THE OFFICIAL PUBLICATION OF THE BROOKLYN BAR … · Aimee L. Richter, Second Vice President David...

BROOKLYN BARRISTERT H E O F F I C I A L P U B L I C A T I O N O F T H E B R O O K L Y N B A R A S S O C I A T I O N

©2015 Brooklyn Bar Association January/February 2015 VOL. 66 NO. 13

The BBAAnnual DinnerBy Glenn Verchick, Esq. ....................................... Pg. 1Protecting One’s Brand in the Fashion IndustryBy Biana Borukhovich, Esq. ............................... Pg. 1The DocketCompiled by Louise Feldman ............................. Pg. 2New Members ..................................................... Pg. 2Legal BriefsBy Avery Eli Okin, Esq., CAE .............................. Pg. 2

Respectfully SubmittedBy Rebecca Rose Woodland, Esq. ....................... Pg. 3

The State of EstatesBy Hon. Bruce M. Balter and Paul S. Forster, Esq. ...... Pg. 4

What is the Fugitive Disentitlement DoctrineBy Steven Cohn, Esq. and Ilana Hochman, J.D. ....... Pg. 5Across My DeskBarton L. Slavin, Esq. ................................................Pg. 5Myraid Back in Court on Patent Subject Matter EligibilityDayrel S. Sewell, Esq..................................................Pg. 9

What’s Inside

On December 8, 2014, a capacity crowd ofalmost 1,000 filled the Brooklyn Bridge MarriotHotel for the Brooklyn Bar Association’sAnnual Dinner. The substantial turnout was atestament to the vitality of the Brooklyn legalcommunity and the significant role the Brook-lyn Bar Association plays in that community.The event honored some of the key lawyersand jurists in the State all with ties to Brook-lyn. The Annual Award recipients were Hon.Jenny Rivera, Associate Judge of the NewYork State Court of Appeals; Hon. Randal T.Eng, Presiding Justice of the AppellateDivision Second Department; Hon. GeorgeJ. Silver, New York County Supreme CourtJustice, and Andrea E. Bonina, Brooklyn BarAssociation Past President. Joining thehonorees on the Dais was of a who’s who ofNew York State’s judges and attorneys includ-ing two Court of Appeals Judges, three Appel-late Division Justices and eight bar associationpresidents. The success of the event was due tothe hard work of the Annual Dinner Commit-tee lead by Chair Arthur L. Aidala and thesupport of a record number of dinner Patronsand Sponsors.

Nitza Milagros Escalera, Assistant Dean ofFordham Law School presented the AnnualAward to Hon. Jenny Rivera. Judge Riverawas appointed to the Court of Appeals inFebruary of 2013. Before that, her workincluded the Legal Aide Society’s HomelessFamily Rights Project and the Puerto RicanLegal Defense and Education Fund. She wasappointed by the New York State AttorneyGeneral as Special Deputy Attorney for CivilRights. Given her background in civil rightsand equality projects, it was not surprising thatJudge Rivera praised the work of the BrooklynBar Association and the Volunteer LawyersProject and thanks the Association for givinglegal services to all persons in need in the com-munity and providing them with, “shelter fromthe storm.” It was also Judge Rivera’s birthdayand we were honored to be able to celebratethis special day with her.

Hon. William F. Mastro, Associate justiceAppellate Division, Second Department pre-sented the Annual Award to Justice Eng. Jus-tice Mastro highlighted the enormous task thatJustice Eng faces on a daily basis as the pre-siding Justice. The Second Department han-dles four to five thousand appeals each year.Justice Eng reviews all opinions and approvesthem for release. In addition to this work, he

also has administrative duties. Justice Mastrosaid that Justice Eng does this huge job withwisdom and patience in addition to being kindand a tireless worker. Justice Eng noted hisBrooklyn roots having graduated from Brook-lyn Tech High School and St. John’s LawSchool (when it was at Schemerhorn Street).He acknowledged his family in attendancewhich included his wife who was using herskills as a photographer to record the event andhis daughter who is a high school honors stu-dent and captain of the cheerleading squad.Justice Eng thanked his staff, many who werein attendance, including the Chief Clerk of theSecond Department, April Agostino. JusticeEng credited two supporter as being instru-mental in his becoming a judge, Ben Ward andDavid E. Trager (notably, a past Annual AwardReciepient). He was also thankful for the sup-port of New York State Bar Association Presi-dent Glenn Lau-Kee, who was on the Dais andthe many friends he has at the firm of KramerDillof Livingston and Moore.

Following the remarks of Justice Eng, cur-rent BBA President Rebecca Rose Woodlandpresented the Annual Award to Justice Silver.Every Annual Award recipient receives amedal on a red ribbon which is proudly worn

Visit us at www.brooklynbar.orgPlease turn to page 7

By: Glenn Verchick, Esq.

ProtectingOne’s Brand in

The FashionIndustry

Can we really protect every aspect ofa brand or is that just unrealistic? Un-fortunately, there is only so much thatan attorney and company owner can doto shield the brand from infringers andindividuals who steal trade secrets be-longing to these brands. Recently, Nike,Inc. filed a lawsuit against three formersenior shoe designers, accusing them ofstealing its trade secrets prior to joininga rival company, Adidas.

Nike is alleging that the designersbegan consulting Adidas while theywere still under employment with Nikeand as a result, were in violation of theirnon-compete agreements. Furthermore,Nike claims that the defendants stoleconfidential information by copyingsensitive design and business docu-ments from their computers, includingdrawings of an unreleased shoe madefor one of Nike’s sponsored athletes.Consequently, Nike is seeking $10 mil-lion in damages.

Please turn to page 3

By: Biana Borukhovich, Esq.

The BBA2014 Annual Dinner

Draws a Huge Turnout

Phot

o by

Mar

io B

ellu

omo

, BROOKLYN BARRISTER JANUARY/FEBRUARY, 2015

IFYOU HAVE ITEMS FOR INCLUSION IN THE DOCKET, PLEASE MAILOR FAXOR EMAILTHEM TO LOUISE FELDMAN, BROOKLYN BAR ASSOCIATION,

123 REMSEN STREET, BROOKLYN, NEWYORK 11201. FAX NO.: 718-797-1713 • E-mail: [email protected]

BROOKLYN BAR ASSOCIATION 2014-2015Rebecca Rose Woodland, PresidentArthur L. Aidala, President Elect

Hon. Frank R. Seddio, First Vice President

Aimee L. Richter, Second Vice PresidentDavid M. Chidekel, Secretary

Hon. Frank V. Carone, TreasurerAvery Eli Okin, Esq., CAE: Executive Director

CLASS OF 2015Michael Farkas

Fidel F. Del ValleLara Genovesi

Richard S. GoldbergJaime Lathrop

Anthony W. Vaughn, Jr.Glenn Verchick

CLASS OF 2016Elaine N. Avery

Armena D. GayleDavid J. Hernandez

Richard KlassAnthony J. Lamberti

Deborah LashleyJoseph S. Rosato

CLASS OF 2017Marianne BertunaJoseph R. Costello

Stefano A. FilippazzoDewey Golkin

Hemalee J. PatelSteven J. Harkavy

Jeffrey Miller

Roger Bennet AdlerVivian H. AgressAndrea E. BoninaRoss M. BrancaRose Ann C. BrandaGregory T. CerchioneSteven D. CohnHon. Miriam CyrulnikLawrence F. DiGiovannaDavid J. Doyaga, Sr.

Andrew M. FallekJoseph H. FarrellAndrew S. FisherEthan B. GerberDominic GordanoPaul A. GolinskiGregory X. HesterbergHon. Barry KaminsMarshall G. KaplanMark A. Longo

Domenick NapoletanoJohn. E. MurphyJohn LonuzziManuel A. RomeroHon. Harold RosenbaumBarton L. SlavinHon. Jeffrey S. SunshineHon. Nancy T. SunshineDiana J. Szochet

TRUSTEES COUNCIL (Past Presidents)

TRUSTEES

NEW MEMBERSNew Members for the Month of November 2014

ALEXI ASHE MEYERSEDWARD DE BARBIERIHEIDI HENDERSON

MELISSA MALMGRENMATTHEW SCHWARTZ

DAVID WATERBURYCOLLEEN ZITMAN

LEGAL BRIEFS

Included below are events which have been scheduled for the period

March 2, 2015 through April 30, 2015

Compiled by Louise FeldmanMarch 2, 2015 Monday CLE — How to Become a Judge

Auditorium, 6:00 PM

March 3, 2015 Tuesday Foundation Public Education Program— Landlord/Tenant

Board of Trustees Room, 6:00 PM

March 4, 2015 Wednesday 18B Family Court Committee Center, 1:00 PM

March 5, 2015 Thursday Grievance Committee MeetingBoard of Trustees Room, 12:45 PM

March 9, 2015 Monday CLE — E-FilingAuditorium, 12:30 PM

March 10, 2015 Tuesday CLE — Advance Criminal Law Part IAuditorium, 6:00 PM

March 11, 2015 Wednesday BBA Board & Foundation MeetingsBoard of Trustees Room, 5:15 PM

March 12, 2015 Thursday CLE — Contracting with MinorsAuditorium, 6:00 PM

March 18, 2015 Wednesday CLE — Advanced Criminal Law Part IIAuditorium, 6:00 PM

March 23, 2015 Monday CLE — Pixel Persuasion, Legal Writing for 21st CenturyAuditorium, 6:00 PM

March 25, 2015 Wednesday CLE - Navigating the eDiscovery MinefieldAuditorium, 6:00 PM

April 13, 2015 Monday CLE — Nuts & Bolts of running a campaignAuditorium, 6:00 PM

April 16, 2015 Thursday CLE — How to find out anything about anybodyAuditorium, 12:30 PM

April 22, 2015 Wednesday CLE — Alternative Dispute ResolutionAuditorium, 6:00 PM

April 23, 2015 Thursday 18B Family Court CommitteeCenter Room, 1:00 PM

April 27, 2015 Monday Annual Hon. Theodore T. Jones, Jr., Golf OutingColonia Country Club, 10:00 AM

April 30, 2015 Thursday CLE — Family Court CommitteeAuditorium, 6:00 PM

THE DOCKET JUDICIAL RECOGNITIONCongratulations to former Brooklyn Bar

Association Trustee Hon. Ariel E. Belen, aretired member of the Appellate Division,Second Department who was appointed onNovember 12, 2014 by Southern District JudgeAnalisa Torres as the facilitator “to help theNew York City Police Department enactremedies to unconstitutional practices in thecity’s stop-and-frisk litigation.”

Congratulations to Brooklyn Bar AssociationTrustee Lara J. Genovesi who was elected inNovember 2014 as a Justice of the SupremeCourt of the State of New York, Kings County.Prior to her election Justice Genovesi served asthe Law Secretary to the Hon. Jeffrey Sunshine,the Supervisory Judge of the Matrimonial Partsof Kings County.

Congratulations to Brooklyn Bar Associationmember Hon. Evelyn LaPorte who was electedin November 2014 as a Justice of the SupremeCourt of the State of New York, Kings County.Prior to her elevation to the Supreme CourtJudge LaPorte served in the Civil Court.

Also congratulations to Brooklyn Bar Associ-ation member Hon. Kathy King who was elect-ed in November 2014 as a Justice of theSupreme Court of the State of New York, KingsCounty. Prior to her election to a full term onthe Supreme Court she served as an ActingSupreme Court Justice.

Congratulations to Brooklyn Bar Associationmember Hon. Wavny Toussaint, who waselected in November 2014 as a Justice of theSupreme Court of the State of New York, KingsCounty. Prior to her election to a full term onthe Supreme Court she served as an ActingSupreme Court Justice.

Brooklyn Bar Association member AndrewBorrok, a 2014 Patron of the Brooklyn BarAssociation Foundation dinner cocktail hourwas elected as a Judge of the Civil Court of theCity of New York. His induction took place onDecember 11, 2014 in the Ceremonial Court-room of Brooklyn Boro Hall.

Congratulations to Brooklyn Bar Associationmember Joy F. Campanelli who was elected asa Judge of the Civil Court of the City of NewYork. Prior to her election she served as theLaw Secretary to Hon. Anthony Vaughan. Herinduction occurred on December 10, 2014.

Congratulations to Lizette Colon who waselected as a Judge of the Civil Court of the Cityof New York. Prior to her election she served asthe Law Secretary to Hon. Peter Sherman. Herinduction occurred on December 1, 2014.

Congratulations to Brooklyn Bar Associationmember Cenceria P. Edwards, who waselected as a Judge of the Civil Court of theCity of New York. Prior to her election shewas in private practice. Her induction oc-curred on December 17, 2014.

Congratulations to new Brooklyn BarAssociation Member Rosemarie Montalbano,who was recently a Law Secretary in Supreme

Court, Queens County, who was elected as aJudge of the Civil Court of the City of NewYork. Her induction is scheduled for January26, 2015.

PROFESSIONAL ANNOUNCEMENTSBrooklyn Bar Association member Raymond

Raskin has announced the relocation of hisoffice to 186 Joralemon Street, Suite 701,Brooklyn, New York 11201. Effective December18, 2014 joining Raymond Raskin in the reloca-tion are Dan Rausher, Charles Hymowitz andStehen Markman.

Chief Administrative Judge A. Gail Prudentihas announced an 18 month pilot project seek-ing candidates to serve as Volunteer SpecialMasters in the Commercial Division, New YorkCounty. In order to be considered for this proj-ect attorneys “must be highly seasoned com-mercial practitioners” able to a “work schedulesuitable to the needs of the court and parties inthe matters to which they are assigned.” Inorder to minimize conflicts candidates “must nolonger be in active practice.” Interested candi-dates should submit resumes with cover lettersto the Office of the Chief Administrative Judge,25 Beaver Street, 11th Floor, NY 10004 or applyonline at [email protected].

BEREAVEMENTSThe Brooklyn Bar Association expends its

deepest sympathy to Paula Styles on thepassing of her husband Christopher Dormanin December at the age of 51.

The Brooklyn Bar Association extends itsdeepest sympathy to Hon. John Leventhal andfamily including Marc Friedman on the passingof his mother Elizabeth Leventhal on December5, 2014 at the age of 100.

The Brooklyn Bar Association extends itsdeepest sympathy to the Bekerman Family onthe passing Philip Bekerman on December 21,2014 at the age of 76.

The Brooklyn Bar Association extends itsdeepest sympathy to Marilyn Soss on the passingof her husband Paul Soss on January 4, 2015.

The Brooklyn Bar Association extends itsdeepest sympathy to Hon. Carl Landicino onthe passing of his mother Rosemarie Landicinoon January 4, 2015.

The Brooklyn Bar Association extends itsdeepest sympathy to Hon. Jeffrey Sunshineand Hon. Nancy T. Sunshine on the passingof Moe Sunshine, the 97 year old father ofHon. Jeffrey Sunshine On January 20, 2015.

___________________________

Legal Briefs is compiled and written byAvery Eli Okin, Esq., CAE the Executive Directorof the Brooklyn Bar Association and its Founda-tion. Items for inclusion in “Legal Briefs” shouldbe emailed to [email protected], faxed to718-797-1913 or mailed to 123 Remsen Street,Brooklyn, NY 11201-4121.

STUDENT MEMBERSSAMUEL CORMANJOSEPH DERISO

KATHRYN PALILLOYI ZHAO

JANUARY/FEBRUARY, 2015 BROOKLYN BARRISTER,

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. 13. January 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 ad-dress changes to the Brooklyn Barrister, 123 Remsen Street, Brooklyn, NY 11201-4212.

BROOKLYN BARRISTER EDITORIAL BOARDAnthony J. Lamberti

Editor-in-ChiefDiana J. SzochetManaging Editor

Aimee L. RichterArticles Editor

Cecilia N. AnekweHon. Bruce M. BalterJaime J. BorerMark DiamondJason Eldridge

Paul S. ForsterJason D. FriedmanAnthony LambertiHemalee J. PatelRobert P. Santoriella

Michael TreybichAlexis VigilanteShelly WerbelGlenn VerchickGregory Zenon

elcome back everyone. I hope you allhad a great holiday season and that

you’ve gotten off to a great start in 2015. Now that all the dust has settled from the

flurry of holiday parties and events thatfilled the month of December, we have fi-nally had an opportunity to digest the num-bers for the 2014 Foundation Annual Din-ner, and I have some terrific news to share.It is my distinct pleasure to report that youall helped us put together the most finan-cially successful Annual Dinner in the his-tory of the Brooklyn Bar Association Foun-dation. That’s right, the 2014 Annual Din-ner raised more money and was attended bymore guests than any other Annual Dinnerin the Foundation’s history.

This great accomplishment was the re-sult of a collective effort by so many peopleon so many levels within our Association.At the top of that list is our Executive Di-rector, Avery Eli Okin and our Annual Din-ner Chair, President-Elect Arthur Aidala.Of course, there would not be an AnnualDinner without the hard work of our fabu-lous staff here at the BBA FoundationLouise Feldman and Massiel Ventura. Ialso want express my gratitude to the mem-bers of the Annual Dinner Committee whoworked tirelessly to sell tickets and spon-sorships right up to the day of the event.However, most of all, I want to thank all ofyou who so generously contributed to thisimportant fundraising event by purchasingtickets, tables and sponsorships. The Foun-

dation, which is such a vital and importantpart of our Association, could not operatewithout your generosity and support.

I once again congratulate our Honorees,Court of Appeals Associate Judge JennyRivera, Appellate Division Presiding Jus-tice Randall T Eng, Supreme Court JusticeGeorge J. Silver and BBA Past PresidentAndrea Bonina. Professor Richard T. Far-rell was also recognized on the occasion ofhis retirement from the staff of BrooklynLaw School after 50 years of exceptionaland dedicated service to the legal profes-sion. (Incidentally, I’m told that we shouldkeep an eye out for the upcoming 12th Edi-tion of Prince, Richardson on Evidence).With a slate of honorees this impressive, itreally should not come as a surprise that

this event was a record-breaking success. One of the ways in which the BBA

Foundation gives back to the legal commu-nity and the public at large is through anumber of scholarship programs. Last weekI had the privilege of participating in onesuch program at a ceremony which tookplace at One Police Plaza. The HundredYear Association of New York recognizesand honors business, professional, educa-tional, religious and other charitable organ-izations that have been in existence for onecentury or longer. The Brooklyn Bar As-sociation, founded in 1872, is a member ofthe Hundred Year Association, and our Ex-ecutive Director Avery Eli Okin is a VicePresident of the Board of Directors andchairs both the Scholarship and Public Ser-vice Awards Committees. Among otherthings, the Hundred Year Association spon-sors college scholarships for sons anddaughters of civil employees who demon-strate academic excellence, school andcommunity service and leadership. Averyand I had the distinct privilege of presenting

two scholarships, on behalf of the BrooklynBar Association Foundation, to two deserv-ing recipients at this event. We were able tofund these scholarships because of yoursupport of Foundation events such as theAnnual Dinner.

As I have discussed in this column in thepast, the Foundation will also be awarding ascholarship in the name and memory ofJudge Jones to a deserving law school stu-dent this year at our Annual Meeting inMay. It will be a yearly scholarship, whichwill be awarded to law student who exem-plifies and embodies the qualities and char-acteristics that that made Judge Jones theincredible person he was. We have alreadyformed a scholarship committee and willsoon be announcing details concerning theapplication process.

In keeping with the Foundation theme,I’m excited to announce that BBA Treasur-er and Golf Committee Chair, Frank Caronehas set a date for the 3rd Annual TheodoreT. Jones Memorial Golf Outing. The outing

R E S P E C T F U L L Y S U B M I T T E D

President Rebecca Rose Woodland, Esq.

By: Rebecca Rose Woodland, Esq.


—————————————— PRESIDENT’S MESSAGE —————————————

W

Protecting One’s Brand in The Fashion Industry

As we can see from the foregoingparagraph, ALL companies, includingmulti-million dollar companies like Nike,are susceptible to encountering somelegal issues while attempting to grow andprotect its brands. Nevertheless, ALL ofthese companies can limit and deter theseinfringers and wrongdoers by takingproper legal measures.

When an individual starts a fashioncompany or any company, they shallfirst, Incorporate themselves so thatthey are not personally liable if any law-

suits shall arise in the future. Thereafter,the business owner should trademark itsbrand’s name and logo, so that no onecan infringe on their mark(s) or dilutethe value of their goods/services. Lastly,the designer should have their attorneydraft all necessary contracts that areneeded to protect the designer goingforward with their company. Hence, noone can fully deter all legal issues thatmay arise in the future, however he/shecan surely prevent many of these issuesfrom arising by taking proper legalmeasures.

Continued from page 1

Advertise in the Brooklyn Eagle’s

LEGAL SERVICES DIRECTORY.

[email protected] [email protected]


T H E S T A T E O F E S T A T E S

After normalizing briefly, weather pat-terns seem to be assuming unusual forma-tions again, so extreme weather events wouldappear to be likely to resume. For your read-ing pleasure this winter (after you have firedup the generator and turned up the stove jets)we present some interesting cases involvingdenial to probate of a propounded will aftertrial on the grounds that the proponent hadfailed to produce both attesting witnesses attrial and had failed to establish the decedent’stestamentary capacity or that that the pro-pounded instrument expressed the decedent’swishes; the priority of the claim of a nursinghome which provided services to the dece-dent against the decedent’s Guardianshipover the claim of the Department of SocialServices against the decedent’s estate; the in-ability of an estate to set aside the decedent’screation of a joint tenancy with a right of sur-vivorship of shares of a cooperative apart-ment with his long-time companion on thegrounds of undue influence, misrepresenta-tion, and fraud; the grant of preliminary let-ters testamentary over objections, with the re-quirement that a bond be posted; notes takenby objectants of their conversations with thirdparties in the course of investigating whetherto file objections being discoverable; and anunsuccessful attempt to seal the Court recordin connection with an application to continuea business under SCPA §2108.

Propounded Will Denied Probate afterTrial on the Grounds That the ProponentHad Failed to Produce Both Attesting Wit-nesses at Trial and Had Failed to Establishthe Decedent’s Testamentary Capacity orThat the Propounded Instrument Ex-pressed the Decedent’s Wishes- Objectantsmoved for a directed verdict, at the close ofPetitioner’s case and again after the jury’sverdict, to deny probate to the propoundedwill on the ground Petitioner had failed tomake out a prima facie case on testamentarycapacity. Petitioner, a daughter of the dece-dent, was the nominated executor and benefi-ciary of one half of the residuary under thewill. The decedent’s son was the devisee ofthe real property under the propounded willand beneficiary of the other half of the resid-uary. Of the decedent’s other four childrenwho were not named under the propoundedwill, three daughters interposed objections toit. At the close of Petitioner’s prima faciecase, Objectants moved for a directed verdictdenying probate to the propounded will onthe ground that Petitioner failed to make outa prima facie case that decedent was compe-tent to execute the will. Specifically, objec-tants argued that Petitioner had failed to carryher burden of proving decedent’s competencyto make a will in that only one of the two at-testing witnesses to the will was called to tes-tify. The Court reserved decision on the mo-

tion. After the jury verdict found decedenthad testamentary capacity and that there wasno undue influence, objectants renewed theirmotion. At trial only one of the two attestingwitnesses was called to testify. No applica-tion was made by petitioner to the Court todispense with the testimony of the second at-testing witness. The witness who did testifystated that her normal procedure, having wit-nessed over fifty wills for the attorney drafts-man, was to speak briefly to the person-asktheir name, date of birth, talk about theweather, and at times ask who lives with theperson. She testified further that although sherecognized her signature on the subscribingaffidavit, she did not remember the decedent;did not recall when the propounded will wasexecuted or any comments made by the attor-ney to the decedent prior to making the pro-pounded will and; had no specific recollec-tion of anything that happened on that day re-garding the execution of the propounded will.The attorney draftsman testified that the peti-tioner-daughter had contacted him by phonehaving obtained his number from her friendwho recommended him. The daughter toldhim her mother wanted to make a will butcould not get to his office. The attorney senta will questionnaire to Petitioner-daughter.The attorney didn’t know whether the dece-dent or petitioner-daughter sent the question-naire back to him. He did not know whosehandwriting was on the questionnaire. He re-lied on the questionnaire and did not explorewith the decedent personally or by phone thequestionnaire. After receiving the question-naire back he had some phone conversations(made and received) with petitioner-daughterto fill in the blanks. He was unsure if he senta draft of the propounded will to the petition-er-daughter or to the decedent. The attorneystated that the petitioner-daughter had takenthe decedent to his office to execute the pro-pounded will, but waited outside the roomwhile the propounded will was executed. Hetestified that he had never spoken to the dece-dent or met her until she came to his office toexecute the propounded will. He paraphrasedsome of the propounded will to Decedent,and asked her to go over it. He indicated thatthe decedent took a long time going over thepropounded will suggesting that the decedentcarefully read the document. The decedentneither asked questions, nor indicated therewere any problems with the document. Hegave the decedent a printed script to read outloud to the witnesses at the execution cere-mony and had the decedent initial the bottomof the script. After the will ceremony he madethree copies (2 bound, 1 unbound) of the pro-pounded will. He kept the original, one boundcopy, and the unbound copy for his files. Theother bound copy he could not recall if hegave to the decedent or to the petitioner-daughter. He did not take a family tree fromthe decedent because the questionnaire hadher family on it. He knew that the decedenthad left four of her of children out of the will.

He considered the principle asset of the estateto be the house left to the decedent’s son. Theattorney testified that he was confident thatthe decedent was clear on what she wanted,and that the propounded will representedwhat she wanted. HOLDING- The Court de-nied probate on the grounds that it was notsatisfied that the decedent was competent tomake a will, or that the propounded will rep-resented her wishes. The Court rejected peti-tioner’s post-trial argument that there was noauthority for the Court to act on the motionafter the jury had rendered its verdict uphold-ing the propounded will. The Court statedthat pursuant to SCPA §1404, at least two at-testing witnesses, if they are within the stateand competent and able to testify, must beproduced before the Court and examined be-fore a will is admitted to probate. the Courtadded that the examination may cover all rel-evant matters, including the testator’s mentalcompetence, due execution, the genuinenessof the will, and the testator’s freedom fromrestraint and fraud. The Court acknowledgedthat pursuant to SCPA §1405, if it wereshown by affidavit or other competent evi-dence that a witness could not with due dili-gence be found within the state, or could notbe examined by reason of physical or mentalcondition, the Court might in its discretiondispense with the testimony of the attestingwitness, but stated that no such applicationwas made. The Court rejected petitioner’s ar-gument that she did not have to produce thesecond attesting witness as objectants hadstipulated that they had no issue regardingdue execution, inasmuch as even if the pro-bate proceeding was not contested the willstill had to be proven by the examination oraffidavit of the attesting witnesses. The Courtpointed out that when objections to probateare filed, affidavits cannot be utilized. Conse-quently, the Court found petitioner’s argu-ment unavailing that it was immaterial thatthe second witness was not called as the selfproving affidavits were introduced into evi-dence. The Court ruled that by calling onlyone of the attesting witnesses, petitioner hadfailed to establish a prima facie case for avalid will requiring at least two attesting wit-nesses, unless dispensed, to be produced be-fore the Court and examined before a will isadmitted to probate. The petitioner havingfailed to call the second witness to the pro-pounded will, objectants’ motion for a direct-ed verdict denying probate was granted. TheCourt added, however, that even had petition-er made an application to dispense underSCPA §1405, containing satisfactorily estab-lished grounds to dispense, and the Court hadgranted the application, the Court still wouldnot have admitted the propounded will to pro-bate on the testimony of the one attestingwitness who did testify, but would have re-quired further and additional proof before itwould have admitted the propounded will toprobate. the Court noted that a failure of rec-ollection intensifies the care and vigilancethat must be exercised in examining the re-maining evidence. The Court stated that thetestimony of the attorney draftsman raisedmore questions than it provided answers. TheCourt noted that pursuant to SCPA §1408, be-fore admitting a will to probate it is chargedwith inquiring particularly into all the factsand must be satisfied with the genuineness ofthe will, the validity of its execution, and thatthe testator at the time of executing it was inall respects competent to make a will and wasnot under any restraint. The Court added thatit has the inherent power to require suchproof to its satisfaction, whether or not thereare objections to probate filed, and that whereobjections have been filed, a full inquiry bythe Court is required. The Court pointed outthat the burden of proving a decedent pos-sessed the requisite testamentary capacityrests on the proponent of the will. the Courtstated that petitioner was required to establishthat: (1) the decedent understood the natureand consequences of executing a will, (2) thedecedent knew the nature and extent of theproperty that she was disposing of, and (3)the decedent knew who would be considered

the natural objects of her bounty, and her re-lations with them. The Court found that thetestimony of the one attesting witness and thetestimony of the attorney draftsman failed tomeet petitioner’s burden of demonstrating thedecedent’s testamentary capacity. The Courtheld that petitioner had failed to prove thedecedent knew the nature and extent of herproperty she was disposing of, or that sheknew the natural objects of her bounty. TheCourt pointed out that the attorney neverspoke to the decedent until he met her on theday of the execution ceremony, that there wasno testimony that he ever discussed with thedecedent her assets or even inquired of thedecedent what her assets were, and that henever interviewed her or explored her wishes.The Court noted that the attorney relied onthe questionnaire even though he didn’t knowwhose handwriting it contained. The Courtadded that even assuming the decedent hadfilled out the questionnaire, it did not list anyproperty (personal or real) the decedent pos-sessed. The Court stated that there was noshowing that the decedent was aware sheowned real property or had a retirement ac-count which petitioner testified contained ap-proximately $50,000.00, and no showing thatthe decedent knew the natural objects of herbounty. The Court noted that the attorneynever asked the decedent about her next ofkin, having relied upon the questionnaireeven though he didn’t know whose handwrit-ing was on it. The Court also ruled that thepetitioner had not proven that the propound-ed will was an expression of the decedent’swishes. The Court said that the purported willspecifically devised the decedent’s propertyknown as 241 Manhattan Avenue to her son,which the attorney acknowledged to be theprinciple asset of the decedent’s estate. TheCourt noted, however, that even assuming thequestionnaire was filled out by the decedent,it did not mention this property other thanshowing it as the decedent’s address. TheCourt added that the question in the question-naire regarding specific bequests was leftblank. The Court found that since the attor-ney admittedly never spoke to the decedentuntil the day of the execution ceremony, atwhich point the propounded will already wasdrafted, it could not have been the decedentwho informed him that this property was anasset belonging to her and that it was to bedevised in the will to her son. The Courtadded that the purported will provides thatthe decedent’s residuary estate was to beshared by the petitioner-daughter and her sonequally. The Court noted, however, that whilethe questionnaire provided that the benefici-aries of the balance of the estate were to bethe petitioner-daughter and the son, the ques-tion concerning an alternate bequest in theevent one should predecease was left blank.The Court found therefore that since the at-torney admittedly had never spoken to thedecedent until the execution ceremony, atwhich point the propounded will already wasdrafted, it could not have been the decedentwho informed him to provide in the will thatif either the petitioner-daughter or the sonpredeceased the decedent, then his/her sharewould go to the other. The Court concludedthat the proof presented at trial failed to showthat the propounded will was an expression ofwhat the decedent wanted. The Court opinedthat a will offered for probate must be the willof the testator, and of no one else, adding thata party who offers an instrument for probatemust show satisfactorily that it is the will ofthe alleged testator, and upon this question hehas the burden of proof. The Court stated thatif a petitioner fails to satisfy the Court that theinstrument speaks the language and containsthe will of the testator, probate must be re-fused. The Court asserted that it is not theduty of the Court to strain after probate, norin any case to grant it where grave doubts re-main unremoved and great difficulties op-pose themselves to so doing. Consequently,the Court denied probate, holding that it wasnot satisfied from the proof presented that thedecedent was competent to make a will, or

By: Hon. Bruce M. Balter and Paul S. Forster, Esq.



ecord retention policies have dramaticallyevolved over the last several years as the cost

of scanning and the efficacy of electronic storagehas improved. I was recently asked to defend anattorney in an ethics complaint that involved,among other issues, the partial destruction of theformer Client’s file. The primary focus of thegrievance complaint, which was related to estate-planning, was on allegations of attorney breach offiduciary duty, allegedly owed to minority mem-bers of a closely held family business. The obli-gation of the Attorney to retain all or part of the file,and notes from the client, was one of the issuesaddressed in the resolution of the investigation.

The starting point in the analysis is the NewYork Rules of Professional Conduct. Rule 1.15(d)[Part 1200, www.nycourts.gov/attorneys/], whichrequires a seven (7) year retention of all “escrow”materials. These materials include bank statements,deposit slips and the “ledgers” that should show thesource of all funds, the name of the person forwhom the funds are held, the disbursements of suchfunds and the checks issued on such account. In theevent of an audit, The Committee prefers to see theactual deposit slips, bank statement and the handwritten ledgers. If materials are missing, theCommittee can obtain, pursuant to its subpoe-na power, copies of monthly banks statementsand other materials.

Additional papers that must be retained are;retainer agreements, billing statements to Clients,Office of Court Administration filings (related to

contingency cases), bills and payments to all ven-dors. In the matter under discussion, most ofthese materials had been scanned and were pro-duced to the Committee both in electronic formatand indexed paperwork. In the case mentioned atthe outset, very few questions as to billing and es-crow matters were raised because the paperworkproduced was 100% complete. This allowed theinquiry to focus on the primary issues of the alle-gations of breach of fiduciary duty, which will bethe subject of a future column.

Issues of file retention and client confidential-ity, which are related to file retention rules, areimportant to all attorneys. The general rules arestated in the NYSBA Ethics Opinion 460 (1977);623 (1991); ABCNY 2008-1 (addressing theABA Model Rules of Professional Conduct —Rule 1.0(n)). In sum, the Attorney is responsiblefor retaining, at a minimum, either in paper formor electronic form, the financial aspects of thefile, the billing, the checks, the vendor bills orchecks reflecting an invoice number and any Of-fice of Court Administration filings. TheNYSBA recommends that you include as part ofyour retainer a file retention statement. This doesnot take into account that the file retention policyof the firm may change over the years. The sug-gested practice is that when a matter is closed, theattorney communicates with the client and in-quires as to which papers they would like, andwhether they prefer these materials in paper formor in electronic form. It is also suggested that

your office scan all written communications of asubstantive or personal nature issued to and re-ceived from the Client. Retaining a copy of a“thank you” card from the Client is of great valuein a grievance matter if a dispute arises.

For example, commercial division cases are e-filed. Therefore, all litigation papers are already inelectronic form, and can be provided to the client ona CD or via a drop-box type of service. In a per-sonal injury matter, medical records can be deliv-ered to the client, as she may need the informationin order to establish a baseline for future treatments.It is suggested that the personal injury practitionerscan important medical records, pleadings and dep-ositions for electronic storage. In the event that theclient asks for these records years later, retrieval willbe easily achieved. As to a residential real estate saleor purchase transaction, the Closing Statement withthe contract, transfer papers, title report, checks andother papers can be scanned. If there were hotly ne-gotiated issues, the client communications shouldbe archived. Printing out an e-mail chain, and thenscanning the paper document, is a good method tomake sure that the e-mails do not get lost by the e-mail provider. It is the opinion of this author thatthere is no reason for a real estate practitioner to re-tain a paper file for seven (7) years.

In most matrimonial matters, essentialagreements have been filed with the Court andthe client has been provided with a copy. Elec-tronic records related to future payments are ad-missible under § 306 of The Electronic Signa-tures and Records Act (Article III of the NYSTechnology Law), which provides: “Admissi-bility into evidence. In any legal proceedingwhere the provisions of the civil practice lawand rules are applicable, an electronic record orelectronic signature may be admitted into evi-dence pursuant to the provisions of article forty-five of the civil practice law and rules including,but not limited to section four thousand fivehundred thirty-nine of such law and rules.”CPLR 4539 provides that the mere fact that apaper sought to be introduced into evidence is a

reproduction of a scanned document is not a barto admissibility upon proof of appropriate foun-dation of the underlying instrument.

If you consider that a full service file storage fa-cility charges about $100 to retrieve a file, it makessense to scan the file at about the same price point.You can scan at your office or send the file out to ahigh volume facility at about 25cents per page,shredding included. Once scanned, there is no fur-ther overhead and the file is available as soon as youaccess your hard drive. You have an obligation tomaintain secure backup copies of these files. Thecost of having multiple backup copies of closed fileshas become minimal with a 2T external drive cost-ing about $90.00. It is suggested that you make anextra back up, or two, and remove the drives fromthe business premises.

There is no negative inference to be drawnfrom producing a printout of a previouslyscanned document. The Electronic Signaturesand Records Act (Article III of the NYS Tech-nology Law) provides that “signatures” made viaelectronic means will be legally binding just ashand-written signatures now are. The law alsoenhances and clarifies the authority of govern-ment to create and retain records in computerproduced electronic form. There is now no doubtthat electronic records have the same legal forceas those produced in other formats such as paperand microfilm. “An electronic record shall havethe same force and effect as those records notproduced by electronic means.” Id., §305(3).

In conclusion, there are few barriers to the use ofelectronically stored documents. The cost of scanningand electronic storage has dramatically dropped overthe last few years, and most clients do want to retaincopies of portions of their files. Electronic storage isa win-win proposition for all concerned.

About the Author: Barton L. Slavin, Esq.,served two terms on the Grievance Committee forthe 2nd Dept., is a Past-President of the BrooklynBar Association and as part of his practicerepresents Attorneys in in grievance matters.

What Is The Fugitive Disentitlement Doctrine?

The Second Department Appellate Divi-sion employed the Fugitive DisentitlementDoctrine for the first time joining the Thirdand Fourth Departments.

The Fugitive Disentitlement Doctrine canbe found in the United States Code in Title 28,Judiciary and Judicial Procedure. This doctrinestates that a judicial officer may prevent a fugi-tive from using the resources of the UnitedStates courts in furtherance of a claim, civil orcriminal, when their fugitive status is inextri-cably linked to the need for such relief. Inshort, those who try and evade the court’s ju-risdiction by flight should not expect clemen-cy when they request any form of judicial re-lief, whatever it may be.

The doctrine accomplishes several objec-tives most notably:

1) Assuring the enforceability of any decisionthat may be rendered against the fugitive

2) Imposing a penalty for flouting the judicialprocess

3) Discouraging flights from justice and pro-moting the efficient operation of the courts

4) Avoiding prejudice to the other sidecaused by the defendant’s escape. 2

The doctrine’s rationale is that fugitiveswho attempt to circumvent the law shouldnot be able to concurrently reap the benefitsof the judicial relief it affords.

The standard used for applying the fugi-tive disentitlement doctrine was establishedby the Supreme Court case, Ortega-Ro-driguez v. United States. This standard ne-cessitates a connection between the Defen-dant’s fugitive status and the appellateprocess, “sufficient to make an appellatesanction a reasonable response.” 3 Thismeans that the relief they are seeking must be

related to their fugitive status. Though the doctrine has its roots in crim-

inal law, over the years it has been applied tothe denial of relief in civil cases when thefugitive is requesting some form of reliefwhile at the same time attempting to evadean order issued in a civil case.

The Third Department was the first Ap-pellate Court in New York to adopt the Fugi-tive Disentitlement Doctrine by name. Untilthis point each of the departments of the Ap-pellate Division had dismissed fugitives’ ap-peals in criminal proceedings on the groundsthat “the appellant is not presently availableto obey the mandate of the Court in the eventof an affirmance.”4

The Third Department ultimately adoptedthe doctrine in a family law case entitledSkiff-Murray v. Murray. In a divorce pro-ceeding the court awarded sole custody ofthe children to the mother. The Court furtherimputed income to the father and he appealedmoving to strike certain documents that wereplaced in the addendum to the Petitioner’sbrief. These documents indicated that the Re-spondent Father was absent from trial duringthe divorce action, voluntarily left the state,and deliberately disobeyed the March 2002child support order resulting in a bench war-rant and order of commitment.

The Petitioner Mother cross-moved todismiss the respondent’s appeal arguing thathis current status as a fugitive from the juris-diction of the trial courts invoked the Fugi-tive Disentitlement Doctrine. The Court sub-sequently dismissed the appeal.5

In the Fourth Department case entitledShehatou v. Louka, the respondent was also aparent in default of a support order issued bythe Court. The Court determined that the re-spondent had willfully violated the court’sorder and was thereby sentenced to a periodof six months of incarceration. There was

also a warrant issued for his arrest. At this point, the respondent submitted an

order to show cause in an attempt to vacateboth orders. The court refused to sign theorder stating that the Fugitive DisentitlementDoctrine applies to the respondent who relo-cated to California as he was attempting to“evade the law while simultaneously seekingits protection.” 6

Until last week the Second Department hadyet to apply this doctrine. Their application of thedoctrine has also emerged in a civil setting, in thefield of family law, concerning the case of Allainv. Oriola-Allain. In Allain, the parties were mar-ried in 2000 and divorced in 2005. The Fatherwas awarded custody of the child who was fourat the time. The Mother worked as a system’s en-gineer and as such, the Court imputed an annualincome of $100,000.00. The Mother, Oriola-Al-lain was obligated to pay monthly child supportin the amount of $1,296.00.

Over the next four years, Oriola- Allainfiled five petitions in the Family Court tohave the amount of child support reduced. In2009, the Family Court ordered an increasein support payments to $1,467.00. The Moth-er then filed two petitions for a downwardmodification of the support amount whichwere both dismissed.

In 2011, the Mother relocated to Nigeria.She was still able to appear by telephone fora conference that was held on December 21,2011 where the proceedings were further ad-journed to January 17, 2012. The proceed-ings were adjourned several more times untilthey were put on for April 19, 2012.

On April 19, 2012 the court found that themother had willfully violated the December2009 order and was directed to pay$28,363.31 in arrears and the support magis-trate requested her incarceration.

Due to her failure to appear, the Court is-sued a warrant for Oriola-Allain’s arrest,

based on but stayed the issuance of the war-rant until August 17, 2012, in order to pro-vide the mother with an opportunity to ap-pear before the court for a hearing with re-spect to the confirmation of the SupportMagistrate’s findings and recommendationof incarceration. Oriola-Allain never person-ally appeared but rather appealed, claimingthe Court erred in denying her an adjourn-ment of a July 31, 2013 proceeding anddenying her application to testify by phone.Furthermore, she contends that the courterred in issuing a warrant for her arrest.

The Court ultimately dismissed her ap-peal on the grounds that the Oriola-Allainpurposefully fled from the jurisdiction of theNew York courts in response to the October2011 violation petition where she willfullydisobeyed the 2009 child support order. 7

Now that the Second, Third and FourthDepartments have all recognized the FugitiveDisentitlement Doctrine as a tool at their dispos-al, it will be interesting to see whether the FirstDepartment will follow suit in the near future.

1 Steven Cohn is a past President of theBrooklyn Bar Association and a member of theNew York State Bar Association House of Dele-gates and partner in Goldberg & Cohn, LLP.Ilana Hochman recently graduated from NewYork Law School with a J.D.

2 Bar-Levy v. U.S. Dep’t of Justice, I.N.S., 990F.2d 33, 35 (2d Cir. 1993).

3 Ortega-Rodriguez v. United States, 507U.S. 234, 249, 113 S. Ct. 1199, 1208, 122 L. Ed.2d 581 (1993).

4 People v. Sullivan, 28 N.Y.2d 900, 901, 322N.Y.S.2d 730, 271 N.E.2d 561 [1971].

5 Skiff-Murray v. Murray, 305 A.D.2d 751,760 N.Y.S.2d 564 (App. Div. 2003).

6 Shehatou v. Louka, 118 A.D.3d 1357, 987N.Y.S.2d 746, 746-47 (App. Div. 2014).

7 Allain v. Oriola-Allain, No. 2012-10378, 2014WL 5350479, at *4 (N.Y. App. Div. Oct. 22, 2014).

By: Steven Cohn, Esq. andIlana Hochman, J.D. 1

R


at subsequent Annual Dinners. If you reviewthe list of past honorees, you will see what anhonor it is to have one of these covertedmedals. Justice Silver said he was elated toreceive the medal. He noted that it lookedsimilar to an Olympic medal and was happyhis mother was in attendance as she alwayswanted him to excel at athletics and at leastnow he had a similar medal but noted that hismom got a son more like Marc Jacobs thanMark Spitz. This analogy brought muchlaughter and applause. Judge Silver thankedhis parents and his aunt who were in atten-dance for their love and support throughouthis career. Justice Silver has attended manyBBA events over the years and always enter-tains the crowd with his mix of comedy andgenuine affection for the member of theBrooklyn legal community. He acknowledgedhis start as a Judge in the Civil Court of thecity of New York Kings County and praisedthe many friends he had and still has there.Over the years he has been elevated to newand more challenging positions including hismultiple current responsibilities presidingover the Trial Assignment Part in New YorkCounty as well as the Medical MalpracticeEarly Settlement Part and the IAS Part han-dling asbestos litigation. He has vowed towear his Annual Award medal while presid-ing over all these Parts.

The last, but not least, of the annualAward honorees was Andrea E. Bonina, anAssociation Past President. Her award waspresented by Hon. Ellen Spodek who saidshe was overwhelmed and brought to tearswhen she was asked to present this award toher longtime friend and colleague. JusticeSpodek herself was a reciepient of the Annu-al Award in 2010 . Andrea began her remarksby acknowledging her wonderful family. Hermom, brother and partner John A. Boninaand her sister Elizabeth Bonina. She also ac-knowledged her husband Nick and their twosons Charlie and Harry, who she said werethe best and brightest part of her life andwho were in attendance for this special


The BBA 2014 Annual Dinner Draws a Huge Turnout

More photos on page 6, 7, 11, 12; Storycontinues on page 11.

President Rebecca Woodland, Hon. Ellen Spodek, Andrea Bonina, and Arthur Aidala.

To see additional photos visit: www.BrooklynArchive.com


The BBA 2014 Annual Dinner

— Photos by Mario Belluomo —



T H E S T A T E O F E S T A T E Sthat the propounded will represented herwishes. Matter of Hedberg, N.Y.L.J. 9/19/14,p. 21., c. 2 (Surr. Ct., Kings Co., Surr. John-son, 8/25/14)

Claim of a Nursing Home Which Pro-vided Services to the Decedent against theDecedent’s Guardianship Has Priorityover the Claim of the Department of SocialServices against the Decedent’s Estate- Askilled nursing facility, admitted the decedentinto its care in 2005. In 2008, due to the dece-dent’s need for assistance, and concernsabout the proper handling of her finances bythird parties, the nursing home commenced aproceeding pursuant to Mental Hygiene Lawarticle 81 to have a guardian appointed forher person and property. It also filed an appli-cation for medical assistance for decedent’snursing home costs. In 2009, the Departmentof Social Services (DSS) determined thatDecedent was eligible for Medicaid, effectiveSeptember 1, 2008. Thereafter a Guardianwas appointed for the decedent and conferredupon the Guardian, among other things, theauthority to pay the decedent’s nursing homeexpenses and to pay bills after her death.Decedent died in 2011 at age 87. Approxi-mately a year and a half before the decedentdied, the nursing home filed a claim with theGuardian seeking $164,208 for services thatit had provided that were not covered byMedicaid. The nursing home also submittedthe claim for filing with the Supreme Court.Thereafter the Supreme Court granted theGuardian’s motion for an Order authorizingthe sale of the decedent’s home for approxi-mately $300,000, stating that there was nolikelihood that the decedent would be able toreturn to living independently in her home,and that the sale of the house was warrantedso that the proceeds from the sale could beused to pay for her long term care. The netproceeds of the sale in the amount of$297,882.20 were deposited into theguardianship account for the decedent. TheSupreme Court subsequently confirmed thesale. Shortly after the sale, DSS advised theGuardian that the decedent owed$192,352.47 for medical assistance pay-ments, but DSS did not request payment atthat time. After the decedent’s death, DSS in-formed the Guardian that it was asserting apreferred claim pursuant to Social ServicesLaw § 104, and that the updated lien amountwas $271,661.62. DSS requested that whenthe estate is ready for distribution, theGuardian issue a check to DSS for thatamount. The Guardian thereafter commenceda proceeding to settle its final account asGuardian of the decedent’s person and prop-erty. The Guardian listed the nursing home asa claimant for $164,208, and DSS as aclaimant for $166,005.63. The nursing homeopposed the Guardian’s petition and arguedthat it had priority over the DSS because itsclaim of $222,650 accrued before DSS’sclaim against the estate began to accrue. Thenursing home argued that DSS had no statu-tory lien against the decedent’s home (thesource of the remaining funds in the estate)when it was sold, and that DSS should not re-ceive any preferred creditor status. DSS alsoopposed the petition, as well as the nursinghome’s position, and argued that it had pro-vided assistance to Decedent in the amount of$271,661.62. DSS argued that it was a pre-ferred creditor pursuant to Social ServicesLaw § 104, and that because the nursinghome had failed to reduce its claim to a judg-ment, the nursing home was a general credi-tor over which DSS had priority. TheSupreme Court agreed with DSS and deter-mined that, after $14,400 was paid to theGuardian for fees incurred as the decedent’sguardian, $188,599.27 remained in the estate,of which $9,000 would be paid in legal andCourt fees, and the balance would be turnedover to DSS in satisfaction of its Medicaidlien. The nursing home appealed. HOLD-ING- The Appellate Division reversed, hold-ing that as the nursing home was to be paidout of the guardianship account before anyfunds passed to the estate, its claim had prior-ity over DSS’s claim. The Appellate Divisionnoted that Mental Hygiene Law § 81.44 (d)

provides that, within 150 days of the death ofan incapacitated person, the guardian mustserve on the personal representative of thedecedent’s estate, or if none, the public ad-ministrator or chief fiscal officer, a statementof assets and notice of claim, and, “except forproperty retained to secure any known claim,lien or administrative costs of the guardian-ship,” deliver all guardianship property to thepersonal representative, public administrator,or chief fiscal officer (emphasis added). TheAppellate Division pointed out that consistentwith section MHL 81.44 (d), the Order andJudgment appointing the Guardian author-ized it to apply the decedent’s resources andincome, if any, toward her outstanding andaccruing nursing home expenses, and to paybills after the decedent’s death if incurredprior to said death, if authority to pay anysuch bills would otherwise have existed. TheAppellate Division added that the CourtOrder that authorized the sale of the dece-dent’s home stated that the sale was warrant-ed so that the proceeds from the sale can beused to pay for her long term care. The Ap-pellate Division noted that although the Courtdid not specifically refer to the nursing home,as opposed to DSS, DSS conceded that it didnot assert a claim during the decedent’s life-time but asserted a claim against the estateonly. The Appellate Division pointed out thatthe nursing home had filed a notice of claimagainst the guardianship while the decedentwas alive, but that DSS did not send a claimletter to the Guardian until after the dece-dent’s death, asserting a claim against the es-tate pursuant to Social Services Law § 104.The Appellate Division stated that the nursinghome’s claim accrued during the decedent’slifetime, against the guardianship account,with no competing creditors, and thus itshould have been paid before any fundspassed to the estate. the Appellate Divisionheld that DSS, as a preferred creditor pur-suant to Social Services Law § 104, had a pri-ority claim only against the estate. Contraryto the Supreme Court’s conclusion, the Ap-pellate Division ruled that it was irrelevantthat the nursing home had not reduced its liento a judgment, which would have given it pri-ority over competing creditors, because DSShad no viable competing claim against Dece-dent’s guardianship account. The AppellateDivision held that nothing in Mental HygieneLaw § 81.44 (d) and (e) limits the guardian’sright to retain property equal in value only tothe expenses connected with the administra-tion of the guardianship, such as those item-ized in the guardian’s petition for a final ac-counting. The Appellate Division assertedthat had the legislature intended that result, itwould have clearly stated that the Guardiancould retain assets to secure any known claimor lien only insofar as it was associated withadministrative expenses. In the view of theAppellate Division, instead, consistent withits stated justification to facilitate the transi-tion between a guardianship for an incapaci-tated person and an estate after the death ofsuch incapacitated person, the Legislaturegave the Guardian broader rights to pay off“any known claim, lien or administrativecosts of the guardianship pursuant to subdivi-sion (e) of this section” [emphasis added]).The Appellate Division ruled that in additionto serving upon the personal representative ofthe estate “a statement of assets and notice ofclaim” within 150 days of the incapacitatedperson’s death, section 81.44 (d) authorizesthe guardian to pay off any known claims.The Appellate Division found such broaderconstruction to be consistent with Mental Hy-giene Law § 81.44 (a) (4), which defines“[s]tatement of assets and notice of claim.”Specifically, in detailing the information to beincluded in a statement of assets and notice ofclaim, section 81.44 (a) (4) provides that, inaddition to some identifying information(such as a caption and index number), thestatement must contain:

“a description of the nature and approxi-mate value of guardianship property at thetime of the incapacitated person’s death; withthe approximate amount of any claims, debtsor liens against the guardianship property, in-cluding but not limited to medicaid liens, tax

liens and administrative costs, with an item-ization and approximate amount of such costsand claims or liens” (emphasis added). Con-sequently, the Appellate Division found thatMHL §81.44, read as a whole, does not limit“any claims” to administrative costs, holdingthat it does just the opposite listing adminis-trative costs as a type of claim that theGuardian can pay. The Appellate Divisionruled that MHL §81.44 (e), which states inrelevant part, “the guardian may retain, pend-ing the settlement of the guardian’s final ac-count, guardianship property equal in valueto the claim for administrative costs, liens anddebts,” does not limit the guardian’s authori-ty pursuant to section 81.44 (d) to retain prop-erty to pay off any known claims or liens inaddition to administrative costs. Accordingly,the Order of the Supreme Court which direct-ed the Guardian to turn over to DSS the bal-ance of the funds remaining in the guardian-ship estate was reversed, and the Guardianwas directed to turn over DSS’s share of thebalance of the guardianship account to thenursing home. Matter of Shannon, 120A.D.3d 128 (1st Dept., 2014)

Estate Unable to Set Aside the Dece-dent’s Creation of a Joint Tenancy With aRight of Survivorship of Shares of a Coop-erative Apartment With his Long-TimeCompanion on the Grounds of Undue In-fluence, Misrepresentation, and Fraud-The decedent’s son, as administrator, com-menced a turnover proceeding against the re-spondent, his father’s long-time companion,seeking the return to the estate of shares ofstock to a cooperative unit, purchased by thedecedent and placed in a joint tenancy withthe respondent. The son alleged that the co-opagreement was entered into through fraud,misrepresentation, and undue influence onthe part of the respondent, and therefore ajoint tenancy was not created. Respondentmoved to dismiss the petition upon documen-tary evidence pursuant to CPLR §3211 (a)(1)and for failure to state a cause of action pur-suant to CPLR §3211 (a)(7). She furthermoved for a declaratory judgment, pursuantto CPLR §3017 (b), declaring herself as thesole owner of the cooperative unit, at issue, asthe surviving joint tenant. The decedent andthe respondent began a personal relationshipin 1997. He was a taxi driver and remained assuch until nine months before his death.Decedent was diagnosed with leukemia in2010 and, following his admission to the hos-pital in June, 2012, died intestate shortlythereafter. According to the respondent, thedecedent discussed purchasing an apartmentwith the respondent, so she would have aplace of her own should anything happen tohim. Subsequently, the two entered into acontract of sale to purchase a cooperativeapartment. Before executing the contract, thedecedent questioned all the closing fees, ne-gotiated the legal fee with his attorney, andtried to bargain with the co-op Board regard-ing the closing fees and move-in deposit. Theapartment was purchased, and a stock certifi-cate was issued, along with a proprietarylease, which specifically indicated the dece-dent and respondent were joint tenants. Uponthe decedent’s death, the respondent trans-ferred the shares in the co-op to herself as thesurviving joint tenant. Nearly two monthsafter the decedent’s death, the son obtainedLetters of Administration. During the admin-istration process, the son discovered that theco-op shares and lease named the decedentand respondent as joint tenants. The son thencommenced a turnover proceeding to invali-date the joint tenancy, on the basis of fraud,misrepresentation, and undue influence. Ac-cording to the son, the respondent took ad-vantage of the decedent and forced him topurchase the co-op. The petitioner further al-leged that the respondent failed to take careof the ailing decedent and instead ceased allcommunication with him one month after thestock certificate was issued. The son alsoclaimed that the decedent wished to sell theapartment prior to his death and thereby severthe joint tenancy. The son claimed further thathis father contacted legal counsel to assist inhaving the respondent sign over the apart-ment to him, as well as negotiated with the re-

spondent to sell back her interest in the apart-ment to him, as evidence of his intent to severthe joint tenancy. The respondent moved todismiss the petition upon documentary evi-dence and failure to state a cause of action,and asked the Court to issue a declaratoryjudgment that she was the sole owner of thecooperative shares. HOLDING- Theturnover proceeding was dismissed. TheCourt opined that on a motion to dismiss forfailure to state a claim pursuant to CPLR§3211 [a][7], the Court must accept the factsas alleged in the pleading as true, accord thepetitioner the benefit of every possible favor-able inference, and determine only whetherthe facts as alleged fit within any cognizablelegal theory. The Court noted that movantmay submit affidavits, but they will almostnever warrant dismissal under CPLR §3211unless they establish conclusively that peti-tioner has no claim or cause of action. TheCourt added that whether a petitioner ulti-mately can establish his or her allegations isnot part of the calculus in determining a mo-tion to dismiss. The Court stated that underCPLR §3016 (b), a cause of action allegingfraud, misrepresentation, or undue influence,shall be stated in detail and must be pleadedwith particularity so as to inform the defen-dant of the alleged wrongful conduct and givenotice of the allegations the plaintiff intendsto prove. The Court pointed out that a com-plaint sounding in fraud must allege the basicfacts of fraud to establish the elements of thecause of action, to wit: 1) that a defendantmade a representation or a material omissionof fact which was false and the defendantknew to be false; 2) that the misrepresenta-tion was made for the purpose of inducing theplaintiff to rely upon it; 3) that there was ajustifiable reliance on the misrepresentationor material omission; and 4) that there was in-jury. The Court added that undue influencemay be established upon a showing of an un-balanced relationship between the parties, ei-ther resulting from, on the one side, superiorknowledge of the matter derived from a fidu-ciary relation, or from overmastering influ-ence, or, on the other side, from weakness,dependence, or trust justifiably reposed,whereupon the burden is shifted, the transac-tion is presumed void, and it is incumbentupon the stronger party to establish that nodeception was practiced, no undue influencewas used, and that all was fair, open, volun-tary and well understood. The Court notedthat mere allegations by way of affidavit thata party took advantage of another party’spoor health during the negotiating of a realestate contract is legally insufficient to estab-lish duress or undue influence. The Courtfound that the petitioner son had failed tostate facts with particularity to support hiscause of action for fraud, misrepresentation,and undue influence, in the agreement be-tween the decedent and the respondent. TheCourt held that the son had put forth no cred-ible evidence that described, with particulari-ty, any fraudulent means taken by the respon-dent, and had put forth no credible evidencethat showed a misrepresentation or materialomission of any fact that would have leddecedent to believe he was being defrauded.The Court said that the son’s allegation mightbe probative of a tumultuous relationship, butwere not conclusive evidence of any particu-lar fact she either misrepresented or omitted,and which the decedent subsequently reliedupon in order to enter into the joint tenancy.The Court also found that the son had putforth no evidence to prove that the decedentwas unduly influenced to enter into the jointtenancy. In the Court’s view, the son had putforth no evidence of an actual exercise ofundue influence on a weakened mind or anabuse of a confidential relationship becausehe had presented no evidence showing thatthe decedent in fact had a weakened mind, orthat the respondent had disparate power overthe decedent, thereby creating a confidentialrelationship between the two. The Courtnoted that the son’s submissions in oppositionindicated that the relationship between thedecedent and the respondent may not havebeen that strong, as the decedent had numer-




Complete Legal SerComplete Legal Services Dirvices DirectorectoryyCall Alice at (718) 643-9099, Extn. 107 for legal services advertising

LEGAL SERVICES / SMALL BUSINESS

You can advertise here, in

the Brooklyn Eagle’s LEGAL SERVICES DIRECTORY.


or call Alice: (718) 643-9099, extn. 107

You can advertise here, in

the Brooklyn Eagle’s LEGAL SERVICES DIRECTORY.


or call Alice: (718) 643-9099, extn. 107

On June 13, 2013, the Supreme Court is-sued a unanimous decision holding that“genes and the information they encode arenot patent eligible simply because they havebeen isolated from the surrounding geneticmaterial.” See Association for MolecularPathology v. Myriad Genetics Corp. (AMP),133 S. Ct. 2107, 2120 (2013). AttorneySewell’s publication entitled “UnanimousU.S. Supreme Court and Angelina Jolie:BRCA1 & BRCA2 Patentability” is widelydisseminated, well-received by his peers,and sparks considerable commentary.

BackgroundIn somewhat of a twist, the Supreme

Court’s decision against the patentability ofisolated DNA prompted more—not less—lit-igation by Myriad regarding gene patents.Between 1997 and 2013, Myriad’s revenuefrom its BRACAnalysis1 test steadily in-creased, and totals more than $2 billion.Myriad earned that revenue by carefullyguarding its patent rights and preventing oth-ers from providing screening tests for theBRCA1 and BRCA2 genes. From the mid-1990s, until the Supreme Court’s AMP deci-sion, Myriad was the lone provider of full-sequence BRCA1 and BRCA2 tests in theUnited States. Within days of the SupremeCourt’s AMP decision, Defendant Ambry Ge-netics Corporation2 announced plans to selltests less expensive than Myriad’s to screenBRCA1 and BRCA2 genes. Defendant now

offers a menu of at least six tests that includescreening for BRCA1 and BRCA2: a com-bined BRCA1/BRCA2 test, BRCAPlus,BreastNext, PancNext, Ova Next, and Can-cerNext. Defendant’s BRCA1/BRCA2 test isavailable for $2,200—substantially less than theprice for comparable testing offered by Myriad.

Soon after Defendant Ambry made its an-nouncement, Myriad filed a complaint in theDistrict Court of Utah alleging that Ambry’s ge-netic testing infringes several of Myriad’spatents. Myriad also moved for a preliminaryinjunction to enjoin Defendant Ambry fromsales or offers to sell “genetic tests including aBRCA1 or BRCA2 panel”. Ambry opposedthe motion, alleging that the claims were invalidunder 35 U.S.C. § 101 et seq. The district courtdivided the Myriad gene patent claims at issueinto the Primer Claims and the Method Claims.

On March 20, 2014, the Utah DistrictCourt held that Plaintiffs are not entitled to apreliminary injunction because “althoughPlaintiffs have shown they are likely to be ir-reparably harmed if an injunction does notissue, Defendant has raised substantial ques-tions concerning whether any of the patentclaims at issue in Plaintiffs’ Motion are di-rected toward patent eligible subject matterunder 35 U.S.C. § 101”. Myriad then ap-pealed to the Federal Circuit the denial of itsmotion for a preliminary injunction.

U.S. Federal Circuit Court Appeal

On October 6, 2014, Chief Judge Prostand Judges Dyk and Clevenger of the U.S.Court of Appeals for the Federal Circuit

heard oral argument in the interlocutory ap-peal of the Utah district court’s denial ofMyriad’s motion for preliminary injunctionagainst Ambry Genetics. In re BRCA1- andBRCA2- Based Hereditary Cancer TestPatent Litigation, Case Nos. 14-1361, -1366.The two main issues that dominated the ar-gument are: 1) the correct implementation ofthe test for patent eligibility; and 2) the ap-plication of this test to probes and primers.The impact on the biotechnology industrywas also discussed.

Jonathan E. Singer, counsel for Myriad,began by arguing that both the Federal Cir-cuit and the Supreme Court had previouslyacknowledged that Myriad was entitled topatent some applications of their newly-dis-covered gene sequence and tools designedspecifically to utilize that sequence. Myriadargues that primer pairs are patent subjectmatter eligible under 35 U.S.C § 101 becausethe pairs are structurally and functionally dif-ferent than a single fragment of DNA.Counsel for Myriad also argued that, as awhole, the method of screening for alter-ations on the BRCA genes involves steps ofthe method claims, when considered togeth-er, effect an improvement in a technical field– by using Myriad’s probes and primers thatMyriad invented.

With respect to the primer claims, Ambryargues that these claims are patent-ineligiblebecause, in addition to reciting patent-ineli-gible products of nature, the claims failunder Alice because they are a generic com-ponent used to amplify a person’s gene se-quence to access the sequence informationfor the patent-ineligible sequence compari-son. As for the method claims, Ambry ar-

gues that under Alice, “the combination ofunpatentable subject matter and a genericphysical application is no more patenteligible than a claim reciting only theunpatentable subject matter.” See AmbrySupplemental Brief at page 3.

Conclusion What is clear from the district and

appellate court arguments is that it does notappear likely that Myriad will be successfulin its attempts to preliminarily enjoinAmbry. Additionally, the biotechnologyindustry is looking towards the Federal Cir-cuit for guidance on the correct implemen-tation of patent subject matter eligibilityunder Myriad, Mayo, and Alice.

________________

Dayrel S. Sewell, JD, MPH is a registeredU.S. Patent Attorney admitted to practicebefore the Supreme Court of the United Statesand Principal of the LAW FIRM OF DAYRELSEWELL, PLLC (http://sewellnylaw.com) basedin New York City. In addition to intellectualproperty, the law firm specializes in clientservice and other areas of law. The firm may becontacted at: [email protected].

1. BRACAnalysis is a genetic test that con-firms the presence of BRCA1 or BRCA2 genemutations, responsible for the majority ofbreast and ovarian cancers.

2. Ambry Genetics Corporation is a clinicaldiagnostic and genomic services company inAliso Viejo, California.

Myriad Back in Court on Patent Subject Matter Eligibility

By: Dayrel S. Sewell, Esq.

will be held on Monday, April 27, 2015at the Colonia Country Club in Colo-nia, New Jersey. If this year is any-thing like the last two years, foursomeswill sell out well in advance of April.So, if you have any intention of joiningus for a day of golf and fun on April27th, I suggest that you get in touchwith our Executive Director right awayto reserve your tickets.

Congratulations are in order for allof our newly elected and elevatedjudges in Kings County. BBA TrusteeLara Genovesi, Hon. Cathy King, Hon.Evelyn LaPorte and Hon. Wavny Tous-saint have all been elected to the

Supreme Court Kings County. AndrewBorrok, Joy Campanelli, Lizette Colon,Cenceria P. Edwards and RosemarieMontalbano have been elected to serveon the Civil Court. I’m sure I speak onbehalf of our entire membership when Isay that we are very excited to wel-come these exceptional jurists to theirnewly elected positions on the bench.Judiciary Committee Chair and Imme-diate Past President Andrew M. Fallekhas announced that Judiciary Night2015 will be held on Wednesdayevening April 1, 2015 at 6:00 pm.Please mark your calendars for this im-portant event and please come showyour support for our judiciary.

RESPECTFULLY SUBMITTEDContinued from page 3


T H E S T A T E O F E S T A T E Sous girlfriends over the ten years prior to hisdeath, and lived with another woman imme-diately prior to the purchase of the apartmentwith the respondent. The Court pointed outthat while the son claimed that the decedentsuffered mental impairment as a result of hisillness, none of the medical records or otherevidence provided support for such a conclu-sion. In the Court’s view, the medical recordsoffered by the son as evidence of the dece-dent’s alcoholism and mental incapacity werenot probative of a weakened state of mind.The Court said the records showed that dece-dent was suffering from physical pain and ail-ments, but not that he suffered any mental im-pairments. The Court added that poor healthof a decedent, alone, is legally insufficient toestablish undue influence, and therefore heldthat the medical records did not support theclaim that the joint tenancy was entered intoby the decedent, through fraud or undue in-fluence. The Court concluded that even af-fording the son every favorable inference itappeared that while there may have been amotive and opportunity to exert undue influ-ence upon the decedent, it did not amount toactual undue influence without further sup-porting evidence, which the petitioner hadfailed to provide. Consequently, respondent’smotion to dismiss pursuant to CPLR §3211(a) (7) was granted. The Court also foundgrounds to dismiss on the basis of a defensefounded on documentary evidence. TheCourt opined that a dismissal pursuant toCPLR §3211 (a)(1) is warranted only if thedocumentary evidence submitted conclusive-ly establishes a defense to the asserted claimsas a matter of law and conclusively disposesof the plaintiff’s claim. The Court stated thatevidence is considered documentary when itis unambiguous, authentic, and undeniable,such as contracts, deeds, and mortgages. TheCourt pointed out that the decedent and therespondent entered into a Contract of Saleand lease agreement under the supervision ofan attorney. In the Court’s view, the contractof sale, proprietary lease and co-op agree-ment reflected an undeniable out-of-courttransaction and were admissible as documen-tary evidence, since the Court had determinedthat the documents were not procuredthrough fraud or undue influence. The Courtheld that the co-op agreement satisfied the re-quirements of CPLR §3211 (a)(1) and conse-quently granted respondent’s motion for dis-missal on the basis of documentary evidence.With regard to the claim that the decedent hadsevered the joint tenancy, the Court pointedout that a joint tenancy with a right of sur-vivorship may be severed unilaterally by oneof the joint tenants, without the consent of theother joint tenant, by either execution or de-livery of a deed that conveys legal title to athird person, or execution of a written instru-ment that evidenced intent to sever the jointtenancy. In the Court’s view, the decedent didnot need the consent of the respondent, oreven to inform her of his severance of thejoint tenancy. Consequently, despite the stepsthe decedent allegedly took toward severingthe joint tenancy, the Court found that suchactions did not constitute severance pursuantto RPL §240 (c)(1). Accordingly, the courtheld that, pursuant to CPLR §3017 (b), theRespondent was the sole owner of the coop-erative shares at issue, as the surviving jointtenant. Matter of Gorban, N.Y.L.J. 9/3/14, p.32, c. 5 (Surr. Ct., Richmond Co., Surr.Gigante) [Authors’ note: it does not ap-pear that the administrator son attackedthe transaction as a gift, which would haveplaced the burden of proof on the respon-dent to establish the elements, to wit:intent, delivery and acceptance.]

Preliminary Letters TestamentaryGranted Over Objections, but a Bond WasRequired To Be Posted- The nominated ex-ecutor applied for preliminary letters testa-mentary in the context of a probate proceed-ing. Objections were filed thereto. The dece-dent was survived by four children: the peti-

tioning daughter, the objecting son, and twoother daughters who supported their brother’sobjections. The decedent’s will nominatedthe petitioning daughter as executor and theobjecting son as the successor executor.Under the will, the decedent’s four childrenshared equally in her residuary estate. Boththe petitioning daughter and the objecting sonfiled petitions for the probate of decedent’swill. The petition of the objecting son re-quested that letters testamentary be denied tohis sister and be issued to him as “substituteexecutor.” The other two sisters consented tothe appointment of their brother as executor.the objecting son claimed that his sister wasincompetent to execute the duties of an ex-ecutor by reason of improvidence and dis-honesty. In support of this contention, thebrother alleged that his sister (1) was recent-ly thrown off an airplane for yelling obsceni-ties and threats; (2) barricaded herself indecedent’s home upon arriving in New Yorkafter decedent’s death; (3) disposed of someof the contents of decedent’s home onto asnowy front lawn; and (4) wrote in lipstick onthe windows of decedent’s home, revealingpersonal data of the other beneficiaries andusing profane language. In addition, thebrother claimed that decedent’s two televi-sion sets and silverware were missing. Hefurther claimed that there were tax lienspending against his sister. His sister did notrespond to the objections. HOLDING- Pre-liminary Letters Testamentary were grantedto the sister, but she was required to post abond. The Court opined that the purpose ofSCPA §1412 is to provide a form of letters tothe named executor which would allow forthe immediate administration of the estatewhen there may be a delay in probate and tohonor the testator’s preference regarding theappointment of a fiduciary, even on a tempo-rary basis, adding that preliminary lettersallow the estate administration to be expedit-ed and proceed as close to normal as possibleand prevent contests within a contest. TheCourt noted that it is well settled that a testa-tor’s choice of executor is entitled to greatdeference. The Court stated that the testatorenjoys the right to determine who is mostsuitable among those legally qualified to set-tle his affairs and execute his will, and hissolemn selection is not lightly to be disre-garded. The Court pointed out that underSCPA §1412, once process has issued in theprobate proceeding the Court must issue pre-liminary letters to the person or persons whoappear to the Court to be entitled thereto, un-less material and genuine issues of wrongdo-ing or misconduct are raised. The Courtadded that where a serious question has beenraised concerning the eligibility of the nomi-nated fiduciary, the Court may deny prelimi-nary letters testamentary, but that conclusoryallegations concerning a fiduciary’s lack offitness to serve will not result in the denial ofpreliminary letters testamentary. The Courtalso pointed out that hostility between theparties will not result in the Court’s denial ofpreliminary letters testamentary to the nomi-nated executor. The Court ruled that the alle-gations raised by the son, while troubling,were not sufficient to deny his sister’s appli-cation for preliminary letters testamentary onthe grounds that her appointment would pres-ent a serious endangerment of the estate.However, the Court found that the allegationswere sufficiently serious to raise concerns re-garding the sister’s ability to manage thedecedent’s estate in an appropriate and re-sponsible manner. The Court noted that underthe decedent’s will, the sister was nominatedand appointed to serve as executor without abond. However, the Court pointed out thatunder SCPA §1412 (5), even if a will dis-penses with the filing of a bond, the Courtmay require a bond if extraordinary circum-stances exist. Consequently, while grantingthe sister’s application for preliminary letterstestamentary, the Court required her to post abond. Matter of Curran, 2014 N.Y. Slip Op.51509 (Surr. Ct., Nassau Co., Surr. McCarty,9/30/14)

Notes Taken By Objectants of TheirConversations with Third Parties in theCourse of Investigating Whether to FileObjections Discoverable- Objections toprobate were filed by six distributees. Propo-nent moved to compel discovery of objec-tants’ notes memorializing their communica-tions with certain non-parties after dece-dent’s death. Objectants asserted that suchnotes were shielded from discovery by thequalified privilege attaching to materials pre-pared in anticipation of litigation or for trialand that they fell outside the time frame fordiscovery set forth in the Uniform Rules forSurrogate’s Court (22 N.Y.C.R.R. §207.27).In the course of deposing objectants, propo-nent learned that respondents based their ob-jections on information obtained from con-versations with third parties after decedent’sdeath. The conversations, by telephone or inperson, included discussions of decedent’sestate plan and will. One of the objectantstestified that he and other objectants madenotes of these conversations which theythereafter supplied to their lawyer, and thatthe information in the objectant’s notes fromthe non-parties formed the basis of their ob-jections. He further testified that at the timeof the conversations the distributees were in-vestigating whether they had grounds for ob-jections. Thereafter, proponent served docu-ment demands on objectants, seeking, interalia, any notes of the above-described con-versations. Objectants challenged the de-mands. HOLDING- Objectants were or-dered to turn over the notes to proponent.The Court opined that CPLR §3101 requiresthat there shall be full disclosure of all mat-ter material and necessary in the prosecutionor defense of an action. While acknowledg-ing that the statute provides a privilege formaterials prepared in anticipation of litiga-tion or for trial by or for another party, or byor for that other party’s representative, theCourt stated that the qualified privilege ofCPLR §3101(d) (2) applies only to materialswhich are prepared exclusively for litigation,and that the party opposing disclosure bearsthe burden of proving that the privilege ap-plies. The Court stated that where the motivefor preparing the material is mixed, even if apredominant motive was for use in litigation,the privilege is not available. In the Court’sview, in determining whether materials areprepared exclusively for litigation, theCourts look to the time they were created, thepossible uses of the information, and the re-lationship between the informant and theperson to whom information was provided.The Court stated that materials prepared dur-ing the investigatory stage of what later be-comes a litigation are generally not privi-leged, for reports prepared for the purpose ofassisting a party in making the decision to lit-igate or not are considered to have a mixedpurpose, and therefore must be disclosed.The Court ruled that where the objectants asnon-lawyers held conversations to explorethe facts that ultimately resulted in litigation,they could not show that the requested noteswere prepared exclusively for litigation, andtherefore the notes were not shielded fromdiscovery under CPLR §3101(d)(2). TheCourt also rejected the objectants’ positionthat, because the communications at issueand the notes made of those conversationsoccurred after decedent’s death, there werenot subject to discovery under Uniform Rule§207.27 for Surrogate’s Court which pro-vides that, in a contested probate proceeding,examinations before trial and production ofdocuments will be confined to a three-yearperiod prior to the date of the propounded in-strument and two years thereafter, or to thedate of decedent’s death, whichever is theshorter period unless special circumstancesare shown. The Court ruled that since theevents described in the notes occurred with-in the time frame of the rule, the notes werediscoverable without a further showing. Ac-cordingly, the Court held that the objectantswere required to turn over the notes whichwere the subject of the motion. Matter of

West, N.Y.L.J. 1/7/13, p. 17, c. 1 (Surr. Ct.,New York Co., Surr. Anderson, 12/28/12)

Attempt to Seal the Court Record InConnection With an Application to Con-tinue a Business under SCPA §2108 De-nied- The preliminary executors filed an exparte preemptive application pursuant to 22NYCRR §216.1(a) for an order sealing therecords of the estate. They request the Courtseal all information concerning the disclo-sure of revenues, expenses and profits, if any,of the decedent’s properties and all of thefacts and documents related thereto, includ-ing annual financial statements and ap-praisals. The decedent owned a real estatecompany and had a financial stake in sixcommercial properties at her death. Theclaimed basis for the application was thatdisclosure of the estate’s financial positionwould place it at an economic disadvantagein any future attempt to either sell or leasethe properties. The preliminary executorsalso urged in very general terms that disclo-sure would be detrimental to the estate if itwere to pursue deferral of estate taxes pur-suant to Internal Revenue Service Code§6166. HOLDING- The request for a seal-ing Order was denied without prejudice. TheCourt stated that Part 216 of the Court Rulesprovides in relevant part that except whereotherwise provided by statute or rule, a Courtmay not enter an Order in any action or pro-ceeding sealing the Court records, whether inwhole or in part, except upon a written find-ing of good cause, which shall specify thegrounds thereof, and that in determiningwhether good cause has been shown, theCourt must consider the interests of the pub-lic as well as of the parties. The Court addedthat there is a broad presumption that thepublic is entitled to access to judicial pro-ceedings and Court records, and that a partyseeking to seal Court records has the burdento demonstrate compelling circumstances tojustify restricting public access, which bur-den the Court characterized as substantial.The Court opined that a determinationwhether good cause exists must be on a caseby case basis, according to the facts. TheCourt pointed out that sealing the record isnot warranted when the information soughtto be sealed is already a matter of publicrecord and is manifestly of public interest,and noted that the assessed value of one ofthe decedent’s property interests was readilyavailable. The Court said that conclusoryclaims of the need for confidentiality wereinsufficient to find good cause, and that con-fidentiality was clearly the exception, not therule. The Court added that the type of pro-ceeding was an important factor to considerwhen determining whether good cause exist-ed to seal the record. In the Court’s view, afinding of good cause presupposed that pub-lic access to the Surrogate’s Court file wouldlikely result in harm to a compelling interestof the movants. The Court asserted that afinding of such good cause boiled down tothe prudent exercise of the Court’s discre-tion. In the Court’s view, the movants hadhypothesized about events, potential estateliability and financial transactions related tothe estate which had yet to occur, being en-tirely prospective. The Court found the ap-plication to be overbroad and lacking inspecificity to provide a sound basis or legiti-mate need to take judicial action. The Courtruled that disclosure with appropriate redac-tion as the estate unfolded would more dis-cretely accomplish the protective as well asinformational ends of both its interests andthe public. Consequently, the Court deniedthe motion without prejudice. Matter ofPatrick, N.Y.L.J. 4/26/14, p. 21, c. 3 (Surr.Ct., Dutchess Co., Surr. Pagones, 4/17/14)

Compiled by Hon. Bruce M. Balter,Justice of the Supreme Court, KingsCounty, Chair, Brooklyn Bar Association,Surrogate’s Court Committee, and Paul S.Forster, Esq., Chair, Brooklyn Bar Associ-ation, Decedent’s Estates Section.



The BBA 2014 Annual Dinner event. Past President Bonina also thankedher two “sisters” Amy Insler and DeborahTretola who have worked in her firm forover twenty years. She also acknowledgedher father now deceased who started thefirm of Bonina and Bonina and who wasone of the greatest medical malpracticetrail lawyers Brooklyn has ever seen. Herdad was no doubt proudly smiling downupon this event.

The evening came to a close with adelicious dinner and desert. The trulyspecial nature of the event was reflected

by the many attendees who lingered andchatted with friends and colleagues afterthe speeches, dinner and dessert weredone. It was nice to see the many attor-neys, who do battle against each other incourt every day and who work at thischallenging profession, come together foran evening of socializing and recognitionof the achievements of fellow attorneysand judges and by doing so genuinelyreflect the positives of our professionwhich is memorialized by the words in theBBA logo: “Justice, Integrity, Honor andCourtesy.”



, BROOKLYN BARRISTER JANUARY/FEBRUARY 2015


The BBA 2014 Annual Dinner

Second Vice-President Aimee Richter, Past President Rose Ann C. Banda, Trustee Marianne Bertuna.


THE OFFICIAL PUBLICATION OF THE BROOKLYN BAR … · Aimee L. Richter, Second Vice President David...

Documents

Transcript of THE OFFICIAL PUBLICATION OF THE BROOKLYN BAR … · Aimee L. Richter, Second Vice President David...