small_Barrister_10_2015_BBA edition

Transcription

THE
OFFICIAL
PUBLICATION
OF
THE
BROOKLYN
BAR
ASSOCIATION
BROOKLYN BARRISTER
©2015 Brooklyn Bar Association
OCTOBER 2015
VOL. 66 NO. 17
Brooklyn Eagle photos by Rob Abruzzese
Chef Lenny of L&B Spumuni Gardens, Justice Michael L . Pesce.
Culinary Delights On
Display In Brooklyn
BBA Past President Lawrence F. DiGiovanna, left.
—See page 7—
President Arthur L. Aidala with Executive Director Avery Eli Okin.
New Federal Laws Aid Persons With Disabilities
ABLE ACT Becomes Law
By: Anthony J. Lamberti, Esq.,
Elder Law Committee
On December 19, 2014, President Obama
signed into law the Achieving a Better Life
Experience Act (ABLE ACT) with significant bipartisan support. The intent of this Act
is to solve the problems individuals face in
finding and holding employment and living
independently because their access to certain
safety net programs can be lost once they
establish a minimum level of savings and
income creating a disincentive to work.
The ABLE ACT encourages individuals
to save private funds to support individuals
with disabilities to maintain health, independence and quality of life.
In order for a person to be a beneficiary
of an account under the ABLE ACT, they
must have evidence of disability (i.e., SSD,
SSI or some other determination) and the
disability must have commenced before the
beneficiary attained the age of 26 years.
Liability for the Cost of
Nursing Home Care
II. ADMISSION AGREEMENT
By: Anthony J. Lamberti, Esq.,
Elder Law Committee
I. INTRODUCTION
The issue of liability for the cost of care at
nursing homes on its surface does not seem
to be very complicated but various factual
circumstances that occur in these cases can
add to the complications.
The case usually starts with a call that
Grandma was just admitted to the nursing
home for short term rehabilitation and they
hope she will return home with home care.
An initial consultation may explore care
costs for home care and facility care, the
need for Guardianship and whether or not
prior assets transfers occurred in the previous
five (5) years. It usually does not encompass
the nursing home admission agreement.
This article will address the liability issues for cost of care at nursing homes which
usually arise under the terms of an admission
agreement.
The first significant legal issue that must
be presented is the federal law and New York
State Regulations regarding the admission
agreement.
Generally, when a non-resident party
signs an admission agreement on behalf of
the resident, there is no contractual personal
liability for the non-resident party for unpaid
service bills nor could a nursing home facility legally require such a guaranty as a condition of the resident’s admission. However,
these federal laws and state regulations
permit nursing homes to legally require the
authorized representative (i.e., spouse, attorney in fact or joint account holder) or an
individual having access and control over the
resident’s assets and income to provide the
facility with payment using that access to the
resident’s available income or resources
without incurring any personal financial
liability. See 42 U.S.C. 1396r(c)(5)(A)(ii);
42 U.S.C.1396r(c)(B)(ii); and 10 NYCRR
415.3(b).
Please turn to page 6
DISABLED CHILD MILITARY
PROTECTION ACT
These ABLE accounts are modeled after current
Section 529 college savings accounts.
SIGNIFICANT FEATURES
OF THE ABLE ACT
1. Contributions into an ABLE account
could be made by any person;
2. Contributions are not tax deductable;
3. Income earned by accounts would
not be taxed;
4. Account withdrawals, including
portions attributable to investment earnings
generated by the account, for qualified
expenses are not taxable;
5. Individuals would be limited to one
ABLE account and total annual contributions by all individuals to any one account
could be made up to the annual gifting
exemption ($14,000 in 2014);
6. Aggregate contributions to an ABLE
account are subject to an overall limit
matching the State limit for Section 529
college accounts;
7. Individuals with an ABLE account
could maintain eligibility for means tested
benefits, ABLE account balances and
withdrawals are completely excluded for
the purpose of Medicaid and other benefits programs. In SSI situations, the first
$100,000 is excluded from counting as a
resource, as are most account withdrawals;
8. Upon the death of the ABLE
account beneficiary, any amount remaining in the account is subject to Medicaid
payback. If any funds remain after
Medicaid payback, the remainder thereof is paid to a designated beneficiary or
the beneficiary’s estate and subject to
income tax on investment earnings.
The ABLE Act is an additional tool to
aid in planning for a person with a disability while keeping eligibility for
means tested governmental benefits.
On December 19, 2014, President
Obama signed into law the National Defense Authorization Act. Included in this
Act was an amendment titled the Disabled
Child Military Protection Act (DCMPA).
The purpose of the amendment is intended
What’s Inside
New Federal Laws Aid Persons
With Disabilities
By Anthony J. Lamberti, Esq. ............................. Pg. 1
Liability for the Cost of
Nursing Home Care
By Anthony J. Lamberti, Esq. ............................. Pg. 1
New Members ................................................... Pg. 2
Legal Briefs
By Avery Eli Okin, Esq., CAE ............................ Pg. 2
Respectfully Submitted
By Arthur L. Aidala, Esq. .................................... Pg. 3
Roll Call
By Diana J. Szochet, Esq. ........................................ Pg. 4
An Overview of the Justice for
Victims of Trafficking Act of 2015
By Barbara H. Grcevic, Esq............................................. Pg.5
State and City Crackdown on
Real Estate Tax Exemption Abuses
By Lawrence F. DiGiovanna, Esq. ................................. Pg. 6
Culinary Delights
On Display in Brooklyn .......................... Pgs. 7 & 12
State of Estates
By By Hon. Bruce M. Balter and
Paul S. Forster, Esq.. .............................................. Pg. 8
Visit us at www.brooklynbar.org
Page 2, BROOKLYN BARRISTER
OCTOBER 2015
LEGAL BRIEFS
JUDICIAL
RECOGNITION
Congratulations to Brooklyn Bar Association member Hon. Marsha Steinhardt who
was presented with The Award for Outstanding Jurisprudence by the New York
State Medical Defense Bar Association at an
event held on October 7, 2015 at The
Harmonie Club.
Congratulations to former Brooklyn Bar
Association Trustee Hon. John Ingram who
was honored by the Irish American Bar Association of New York at it’s 5th Annual
Thomas Jefferson Memorial Wine Geese
Wine Tasting and Wild Goose Award in
celebration of his legal work. This event,
which was held on September 9, 2015,
was hosted at the Irish Consul General’s
Apartment in New York.
Congratulations to Brooklyn Bar Association member and former Civil Court
Judge Hon. Alice Fisher Rubin who was
appointed for a two year term on the
Board of Trustees of the Brooklyn Law Library earlier this month. In addition, last
month Judge Rubin was elected as the
first woman chair of the CUNY College of
Technology Foundation.
NEW MEMBERS
New Members for the Month of SEPTEMBER 2015
MARK ANDERSON
JILLIAN CASTRELLON
BTZALEL HIRSCHHORN
MICHAEL MANOUSSOS
JUAN ORTIZ
DEANNA PAUL
SEAN SMITH
OLUGBENGA SOPEJU
ANDREW STENGEL
STUDENT MEMBERS
DESIREE ALEXANDER
MUBEEN CHUGHTAI
BROOKLYN BAR ASSOCIATION 2015-2016
Arthur L. Aidala, President
David M. Chidekel, Second Vice President
Hon. Frank R. Seddio, President Elect
Hon. Frank V. Carone, Secretary
Aimee L. Richter, First Vice President
Anthony J. Lamberti, Treasurer
Avery Eli Okin, Esq., CAE: Executive Director
CLASS OF 2016
Elaine N. Avery
Armena D. Gayle
David J. Hernandez
Richard Klass
Deborah Lashley
Joseph S. Rosato
Pauline Yeung
TRUSTEES
CLASS OF 2017
Marianne Bertuna
Joseph R. Costello
Stefano A. Filippazzo
Dewey Golkin
Hemalee J. Patel
Steven J. Harkavy
Jeffrey Miller
CLASS OF 2018
Daniel Antonelli
Hon. Fidel F. Del Valle
Michael Farkas
Jaime Lathrop
Andrew S. Rendeiro
Anthony W. Vaughn, Jr.
Glenn Verchick
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
Rebecca Rose Woodland
KUDOS
AND
PROFESSIONAL
RECOGNITION
Brooklyn Bar Association President
Arthur L. Aidala, BBA Trustee and Kings
County Criminal Bar Association President
Michael C. Farkas and BBA Criminal Law
Section Chair George A. Farkas were recognized as Attorneys of Valor by DROR an
organization which promotes delinquency
prevention, encourages law abiding behavior and assists incarcerated individuals, at
their 4th Annual Freedom & Unity dinner
held on September 10., 2015 at the Broad
Street Ballroom.
Congratulations to Brooklyn Bar Association Trustee Richard Klass, who was appointed by the Appellate Division, Second
Department to a four year term on the
Grievance Committee for the 2nd, 11th and
13th Judicial Districts.
On August 25, 2015 BBA Trustee Jimmy
Lathrop was profiled in the Brooklyn Daily
Eagle where he was recognized for his volunteerism and his role in pro bono service
both with the Volunteer Lawyers Project
and in private practice.
Also recognized by the New York Law
Journal as a 2015 Lawyer Who Leads by Example for his pro bono service was former
Brooklyn Bar Association trustee and current president of the Volunteer Lawyers
Project James Slattery. James Slattery was
one of only three attorneys citywide in the
attorneys emeritus group who was singled
out for that recognition.
On October 28, 2015 The Cervantes Society will be hosting its 20th Annual Award
Ceremony in the Rotunda of the New York
County Supreme Court which will feature
former BBA trustee Hon. Ariel E. Belen,
Court of Appeals Judge Jenny Rivera and
Chief Administrative Judge of the Courts of
the State of New York Hon. Lawrence K.
Marks. Being honored at that event are
BBA member Betty Lugo, the President of
the Puerto Rican Bar Association and
Christina Golkin the founding chairperson
of the LGBTQ Committee of the Brooklyn
Bar Association.
PROFESSIONAL
ADVANCEMENTS
The Second Circuit Judicial Council has
announced that it is seeking candidates for
a Bankruptcy Judge position in the District
of Connecticut, with chambers in Hartford.
Applications are available online at
[email protected] or by calling 212857-8700. Applications must be submitted
by noon on Friday, October 30, 2015.
FAMILY
MATTERS
Brooklyn Bar Association member Mark
Friedman and his wife announce the birth
of their first child, a daughter, Tiffany Rose
Friedman on April 12, 2015.
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 aokin@brook
lynbar.org, faxed to 718-797-1713 or mailed
to the bar center at 123 Remsen Street,
Brooklyn, New York 11201-4212.
BROOKLYN BARRISTER EDITORIAL BOARD
Anthony J. Lamberti
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
Glenn Verchick
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. 17. October 2015. 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.
OCTOBER 2015
BROOKLYN BARRISTER, Page 3
—————————————— PRESIDENT’S MESSAGE —————————————
RESPECTFULLY SUBMITTED
PAST PRESIDENTS DINNER HELD SEPTEMBER 9, 2015 AT MARCO POLO RESTAURANT. Seated Left-to-Right: Lawrence F. DiGiovanna, Paul A. Golinski,
Arthur L. Aidala, Hon. Barry Kamins, Joseph H. Farrell. (Not shown: Vivian H. Agress). Standing Left-to-Right: Executive Director Avery Eli Okin, Esq.,CAE,
Domenick Napoletano, Gregory T. Cerchione, Ethan B. Gerber, Barton L. Slavin, Hon. Miriam Cyrulnik, Steven D. Cohn, Andrew M. Fallek, Diana J.
Szochet, Roger Bennet Adler, Hon. Jeffrey Sunshine and Hon. Nancy T. Sunshine.
and wine experience that will not soon be forgotten. Justice Pesce guided us through the
tasting of five wines and two after dinner cordials while Chef Lenny and his remarkable
team served five different courses comprising
seven different creations. After Judge Pesce
explained how and where the wines were
made, Chef Lenny let us in on some of his
cooking secrets and the origins of many of
the foods we shared. The evening stretched
By: Arthur L. Aidala, Esq
I am happy to report that many positive
events have taken place over the last several
weeks. Allow me to begin with the most
exciting news: we have announced the honorees for our December 7th 2015 Foundation Annual Dinner to be held in the Grand
Ballroom of the Brooklyn Bridge Marriott
Hotel. Our 2015 Annual Award recipients
will be Harvard Law School Professor Alan
Dershowitz; Eastern District of New York
Judge Sterling Johnson; Appellate Division
Second Department Justice John Leventhal;
and former Kings County Administrative
Judge of the Supreme Court Criminal Term,
the Honorable Patricia DiMango. The Bar
Association is very excited and honored to
have a group that does not only contain
shining stars of the Brooklyn legal community but each of our honorees is nationally
known in their respective areas of expertise.
We ask that our members support our premiere event as generously as possible and
use what is sure to be an exceptional
evening as an opportunity to expose our
Association to potential new members.
Speaking of the best of our legal community, on September 9th after our monthly
Board meeting, our Executive Director Avery
Okin and President-Elect Frank Seddio
joined me in hosting a private dinner at
Marco Polo Ristorante for the Past Presidents
of our Association. We were twenty in total
as Andrew Fallek represented our most recent office holder and Joseph H.Farrell who
held office 1986-1987 representing the individual who held the position the longest time
ago. Each President regaled us with both hilights and also some low-lights of their respective tenures. Both President-Elect Seddio
and I listened very carefully and I am confident we both learned a lot. A definite highlight was President Farrell speaking of his
first encounters with a very young Avery Eli
Okin more than 30 years ago. A great meal
and a great time was had by all.
Also during the month of September
our trip to Cuba was sold out to our membership. Thirty five of us will set out from
February 28 to March 5th accompanied by
a tour agency dedicated to serving attorneys and bar associations on an educational exploration of the island. Our trip
will be covered extensively in this periodical upon our return.
On a more serious note, I was joined last
week by Board member and President of
the Kings County Criminal Bar Association
President Arthur L. Aidala, Esq.
Michael Farkas as well as our Board
Member Marianne Bertuna in meeting
with Administrative Judge of the Criminal
Court Michael Yavinsky. We discussed
several topics that affect criminal practitioners. At the top of our list was to obtain
a definition of the standards used in determining if a criminal defendant is actually
indigent and entitled to one of the public
defenders available versus someone who
has the financial means to retain a private
lawyer. Currently the topic of eligibility
for free legal services is not addressed at
the arraignment and many defendants are
assigned a public defender to which he or
she is not legally entitled. The U.S.
Supreme Court case of Gideon v. Wainwright
ensures that INDIGENT citizens are entitled
to a free lawyer, NOT that every citizen is entitled to a free lawyer. Our Justice system does
not have a regulated method in place to verify
a defendant's finances and their eligibility to
free legal counsel and therefore abuses of the
system are taking place.
Judge Yavinsky could not have been
more receptive and accommodating and his
assurances of addressing our issues are already being put into effect at his courthouse. We look forward to our meeting with
Justice Matthew D'Emic of the Supreme
Court in the coming weeks.
Finally, on October 14th every seat in our
auditorium was full as Presiding Justice of
the Appellate Term, Honorable Michael
Pesce and Chef Leonardo "Lenny" Kern of
L&B Spumoni Gardens lead us on a culinary
late into the night clearly demonstrating how
much our members enjoyed themselves.
Thank you to everyone who attended and
participated in the event, it was a unique
night for our Association.
Please make every effort to attend and
support our December 7th Annual Dinner
and help us to continue our tradition of
making this the best night of the year for
our Association.
OCTOBER 2015
Roll Call
The Following Attorneys And Counselors-At-Law Were Disbarred
By Order Of The Appellate Division, Second Judicial Department:
•••
Frank Adipietro, a suspended attorney,
resignor (August 12, 2015)
By decision and order dated March 6,
2015, the respondent was immediately suspended from the practice of law, pending further order of the Court, and the Grievance
Committee was authorized to institute and
prosecute a disciplinary proceeding, based
upon a verified petition containing 11 charges
of professional misconduct. The respondent
has now tendered an affidavit of resignation,
wherein he acknowledges that he would not be
able to defend himself on the merits against 16
complaints of professional misconduct filed
against him by clients and former clients, 11 of
which were included in the foregoing petition.
The complaints generally allege that the respondent neglected, or acted incompetently
with respect to, clients’ legal matters; intentionally failed to seek the lawful objectives of his
clients or former clients, thereby prejudicing or
injuring the clients or former clients during the
course of his representation; regularly and systematically lied to his clients or former clients
concerning his activities and the status of their
legal matters, as well as his intention to refund
unearned fees or remit other funds to which
they were entitled; misappropriated funds entrusted to him for his own use and benefit; and
failed to refund unearned fees.
•••
Thomas G. DeVivo, Jr., admitted as
Thomas Guy DeVivo, Jr., resignor
(August 19, 2015)
The respondent tendered an affidavit of
resignation wherein he acknowledged that
he would not be able to successfully defend
himself against charges predicated upon two
complaints of professional misconduct filed
against him. The respondent averred that he
misappropriated approximately $216,000
entrusted to him as attorney for the executor
of an estate; presented the executor with a
check register in which the respondent,
among other things, entered false payee
names for checks actually made payable to
him, or falsely recorded as “void” checks ac-
tually made payable to him, while deliberately withholding the monthly bank statements and canceled checks from the executor; failed to properly re-register as an attorney for two consecutive registration periods;
and failed to submit answers to pending
complaints or otherwise respond to lawful
inquiries of the Grievance Committee.
•••
Timothy G. Griffin, a suspended attorney (August 19, 2015
By decision and order dated November
12, 2014, the respondent was immediately
suspended from the practice of law, pending
further order of the Court, based upon his
failure to cooperate with the Grievance
Committee and other uncontroverted evidence of serious professional misconduct
immediately threatening the public interest,
and the Grievance Committee was authorized to institute and prosecute a disciplinary
proceeding. On February 4, 2015, the respondent entered a plea of guilty in the
Supreme Court, Richmond County (Rooney,
J.) to one count of Grand Larceny in the First
Degree, a class B felony. By virtue of his
New York felony conviction, the respondent
ceased to be an attorney and counselor-atlaw and was automatically disbarred as of
February 4, 2015. Upon the Grievance Committee’s motion, the respondent’s name was
stricken from the roll of attorneys and counselors-at-law, to reflect his automatic disbarment as of February 4, 2015.
•••
The Following Attorneys And
Counselors-At-Law Were Suspended From The Practice Of Law By
Order Of The Appellate Division,
Second Judicial Department:
Damian J. Pietanza, admitted as Damian
Joseph Pietanza (August 19, 2015)
Following a disciplinary proceeding, the
respondent was found guilty of commingling personal funds with funds entrusted to
him as a fiduciary, incident to the practice of
law; failing to maintain required bookkeeping records for his attorney escrow account;
engaging in a pattern and practice of misappropriating funds held in his attorney escrow
account; improperly advancing financial assistance to clients while representing them in
connection with pending litigation; neglecting legal matters entrusted to him; and engaging in dishonesty, deceit, fraud and misrepresentation with respect to the status of a
client’s legal matters, including advising the
client that her divorce had been filed, furnishing the client with a false document in
furtherance of the foregoing claim, and providing the client with a document the respondent fabricated. He was suspended from
the practice of law for a period of three
years, commencing September 18, 2015.
Contrary to the respondent’s claim that his
conduct was “not venal,” the Court found
that he “deliberately and intentionally engaged in deception by preparing and presenting fictitious documents…designed to
mislead his client as to the true status of her
legal matters, and [to] conceal his neglect…[citation omitted].”
•••
Elliott Bakst (August 28, 2015)
The respondent was immediately suspended from the practice of law, pending
further Order of the Court, as a result of his
admissions and other uncontroverted evidence of professional misconduct immediately threatening the public interest, and
the Grievance Committee was authorized
to institute and prosecute a disciplinary
proceeding.
•••
Robert C. Fishman (August 28, 2015)
On December 19, 2008, the respondent
appeared in the Superior Court of California,
in and for Los Angeles County (Titus, J.),
where he entered a plea of nolo contendere
to two felony counts of possession of child
pornography and was found guilty. Upon information and belief, the respondent failed
to report his California conviction to the
State of New York, as required by Judiciary
Law Section 90. Upon the Grievance Committee’s motion to strike the respondent’s
Advertise in
name from the roll of attorneys and counselors-at-law in New York, the Appellate Division, on its own motion, immediately suspended the respondent from the practice of
law, pending further order of the Court, as a
result of his conviction of a “serious crime”
pursuant to Judiciary Law Section 90, and
the Grievance Committee was authorized to
institute and prosecute a disciplinary proceeding.
•••
The Following Attorney And
Counselor-At-Law Was Publicly
Censured By Order Of The Appellate Division, Second Judicial
Department:
Nicholas M. Nudo, III (August 19, 2015)
Following a disciplinary proceeding, the
respondent was found guilty of engaging in
conduct involving dishonesty, fraud, deceit,
or misrepresentation, and conduct prejudicial to the administration of justice, emanating from his representation of a client in his
attempt to refinance a mortgage, which
transaction did not close, and his false representation to a bank attorney, some 11 years
later, that he was authorized to accept receipt
of $1,227.00, which he then deposited in his
escrow account. In light of the “serious nature” of the respondent’s misconduct, the
Court rejected his request to remit the matter
to the Grievance Committee for a private
sanction. However, the Court considered, in
mitigation, the isolated nature of the misconduct in an otherwise unblemished career
spanning 30 years.
——
ROLL CALL was compiled by Diana J. Szochet,
a Court Attorney-Referee in Supreme Court,
Kings County. Previously, Ms. Szochet was
an assistant counsel to the Grievance
Committee for the Second, Eleventh and
Thirteenth Judicial Districts in Brooklyn,
and Assistant Deputy Chief Appellate Court
Attorney at the Appellate Division, Second
Judicial Department, focusing on attorney
disciplinary matters.
Brooklyn Eagle’s LEGAL SERVICES DIRECTORY
Call (718) 422-7400
OCTOBER 2015
An Overview of the Justice for
Victimsof Trafficking Actof 2015
By: Barbara H. Grcevic, Esq.
Human trafficking involves the use of
force, fraud or coercion to compel a person’s
labor or sexual exploitation.1 It includes a
broad range of activity from compelling
domestic workers to toil for little or no
money to selling individuals into prostitution.
Approximately 27 million people and 13
million children around the world have
been trafficked. 2 Between 14,500 and
17,500 people are trafficked into the United
States each year. 3 Sadly, more than
100,000 American children are forced into
prostitution each year.4
In an effort to combat human trafficking,
President Obama signed the Justice for Victims of Trafficking Act of 2015 on May 29,
2015. The bipartisan federal legislation,
composed of ten titles, authorizes services to
victims of human trafficking and establishes a
fund to pay for the costs of those services.
This article briefly outlines some of the more
significant provisions of the new law (see
Public Law No. 114 - 22, 129 Stat. 227).
Title I of the new law, Justice for Victims
of Trafficking, sets up a Domestic Trafficking
Victims Fund financed by a $5000 penalty
assessed on convicted sex offenders and
human smugglers who transport individuals
in interstate or foreign commerce for trafficking purposes. These assessments supplement existing federal resources available for
human trafficking victim support. The fund
awards grants to states and localities to
counter trafficking, protect and assist victims,
create and implement child abuse prevention
programs, and provide services to victims of
child pornography. The law also expands the
definition of “child abuse” under the Victims
of Child Abuse Act of 1990 to incorporate
human trafficking and the production of
child pornography. Child pornography production is now classified as a form of human
trafficking. The legislation strengthens law
enforcement mechanisms for prosecuting
human trafficking offenses. It ensures that
patrons of traffickers are equally responsible
for trafficking crimes, thereby imposing
harsher penalties on so-called “johns.”
Under Title II, Combating Human Trafficking, services are enhanced for runaway
and homeless victims of youth trafficking.
The Department of Justice is authorized to
provide housing to trafficking victims. The
law also creates an interagency task force to
investigate, monitor and combat trafficking.
Pursuant to Title III, Human Exploitation
Rescue Operation Act of 2015 (HERO Act),
the U.S. Immigration and Customs Enforcement (ICE), within the Department of Homeland Security, establishes a Cyber Crimes
Center comprised of a Computer Forensics
Unit and a Child Exploitation Investigations
Unit (CEIU). The Center offers investigative assistance, training, and equipment to
aid investigations by ICE of cyber-related
crimes involving child exploitation. Also
under this title, the federal criminal code is
amended to impose a fine and/or prison term
of up to 10 years on anyone who knowingly
transports any individual in interstate or foreign
commerce with the intent of having that
individual engage in any criminal sexual
activity.
Title IV, Rape Survivor Child Custody,
provides for the Department of Justice to
increase grant funding to any state that has in
place a law that allows the mother of any
child that was conceived through rape to
seek court-ordered termination of the
parental rights of the rapist as to that child.
Five million dollars is authorized annually
through fiscal year 2019 to carry out the
mandates of this Title.
Under Title V, Military Sex Offender Reporting, the Department of Defense shall
provide the Department of Justice with sex
offender registration information of individuals who are: (1) released from military corrections facilities, or (2) convicted, if the
sentences adjudged by court-martial under
the Uniform Code of Military Justice of
criminal sexual activity, do not include
confinement.
Title VI, Stopping Exploitation Through
Trafficking, establishes a national strategy
for combating human trafficking by integrating federal, state, local and tribal efforts to
investigate and prosecute human trafficking
cases. This legislation also authorizes the
U.S. Marshals Service to assist state, local,
and other Federal law enforcement agencies
in locating and recovering missing children.
In addition, the law creates a national human
trafficking hotline so that victims can communicate with service providers.
Pursuant to Title VII, Trafficking Awareness Training for Health Care, the Health
Resources and Services Administration at the
Department of Health and Human Services
shall award a grant or contract to an accredited
school of medicine or nursing with experience
in the study or treatment of a severe form of
trafficking to train health care professionals to
recognize and respond to trafficking victims.
Title VIII, Better Response for Victims of
Child Sex Trafficking, requires that a state’s
child protective services system include a
certified assurance that the state has in effect
and is enforcing a law that: 1) requires
identification and assessment of all reports
involving children known or suspected to be
victims of sex trafficking and 2) trains child
protective services workers in identifying,
assessing, and providing comprehensive
services for children who are victims of sex
trafficking.
Under Title IX, Anti-Trafficking Training
for the Department of Homeland Security
Personnel, the Department of Homeland
Security (DHS) shall train and retrain appropriate personnel in the Transportation Security Administration, the US Customs and
Border Protection, and other DHS personnel
on how to effectively deter, detect, and
disrupt human trafficking. The Department
may also provide training to assist non-federal entities, i.e., any state, local, or tribal
government or private organization in establishing a program of training to identify
human trafficking. Money from the Domestic
Trafficking Victims Fund may be used to
include grant funding for state and local
Internet Crimes Against Children Task
Forces to combat child exploitation.
Title X, Human Trafficking Survivors
Relief and Empowerment Act, allows preferential treatment of grant applications under
the public safety and community-oriented
policing grant program of the Omnibus
Crime Control and Safe Streets Act of 1968
to applicants from states that: 1) allow a
human trafficking survivor to vacate any
arrest or conviction records for a non-violent
offense committed as a direct result of trafficking, 2) protect the identity of individuals
who are human trafficking survivors in public
records, and 3) do not mandate that any
individual who is a human trafficking survivor provide official documentation in
order to receive protection under the law.
This critical piece of legislation, when
fully enforced and implemented, will significantly advance efforts to eradicate the
modern-day slavery that is human trafficking.
——
1
U.S. Department of Defense, Combatting Trafficking in Persons, ctip.defense.gov/ Home.aspr
(accessed Aug. 31, 2015).
2
55 Little Known Facts About Human Trafficking,
Facts.randomhistory.com/human-traffickingfacts.html,(accessed Aug. 31, 2015); Skinner, E.
Benjamin, A Crime so Murderous: Face-to-Face
with Modern-Day Slavery, New York, NY: Free
Press, 2008.
3
Christian Sabayan, Emily Smith, and Manay Tanneeru, The CNN Freedom Project, Ending ModernDay
Slavery,
Thecnnfreedomproject.blogs.cnn/com/category/the-facts/the-number (posted Jan. 2, 2011).
4
Youth Radio, Trafficked Teen Girls Describe Life in
“The
Game,”
www.npr.org/2010/
12/06/131757019/youth-radio-trafficked-teengirls-describe-life-in-the-game (posted Dec. 6, 2010).
Complete Legal Services Directory
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OCTOBER 2015
State and City Crackdown on Real Estate Tax Exemption Abuses
By: Lawrence F. DiGiovanna, Esq.
A coalition of New York state and city
agencies led by Atty. Gen. Eric T. Schneiderman has notified approximately 200 building
owners-many in the Williamsburg, BedfordStuyvesant, Ocean Hill, Coney Island,
Brighton Beach and Bensonhurst neighborhoods of Brooklyn-that they are in violation
of the rent registration requirements of
Section 421-a of the New York State Real
Property Tax Law based upon an investigation conducted by the agencies.
The owners had constructed new residential buildings and sought the benefits of
the State’s 421-a program, which grants
buildings exemptions from the increase in
real estate taxes occasioned by the improvement of the property. The benefits can last
from 10 to 25 years depending on the property’s location and can be worth hundreds of
thousands of dollars in tax savings to a
building that qualifies for them.
In order to be eligible for 421-a benefits,
an owner must represent to the City’s Department of Housing Preservation & Devel-
opment (“HPD”) whether the building will
be constructed as a condominium or as a
rental. Rental buildings must register the
apartments as rent stabilized apartments
with the State’s Department of Housing and
Community Renewal (“DHCR”) in order to
qualify. Condominiums need not be registered and the residential units in a properly
formed condominium are not subject to the
rent stabilization laws.
On September 25, 2015, the agencies
wrote to owners who had represented to
HPD that their buildings would become
condominiums but which had not been consummated according to the investigation. It
appears that, for the most part, the buildings
had not become condominiums due to the
downturn in the real estate market in 20082009. When the building owners found that
the condominium units were not salable,
they rented the units in order to cover the
expense of operating the buildings.
The error of their ways was that once
the buildings became rentals the building
owners should have registered those apartments as rent stabilized in order to qualify
to retain the 421-a tax exemption benefits.
The investigation revealed that approximately 2400 residential units were entitled to the protection of the rent stabilization laws. Those laws obligate landlords
to offer one or two-year renewal leases to
tenant’s at rent increases that do not exceed the increases promulgated by the
Rent Guidelines Board every year. Apartments that are not subject to rent regulatory laws can be re-rented upon the expiration of a lease at free market rents or the
landlord can refuse to renew the lease.
The letter sent to the landlords who are in
violation of the rent regulatory laws was
signed by representatives of all three agencies. The letter notifies the building owners
that they are in violation of the rent registration requirements of Section 421-a and
offers them a “one-time, non-negotiable
opportunity to cure these violations” by participating in the Real Estate Tax Compliance
Program. The letter describing the Program
provides a 7-step process that must be followed in order to avoid revocation of 421-a
benefits and other enforcement action.
By October 2, 2015, landlords of these
200 buildings must notify their tenants that
their dwellings are rent stabilized using a
form letter drafted by the investigators
which cannot be changed or edited. By
October 30, 2015, owners must notify
DHCR that they will participate in the
Compliance Program and provide proof
that the tenants have been notified. Landlords must also follow up by registering
properly with HPD and DHCR, abandon
their condominium offering plans at the
Attorney General’s office and provide rent
stabilized leases to all tenants.
Failure to comply with the 7-step Compliance Program can result not only in revocation of tax exemption benefits but also
penalties, disgorgement of past tax benefits, a rent freeze order, and an overcharge
proceeding which can subject owners to
treble damages.
The Real Estate Tax Compliance Program can be viewed in its entirety at
www.ag.ny.gov/421a-compliance-program.
(The author is a Past President and Former Chair of the Real Property Section of
the Brooklyn Bar Association.)
Liability for the Cost of Nursing Home Care
Continued from page 1
III. RESIDENT’S LIABILITY
A. SIGNED ADMISSION
AGREEMENT
The clearest case, in terms of liability for
cost of care, is that where a resident with full
mental capacity signs an admission agreement and payment is not forthcoming. The
usual cause of action for breach of contract is
asserted by the nursing home and the resident may answer with any number of defenses to this type of action.
The most significant issue in these type of
cases is whether the resident voluntarily
signed the admission agreement and understood the consequences in doing so. In Baptist
Home of Brooklyn v. Schott, 902 NYS 2d 368
(2d Dept. 2010), the Court denied the nursing
home’s motion for summary judgment because there was a triable issue of fact regarding
the voluntary signing of the agreement issue.
B. WITHOUT A SIGNED
ADMISSION AGREEMENT
The most common scenario occurs where
a resident has mental capacity and is admitted for long term care and the facility staff
does not obtain a signed agreement.
1. QUANTUM MERUIT
The quantum meruit claim is an implied
contract based upon the conduct of the parties. Generally, the elements of a quantum
meruit claim are as follows:
a. performance of services in good faith;
b. acceptance of services;
c. expectation of compensation by provider;
d. reasonable value should be awarded
for services rendered.
This is usually the strongest cause of action against a resident who has not signed an
admission agreement.
2. ACCOUNT STATED
In order to promulgate this cause of action a
facility needs to establish the following:
a. a bill is rendered and delivered to resident;
b. resident is bound to examine the bill
that is being charged;
c. a reasonable time passes where no
objection is made by resident and the
resident’s silence is construed as
acceptance.
In Erdman Anthony & Associates v. Barkstrom
298 A.D. 2d 981 (4th Dept., 2002), the Court
held that oral objections are sufficient to
rebut an inference of an implied contract to
pay the account.
3. UNJUST ENRICHMENT
This is essentially an equitable claim where
it needs to be established that a nursing home
conferred a benefit to the resident and the resident obtained the benefit without having tendered adequate consideration for services.
IV. LIABILITY OF THE
RESIDENT’S SPOUSE
A. COMMON LAW
The common doctrine of the law of necessaries is often cited as a cause of action by
nursing homes against the spouses of residents. The main element under this cause of
action would be a reciprocal duty upon each
spouse to furnish the other with reasonable
necessaries including medical care (Medical
Business Associates v. Steiner, 183 A.D. 2d
588 (2d Dept. 1992)).
This common law theory of necessaries
may be applied against a spouse of a resident
as long as the non-resident spouse has the
ability to pay the debt and an attempt was
made to secure payment form the debtor
spouse first.
B. LIABILITY UNDER STATUTE
Section 412 of the Family Court Act
provides that:
“…..A married person is chargeable with the support of his or her
spouse and, if possessed of sufficient
means or able to earn such means,
may be required to pay for his or her
support a fair and reasonable sum, as
the court may determine, having due
regard to the circumstances of the respective parties.”
This statute seems to imply that there is a
legal obligation that one spouse is responsible
for the other spouse’s financial obligations.
However, further analysis of the Family Court
Act (Section 422) does not give standing to
third parties (i.e. creditors) to assert their claims.
This is not to be confused with actions brought
by Medicaid against a spouse who has filed a
spousal refusal. In that circumstance, a Medicaid
recipient has subrogated his rights against the
spouse who has filed a spousal refusal.
V. THIRD PARTY LIABILITY
A. DOES A SIGNED ADMISSION
AGREEMENT EXIST
Federal and state law clearly set forth that
a facility shall not require a third party guaranty of payment as a condition of admission.
However, the facility may require an individual who has legal access to a resident’s
income or resources available to pay for
care, to sign a contract without incurring personal liability to provide payment from the
resident’s income or resources.
In Prospect Park Nursing Home v. Goutier, 12 Misc. 3d 1192(A), 824 NYS 2d 770
(NYC Civil Ct 2006), the Court held that
even though the defendant (a friend of the
resident) signed an admission agreement, he
was not liable for the resident’s unpaid nursing home charges. The defendant did not
have legal access to the resident’s funds at
the time the agreement was signed and the
debt was incurred.
B. DOES LEGAL ACCESS TO
RESIDENT’S FUNDS EXIST
In Amersterdam Nursing Home Corp. v.
Lang, 16 Misc. 3d 1138(A), 824 NYS 2d 56
(Sup Ct 2007), the facility sought to have the
resident’s grandson held liable for unpaid net
available monthly income (NAMI) as determined by the budgeting of the local social
services district.
The nursing home did not present any evidence that the defendant had any legal access to the resident’s assets or income.
The holdings in the Goutier and Lang cases
appear to support the proposition that a third
party can be liable for a resident’s nursing home
bill but only where the third party has legal access or control over the resident’s funds.
C. WHAT IF A DESIGNATED
REPRESENTATIVE HAS BEEN
APPOINTED BY THE RESIDENT
In many admission agreements, a resident
may appoint a designated representative. In
New York Congregational Nursing Center v.
Gilchrist, 21 Misc. 3d 1136(A) (Sup Ct 2008)
a designated representative (who did not sign
the admission agreement) was sued for the outstanding bill of the resident. The Court held
that the defendant was not the designated representative and thus could not be held liable for
the cost of care under the agreement.
D. LIABILITY OF
ATTORNEY-IN-FACT
Another interesting issue is whether a
third party attorney-in-fact can be held liable
for the resident’s cost of care in cases where
the attorney-in-fact fails to use the resident’s
income and assets for the resident’s nursing
home costs.
This issue was addressed in Troy Nursing &
Rehabilitation Center v. Naylor and Gaetano,
(3d Dept. 2012). The defendant, Gaetano, is the
resident’s daughter and attorney-in-fact of the
resident (defendant Naylor). She signed an
admission agreement on behalf of her father
wherein she agreed to utilize her access to her
father’s assets (by virtue of his power of attorney) to pay for his care.
The record indicates that the attorney-infact used the resident’s funds to maintain and
upkeep real property which had been transferred to a trust and made no payment toward the cost of his care.
The attorney-in-fact contended that she
cannot be personally liable since she signed
the document as “POA” and it violated federal law by making her a guarantor for payment as a condition of admission.
The Appellate Division affirmed the
Supreme Court’s decision that the defendant
accepted personal responsibility to utilize
her access to her father’s funds to pay for his
care and then breached that agreement by
failing to use available assets to pay the nursing home bill.
VI. CONCLUSION
It appears that there are some clearly defined statutory and case law doctrines that
have emerged in nursing home litigation
cases. It’s imperative for the practitioner to
be diligent in fact gathering with their client
to determine a course of action to defend an
action brought by a nursing home.
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OCTOBER 2015
Culinary Delights On Display In Brooklyn
By: Anthony J. Lamberti, Esq.
O
n Wednesday, October 14, 2015 the
Association meeting room was transformed into a dining room for a festive night of
culinary delights from Italy for over 60 attendees.
The event, hosted by Association President
Arthur L. Aidala, included wine pairings selected
by Supreme Court Justice Michael L. Pesce. The
food was exquisitely prepared by Chef Leonardo
of the L & B Spumoni Gardens (a Brooklyn
mainstay for over 60 years).
Justice Pesce’s wine selections matched the
various food offerings prepared by our Chef.
Chef Leonardo, and Hon. Pesce looking on. Rice Balls from L&B Spumoni Gardens.
Chef Leonardo, and president Arthur Aidala. Justice Pesce explained some general things to
look for when selecting any wine.
The overall goal is to find a wine that balances
all the elements to look for in a good wine. Any
wine analysis should include looking at the
color of the wine, the aroma (bouquet of the
wine) and the palette (taste) should be considered. Is the wine fruity, sweet, sharp, acidic?
Finally, one should consider the wine’s finish.
What is it like when you swallow the wine!
The Judge explained to us that even an inexpensive wine can be a good wine if it meets all
the criteria. The Judge proved that by including
a Proseco ( which costs $15 - $20 a bottle) and a
Sicilian white wine (Cusumano) at a similar price.
The food presentation was quite impressive.
Chef Leonardo presented everyone with a rice ball
Arthur Aidala, Hon. Lawrence Knipel, Hon. Mark Partnow, Chef Lenny Kern, Hon. Wayne Saitta, Hon. David B. Vaughan, Hon. Albert Tomei, Hon. Michael L. Pesce. at the time of arrival. He explained the Sicilian
origins of the rice ball and the arrival of rice from
Northern Africa to Sicily. He told us of the variations of food into Sicily because it had been conquered by numerous nations. Past President
Lawrence DiGiovanna told the attendees that the
best rice ball he had ever eaten was on the ferry
from Messina, Sicily to Bari.
The remainder of the food selections were a
feast for the palette. They included a seafood
manicotti, chicken and veal dishes, ziti and an
eggplant lasagna. These food selections paired
with the excellent wine choices created an
exceptionally festive event.
The dessert course was no surprise — L & B’s
famous spumoni which was the proverbial show
stopper. An enjoyable evening was had by all!
A single malt scotch tasting event is slated for
Ramon Galper, Adam Kalish, Joe Caldarera, Rob Raghunath, Dan Antonelli, Dylan Neves-Cox, Patrick Maguire, Daniel Chertok and Arthur Aidala. March 9, 2016. Keep an eye out for announcement.
Past President Lawrence F. DiGiovanna, rear center.
Hon. Elizabeth Bonina, Michael Treybich, and past president Andrea E. Bonina.
State Supreme Court justice Michael L. Pesce with microphone.
Salvatore Scibetta and BBA Trustee Joseph S. Rosato. See page 12 for more photos.
T H E
S TAT E
By: Hon. Bruce M. Balter
and Paul S. Forster, Esq.
Unusual weather patterns continue to
swirl around the mountain and plains states,
so we can expect more erratic weather in our
area in the months to come. To occupy you
as the storms swirl we offer some interesting
cases involving the reversal of the admission
of a Will to probate on appeal, and remand to
the Surrogate for a determination whether
the decedent had executed her Will in four
original counterparts, only one of which was
found after her death, thereby effectuating a
revocation of the instrument; a holding that a
claim against a forged deed, such a deed
being void and a nullity, is not subject to a
statute of limitations defense; the survival of
a vested right to equitable distribution
against the estate of a spouse who dies during the pendency of a divorce action; the presumption that a party is competent to enter
into a transaction, even if the party suffers
from a condition affecting cognitive function; the standing of the Attorney General to
pursue objections to a trust accounting even
when all charitable remaindermen had withdrawn their objections and consented to the
accounting as filed; the successful renunciation of his interest in his mother’s estate by a
convicted murderer over the opposition of
the New York State Office of Victim Services (OVS) and the father of the murder victim; a fiduciary being required to submit to
an psychiatric examination in a proceeding
to revoke her letters to permit the Surrogate
to determine whether the fiduciary had the
requisite understanding of her duties and responsibilities when serious questions were
raised on the record concerning the fiduciary’s mental state; and the ability of a trustee
to maintain an action against another in the
name of the trustee individually.
The bar also is alerted to a New York State
Memorandum updating estate tax guidance,
and new forms, for decedents whose dates of
death occur on or after April 1, 2014.
Admission of Will to Probate Reversed
on Appeal, and Remanded to the Surrogate
for a Determination Whether the Decedent
Had Executed Her Will in Four Original
Counterparts, Only One of Which Was
Found After Her Death, Thereby Effectuating a Revocation of the Instrument- At
the time of her death it appeared after a thorough search that the decedent had left no will.
Letters of estate administration were therefore
issued to her parents. Although decedent had
been married, the marriage ended without
issue when the couple divorced, leaving decedent’s parents as her sole distributees. The
decedent’s New York residence, which had
been in decedent’s family for generations,
thus would have passed to decedent’s blood
relations but for the filing approximately nine
months after her death of petitions to revoke
the parents’ letters of administration and to
admit to probate a Will executed by decedent
in Texas fourteen years before her death,
while she still was married. That will bequeathed all of decedent’s property, real and
personal, to her then husband, and named him
as the will’s executor. The Will had been in
the possession of the ex-husband’s mother
who retrieved it from her dresser after her son
informed her that he had learned during a recent Internet search of his former wife’s death
some eight months before. The proceedings
were commenced shortly thereafter. The petitions were brought not by the son but, nominally, by his father. Although the son was disqualified by reason of his divorce from decedent from serving as her executor or taking
under the proffered pre-divorce Will by reason of EPTL §5-1.4, decedent’s former fatherin-law, who was named in the Will as dece-
OCTOBER 2015
O F
E S TAT E S
dent’s alternate executor and beneficiary, was
not so disqualified under New York
law, which governed the disposition of decedent’s New York real property [EPTL §35.1(b) (1)], the sole asset of significant value
in her estate. The Court of Appeals noted parenthetically that the former husband’s father
would have been disqualified under the laws
of Texas, which provide in relevant part that
if, after the testator makes a Will, the testator’s
marriage is dissolved by divorce, annulment,
or a declaration that the marriage is void, all
provisions in the Will, including all fiduciary
appointments, shall be read as if the former
spouse and each relative of the former spouse
who is not a relative of the testator failed to
survive the testator, unless the Will expressly
provides otherwise, which the propounded
Will did not. Objections to probate thereafter
were filed. During the ensuing probate proceedings, decedent’s ex-husband testified that
the Will offered for probate was one of a pair
of reciprocal or “mirror” Wills made by the
then married couple. Those Wills and several
other instruments bearing on end-of-life decisions were, according to the former husband,
executed during a single session at an attorney’s office in Texas. Each instrument, he
said, was generated in quadruplicate, and although he described each set of four as composed of one original and three “copies,” the
Court of Appeals interpreted the natural, albeit less than certain, import of his testimony
to be that each copy was intended to be a
functional instrument. The former husband
had testified, “they were all done [the same
day] at [the attorney’s] office, both the originals of course and the copies. And we planned
from that day, [decedent] and I, to leave one
set at my parents’ house, one set at our Texas
house, one set at the New York house and one
set in a safe deposit box. That was all planned
out before we sat down that day and — and
signed all those signatures.” Later in his testimony the former souse explained, “we had
four sets of everything at each house for a reason. We both traveled. We knew that one
house could burn down, this, that and the
other.” During the probate proceeding, testimony was also elicited from the decedent’s
friend, neighbor and confidante. The friend
had been given powers of attorney by decedent—both legal and medical—and had assisted decedent with financial and health-related matters during the period following her
divorce when her ability to manage her own
affairs was compromised by the debilitating
and ultimately fatal sequelae of alcohol addiction. The friend stated that it had been a priority of decedent’s to make a new Will once her
divorce became final, and that three years before her death the decedent had brought to her
for her examination, and then discussed with
her, what she understood to be a Will that contained a provision revoking all prior Wills and
codicils. Nonetheless, no Will was found during a diligent postmortem search of decedent’s home and possessions.
The Surrogate, while not skeptical of the
friend’s account as to what she saw and read,
and while acknowledging “how the fact that
the will [offered for probate] was drafted ten
years prior to the decedent’s divorce raises
suspicion in [objectants’] eyes as to whether
the will truly reflects what the decedent
would have wanted when she passed in
2010,” nevertheless understood himself to be
bound to dismiss the objections to the [propounded] will and to admit it to probate. This
was because the friend had not witnessed the
signing of the evidently lost Will and her testimony, therefore, could not prove that the
Will had been duly executed. Without proof
of due execution, the lost Will could not, in
the Surrogate’s view, be given effect, even for
the limited purpose of revoking the [propounded] will. As to the ex-husband’s testimony indicating that the [propounded] Will
had, by design, been executed in four equally
functional counterparts to be kept separately
at specified locations, among them decedent’s post-divorce New York residence, the
Surrogate noted only that “[i]t is not clear
from the testimony of the witnesses if the
decedent and [the former spouse] left the attorney’s office with four original instruments
or one original and three copies.” A divided
Appellate Division affirmed the Surrogate’s
decision and decree. The Court of Appeals
granted objectants’ motion for leave to appeal. HOLDING- The Court of Appeals
“modified” the “Orders” below and remitted
the case to the Surrogate’s Court for further
proceedings in accordance with its Decision.
Preliminarily, the Court of Appeals noted that
the lower courts properly refused to give revocatory effect to the lost Will described by
the decedent’s friend and neighbor. The Court
of Appeals stated that its precedents commanded categorically that revocation of a
Will by a subsequent Will or other writing
must be accomplished only by executing the
revoking instrument with the formalities prescribed for the execution and attestation of a
Will. The Court of Appeals observed that this
requirement’s stringency had been deemed
necessary to prevent fraud and flippancy in
the making and revocation of testamentary
instruments generally and that its prophylactic utility would be largely undone if it were
dispensable in an individual, seemingly sympathetic case. The Court of Appeals went on
to say that although objectants’ claim of revocation by a subsequent writing properly was
rejected, it did not follow that the propounded Will was proved. In the view of the Court
of Appeals, the evidence before the Surrogate
raised a most serious, and unresolved, question as to whether the propounded Will had
otherwise been revoked. The Court of Appeals ruled that while that question persisted,
the Will should not have been admitted to
probate. The Court of Appeals opined that a
Will may be revoked not only by means of a
writing executed in the manner of a Will, but
by the testator’s act of destroying it with revocatory intent, which act achieves the revocatory purpose even if there remain Will duplicates outstanding. The Court of Appeals
noted that that a testator has in fact revoked a
Will by destruction is strongly presumed
where the Will, although once possessed by
the testator, cannot be found posthumously
despite a thorough search. The Court of Appeals added that such presumption of revocation, once raised, stands in the place of positive proof, and must be rebutted by the Will’s
proponent as a condition of probate. The
Court of Appeals found that the facts of
record, adduced in critical part through the
testimony of the decedent’s former spouse,
supported inferences that decedent executed
the propounded Will in quadruplicate, with
each document having been meant to possess
the force of an original instrument; that one
of the Will duplicates was kept at the New
York home where decedent resided after her
divorce; and that, after a thorough search, no
Will was found there. The Court of Appeals
ruled that these circumstances plainly sufficed to raise the presumption that decedent
revoked the propounded Will by destroying
it. The Court of Appeals also found it plain
that that presumption was not rebutted. The
Court of Appeals noted that none of the other
duplicate wills was produced or otherwise accounted for. Acknowledging that the proponent had alleged before it that the unproduced
duplicates were merely copies, the Court of
Appeals pointed out that the uncertain status
of the Will duplicates, although commented
upon by the Surrogate, never was resolved. In
the view of the Court of Appeals the Court
was left with a Will admitted to probate upon
a record sufficient only to disprove it. The
Court of Appeals went on to say that it was
precisely to avoid such an incongruous outcome that the governing rule of such proceedings long has been that as soon as it is
brought to the attention of the surrogate that
there are duplicates of a Will presented to him
for probate, it is proper that he should require
the duplicates to be presented, not for the purpose of admitting them as separate instruments to probate, but that he may be assured
whether the Will has been revoked, and
whether each completely contains the Will of
OCTOBER 2015
T H E
S TAT E
the testator. The Court of Appeals found that
it was manifest that the Surrogate’s attention
had been drawn to the existence of Will duplicates, but that the consequently arising issues as to the Will’s validity were not resolved as they should have been. The Court
of Appeals ruled that the proponent was required not merely to exclude the possibility,
but to rebut the legal presumption of revocation, sufficiently raised by the former
spouse’s testimony as to the existence of Will
duplicates, one of which had been kept, but
was not found after decedent’s passing, at her
post-divorce residence. The Court of Appeals
found that the necessity of such a showing
was highlighted in the proceeding by the circumstance that the propounded Will, reciprocally bequeathing all of decedent’s property
to her then husband, reflected a testamentary
design irretrievably bound up with the testator’s subsequently terminated spousal status.
Noting that the record before it only would
support a denial of probate, the Court of Appeals stated that it recognized that the crucial
issues raised by the duplicate Will testimony
were not framed for resolution as they should
have been and that this might have operated
to deprive proponent of a fair opportunity to
avoid or rebut the presumption of revocation
which otherwise would control the outcome
of the proceeding. The Court of Appeals
therefore remanded the matter to the Surrogate so that what it termed pivotal issues
could be fully litigated and determined, in accordance with its opinion. Matter of Lewis,
25 NY3rd 456 (2015)
A Claim against a Forged Deed, Such a
Deed Being Void and a Nullity, Is Not Subject To a Statute Of Limitations DefensePlaintiff is the daughter and administrator of
the estate of her father, Percy. Percy and his
sister, defendant Dorothy, inherited from their
mother, as tenants in common, a three-family
house in Brooklyn. A few years after the
mother’s death, in May 2000, Dorothy conveyed by quitclaim deed her half-interest in
the property to her daughter Tonya. In February 2001, Tonya recorded a deed claiming to
correct the prior deed from Dorothy. This corrected deed, dated December 14, 2000, al-
legedly conveyed Percy’s half-interest in the
real property to Tonya. Thus, if the corrected
deed were valid, it would convey to Tonya a
fee interest in the property. Percy passed away
in March 2001. In September 2002, plaintiff
filed an action on behalf of Percy’s estate
against Dorothy and Tonya, claiming the corrected deed was void because her father’s signature was a forgery. In April 2003, Supreme
Court dismissed the complaint on the ground
that plaintiff lacked capacity to sue because
she was not the estate’s administrator. At the
time, Percy’s widow was the administrator. In
December 2009, Tonya borrowed $269,332
from defendant bank which she secured with
a mortgage in favor of defendant MERS. Several months later, in July 2010, Surrogate’s
Court appointed plaintiff administrator of
Percy’s estate. In her supporting affidavit explaining her delay in seeking appointment,
plaintiff asserted that her mother’s lawyer led
her to believe that he had secured a judgment
in favor of the estate, when in fact the lawyer,
now disbarred, had failed to take action on her
mother’s behalf. The month following her appointment, in August 2010, plaintiff filed the
underlying action against Dorothy, Tonya, the
bank and MERS to declare the deed and mortgage null and void based on the alleged forgery. Thereafter, the bank moved to dismiss
the complaint under CPLR §3211 (a) (5) as
untimely under CPLR §213 (8), and plaintiff
cross-moved to dismiss the statute of limitations affirmative defense asserted in the joint
answer by the bank and MERS. Supreme
Court granted the motion to dismiss the complaint in its entirety as time-barred, and denied
plaintiff’s cross motion as moot.
The Appellate Division modified the order,
denying the motion to dismiss as against the
individual defendants and MERS on procedural grounds, leaving the action pending against
those defendants. On the merits, the Appellate
Division concluded, in reliance on Second Department precedent, that plaintiff’s forgerybased claim against the defendant bank was
subject to the six-year statute of limitations for
fraud claims set forth in CPLR §213 (8). The
Court of Appeals granted plaintiff leave to appeal against defendant bank. HOLDING- The
Court of Appeals reversed the Appellate Divi-
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O F
E S TAT E S
sion and held that it is well-settled law that a
forged deed is void ab initio, meaning a legal
nullity at its inception, and as such, any encumbrance upon real property based on
a forged deed is null and void. Consequently,
the Court of Appeals ruled that the statute of
limitations set forth in CPLR §213 (8) does not
foreclose plaintiff’s claim against defendant
bank. Because the case before it was an appeal
from a dismissal under CPLR §3211 (a) (5),
the Court of Appeals stated that it accepted the
facts as alleged in the complaint as true, accorded plaintiff the benefit of every possible
favorable inference, and determined only
whether the facts as alleged fit within any cognizable legal theory. Accordingly, for purposes
of the appeal, the Court of Appeals assumed
that the deed was forged. The Court of Appeals
noted that a forged deed that contains a fraudulent signature is distinguished from a deed
where the signature and authority for conveyance are acquired by fraudulent means. In
such latter cases, the Court of Appeals opined,
the deed is voidable. In the view of the Court
of Appeals the difference in the nature of the
two justifies this different legal status. The
Court of Appeals said that a deed
containing the title holder’s actual signature
reflects the assent of the will to the use of the
paper or the transfer, although it is assent induced by fraud, mistake or misplaced confidence, and such deed merely is voidable. The
Court of Appeals pointed out that unlike a
forged deed, which is void initially, a voidable
deed, until set aside, has the effect of transferring the title to the fraudulent grantee, and
being thus clothed with all the evidences of
good title, may encumber the property to a
party who becomes a purchaser in good faith.
In contrast the Court of Appeals stated that a
forged deed, however, cannot convey good
title, and it is legally impossible for anyone to
become a bona fide purchaser of real estate, or
a purchaser at all, from one who never had any
title. The Court of Appeals added that a purchaser who takes title through a forged deed
cannot be a bona fide purchaser, even if the
purchaser did not have knowledge of the forgery. The Court of Appeals added that a mortgage based on a forged deed is likewise invalid. The Court of Appeals ruled that given
the clarity of our law that a forged deed is void
ab initio, and that it is a document without
legal capacity to have any effect on ownership
rights, a claim challenging a conveyance or encumbrance of real property based on such deed
is not subject to a statute of limitations defense. The Court of Appeals held that
a statute of limitations does not make an
agreement that was void at its inception valid
by the mere passage of time, and that consequently, plaintiff could seek to vacate the deed
and defendant’s encumbrance upon the property, since if, as plaintiff claimed, the deed
was a forgery, then it was never valid and
Tonya lacked title to Percy’s half-interest in
the property based on the “corrected” deed.
The Court concluded that as the law
makes clear, a forged deed has no legal significance and cannot convey title, and asserted that therefore there was no reason to impose barriers to those who sought to vacate
such deed as null and void.
T H E
S T A T E
Accordingly, the order of the Appellate
Division, was reversed and the defendant
bank’s motion to dismiss the complaint
against it pursuant to CPLR §3211 (a)
(5) was denied. Faison v. Tonya Lewis, et.
al, 25 NY3d 220 (2015)
A Vested Right to Equitable Distribution Survives the Death of a Spouse during the Pendency of a Divorce Action and
May be Continued Against His EstateTwo related actions for a divorce and ancillary relief were commenced, one by the husband (#1) and one by the wife (#2). The actions were jointly tried, and the Supreme
Court granted the husband a divorce on the
ground of constructive abandonment. The
Court, however, withheld entry of a judgment of divorce until the trial of the ancillary
issues was completed. After the trial of the
ancillary issues largely was completed, but
before a decision was rendered on those issues, the husband died. Thereafter, the wife
moved to substitute the executor of the husband’s estate as the plaintiff in action No. 1
and as the defendant in action No. 2. The executor of the husband’s estate, in opposition,
contended that the actions should be dismissed, because the actions abated upon the
husband’s death. The Supreme Court,
among other things, granted the wife’s motion. The executor of the husband’s estate
appealed. HOLDING- The Appellate Division affirmed. The Appellate Division held
that contrary to the contention of the executor of the husband’s estate, the actions did
not abate upon the death of the husband. The
Appellate Division ruled that the Supreme
Court had made the final adjudication of divorce before the husband’s death, but had
not performed the mere ministerial act of entering the final judgment. The Appellate Division added that a cause of action for equitable distribution does not abate upon the
death of a spouse, and ruled that consequently, if a party dies in possession of a vested
right to equitable distribution, and that right
has been asserted during the party’s lifetime
in an action in a Court of this State, that right
survives the party’s death and may be asserted by the estate. Charasz v. Rozenblum, 128
A.D.3d 631 (2nd Dept., 2015)
A Party Is Presumed Competent To
Enter Into a Transaction, Even If the
Party Suffers From a Condition Affecting
Cognitive Function- The 21-year-old Spinner
was diagnosed with a benign brain tumor. She
executed a durable power of attorney in which
she designated her mother, to serve as her attorney-in-fact and as her guardian, should
guardianship proceedings become necessary.
Spinner’s signature was acknowledged by her
physician and notarized by a witness. Acting
pursuant to powers given to her by the validly
executed power of attorney the mother commenced a medical malpractice action against a
physician and a hospital. The Supreme Court,
sua sponte, without a hearing, appointed Spinner’s mother as her Guardian ad litem. Defendants moved to dismiss pursuant to CPLR
§3211 (a) (3), asserting that Spinner was not
competent to execute the power of attorney,
which was denied by the Supreme Court. The
defendant hospital appealed. HOLDINGThe Supreme Court was affirmed. The Appellate Division stated that a party’s competence
to enter into a transaction is presumed, even if
the party suffers from a condition affecting
cognitive function, and the party asserting incapacity bears the burden of proof otherwise.
The Appellate Division found that since defendant hospital failed to submit any evidence
concerning Spinner’s competence at the time
she executed the power of attorney, other than
the document itself, it did not meet its initial
burden in support of the motion, and the burden did not shift to plaintiff to demonstrate
competency. The Appellate Division further
ruled that under the circumstances presented,
where Spinner had been rendered quadriplegic
and unable to communicate, the Court acted
within its discretion in appointing her mother
to be Spinner’s guardian ad litem without a
hearing. Pruden v.Bruce, et., al., 129 A.D.3d
506 (1st Dept., 2015)
The Attorney General Has Standing to
Pursue Objections to a Trust Accounting
Even When All Charitable Remaindermen Have Withdrawn Their Objections
and Consented to the Accounting as FiledThe trustee sought an order granting summary judgment in his favor dismissing the objections to his accounting filed by the Office
of the Attorney General of the State of New
York. The Attorney General opposed the
motion and cross-moved for summary judgment finding the trustee liable for the loss of
$613,000.00 in trust funds or in the alternative, for an extension of time for further discovery. Under the decedent’s Will, a Supplemental Needs Trust was established for the
benefit of decedent’s brother who was 85
years old, disabled and resided in an assisted-living facility. The Will provided that
upon the brother’s death, the corpus of the
trust would be distributed to seven designated charitable organizations, namely: St. Jude
Children Research Hospital, St. Vincent’s
Home, St. Agatha’s Roman Catholic Church,
Our Lady of Perpetual Help, Roman
Catholic Church, American Cancer Society,
American Heart Association and American
Diabetes Association. At the time of decedent’s death, there was the sum of
$1,232,053.00 to fund the Trust. At the time
of the brother’s death, the funds remaining in
the trust were $548,042.62. Initially the
movant provided all seven charities with an
informal accounting, and a proposal for distribution and releases. Four of the charities
executed releases and returned them to the
trustee. Three of the charities, American
Cancer Society, American Heart Association
and St. Jude Children’s Hospital did not.
Thereafter, movant filed his account along
with a petition for judicial settlement. The
three charities that did not execute releases
filed objections to the accounting. The Attorney General filed objections to the accounting on behalf of all seven charities. One of
the remainder charitable beneficiaries,
which had previously executed a release and
accepted payment, the American Diabetes
Association, moved the Court to allow it to
file late objections to the accounting. The
motion was denied. Thereafter, the charities
that had filed objections to the accounting
submitted withdrawals of their objections
with prejudice and consented to the accounting as filed. The Trustee contended that since
all seven charities had settled and withdrawn
their objections to the trustee’s accounting,
the Attorney General no longer had standing
to pursue any objections to the trustee’s accounting. HOLDING- The Court denied the
trustees motion and the Attorney General’s
cross motion for summary judgment. The
Court opined that EPTL §8-1.1(f) provides:
“The Attorney General shall represent the
beneficiaries of such dispositions for religious charitable, educational or benevolent
purposes and it shall be his duty to enforce
the rights of such beneficiaries by appropriate proceedings in the courts.” The Court
stated that it is well settled that the OAG has
a statutory, independent power and duty to
represent beneficiaries of any disposition for
charitable purposes, and that the OAG does
not represent the individual charities, but
rather the ultimate beneficiaries of such
charitable disposition. The Court added that
the Attorney General exercises a parens patriae function, representing the interests of
the ultimate beneficiaries of the gift, the persons who are the real objects of the charitable donation. The Court stated that this status
is conferred upon the Attorney General even
if his position does not comport with that of
the charitable entities. The Court found it
clear
that
https://www.lexis.com/research/buttonTFLink?_m=6268c18c09d47c822b8806abf3
88d463&_butType=3&_butStat=2&_butNum=7&_butInline=1&_butinfo=%3ccite
%20cc%3d%22USA%22%3e%3c%21%5b
CDATA%5b45%20A.D.2d%20849%5d%5
d%3e%3c%2fcite%3e&_fmtstr=FULL&do
cnum=1&_startdoc=1&wchp=dGLbVzt-
OCTOBER 2015
O F
E S T A T E S
zSkAl&_md5=cd38aad34268013d2d8915c
8967e3747the fact that all seven charitable
organizations had settled with the trustee
was irrelevant to the standing of the Attorney
General. The Court pointed out that the Attorney General has the duty to assure that all
the charitable beneficiaries are treated fairly
and appropriately in accordance with decedent’s Will and statutory requirements. The
Court denied the Attorney General’s crossmotion to the extent it sought to hold the
trustee liable for the loss of $613,000.00, of
trust funds. The Court stated that issue of
whether a fiduciary has acted prudently is
generally a question of fact to be determined
by the trial court. The Court added that no
precise formula exist for determining
whether the prudent person standard has
been violated in a particular situation; rather,
the determination depends on an examination of the facts and circumstances of each
case. The Court noted that the Attorney General quoted extensively from the trustee’s
deposition transcript in support of its crossmotion. However, the Court pointed out that
the transcript of petitioner’s deposition was
never served on petitioner for his review and
signature, in compliance with the requirements of CPLR §3116. The Court added that
the transcripts were unsworn and unsigned
and not in admissible form, and therefore
could be used as evidence in support of the
cross-motion. Consequently, the motion and
cross-motion were denied except to the extent that the Attorney General was given 90
days from the date of the decision and order
to complete any discovery it deemed necessary and appropriate. Matter of Towey,
N.Y.L.J. 7/24/15, p. 21, c. 1 (Surr. Ct., Kings
Co., Surr. Johnson) [Authors’ note: While it
long has been settled that the Attorney General represents the “ultimate charitable beneficiaries- the people of the State of New
York,” and not any particular individual
charitable organization, the fact that in this
case all of the charities had settled and withdrawn their objections with prejudice, raises
the questions that if the Attorney General is
successful and the Court surcharges the fiduciary, to whom would payment be made in
light of the so-called pro tanto rule. Under
that rule, it would appear that even if the efforts of the Attorney General benefit or enlarge the trust, the other persons interested in
the accounting, the remaindermen, not having objected, would be entitled to no benefit.
Matter of Hurewitz, 174 Misc. 182 (Surr.
Ct., Kings Co., Surr. Wingate, 5/24/40);
Matter of Hyde, 15 N.Y.3d 179 (2010).]
Convicted Murderer Allowed to Renounce His Interest in His Mother’s Estate over the Opposition of the New York
State Office of Victim Services (OVS) and
the Father of the Murder Victim- The
decedent devised her entire estate to her son,
John. The Will provided that if John predeceased the decedent, the estate would pass to
decedent’s friend, Cari, who survived decedent and was also nominated as Executor in
the Will. The decedent’s son John was a convicted murderer and had been incarcerated
long before the Will was prepared. After the
probate petition was filed, the Court forwarded a letter to the New York State Office of
Victim Services (OVS) advising it of the
son’s status as a beneficiary, as required by
SCPA §2222-a. The decedent’s Will was admitted to probate, and Letters Testamentary
were issued to the named Executor on October 1, 2014. On or about November 24, 2014,
the Court received for filing a renunciation
(Renunciation 1) prepared and executed by
the son pursuant to EPTL §2-1.11 on November 19, 2014, renouncing all but $7,500
of his interest in his mother’s residuary estate. The papers sent to the Court for filing
did include the required affidavit by the son
that he had not and would not receive any
consideration for his renunciation from the
person whose interest would be accelerated
by his renunciation, and the notice of renunciation required to be served upon the Executor, both as fiduciary and (in this case) as the
person benefitted by the renunciation, all as
required by EPTL §2-1.11(c) (2). No affidavit of service of said notice was submitted
with Renunciation 1. The renunciation package was returned to the son due to that defect
and Renunciation 1 was not filed. The son
was advised by the Court that upon receipt of
an affidavit of service of the required notice,
the renunciation documents would be filed.
On February 9, 2015, a copy of an Order to
Show Cause and Petition from an Albany
County Supreme Court action commenced
by OVS was received by the Court. The
Order to Show Cause, dated February 4,
2015, included a Temporary Restraining
Order directed to the son, to the Executor,
and to her attorney, restraining their distribution, encumbrance or any transfer of any portion of the estate payable to the son. On
March 3, 2015, the Court received and filed a
Notice of Motion and supporting affidavit
dated February 22, 2015 from the son. The
motion papers request the appointment of a
Guardian ad Litem to represent the son; disputed the ability of the Albany Supreme
Court to restrain the son’s effort to renounce;
and included a new renunciation (Renunciation 2), renouncing the son’s entire interest in
his mother’s residuary estate, with the required affidavit of no consideration, a notice
of renunciation and an affidavit of service of
the notice, all dated February 15, 2015. The
son’s affidavit also provided additional information on the service of Renunciation 1 upon
the fiduciary and impacted beneficiary and
requested that in the event his February 15,
2015 renunciation was not accepted for filing, that his November 19, 2014 renunciation
be accepted for filing with the Court, nunc
pro tunc to the date that it was originally received by the Court. On March 24, 2015, the
New York State Attorney General’s Office,
representing OVS, the petitioner in the Albany County Supreme Court proceeding,
filed with the Surrogate’s Court a copy of an
affirmation submitted in Albany County
Supreme Court in response to an answer filed
in that action by the son. By cover letter submitted with the affirmation, the Attorney
General requested that the affirmation be
considered in opposition to the son’s Surrogate’s Court motions regarding his renunciations, though the affirmation did not directly
address the motions filed by the son. On
March 25, 2015, the Surrogate’s Court appointed a Guardian ad Litem for the son.
Thereafter the father of the murder victim
filed opposition papers to the son’s motions.
Under Executive Law §632-a, the father of
the murder victim had the right to pursue a
claim against the son, as the beneficiary of
the estate. OVS and the murder victim’s father urged the Court to void the son’s renunciation as a violation of Debtor & Creditor
Law §273. HOLDING- The Court granted
the son the right to renounce his interest in
his mother’s estate under her Will. The Court
opined that a renunciation is a declination of
a right or property bestowed by another,
without the disclaiming party ever coming
legally into possession of that right or property. The Court stated that the right to renounce has existed in New York in the common law for two centuries, and that the steps,
conditions and effects of a renunciation now
are codified in EPTL §2-1.11. The Court
noted that under both common law and
statute, only assets which have not vested in,
or have been in some way accepted by, the
potential recipient can be disclaimed. The
Court found it clear that an inheritance may
be disclaimed, although action by the named
beneficiary to accept property may preclude
renunciation. The Court set forth the elements of a statutory renunciation, to wit: 1. a
written renunciation of interest; 2. an affidavit from the renouncing party that he had
not and would not receive consideration for
the renunciation from a person whose interest
would be accelerated by the renunciation; 3.
service of a notice of renunciation upon the
fiduciary or other individual/entity holding
the assets to be disclaimed, and upon the individual(s) whose interest would be accelerPlease turn to page 11
OCTOBER 2015
T H E
S TAT E
ated by virtue of the renunciation. The Court
added that the renunciation and affidavit of no
consideration are filed in the Surrogate’s
Court, together with proof of service of the notice of renunciation upon the proper persons,
all steps needing to be taken within nine
months of the decedent’s death as pertinent to
the case at bar. The Court added that a renunciation is irrevocable and the effect of the renunciation is that the renouncing party is treated as if he had predeceased the decedent, with
respect to the interest renounced. The Court
pointed out that a partial renunciation such as
Renunciation 1 by the son is authorized by the
statute. Although a proper Affidavit of Service
of the Notice of Renunciation 1 never was received by the Court, the Court accepted certain
allegations in the son’s sworn motion papers
filed March 3, 2015, as an affidavit of service
of the notice of Renunciation 1 on November
19, 2014. The Court found that all of the steps
required by the statute with respect to the Renunciation 1 were completed by the son well
within the statutory nine month period and all
predated the action commenced in the Albany
County Supreme Court by OVS. The Court
noted that the renunciation statute does not require the contemporaneous filing of proof of
service of the notice of renunciation with the
renunciation and the affidavit of no consideration. The Court added that it long has been
held that service of process is distinguishable
from proof of service. The Court opined that
proper service gives jurisdiction; improper
proof of service neither voids service nor defeats jurisdiction. the Court added that failure
to file proof of service within a statutory period may be corrected by the Court, nunc pro
tunc, as an irregularity, curable by motion. The
Court found that the proof of service was not
filed late, but well within the 9 months re-
quired by statute, so no motion was required.
The Court ruled that the son was entitled to
have Renunciation 1 filed as of the date of its
original receipt in November of 2014, as a
matter of law. In the Court’s view, since the execution and filing of Renunciation 1 were all
properly completed by the son before the commencement of the OVS action, Executive Law
§623-a did not come into play with respect to
Renunciation 1. The Court explained that Executive Law §623-a creates a cause of action
for victims of crimes and their representatives,
and provides the opportunity for restraints to
be put in place against a convicted person,
pending resolution of a claim, or even an intended claim, but held that none of such aspects impacted Renunciation 1. The Court
noted that it had given OVS the required SCPA
§2222-a notice on September 30, 2014, but
that the Albany County Supreme Court action
was not filed until February 4, 2015. The Court
rejected the position of OVS and the victim’s
father that the son’s renunciation should be
voided as a violation of Debtor & Creditor
Law §273, holding that it is well established
that the renunciation statute specifically contemplates the use of a renunciation to avoid
creditors. The Court also noted that there was
not yet even a claim filed against son, let
alone a judgment, to put anyone in the shoes
of a creditor. The Court also accepted the
son’s Renunciation 2 which renounced his
share of his mother’s residuary estate in its entirety. The Court stated that those, in proper
form and received by the Court well within
the nine month window for renunciation, must
be accepted for filing by the Court, since the
son’s execution of them was not a violation of
the restraining notice in the Order to Show
Cause in the Albany County Supreme Court
matter, which predated Renunciation 2. The
Court noted that the restraint against the son
O F
E S TAT E S
only precluded him “from in any way disbursing, distributing, encumbering, transferring or
assigning, to anyone and for any reason whatsoever, the whole or any portion of any distributive share of the aforesaid inheritance,
which is or may be payable to” him. The
Court added that it was not unaware of its role
as a Court of equity and was not without empathy for the position of the victim’s father.
However, the Court reasoned that to hold otherwise with respect to the statutory renunciations would be completely contrary to established case law and statute. The Court pointed
out that it must also be sensitive to the impact
on other renunciations, should it fashion some
basis to decline to accept the son’s renunciations. The Court commented that Executive
Law §632-a is a statutory remedy and as such
was to be strictly construed. The Court added
that the Legislature clearly is aware that its
laudable goals are limited in effect, and noted
that the Legislature amended the statute and
related laws in 2001, to expand it to its current form. The Court suggested that the Legislature could choose to further expand Executive Law §632-a by restricting the rights
of a convicted person to disclaim, but noted
that to date it had not done so. The Court asserted that it must abide by the law as it currently exists, not as it might wish it to be.
Matter of Grochocki, NYLJ 7/28/15, p.1, c.3
(Surr. Ct., Broome Co., Surr. Guy) [Authors’
note: The equitable powers of the Surrogate’s Court are quite broad and it was held
in Matter of Berk, 71 AD3d 883(2010) and
in Campbell v. Thomas, 73 AD3d 103
(2010) that the Court should not allow itself
to be the instrument of a wrong which in
those cases would have occurred if the Court
had followed the pertinent statutory language
literally.]
Brief briefs: A New York State Memoran-
dum [TSB-M-15(3)M, 2015 Legislation
Amending the New York State Estate Tax] updating estate tax guidance, and new forms,
[ET-706, New York State Estate Tax Return
and ET-706-I, Instructions for Form ET-706,
New York State Estate Tax Return] for
decedents whose dates of death occur on
or after April 1, 2014, can be found at
www.tax.ny.gov/pubs_and_bulls/memos/
estate_memos.htm
and
www.tax.ny.gov/forms/estate_cur_forms.htm
respectively.
Fiduciary required to submit to an psychiatric examination in a proceeding to revoke her letters to permit the Surrogate to
determine whether the fiduciary had the
requisite understanding of her duties and
responsibilities when serious questions
were raised on the record concerning the
fiduciary’s mental state. Matter of Levitin,
2015 N.Y. Slip Op. 25184 (Surr. Ct., Westchester Co., Surr. Everett, May 26, 2015)
Trustee allowed to maintain an action
against another in the name of the trustee
individually. A trustee may maintain an action against another as he could maintain if he
held the trust property free of trust. It is unnecessary for the trustee in the pleadings or
other proceedings to describe himself as
trustee. He can proceed in the action as though
he were the owner of the claim which he is enforcing. If he does describe himself as trustee
the description is treated as mere surplusage.
Connery, et. al. v. Sultan, 129 A.D.3d 455
(2nd Dept., 2015)
——
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.
OCTOBER 2015
Culinary Delights on Display in Brooklyn—
—
Hon. Joseph Bova, Hon. David B. Vaughan and Hon. Mark Partnow.
Hon. Michael Pesce, Salvatore Scibetta, Hon. Wayne Saitta and Hon. Lawrence Knipel.
Food from L & B Spumoni Gardens restaurant. Hon. Michael L. Pesce, Supreme Court.
BBA Continuing Legal Education (CLE) staffer Amber N. Evans and Daniel Antonelli.

small_Barrister_10_2015_BBA edition

Transcription

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