
judicial settlement of account within 60 days of receipt
of the estate funds. The Surrogate’s Court directed further that funds allocated to Deanna’s estate that were
traceable to her mother’s estate were to continue to be
held by the administrator of Deanna’s estate pending
final resolution of any pending appeals concerning
Brandon’s conviction. The Surrogate’s Court provided
that, based upon the representation that such appeals
were pending, a guardian ad litem would be appointed
in the context of the accounting of Deanna’s estate, to
report on the status of those appeals, if any, and to represent Brandon’s interest, if any, in the accounting. The
Surrogate’s Court entered a decree judicially settling the
final account of the mother’s estate in accordance there-
SEPTEMBER, 2014
O F
E S TAT E S
with and the executor of the mother’s estate appealed.
HOLDING- The Surrogate was affirmed and Brandon
was disqualified from inheriting his mother-in-law’s assets through the estate of his wife, the victim’s daughter.
The Appellate Division opined that the principle that a
wrongdoer may not profit from his or her wrongdoing
is deeply rooted in this State’s common law, citing
Riggs v Palmer, 115 NY 506 (1889). The Appellate Division sated that no one shall be permitted to profit by
his own fraud, or to take advantage of his own wrong,
or to found any claim upon his own iniquity, or to acquire property by his own crime. The Appellate Division asserted that wrongdoers should be prevented from
acquiring a property interest, or otherwise profiting
from their own wrongdoing. In furtherance thereof, the
Appellate Division ruled that the Riggs doctrine should
be extended to prevent a wrongdoer from indirectly
profiting from his or her own wrongdoing. In the
Court’s view, the fact that there was an intervening estate should not expurgate the wrong of the murderer or
thwart the doctrine that the murderer not profit by his
wrong, especially where there was a clear causal link
between the wrongdoing and the benefits sought. The
Appellate Division noted that but for Brandon’s killing
of his mother-in-law, the estate of Deanna would not
likely have included any assets from her mother’s estate.
The Appellate Division added that since only a relatively short period of time elapsed between the decedent’s
death and the death of Deanna, it was clear that Deanna’s estate would include assets traceable to her mother.
The Appellate Division pointed out that according to the
petition for letters of administration in Deanna’s estate,
the estate consisted only of funds Deanna received as
beneficiary of the decedent’s retirement plan, and the
expected inheritance from her mother. The Appellate
Division found it significant that her mother’s estate had
not been distributed to Deanna’s estate, and no commingling of any funds between the two estates had occurred. The Appellate Division held that under these circumstances, the Surrogate’s Court appropriately had exercised its equitable powers in extending the Riggs doctrine to prevent Brandon from inheriting any portion of
his mother-in-law’s estate through the estate of her
daughter, Deanna. The Appellate Division ruled that
Deanna’s “intervening estate” should not be used to
allow Brandon to profit from his unlawful killing of his
mother-in-law. The Appellate Division rejected the position of the executor that such an extension of the Riggs
doctrine would raise a host of enforceability problems.
The Appellate Division declined to opine on hypothetical situations, and instead, observed that the application
of the Riggs doctrine was not amenable to a bright-line
rule. The Appellate Division noted that in determining
whether the Riggs doctrine applied to a particular case,
the Court must examine the facts and circumstances before it, and determine whether the causal link between
the wrongdoing and the benefits sought was sufficiently clear that application of the Riggs doctrine would prevent an injustice from occurring. In the view of the Appellate Division, different facts and circumstances
might lead to different results, but that did not prevent it
from applying the Riggs doctrine in the case before it,
where no speculation was required to see a clear causal
connection between the wrongdoing and the benefits
sought. The Appellate Division also rejected the executor’s argument that Deanna’s interest in her mother’s estate vested upon her mother’s death, and that Deanna
might do with her property as she wished, even if others found her choices abhorrent. The Appellate Division
found the “vesting” argument unpersuasive. The Appellate Division pointed out that as Deanna died intestate,
any purported choice she may have made to leave her
property to Brandon was not memorialized in a Will.
The Appellate Division added that even if Deanna had
made an otherwise-discernible intentional choice to
leave her property to Brandon—perhaps through
knowledge that if she died intestate, her property would
pass to her surviving spouse—to the extent that her
property was inherited from her mother, the Riggs doctrine would apply to prevent Brandon from benefitting
from his own wrongdoing. The Appellate Division stated that if it were to allow Brandon to inherit the assets
of his mother-in-law’s estate through Deanna’s estate, it
would be rewarding Brandon’s criminal behavior, and
would allow the Court to be made the instrument of
wrong. The Appellate Division added that it would not
put its imprimatur on Brandon’s efforts to gain from his
admittedly criminal conduct. Accordingly, the Appellate
Division ruled that the Surrogate’s Court properly extended the Riggs doctrine to prevent Brandon from
profiting from his own wrongdoing, and affirmed the
Surrogate’s Court decree. Matter of Edwards, 2014
N.Y. Slip Op. 05873 (2nd Dept., 2014)
Attempt to Disqualify the Petitioner’s Attorney
in a Probate Proceeding On The Grounds That the
Attorney Drafted the Propounded Instrument Denied- In a pending probate proceeding, the respondents,
the decedent’s sons, moved to disqualify the petitioner’s
counsel. Petitioner, the decedent’s daughter, in turn,
cross moved to disqualify the respondents from serving
as co-executors of the estate. The decedent and her husband were married for over twenty years and had three
children during their marriage, the petitioner and the respondents. The document purporting to be the decedent’s Last Will and Testament named her three children
as co-executors. The propounded Will left her estate to
her husband with their three children as contingent beneficiaries. Some ten months after the date of the purported execution of the decedent’s Will, respondent
sons initiated Mental Hygiene Law Article 81 proceedings for both their parents. The sons alleged that both
parents were incapacitated and unable to care for themselves or their estates. The daughter opposed their appointment and ultimately was appointed guardian of
both parents. The daughter’s attorney was disqualified
from involvement in the Article 81 proceedings, upon
respondents’ motion in those proceedings. Thereafter
the decedent’s husband died, survived by the decedent
and their three children. The decedent was the sole beneficiary of her husband’s estate. Thereafter the decedent
died leaving petitioner and respondents as her heirs and
as nominated co-executors. Two weeks later, on November 25, 2013, The daughter commenced a proceeding to probate her mother’s Will, but asked that letters
testamentary be issued solely in her name. Her brothers
filed an Answer to her petition for probate, in which
they had no opposition to the probate of the purported
instrument but objected to the issuance of letters to her
sister, alleging she was ineligible under SCPA §707 due
to her dishonesty. Respondent sons then filed a motion
seeking the disqualification of the daughter’s attorneys.
Respondents contended that the attorney and his firm’s
representation of Petitioner was precluded because the
attorney, as the drafting attorney of decedent’s will, was
a necessary witness to the testatrix’s mental capacity and
as such, his continued representation would violate the
witness-advocate rule. Furthermore, the sons argued
that the representation was precluded on res judicata
grounds based on the attorney’s disqualification in the
Article 81 proceedings. In addition, the sons sought the
disqualification of the attorney pursuant to Rule 1.7(a)
as well as Rule 1.9(a) of the New York Rules of Professional Conduct, on the grounds that the attorney should
not be entitled to represent both the decedent in the
drafting of the Will as well as her estate planning, and
petitioner, in offering the Will for probate because an attorney is prohibited from representing adverse interests.
Moreover, they argued that an attorney may not appear
for and oppose a client on substantially related matters.
Lastly, on the basis of Schneider v. Finman, 15 NY 3d
306 (2010), the sons argued that a personal representative of the estate stands in the shoes of the decedent, and
therefore the attorney’s representation of petitioner was
barred by his prior representation of the decedent. In response, the daughter filed a cross motion for the disqualification of her brothers as fiduciaries of the estate,
alleging inter alia, their dishonesty pursuant to SCPA
§707. Both sides presented completely different viewpoints on their perception of acts of dishonesty and open
hostility to one another. Allegations were made that the
sons for over a decade had manipulated funds from their
parents as well as refused their sister access to decedent’s Florida home. The sons alleged increasingly hostile and dishonest acts by their sister, specifically the improper use of funds belonging to the decedent. HOLDING- The motion to disqualify the attorneys was denied
and the cross applications to disqualify the siblings as fiduciaries was deferred pending a hearing. The Court
stated that considering all the significant interests to be
balanced, it was particularly important that the Code of
Professional Responsibility not be mechanically applied
when disqualification was raised in litigation. In the
Court’s view, the Code instead provided guidance for
the Courts in determining whether a case would be
tainted by the participation of an attorney or a firm. The
Court stated that it must balance the disqualification
rules found in the Rules of Professional Responsibility
against the general policy allowing a party to choose
their own legal representation, with cognizance of the
usage of disqualification motions as a trial tactic to gain
an advantage over an adversary. The Court stated that
for an attorney to be disqualified pursuant to RPC 3.7,
the testimony offered must be strictly necessary. The
Court noted that the mere fact that an attorney was involved in a transaction at issue, or that his proposed testimony would be relevant or even highly useful, was insufficient to warrant disqualification. The Court said
that the critical question is whether the subject testimony was necessary, taking into account such factors as
significance of matters, weight of testimony, and availability of other evidence The Court found that it was
clear that the attorney’s testimony was neither necessary
nor highly useful. The Court pointed out that inasmuch
as the Will drafted by the attorney was uncontested by
respondents, the attorney’s testimony regarding decedent’s capacity at the time of the drafting of the Will
simply was unnecessary and therefore not grounds for
SEPTEMBER, 2014
First Department Supports Dismissing Parking Tickets
JURISDICTIONAL DEFECT
By: Dennis Boshnack, Esq.
Regardless of whether a parking violation
was committed, a charge of parking violation
must be dismissed under Vehicle and Traffic Law
(VTL) §238 on application if the notice of violation (parking ticket) omits, misdescribes, or illegibly describes any information required to be inserted therein (see VTL §238[2], [2-a][a],[b]).
Matter of Nestle Waters N. Am., Inc. v City of
New York (2014 NY Slip Op 05609 [1st Dept
July 31, 2014]) construed VTL §238(2)’s provision that “the plate type as shown [emphasis
added] by the registration plates” of the vehicle
shall be inserted in the ticket. This article discusses the support Nestle provides for dismissing
parking tickets, and questions three current adjudication policies of the New York City Parking
Violations Bureau (PVB).
PLATE TYPE
Nestle has a fleet of trucks operating across
state lines. Trucking companies like Nestle
typically obtain license plates issued under the
International Registration Plan (IRP), “a privately-administered registration reciprocity
agreement, under which the highway use tax
paid by the truck owner is apportioned among
the states and provinces in which the trucks are
used.” (Nestle.)
The 48 states, the District of Columbia, and
the 10 provinces of Canada are members of the
IRP (see IRP, at 87-88, Appendix A). Under the
IRP the member jurisdiction the vehicle is registered in, called the Base Jurisdiction, shall issue
the license plate for the vehicle, and the plate
shall be identified by having the word APP, APPORTIONED, or PRP (Pro Rate Plate) and the
name of the Base Jurisdiction (IRP §600[a]).
The Appellate Division, First Department,
in Nestle dismissed 38 parking tickets issued in
New York City to trucks bearing New Jersey
apportioned license plates. In this hybrid CPLR
article 78 and declaratory judgment proceeding, the petition alleged that, because trucks
with apportioned plates are registered under the
IRP, respondents had adopted a policy of regarding IRP as an accurate description of outof-state apportioned license plates. The tickets
stated the plate type as IRP, whereas the plates
stated the plate type as APPORTIONED. Nestle declared PVB’s “policy of deeming ‘IRP’ an
accurate description of ‘Apportioned’ license
plates issued outside of New York State” violated VTL §238.
In dismissing the tickets, the Nestle court
required strict compliance with VTL §238(2)’s
provision that the “plate type as shown by the
registration plates” shall be inserted in the ticket. The court did not find that, in the ticket’s
box for plate type, IRP did not mean APPORTIONED; instead, Nestle stated “the terms
‘IRP’ and ‘APPORTIONED’ are used interchangeably by the New York City Parking Violations Bureau[, which] issued the disputed 38
summonses pursuant to VTL §238(2).” Nestle
concluded “[t]he choice of the words in the
statute ‘as shown’ by the vehicle plate is evidence the Legislature intended strict compliance with VTL §238(2).” Also, referring to
Matter of Ryder Truck Rental v Parking Violations Bur. of Transp. Admin. of City of N.Y.(62
NY2d 667 [1984]) and Matter of Wheels, Inc.
v Parking Violations Bur. of Dept. of Transp. of
City of N.Y. (80 NY2d 1014 [1992]) as examples, Nestle stated, “The Court of Appeals has
required strict compliance with the requirements of VTL §238(2).”
Arguably, strict compliance with VTL
§238(2) supports dismissing myriad parking
tickets issued in New York City each year to vehicles bearing apportioned license plates. PVB
is not dismissing those tickets for misdescription of plate type, for PVB considers them to adequately describe the plate type as shown by the
license plate. However, those tickets (1) state
IRP for the plate type as shown by a New York
apportioned plate, which bears the word APPORTIONED instead of IRP, or (2) state APP
for the plate type as shown by an apportioned
plate that bears the word APPORTIONED instead of APP. IRP is not on any apportioned
plate (see IRP §600[a]; Jim Moini’s License
Plates, at http://moini.net/app/apportioned.html
[last updated May 25, 2014] [accessed Aug. 21,
2014]). APP is the plate type as shown by, e.g.,
Indiana apportioned plates on which APP is in-
DENNIS BOSHNACK
scribed, but is not the plate type as shown by
New York, New Jersey, and most other apportioned plates, on which APPORTIONED is inscribed and APP does not appear (see id.).
Since the number of tickets that misstate the
plate designation as shown by the registration
plates will increase with the number of tickets
issued, strict compliance with VTL §238(2) to
avoid penalizing the wrong person on a ticket
misstating the plate designation is especially
important. The Department of Finance
processed a 25-year average of 13.9 million
parking summonses per fiscal year 1981-2005
(Mayor’s Management Report Fiscal 2005, 217
[September
2005],
available
at
http://www.nyc.gov/html/ops/downloads/pdf/
mmr/0905_mmr.pdf [accessed Aug. 20, 2014]).
The Daily News reported that Finance Commissioner David Frankel said: “[Ten] million
parking tickets [are] written each year in the
city,” (Daily News, “New Finance Department
service lets you fight parking violations online,
instead of in person,” by Lisa Eadicicco and
Adam Lisberg, March 22, 2011], available at
http://www.nydailynews.com/new-york/newfinance-department-service-lets-fight-parkingviolations-online-person-article-1.120135 [accessed Aug. 20, 2014]).
VTL §238(2)’s provision that the “plate
type as shown by the registration plates” shall
be inserted in the ticket is a remedial provision
intended to avoid penalizing the wrong person
on a ticket misstating the plate designation as
shown by the registration plates of the ticketed
vehicle (see New York State Legislature,
“Memorandum in Support of Legislation,” Bill
Jacket, ch. 224, L. 1995; Daniel L. Feldman,
Assemblyman, letter to Michael Finnegan,
Counsel to the Governor [July 11, 1995], Bill
Jacket, ch. 224, L. 1995; Memorandum of Sen.
John D. Caemmerer, reprinted in 1972 N.Y. St.
Legis. Ann. at 285-286; Donald J. Bardell,
Deputy Commissioner and Counsel, New York
State Department of Motor Vehicles, letter to
Michael Whitman, Counsel to Governor [May
17, 1972], Bill Jacket, ch. 715, L. 1972; Hearing Before the Senate Standing Committee on
Motor Vehicles and Transportation and the Assembly Standing Committee on Transportation,
at 2, 4, 10, 13-19, 35, 37, 70-76, 99, 157, 182,
252-268 [Dec. 2, 1971]).
A remedial statute “should be accorded its
broadest protective meaning consistent with
legislative intent” (Graham Ct. Owner’s Corp.
v Taylor, 115 AD3d 50, 56 [1st Dept 2014]).
That meaning for the subject remedial provision is also the literal meaning of its plain language. Parking tickets identify the vehicle and
thus the violator from the ticket writer’s observation of the vehicle. Therefore, the more precisely parking tickets are required to state the
plate type shown by the plate, the fewer vehicles will match the plate type inserted in the
ticket, making more likely a ticket misidentifying the violator will be dismissed.
VTL §238(2) requires parking tickets to contain five vehicle identification elements. “The
mandatory five elements are 1) plate designation
2) plate type 3) expiration date of registration 4)
make or model of vehicle and 5) body type of
vehicle” (Nestle; see VTL §238[2]).
The First Department’s 1992 decision in Matter of Wheels, Inc. v Parking Violations Bur. of
Dept. of Transp. of City of N.Y. (185 AD2d 110,
affd 80 NY2d 1014) treated a parking ticket’s
omitting or misdescribing any of those five elements as a defect in the “process purporting to
bring [a person charged with a parking violation]
before the tribunal,” a “jurisdictional defect” that
“must be viewed as rising to the level of a disregard of due process” and “renders the notice, and
any conviction pursuant thereto, a nullity.”
Wheels rejected the conclusion that as long as the
ticket has “entries in all five required categories
of notice, jurisdiction has attached, however inaccurate those entries may be.” According to
Wheels, “the jurisdictional validity of the initiating accusatory instrument must appear before
any burden of responsive pleading or proof shifts
to the alleged violator.”
Nevertheless, since Sept. 25, 1995, PVB has
routinely treated a parking ticket’s noncompliance with the vehicle identification requirements of VTL §238(2) as an affirmative defense, not as a jurisdictional defect. PVB bases
that policy on amendments to VTL §238 (Peter
Rabinowitz, Acting PVB Chief ALJ, “Important Changes in the VTL,” Memorandum to
PVB ALJs dated Sept. 12, 1995). Those
amendments took effect on Sept. 25, 1995 (see
L. 1995, ch. 224, §3), amended VTL §238(2)
by adding violation identification requirements
to the vehicle identification requirements of
that provision (L. 1995, ch. 224, §1), and added
VTL §238(2-b)(a),(b) (L. 1995, ch. 224, §2),
which qualify VTL §238(2) identification requirements for plate type and registration expiration date and provide that “[i]f any information which is required to be inserted on a notice
of violation is omitted from the notice of violation, misdescribed, or illegible, the violation
shall be dismissed upon application of the person charged with the violation.”
Because PVB treats noncompliance as an affirmative defense and not as a jurisdictional defect,
PVB seldom vacates default judgments on defective parking tickets for noncompliance without excusable default. PVB also places the burden of
proving noncompliance on the alleged violator.
However, Nestle, which the First Department
decided on July 31, 2014, provides support for (1)
treating noncompliance as a jurisdictional defect
and, in turn, dismissing a parking ticket regardless
of a default judgment or excusable default if the
ticket omits, misdescribes, or illegibly describes
any of the five mandatory vehicle identification
elements and (2) placing the burden of proof on
the issue of noncompliance on the city.
Nestle, as the First Department did in its 1992
Wheels decision, takes the position that noncompliance is a jurisdictional defect. Citing Matter of Ryder
Truck Rental v Parking Violations Bur. of Transp.
Admin. of City of N.Y.(62 NY2d 667 [1984]) and
Matter of Wheels, Inc. v Parking Violations Bur. of
Dept. of Transp. of City of N.Y. (80 NY2d 1014
[1992]), Nestle states that “VTL§238(2) provides the
requirements for initiating a prosecution for parking
violations,” that “[t]he statute sets forth five mandatory identification elements which may not be omitted from a parking summons if it is to survive a jurisdictional challenge and avoid dismissal,” and that “a
misdescription of any of the five mandatory identification elements also constitutes a jurisdictional defect
mandating dismissal.”
The First Department does not specify in either
Wheels or Nestle whether the jurisdictional defect
it refers to as requiring dismissal of a parking ticket, i.e., noncompliance, is a defect in subject matter or personal jurisdiction. An administrative
agency, which is “a creature of the Legislature”
(Matter of City of New York v State of N.Y.
Commn. on Cable Tel., 47 NY2d 89, 92 [1979]),
has only powers granted it by statute expressly or
by necessary implication, and thus its determination is void if made either without statutory power
or in excess thereof (see Abiele Contr. v New York
City School Constr. Auth., 91 NY2d 1, 10 [1997].
But see generally, regarding subject matter jurisdiction: Burnet v Desmornes, 226 US 145, 147
[1912]; Manhattan Telecom. Corp. v. H & A Locksmith, Inc., 21 NY3d 200, 203 [2013]; Lacks v
Lacks, 41 NY2d 71, 74-76 [1976]; Freccia v
Carullo, 93 AD2d 281, 286-290 [2d Dept 1983]).
Arguably, noncompliance prevents the jurisdictional validity of the initiating accusatory
instrument and, in turn, prevents service of that
parking ticket from conferring personal jurisdiction. The vehicle identification requirements
of VTL §238(2) are mandatory provisions
(Wheels, at 80 NY2d 1015-1016; Ryder, at 62
NY2d 669-670). Mandatory provisions go to
the jurisdiction or authority of the person acting
(Mckinney’s Statutes, §171 nn.1-3 and accompanying text [1971 & Supp. 2014]), and a compliance with them is a condition precedent to
the validity of the action under it (id.; 97 N.Y.
Jur. 2d, Statutes §13 [2007]). Therefore, noncompliance may be a failure of a condition
precedent to the validity of a parking ticket and,
as such, also prevent service of process from
resulting in personal jurisdiction.
As the city has the burden of proving a
prima facie case and jurisdiction, the following,
which deals with the city’s proof of a prima
facie case, may be applicable also to the city’s
proof of jurisdiction: The city’s proof, if only
the parking ticket (which VTL §238[1] makes
prima facia evidence of the facts contained
therein), is rebutted as a matter of law by the alleged violator’s sworn refutation if that refutation is patently not incredible (see Matter of
Gruen v Parking Violations Bur. of City of
N.Y., 58 AD2d 48, 50 [1st Dept 1977]; Matter
of Gumbaz v City of New York Dept. of Fin.
Parking Violations Operations, 118 AD3d 510
[1st Dept 2014]; Matter of Rosen v New York
City, 2014 NY Slip Op 30137(U), at 5 [Sup Ct,
NY County 2014]; Young v. City of New York
Dept. of Fin. Parking Violations Adjudications,
16 Misc 3d 1117[A], 2007 NY Slip Op
51460[U] [Sup Ct, NY County 2007] [unsworn
statement filed online overcoming city’s prima
facie case]; Matter of Heisler v Atlas, 69 Misc
2d 911, 913-914 [Sup Ct, NY County 1972]).
PVB Policy
At PVB hearings for the adjudication of
charges of parking violations, PVB is applying
Nestle by dismissing, for misdescription of
plate type, tickets stating the plate type as IRP
for an apportioned plate issued outside New
York State. That plate, like every apportioned
plate, bears the word APPORTIONED, APP,
or PRP instead of IRP (see IRP §600[a];
Jim
Moini’s
License
Plates,
at
http://moini.net/app/apportioned.html [last updated May 25, 2014] [accessed Aug. 21, 2014]).
In the wake of Nestle, however, whether three
policies of PVB may withstand court challenge is
questionable. Those three policies are: (1) deeming IRP on the ticket to state the plate type as
shown by a New York apportioned plate, which
bears the word APPORTIONED instead of IRP,
(2) deeming APP on the ticket to state the plate
type as shown by an apportioned plate that, unlike
apportioned plates that bear the word APP instead
of APPORTIONED, bears the word APPORTIONED instead of APP, and (3) deeming noncompliance with the vehicle identification requirements of VTL §238(2) to be an affirmative defense, not a jurisdictional defect.
______________________________________
1
DENNIS BOSHNACK is an attorney practicing in New York City and a former
Administrative Law Judge of the New York City Parking Violations Bureau
2
The views expressed in this article are his own.
IRP
§600(a) states: “Upon the registration of an Apportionable Vehicle under the
Plan, the Base Jurisdiction shall issue a Cab Card and a Plate for the Vehicle,
and these shall be the sole registration Credentials issued for the Vehicle. The
Plate shall be identified by having the word ‘apportioned,’ ‘APP,’ or ‘PRP’ and
the name of the Base Jurisdiction [emphasis in original]. The numbering system and color of the Plate shall be determined by the Base Jurisdiction.”
3
The Parking Violations Bureau prepares and issues only blank
parking tickets, which members of other agencies fill in and serve on alleged violators (see VTL §§237[9], 238[1]).
4
VTL §238(2-a)(b) codifies the Court of Appeals decisions Ryder
and Wheels (see New York State Legislature, “Memorandum in Support
of Legislation,” Bill Jacket, ch. 224, L. 1995 [citing the Court of Appeals
decisions Ryder and Wheels and stating, “This bill . . . codifies case law”];
Rudolph W. Giuliani, letter to George E. Pataki, [July 11, 1995], Bill Jacket, ch. 224, L. 1995; Daniel L. Feldman, Assemblyman, letter to Michael
Finnegan, Counsel to the Governor [July 11, 1995], Bill Jacket, ch. 224, L.
1995; Maureen E. Casey, Counsel to New York State Division of Criminal
Justice Services, letter to Michael Finnegan, Counsel to the Governor
[July 18, 1995], Bill Jacket, ch. 224, L. 1995).
5
Apart from any jurisdictional defect in the parking ticket, the affirmation
of service for the parking ticket is of questionable value, because it is executed
before the ticket is issued or served. The affirmation is signed during the writing of the ticket. It is part of the ticket, and states: “I affirm under Penalty of
perjury (Penal Law 210.45) that I personally observed the offense charged
above; if the operator was present I indicated the operator’s name or indicated ‘ID Refused’ and personally served the Notice [parking ticket] upon him/her;
if the operator was not present or refused to accept personal service of this Notice, I affixed this Notice to the vehicle.” (But see generally United States Power
Squadrons v. State Human Rights Appeals Bd., 84 AD2d 318, 325 [2d Dept.
1981], affd, 59 NY2d 401 [1983], rearg dismissed, 60 NY2d 682, 702 [1983] [participation in merits of administrative proceeding before State Division of
Human Rights subjecting respondent to personal jurisdiction].)
T H E
SEPTEMBER, 2014
S TAT E
Continued from page 4
attorney disqualification. The Court added that where
the Will is uncontested and the only issue is qualification
for letters testamentary, confidential information regarding the testatrix was extraneous. The Court also rejected
the sons’argument that the attorney could not effectively represent both the decedent and the petitioner and
must be disqualified pursuant to RPC 1.7, which states
that “an attorney shall not represent a client if it is reasonably believed that such representation will involve
the attorney representing differing interests.” According
to the sons, the attorney represented the decedent in
drafting her Will, which named three co-executors, yet
filed a probate petition for letters testamentary to be issued solely in their sister’s name. The Court found the
argument specious, unconvincing and lacking merit.
The Court found that the interests of the decedent and
petitioner were not conflicting and would not adversely
affect the judgment or loyalty of a lawyer to a client
under Rule 1.7 of the New York Professional Rules of
Conduct: Code of Professional Responsibility. In the
Court’s view, the attorneys’ representation of petitioner
for letters testamentary appeared simply to be in response to alleged acts of dishonesty by her brothers, and
therefore, petitioner, in response to the actions, apparently brought the instant proceeding for letters testamentary solely in her name. The Court also found unpersuasive the sons’argument that the attorney had represented the sons previously through decedent’s estate.
The Court stated that the daughter’s counsel merely represented the decedent in the drafting of her Will while
the sons simply were beneficiaries of the estate. The
Court found that this did not meet the necessary burden
of the substantial relationship test. The Court added that
the probate of an uncontested Will was strikingly different from an Article 81 guardianship proceeding with
completely different legal issues in both litigations also
therefore not meeting the burden of disqualification.
The Court also rejected the sons’claim that the attorney
must be disqualified on res judicata grounds stemming
from his disqualification in the Article 81 proceedings.
The Court opined that behind the phrase res judicata lies
a rule of reason and practical necessity. The Court explained that one who has had his day in Court should not
be permitted to litigate the question anew. The Court
added that res judicata stands for the proposition that a
party may not litigate a claim where a judgment on the
merits exists from a prior action between the same parties involving the same subject matter, and that the legal
issues in both actions must be identical and cannot differ in any way to have preclusive effect. The Court compared both proceedings and found it clear that the
guardianship decision had no preclusive effect on the
current litigation. In the Court’s view, the Article 81 proceedings revolved around the mental capacity of both
decedent and her husband, while the probate proceeding
revolved around a completely different legal issue,
namely who should be executor of the estate. In connection with the cross applications for disqualification
as fiduciary, the Court stated that one who does not possess the qualifications required of a fiduciary by reason
of substance abuse, dishonesty, improvidence, want of
understanding, or who is otherwise unfit for the execution of the office is ineligible to act as a fiduciary. The
Court added that dishonesty such as would disqualify
pursuant to SCPA 707 is construed as dishonesty in
money matters from which a reasonable apprehension
may be entertained that the funds of the estate would not
be safe in the hands of the executor. The Court opined
that dishonesty alleged as a ground of ineligibility must
be proved, and cannot be inferred from the allegations
without a proper hearing. The Court ruled that the sons
had not met their burden of proof required to summarily find their sister ineligible, and that similarly their sister had not established grounds for their immediate disqualification. In the Court’s view both sides accused the
other of many acts of dishonesty and hostility which
raised numerous issues of fact which could only be determined after a hearing. Accordingly, the motion to disqualify the petitioner’s attorneys was denied, and the
motion to disqualify the sons as fiduciaries of the estate
was deferred until the conclusion of an eligibility hearing, as was the motion to disqualify the daughter. Matter of Padula, N.Y.L.J. 8/25/14, p.17, c.3 (Surr. Ct.,
Richmond Co., Surr. Gigante)
A ‘Hospital’ Will Denied Probate for Lack of
‘Publication’- The decedent’s companion offered for
probate an instrument purporting to be the decedent’s
Will to which objections were filed by the decedent’s
two sons, his only distributees. Decedent was admitted
to the hospital for scheduled surgery on October 10,
2012. The instrument offered for probate was a handwritten, one-sided, single page document, with the caption “The Last Will and Testament of Frank The decedent 10/10/2012.” There was nothing in the record to
identify the handwriting or who the scrivener might
have been. At the bottom of the page was a signature,
purported to be that of Frank The decedent, also dated
“10.10.12” followed by two lines containing the signatures of two persons identifying themselves as registered nurses. The terms of the Will provided bequests to
the petitioner, referred to as decedent’s beloved companion and partner of the past twenty-two years, of all
of the decedent’s real and personal property, including
decedent’s house in Stony Brook, New York, a car, and
all cash at a particular bank. In addition, the Will appointed the companion as the decedent’s sole heir and
full executor of his estate. The decedent died six days
later having never left the hospital. Some six years prior,
the decedent had executed a Durable General Power of
Attorney Effective at a Future Time appointing the companion as his attorney in fact; a Health Care Proxy appointing the companion as his health care agent; a second, different Durable General Power of Attorney Effective at a Future Time appointing the companion as
his attorney in fact; and a Nomination of Guardian appointing the companion as guardian in the event he was
unable to provide for his personal needs and/or property. A trial on the matter was held before the Court as
finder of fact. Although counsel for petitioner asked
both witnesses whether they believed the decedent had
capacity, and both witnesses testified that they believed
the decedent did, the inquiries made were general in nature. Both witnesses said that the decedent signed the
appropriate pre-surgical documents, and that his demeanor was appropriate considering the circumstances
(e.g., that the decedent was “appropriately nervous” in
light of his impending surgery). Counsel for petitioner
never questioned either witness, however, about any
discussion they may have had with the decedent about
the nature and extent of his assets or the natural objects
of his bounty. Counsel for objectants did, however,
question both witnesses on whether they asked the decedent if he had any children; owned a home; and whether
he had any bank accounts, stocks, or bonds. Both witnesses stated that they had no such discussion with the
decedent. Both witnesses testified that they knew that
the document for which they were acting as witnesses
was a Will, despite the fact that the decedent never stated, in either word or deed, that the document was his
O F
E S TAT E S
Will. One witness testified that she just knew it was a
Will. Although the caption at the top of the contested
document clearly stated that it was intended to be the
Last Will and Testament of the decedent, there was no
testimony the decedent knew that the instrument he was
signing was his Will. The witness testified only that the
decedent had wishes that he wanted witnessed. When
asked by counsel for objectants, and later by counsel for
petitioner, whether the decedent ever stated that the instrument was his Will, the witness was clear that the
decedent only referred to the document as his wishes.
The witness saw the decedent sign the document, but
the decedent never told anyone in her presence that the
instrument was a Will. The testimony of the other witness was similar. She stated that she was asked to witness a Will by the other witness while they were in the
hall and not in the decedent’s hospital room. Petitioner
was present during the entire time the document was
signed and witnessed. The second witness asked the
decedent if the paper in his lap was the paper he wanted
to sign. At that time, the witness saw the Last Will and
Testament heading. Both witnesses testified that the
decedent never told either one of them that the instrument he was executing was his Will. HOLDING- The
Court found enough to establish the decedent’s testamentary capacity, but denied probate for lack of ‘publication’ of the propounded instrument. The Court stated
that testamentary capacity requires that the testator be
eighteen (18) years of age or older and be of sound mind
and memory. The Court added that, within the context
of making a Will, capacity is the ability to think with
sufficient clarity to understand and carry out the business to be transacted; to hold in mind the extent and nature of his property, the natural objects of his bounty, and
the relation of one to the other. The Court noted that a
testator enjoys the presumption of sanity and mental capacity. The Court pointed out that the burden of proving
testamentary capacity and understanding is on the proponent, and that testamentary capacity may be established with evidence demonstrating that the decedent
understood the nature and consequences of executing a
Will, knew the nature and extent of the property disposed of, and knew the identity and relation of those
considered to be the natural objects of his bounty, but
that a testator need not have precise knowledge of the
size of his estate. The Court said that although ordinarily the opinion of a lay witness is not admissible for the
purpose of determining soundness of mind, in a probate
proceeding, the testimony of a subscribing witness may
be used for such purposes. The Court ruled that despite
the lack of discussion between decedent and the witnesses concerning the decedent’s assets and the natural
objects of his bounty, the testimony by both attesting
witnesses that decedent had capacity was enough to establish that decedent was of sound mind and memory
when he executed the Will. The Court opined further
that the proponent also had the burden of proof on the
issue of due execution. The Court stated that due execution requires that the testamentary instrument be signed
by the testator, that such signature be affixed to the Will
in the presence of the attesting witnesses or that the testator acknowledge to each witness that the signature affixed on the instrument was affixed by him or at his direction, that the testator publish to the attesting witnesses that the testamentary instrument was his Will, and
that at least two attesting witnesses attest to the testator’s
signature, sign their names and affix their residence addresses at the end of the Will. The Court noted that
where the execution is not supervised by an attorney, the
proponent was not entitled to a presumption of regular-
ity that the Will was properly executed in all respects.
The Court ruled that the testimony of the attesting witnesses did not support due execution. In the Court’s
view, there was no “publication” of the propounded instrument, and it did not contain an attestation clause.
The Court concluded that therefore there was no inference that the requisite statutory requirements were satisfied While acknowledging that the decedent signed the
document at its end in the presence of the two witnesses, each of whom thereafter signed at the end, it was
clear to the Court from the testimony of both attesting
witnesses that the statute of Wills was not complied
with, in that there was no publication. The Court stated
that the decedent never declared to each of the attesting
witnesses that the instrument to which his signature has
been affixed was his Will, only vague references to his
wishes. The Court rejected the petitioner’s argument
that there had been substantial compliance with the
statutory requirements warranting admission of the Will
to probate. The Court ruled that the facts fell far short of
substantial compliance. The Court pointed out that for
substantial compliance to be sufficient, it must appear
that, as between the testator and the witnesses, there was
some meeting of the minds upon the understanding that
the instrument was the testator’s Will. In the Court’s
view, the record was entirely devoid of any indication
that the decedent knew the instrument he was signing
was his Will. the Court stated that there was no testimony of any communication between the decedent and the
witnesses that the document was a Will. The Court
noted that the decedent’s references to his wishes were
lacking any specificity to indicate that they were testamentary in nature and failed to satisfy the Statute of
Wills. The Court found that as there was no indication
of what the decedent thought he was signing, there
could be no meeting of the minds that the instrument
was decedent’s Will. Consequently, the Court found that
the purported Will was not duly executed and that probate of the propounded instrument must be denied. Matter of Martello, N.Y.L.J. 8/8/14, p. 21, c. 2 (Surr. Ct.,
Suffolk Co., Surr. Czygier)
Court Directs a Non-Party Witness to Provide a
Statement of the Reasons For the Changes He Made
to His Deposition Transcript as Set Forth on the Errata Sheet Submitted by the Witness, or be Examined Again on the Reasons for the Changes- Decedent died survived by his wife and by two daughters
from a prior marriage. Decedent’s Will was admitted to
probate and letters testamentary were issued. The Will
made no provision for decedent’s wife. The wife thereafter filed a Notice by Election by Surviving Spouse, by
way of an attorney-in-fact, by which she purported to
exercise her rights pursuant to EPTL §5-1.1-A as the
decedent’s surviving spouse. The record reflected that
the surviving spouse was under a disability, and all actions taken were by her attorney-in-fact. The executrix
of decedent’s estate then filed a petition to determine the
validity and effect of the right of election. In that proceeding, the executrix requested an order disqualifying
the spouse from receiving her elective share under
EPTL §5-1.1-A based upon a prenuptial agreement allegedly entered into by the spouse and decedent. The attorney who drafted the agreement did not represent any
party in the proceeding. The attorney was deposed as a
non-party witness. The attorney thereafter signed an errata sheet with regard to the transcript of the examination. The errata sheet failed to include a statement of the
reasons given by the witness for making such changes,
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SEPTEMBER, 2014
Tailoring A Firm For Value-Added Marketing
progression. For example:
(1) When preparing written materials that
address the firm’s ability to meet the perceived
needs of an existing or potential client, partners
should distinguish their firm’s ability to perform services of the type needed by the client
from other firms, as well as specifying the additional value-added marketing that their firm
will bring to this client over competing firms.
(2) When preparing for in-person meetings,
partners should make every effort to identify the
individuals to whom they will be speaking and
learn as much as possible about their backgrounds.
They should try to match the needs of the existing
or potential client with the firm’s capabilities.
(3) During the early stages, responsible
partners should speak with client executives
about what they like or dislike about the firm
and how the firm may better assist them in
achieving their goals. Depending on the relationship, firms will involve their clients in the
planning stages of these initial discussions to a
greater or lesser extent. By being involved,
clients are provided with the opportunity to buy
into the relationship. It shows executives that
the firm values their opinions.
(4) Attempts should be made to identify the
individuals who will perform the work and
their suitability for the prospective client’s assignment. In distinguishing the difference between your firm and competing firms, partners
should stress the importance of the client to the
firm, describe the attention that the firm will
devote to the representation, and expand on
how the responsible partner will keep the client
informed about the progress of its matter.
(5) In today’s specialized legal environment,
partners need to be concerned about preserving
clients and planning for the orderly transition of
BBA Welcomes Danielle Levine, New Director
Of Continuing Legal Education
tion and systems work. A member of the
Dean’s Technology Working Group while at
Brooklyn Law, Levine is tech savvy. She is already working to innovate the availability of
CLEs at the BBA. “I want to improve our
technology so that we can put CLEs online,”
said Levine. “I’ve been speaking with vendors
and testing demos of software systems. We
offer so much live content and a library of
DVDs and CDs, but it would be great for
members to be able to create accounts and
watch CLEs online. For that we’d need registration and verification software. Down the
road it would be great to add mobile website
options as well.” When members point out
websites from YouTube to the American Bar
Association, Levine understands the issues. “I
can’t remember the last time I filled out a
paper form to register for something. It can
lead some to question the sophistication of a
group.” She explained that the larger the organization, the easier it can be to implement
costly and complex software. “The more
seamless on the front end so that users have an
easy time accessing the software, the more
complicated on the back end.”
Levine’s history with technology and the
law includes work as a research assistant at the
University of Rochester and as a mental health
services survey coordinator at the Rochester
Hall of Justice, where she implemented a computerized work project for domestic violence
victims to personalize resources. In addition
she created an instruction manual and trained
the staff on the new system.
The intersection of education, technology,
law and policy has been a consistent theme in
Levine’s career. She earned her undergraduate
psychology degree from the University of
Rochester, and while there studied abroad in
London and worked at a mental health clinic.
Levine then merged her interest in the medical
and legal fields in law school, working at the
Disaster Accountability Project where she researched standards for emergency procedures
in hospitals with practical and legal considerations in mind. By the end of her second year,
Levine was working at Maimonides Hospital,
dealing with contracts & HIPAA, as well as
computerizing records and regulatory compliance issues, including ensuring the meaningful
use of the digitized results.
Along the way, Levine mastered skill sets
that, as CLE Director, she uses every day: balancing law and policy, working with lawyers,
administrators, managers, doctors, and researchers. The work was not always easy, and
included the difficult task of negotiating the
diversity of the interests involved. “You go
into it thinking it can’t be that hard to fix, you
just need to write good policy,” said Levine.
“Then you realize the people involved have
different perspectives and there are different
sides to the issues, and then of course there are
financial and political aspects involved.”
Meeting the wide-ranging educational
needs of over 2000 lawyers may sound like a
daunting challenge, but Levine explained that
she hopes to increase attendance at live CLEs
and increase BBA membership. “Reaching the
audience is the next big wave.”
Levine is also committed to public policy,
and hopes to work public interest into CLE offerings. “Public interest is about empowering
people. The law is a rigorous profession with
high standards. At some point in their career,
everyone feels the urge to do good. I took a
Community Development Clinic with David
Reiss at Brooklyn Law and learned about
hands-on lawyering and negotiating,” said
Levine. “We worked with small businesses
and nonprofits like community gardens. I kept
thinking of the health law aspect, what it
would be like to show kids what food actually
looks like, and the need to make the city
healthier. As CLE director, I understand that I
need to make the education of our members
work for them to enhance their practice. We
just need to find the sweet spot between public
service and practicality.”
————————————————
The ABCs of CLEs
By: Gregory Zenon, Esq.
According to Danielle Levine, Director of
Continuing Legal Education at the Brooklyn
Bar Association, the multitude of CLEs offered by the BBA are the result of planning,
coordination, more planning, and then even
more coordination. Committees create the majority of these CLEs. There are over fifty committees within the Brooklyn Bar, each representing a distinct area of the law, each headed
by a chair and composed of volunteer members. Committee chairs brainstorm with members and each other to identify topics as well as
speakers such as experienced practitioners and
judges. Levine has meetings with committee
chairs to discuss CLEs for the upcoming year,
and then starts working out the details of presentations including the number and practice
areas of the credits offered. Then Levine coordinates everything from scheduling to course
materials, from handouts to audio-visual requirements.
Additionally, speakers and groups such as
the New York State Academy of Trial Lawyers
and other regular lecturers offer CLEs. “Some
presenters prefer to prepare and bring their
materials, while others prefer that the BBA
take care of printing and publishing,” explained Levine, who deals with veterans who
have been running programs for years as well
as new presenters. Topics range from annual
updates to novel areas of the law.
Throughout the year Levine continues to
coordinate and network with committees as
topics develop. “For example, hot topics like
foreclosures might come up, or if we have a
National Convention coming to town we may
discuss offering a CLE on civil disobedience,
protests, and the law,” said Levine.
If someone has a request, Levine said the
BBA is always willing to listen, whether it
comes directly to her attention, that of a committee chair, or to the BBA in general.
the client work before those senior partners who
have personalized the relationships begin to
phase-out of the practice. From the firm’s point
of view, a team effort for marketing and servicing
larger and mid-size clients is almost always
preferable to the Lone Ranger approach for generating and preserving client relationships.
Change Imperatives:
Implementing value-added marketing may,
to some extent, require modifying some of the
firm’s cultural patterns, as well as the attitudes
of some of its attorneys. Here are some of the
issues that will need to be addressed as a firm
moves into this new marketing environment:
(1) Time demands. Value-added marketing
will demand more time of those attorneys involved in planning and managing the firm’s
marketing activities, especially as each of the
attorneys is charged with implementing the
marketing program.
(2) Incentives offered to existing and potential clients. More firms are offering incentives to
bind relationships with clients and to foster new
relationships with potential clients. Examples of
incentives offered to existing clients include:
• A day at the client’s business location
without charge to learn about the nature of the
client’s business;
• Sharing of the firm’s form agreement files
with staff attorneys without charge;
• Presentations on current legal trends to
business staff when appropriate and training for
members of the in-house legal staff during
these presentations;
• Incentives selectively offered to potential
clients, when the firm is “betting” on future engagements;
• Free services for discounted services at the
current time with the expectations that full-rate
charges will be provided at a later date; and
• Attendance at corporate meetings without
charge in return for future representation when the
company or a new subsidiary organization is formed.
(3) Structuring hourly billing arrangements.
Clients are always interested in listening to new
ideas about how to reduce legal costs. At the same
time, they are smart enough to understand that fees
paid for services rendered must allow the firm to
make a fair profit to cover its overhead and earn a
sufficient profit to compensate its attorneys.
As such, many law firms can structure
billing arrangements that achieve larger marketing goals by playing with or deviating from
straight hourly rate charges. For example:
• A flat rate discount applied to all services
for work performed for charitable and not-forprofit organizations.
• Volume discounts on fees for all or selected types of work to obtain a greater volume of
legal work from particular clients. These discounts are based on an overall level of fees
charged for services performed. They usually
take the form of stepped-up discounts. That is,
fees that exceed a stipulated total may be discounted by some percentage, fees that exceed a
higher stipulated total may be discounted at a
higher percentage, and so forth.
• Discounted hourly rates for work performed
for the client’s account when that client are in a position to refer third parties (like financial institu-
tions) to the law firm. With the client’s knowledge,
the firm then adds a surcharge to the fees for work
performed for those third parties.
• Flat retainers for certain functions and
hourly rates for other transactions.
• Blended hourly rates charged without regard
to who works on the matter combined with flat fees
charged for performing prescribed tasks.
(4) Compensation questions. Compensation
cannot be ignored. In fact, it may be the pivotal
factor that encourages or discourages the implementation of a value-added marketing program. To what extent are partners willing to pay
other partners to market the firm? Some partners object to paying their colleagues for anything beyond a billable hour contribution.
Other partners believe that, since marketing is
the lifeblood of a firm, it should not be necessary to pay partners to develop business.
Still others may be unwilling to subsidize
partners’ marketing efforts, like playing a round
of golf or taking a client to a basketball game, if
the activities are perceived as fun, not work. Yet
taking the time to meet with clients and to educate clients about the firm is an important element in today’s world, no matter what the context. Firms that penalize attorneys for not recording an adequate number of billable hours because
they are shaking the bushes for business may be
doing their firms a disservice over the long run.
The extent to which lawyers may actually enjoy
shaking those bushes is irrelevant.
There are a significant number of issues affecting compensation that must be anticipated
prior to implementing a value-added marketing
program. For example:
• How will origination credit be weighted?
• How long will origination credit continue,
permanently, for three years, for five years?
• How should partners who proliferate work from
the work originated by another be rewarded?
• How should billable hourly expectations
for rainmakers be budgeted?
• How much credit should be allocated for
marketing efforts, rather than producing legal
work?
• How should the originating attorney share
fee credits if another attorney supervises the
work?
• How does an hour of business development time equate to an hour of solid billable
time for compensation purposes?
Managing partners and heads of marketing
committees who have taken their firms down
the value-added marketing path agree that, if
properly conceived and implemented with care,
this new marketing gospel will be beneficial for
the firm’s clients and increase synergies among
and between attorneys practicing in the same as
well as different speciality areas. Clients will
take note of the changes in the attitudes of the
attorneys toward helping them.
Unquestionably, all that is really needed is a
willingness of law firms to undergo substantial,
even fundamental, change.
_________________________________
Joel A. Rose is a consultant in law firm
management and legal economics and can be
reached at [email protected]
_________________________________
©1999-2014 Joel A. Rose & Associates
RESPECTFULLY SUBMITTED
You may recall that earlier this year I announced
the creation of a scholarship in the name and memory of our dear friend, the late Judge Theodore T.
Jones, Jr., Associate Judge of the Court of Appeals.
This yearly scholarship will be awarded to a law student who exemplifies and embodies the qualities and
characteristics that that made Judge Jones the incredible man he was. To that end, we are currently in
the process of forming a scholarship committee and
hope to have the committee members announced
shortly. We further hope that the committee will be
able to award the scholarship to a deserving recipient
at our Annual Meeting in May.
As many of you may know, after 23 years at 123
Remsen Street, the Volunteer Lawyer’s Project will
soon be moving from the 2nd floor of our building
to a different location in the neighborhood. The
move was necessitated because of the incredible
success of the VLP under the leadership of its Executive Director, Jeanie Costello and BBA Past
President James Slattery. A larger staff, more
clients, and the need for expanded facilities meant
that a larger space was in order. And while we will
sorely miss having Jeanie and her team in our
building, we are comforted to know that they will
be relocating somewhere nearby in the neighborhood. It goes without saying that the VLP will continue to have the support of the Brooklyn Bar Association, its leadership and its members.
In my previous column I reported on OCA’s
mandatory pro-bono reporting requirements which
went into effect on May 1, 2013. In June I reported that the NYSBA House of Delegates, which is
tackling the issue with OCA, had tabled the matter
for the November meeting which will be held in Albany on November 1st. It would be an understatement to say that these mandatory pro-bono reporting requirements have not been well-received by
the practicing bar and are being hotly debated
across the state. Most local bar associations, including our association, have passed resolutions
denouncing the rule. President Glen Lau Kee, on
behalf of NYSBA, is in the process of working
with the Chief Judge to have these rules repealed
and/or modified. We hope to have encouraging
news at the House of Delegates’ meeting in November. I will report on the issue again following
that meeting.
Until my next column, I wish you all well.
SEPTEMBER, 2014
THE STATE OF ESTATES
as required by CPLR 3116(a). The spouse moved for
an Order (a) to strike the attorney’s errata sheet, or (b)
to compel the attorney to be further examined by the
spouse. Although an Affirmation in Opposition to the
requested relief was filed by counsel for the executrix,
the deposed attorney did oppose the requested relief.
HOLDING- The deposed attorney was ordered to prepare and file with the Court, within thirty days of the
date of the decision and Order, an amended errata sheet
concerning his deposition stating his reasons for the
changes he made, or, should he fail to provide such an
amended errata sheet as directed, he was ordered to appear for examination on the sole issue of explaining the
changes he made on the errata sheet to his deposition.
The Court noted that although the errata sheet provided spaces for changes, with blanks for “page,” “line,”
“change,” and “to,” it did not include a line “reason for
change” or, in fact, room on the errata page for such
entry. The Court stated that it was reasonable to believe,
therefore, that the omission by the attorney to include
the reasons for the changes he made was merely an
oversight on his part, and not the intentional withholding of information. The Court ruled that the errata sheet
should not be stricken, but in light of the attorney’s failure to oppose the instant application, it was ordered that
he either file an amended errata sheet, or failing that,
appear for examination on the sole issue of explaining
the changes he made on the errata sheet. Matter of
Hoffmann, N.Y.L.J. 8/5/14, p. 21, c. 2 (Surr. Ct., Suffolk Co., Surr. Czygier)
A Summary Holdover Proceeding For Recovery of Possession of Real Estate Held in a Trust
Must Be Brought In The Name Of the Trustees
Rather Than In The Name Of the ‘Trust’- A
holdover summary proceeding was brought in the
name of an express trust. Despite repeated objections
by the tenant in the answer, in opposition to petitioner’s
motion for summary judgment, and by trial motion,
that petitioner lacked the capacity to maintain this proceeding, as the statute vests the legal estate of an express trust in the trustees, no motion was ever made by
the petitioner to join the trustees or to amend the caption to reflect that the trustees were the proper parties
petitioner. It appeared that the trustees did everything in
their power to avoid disclosing their identities and appearing in this proceeding, including moving to quash
the subpoenas that tenant had served upon them.
Nonetheless the Court awarded possession to petitioner landlord. The tenant appealed. HOLDING- The
Appellate Term ruled that the tenant’s motion to dismiss the petition for lack of capacity should have been
granted. Accordingly, the final judgment was reversed
and the matter was remitted to the Civil Court for the
entry of a final judgment dismissing the petition.
Ronald Henry Land Trust v Sasmor, 44 Misc.3d 51
(Sup. Ct., App. Term, 2nd Dept., 2nd, 11th, and 13th
Dists., 2014)
Obtaining Jurisdiction over the Fiduciary of the
Decedent’s Estate, Rather Than over the Tenant or
the Decedent’s Distributees, Necessary In Order To
Terminate a Decedent’s Tenancy- The landlord
commenced a holdover summary proceeding to recover possession of a rent-stabilized apartment on the
ground that the tenant, the decedent’s estate, had
breached a substantial obligation of the tenancy by permitting the premises to be occupied by the decedent’s
son without landlord’s permission or consent. The petition alleged that the lease agreement between the former tenant of record, the decedent, and the landlord had
been terminated pursuant to an attached notice to cure
and notice of termination. The landlord named as respondents the decedent’s son individually, the decedent’s son as a distributee of the decedent’s estate, as respondents/tenants, and John Doe and Jane Doe, as undertenants, and the notice of petition and petition were
served on the decedent’s son, individually, and on the
decedent’s son as distributee of the decedent’s estate.
The decedent’s son, who was occupying the apartment,
appeared and asserted his right to succeed to the tenancy. After a nonjury trial, the Civil Court awarded possession to the landlord. The tenant appealed. HOLDING- The Appellate Term ruled that in order to terminate the tenancy the landlord was required to get jurisdiction over the decedent’s estate. The Court stated that
a lease for a term of years was not terminated by the
tenant’s death prior to the lease’s expiration. The Appellate Term added that absent a surrender of possession by the tenant, a lessor must obtain a judgment of
possession against the lessee pursuant to RPAPL §711,
and may not proceed directly against the undertenant,
whether licensee, subtenant or occupant, pursuant to
RPAPL §713. The Appellate Term noted that there was
no allegation that the decedent or her estate had surrendered the premises. The Appellate Term concluded
therefore that the landlord was required to terminate the
tenancy of the estate and to bring the proceeding
against the estate. The Appellate Term pointed out that
an estate is not a legal entity, and any action for or
against the estate must be by or against the executor or
administrator in his or her representative capacity. The
Appellate Term added that the landlord had not named
or served the executor or administrator of the estate, but
had named only the decedent’s son individually and as
distributee of the estate. The Appellate Term stated that
a distributee is not the same as an executor or administrator of an estate, even if such person is the sole beneficiary of the estate, adding that the distinction between
an individual’s status as fiduciary of an estate and beneficiary cannot be disregarded. Accordingly, the Appellate Term reversed the final judgment in favor of the
landlord and remitted the matter to the Civil Court for
the entry of a final judgment dismissing the landlord’s
petition. Visutton Assoc. v Fastman, 44 Misc.3d 56
(Sup. Ct., App. Term, 2nd Dept., 2nd, 11th, and 13th
Dists., 2014)
Probate of a Copy Of a ‘Lost’ Will Denied
Based upon the Presumption of Revocation of a
Will Last Known to Have Been in the Decedent’s
Possession but Not Found after Death-Aproceeding
was brought to probate a copy of a ‘lost’ Will, which
proceeding was uncontested. The decedent was survived by his wife who was the proponent and the sole
beneficiary under the propounded instrument. It was
conceded that the attorney-drafter retained only a copy
of the propounded instrument and gave the original
Will to decedent. Proponent’s attorney maintained that
the presumption of revocation was rebutted by the affidavit of the attorney-drafter, decedent’s friend and business associate for over 20 years, who averred that he
was in constant communication with decedent and had
decedent desired to revoke or amend his will, decedent
would have contacted him. Counsel also averred that
on many occasions decedent told him that he wanted
his entire estate to pass to proponent. The attorneydrafter concluded that since decedent never contacted
him regarding any changes to the propounded instrument, decedent did not revoke such instrument.
HOLDING- The Will was denied probate. The Court
stated that where a decedent is the last person known to
have had custody of an original Will which cannot be
found at the time of his death, a presumption arises that
decedent revoked it. The Court noted that the presumption is rebuttable, but only by clear and convincing evidence. The Court added that an offer of mere
speculation and suspicion is not a basis for admitting a
lost or destroyed will to probate. The Court stated that
without more, an affidavit of an attorney-drafter does
not constitute clear and convincing evidence sufficient
to rebut the presumption that the original instrument
was revoked. Accordingly, the propounded instrument
was denied probate. Matter of Sherer, N.Y.L.J.
7/25/14, p. 21, c. 3 (Surr. Ct., New York Co., Surr.
Mella)
A ‘Lost’Will, Which Last Was Known To Be In
Possession of the Attorney-Drafter, Admitted To
Probate- Aproceeding was brought to probate as a lost
Will, an original conformed copy of a Will. Jurisdiction
was obtained over the decedent’s distributees, a sister
and brother who were the only beneficiaries under the
instrument. There was no opposition. The propounded
instrument was signed by the decedent, contained an
attestation clause, was witnessed by three witnesses
and annexed a self-proving affidavit. Distribution
under the propounded instrument was the same as in
intestacy. In support of the application, affidavits were
filed for the three drafting attorneys, the proponent and
the proponent’s two former law partners, alleging that
after execution the two former partners retained the
original instrument, the law firm dissolved, they moved
to separate locations and could not locate the original
instrument, and as a result, the petitioner’s attorney was
able to produce only an original conformed copy of the
original instrument. All three drafting attorneys also alleged that the decedent never requested the original instrument or indicated that she wished to revoke it. The
provisions of the lost Will were proven by the original
conformed copy which was established as a true and
complete copy of the executed Will. HOLDING- The
Will was admitted to probate. The Court stated that in
light of the lack of opposition and that the Court credited the statements contained in counsels’affidavits that
the original Will was not lost while in the decedent’s
possession, the presumption of revocation never arose.
Based on the proof submitted, the Court was satisfied
that the Will was not revoked by the decedent during
her lifetime. The Court was satisfied that the original of
the instrument offered for probate was validly executed and, at the time of its execution, the testator was
competent to make a Will and not under restraint. Accordingly, a decree was entered admitting to probate, as
a lost Will, the original conformed copy of the Will.
Matter of Gramisci, N.Y.L.J. 8/22/14, p. 21, c. 2 (Surr.
Ct., Bronx Co., Surr. Malave-Gonzalez)
_____________________________________
Compiled by Hon. Bruce M. Balter, Justice of
the Supreme Court, Kings County, 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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