BARRISTER, JUNE 2014_070114.qxd (Page 1)

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

©2014 Brooklyn Bar Association June 2014 VOL. 66 NO. 9

Rebecca Rose Woodland Inducted as BBA PresidentCompiled by Glen Verchick, Esq. ...............Pg. 1The DocketCompiled by Louise Feldman ...................Pg. 2New Members, May 2014 .......................Pg. 2Legal BriefsBy Avery Eli Okin, Esq., CAE ......................Pg. 2Respectfully SubmittedBy Rebecca Rose Woodland, Esq. ...............Pg. 3The State of EstatesBy Hon. Bruce M. Balter andPaul S. Forster, Esq. .....................................Pg. 4NYS Commercial Landlord-Tenant Law & Procedure Part IIIBy Gerald Lebovits and Michael Terk, Esq......Pg. 5 Induction Photos ....................................Pg. 6-7Elder Law Update. Anthony Lamberti, Esq. ................................Pg. 9

What’s Inside

On June 11, 2014, Rebecca Rose Woodlandwas inducted as the Ninety Ninth President ofthe Brooklyn Bar Association. The event washeld in the Ceremonial Courtroom of theBrooklyn Borough Hall. This architecturalmasterpiece was a fitting setting for this eventand was filled to capacity with friends, col-leagues and distinguished members of the judi-ciary and legislature.

The evening was hosted by Brooklyn BarAssociation Immediate Past President AndrewM. Fallek, who managed to pay tribute to themany dignitaries in attendance while movingthe event along efficiently and with a fine senseof humor.

After the invocation by Rabbi Joseph Potas-nik and the presentation of the Citation of theBorough President of Brooklyn by AndrewGounardes, Counsel to the Brooklyn BoroughPresident, the first speaker was Glenn Lau-Kee,President of the New York State Bar Associa-tion. President Lau-Kee acknowledged themany accomplishments of the Brooklyn BarAssociation, which he noted was formed fouryears before the State Bar Association. In par-ticular, he praised the work of the VolunteerLawyers Project.

BBA Past President Steven D. Cohen intro-duced the many judges, elected officials andbar leaders who were in attendance for this

wonderful event. Next, Hon. Marsha Stein-hardt, the newly inducted President of theBrooklyn Woman’s Bar Association, spoke andpraised President Woodland as a good friendand a person always willing to help others. Shevowed to work together with President Wood-land to present joint continuing legal educationprograms in conjunction with her organization.

Administrative Justice of the Civil Term,Kings Supreme, Lawrence Knipel, spoke nextfollowed by Hon. Frank R. Seddio. Both menspoke highly of President Woodland as a per-son and as a lawyer. In particular, Frank Seddioremarked that Rebecca was one of the nicestpeople he has ever known. He said she was,“smart, well spoken and determined — in a

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Rebecca Rose Woodland Inducted As The NinetyNinth President Of The Brooklyn Bar Association

BROOKLYN BARRISTERFICTION CONTEST WINNER

ARTHUR SUSNOW, ESQ.for: “The Client From Hell”(To be published in July)

HONORABLE MENTION

JACQUELINE MCMAHON SMITH, ESQ.for: Book Chapter submission

Rebecca Rose Woodland, President of the Brooklyn Bar Association, with Avery Eli Okin,Esq., CAE, Brooklyn Bar Association Executive Director and Andrew M. Fallek, right,Brooklyn Bar Association Immediate Past President. Photo courtesy of the Brooklyn Bar Association

By: Glenn Verchick, Esq.

Members of the Brooklyn Bar Association who traveled to Washington, D.C. to be admitted to practice before the SupremeCourt of the United States of America. Photo courtesy of the Brooklyn Bar Association

Page 2, BROOKLYN BARRISTER JUNE, 2014

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 MEMBERSMONTH OF MAY 2014

IBRAHIM ABOHAMRACLAUDIA AVINGRAHAM DICKSONCHRISTOPHER DONADIOGARY ELIASJOSEPH FANRENEE FINNMICHAEL FRANCIS

JEFFREY GRECOJUDIE ILUSMICHAEL KOZEKELAN LAYLIEVSUSAN MAURODAVID PANTALEONIKRISTA PREUSSDOMENIC ROMANO

SHALIZ SADIGJILL TEITELGAIL TORODASH

STUDENT MEMBERSJESSICA RICKARDS CHARMAIN REID

LEGAL BRIEFS

Included below are events which have been scheduled for the period July 4, 2014 through December 31, 2014

Compiled by Louise Feldman

July 4, 2014 Friday In observance of Independence Day the Brooklyn Bar Association Building includingthe Volunteer Lawyer Project, the Lawyer Referral Service, and the Foundation Librarywill be closed.

September 1, 2014 Monday In observance of Labor Day the Brooklyn BarAssociation Building including the VolunteerLawyer Project, the Lawyer Referral Service,and the Foundation Library will be closed.

September 9, 2014 Tuesday VLP Board MeetingBoard of Trustees Room, 5:30 PM

CLE Bankruptcy Part IAuditorium, 6:00 PM

September 10, 2014 Wednesday Brooklyn Bar Association Board & Foundation MeetingsBoard of Trustees Room, 5:15 PM

September 16, 2014 Tuesday CLE Bankruptcy Part IIAuditorium, 6:00 PM

September 17, 2014 Wednesday CLE Sports Law & Mets GameCitifield, 5:30 PM

September 23, 2014 Tuesday CLE Bankruptcy Part IIIAuditorium, 6:00 PM

October 8, 2014 Wednesday Brooklyn Bar Association Board & Foundation MeetingsBoard of Trustees Room, 5:15 PM

October 13, 2014 Monday In observance of Columbus Day the Brooklyn Bar Association Building including the Volunteer Lawyer Project, the Lawyer Referral Service, and the Foundation Librarywill be closed.

November 11, 2014 Tuesday In observance of Veterans Day the BrooklynBar Association Building including the Volunteer Lawyer Project, the Lawyer Referral Service, and the Foundation Library will be closed.

November 12, 2014 Wednesday Brooklyn Bar Association Board & Foundation MeetingsBoard of Trustees Room, 5:15 PM

November 27 & 28 2014 Thurs/Fri In observance of Thanksgiving the BrooklynBar Association Building including the Volunteer Lawyer Project, the Lawyer Referral Service, and the Foundation Librarywill be closed.

December 2, 2014 Tuesday VLP Board MeetingBoard of Trustees Room, 5:30 PM

December 8, 2014 Monday Brooklyn Bar Association Foundation DinnerMarriott at the Brooklyn Bridge Hotel, 6:00 PM

December 25, 2014 Thursday In observance of Christmas Day the Brooklyn Bar Association Building including the Volunteer Lawyer Project, the Lawyer Referral Service, and the Foundation Librarywill be closed.

THE DOCKET LEGAL BRIEFSJUDICIAL RECOGNITION

Congratulations to Brooklyn Bar Associ-ation member Hon. Marsha Steinhardtwho was installed as the President of theBrooklyn Women’s Bar Association at an in-duction ceremony held on Tuesday June 10,2014 in the Central Jury Room of 360Adams Street. Other BBA Judicial membersinstalled that evening included Hon. EllenSpodek as Vice President and Hon. SlyviaAsh, Hon. Nancy Bannon, Hon. GenineEdwards , Hon. Sylvia O. Hinds-Raddix,Hon. Shawndya Simpson and Hon. LillianWan. Selected and installed as Delegates tothe Women’s Bar Association of the State ofNew York that same evening were Hon.Theresa Ciccotto, Hon. Deborah Kaplanand Hon. Joanne Quinones.

KUDOS AND PROFESSIONALRECOGNITION

Congratulations to the following individualswho were sworn in on June 10, 2014 as officersof the Brooklyn Women’s Bar Association.They include Helene Blank, Sue NovickWasko and Joanne Minsky Cohen as VicePresidents, BB Liu as Treasurer, Sara Gozo asRecording Secretary and Natoya McGhie asCorresponding Secretary. Also installed as Di-rectors of the BWBA were Carrie Anne Caval-lo, John Coffey, Barbara Grcevic, DeborahJohson, Anqelique Moreno, Derefim Neckles,Harriet Polinsky, Lisa Schreibersdorf and JoyThompson. Brooklyn Bar Association TrusteeElaine Avery, a past president of the Women’sBar Association of the State of New York wasalso selected to be a delegate to the WBASNY.

Word has reached the Brooklyn Bar As-sociation that Bartholomew T. Russo waselected in May and was installed on Friday

evening June 13, 2014 as the President of theColumbian Lawyers Association of Brook-lyn at a dinner held at the El Caribe CountryClub. Also selected for the CLA ExecutiveBoard were Brooklyn Bar Association PastPresident Rose Ann C. Branda as First VicePresident, Dean Delianites as Second VicePresident, Linda LoCascio as Third VicePresident, BBA Past President Mark A.Longo as Treasurer, BBA Trustee Joseph S.Rosato as Corresponding Secretary, Hon.Frank R. Seddio as Recording Secretaryand George J. Siracuse as Historian. Se-lected and installed as members of the Boardof Directors of the Columbian Lawyers As-sociation were BBA Trustee Lara Genovesi,Marie Aragona, Christopher Caputo andSalvatore J. Sciangula.

Congratulations to Brooklyn Bar Associ-ation member Bruce Baron who received“The Alumni Achievement Award” from theSt. John’s School of Law Alumni Associa-tion on Wednesday June 11, 2014.

BEREAVEMENTSThe Brooklyn Bar Association extends its

deepest sympathy to the Pepe Family on thepassing of long time member Thomas A.Pepe on February 14, 2014.

The Brooklyn Bar Association extends itsdeepest sympathy to former Trustee LeardoLuis Lopez on the passing of his motherMarta Irene Cedeno on June 6, 2014 at theage of 85.

Legal Briefs is compiled and written by AveryEli Okin, Esq., CAE, the Executive Director ofthe Brooklyn Bar Association and its Founda-tion. Items for inclusion in “Legal Briefs”should be sent to [email protected], faxedto 718-978-1713 or mailed to 123 Remsen Street,Brooklyn, New York 11201-4212.

JUNE, 2014 BROOKLYN BARRISTER, Page 3

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. 9 June, 2014. The Brooklyn Barrister (ISSN 007-232 USPS 066880) is published monthly except in August and December by the Brooklyn Bar Association. Office of publication is: Brooklyn Bar Association, 123 RemsenStreet, Brooklyn, New York 11201-4212. Telephone No. (718) 624-0675. Periodical postage is paid in Brooklyn, New York and at additional mailing offices. Subscription price is $11.00 per year. POSTMASTER: Send address changes tothe Brooklyn Barrister, 123 Remsen Street, Brooklyn, NY 11201-4212.

BROOKLYN BARRISTER EDITORIAL BOARDGlenn VerchickEditor-in-Chief

Diana J. SzochetManaging Editor

Aimee L. RichterArticles Editor

Cecilia N. AnekweHon. Bruce M. BalterJaime J. BorerMark DiamondJason EldridgePaul S. ForsterJason D. Friedman

Anthony LambertiHemalee J. PatelRobert P. SantoriellaMichael TreybichAlexis VigilanteShelly WerbelGregory Zenon

I welcome you all to my first column asPresident of the Brooklyn Bar Association. Ihope this issue of the Barrister finds you well.

On June 11, 2014 I had the privilege and honorof taking part in the Brooklyn Bar AssociationInstallation of Officers and Trustees in theceremonial courtroom of Brooklyn Borough Hall.Congratulations are in order to my fellow officerswho were installed: Frank Carone, Treasurer,David Chidekel, Secretary, Aimee Richter, SecondVice President, Hon. Frank Seddio, First VicePresident, and Arthur Aidala, President-Elect.What an amazing team of bar leaders I will havethe pleasure of working with this coming year.

I was so humbled and touched by your warmreception and the fact that so many of you cameout to celebrate with us. The incredible turnoutwe had is a testament to the health and vitality ofthis Association. It was truly a great night anda memorable ceremony.

Our Installation Dais consisted of eleven verydistinguished speakers, all of whom I owe a debtof gratitude to for taking the time out of theirbusy schedules to help make the event spectacu-lar. Andy Fallek, Immediate Past President of theBrooklyn Bar Association served as our masterof ceremonies. Rabbi Joseph Potasnik delivereda beautiful blessing. Past President Steven Cohnrecognized special guests in attendance anddelivered heartfelt remarks. Andrew Guorardes

Counsel to the Borough President, presented acitation on behalf of the Borough President.Kings County Administrative Judge LawrenceKnipel, Justice Marsha Steinhardt, JusticeGeorge J. Silver, County Leader Frank Seddio,NYSBA President Glenn Lau-Kee and PastPresident John Lonuzzi all delivered kind remarks.Appellate Division Justice Cheryll Chambersdelivered remarks and installed all officersand trustees.

A special “thank you” is in order first andforemost to Immediate Past President Andrew

Fallek. He is owed a debt of gratitude for thehard work he did this past year as President of theBrooklyn Bar Association. Andy worked tirelesslyto make sure that the transition from his term tomine would be seamless and that all loose endswere tied up before I took office. Andy’s hardwork allowed me to start my term with a cleanslate so I could focus on new matters. Andy wasa masterful emcee — his wit and humor set thetone for the evening.

My dear friend and mentor, Past PresidentSteven Cohn was gracious enough to do us thehonor of recognizing all of the dignitaries andspecial guests in attendance. Steve also deliveredlovely and heartfelt remarks that will be forevercherished. I can’t thank Steve enough for beingsuch an important part of our Installation ceremony.

Rabbi Potasnik entertained us all with his witand charm before delivering a beautiful non-denominational blessing to all in attendance.

We were all touched that Glen Lau-Kee, whowas recently installed as the first Asian-AmericanPresident of the New York State Bar Association,took the time from his incredibly busy scheduleto help us install our officers and directors. Hav-ing had a chance to first meet and spend sometime with President Lau-Kee in Chicago at theBar Leadership Institute, I can assure you that we

will be working closely together this year topromote the interests of the members of ourrespective associations.

Andrew Guonardes Counsel to the BoroughPresident, presented a special citation on behalfof Borough President Eric Adams, who wasdelayed in arriving to the ceremony, but made itto Borough Hall well in time to celebrate with usat the reception in the rotunda. I look forward tobuilding a strong relationship with BoroughPresident Adams and his staff during my term sothat we can promote and foster communityoutreach and the delivery of quality and afford-able legal services to the people of Brooklyn. Tothis end, Executive Director Avery Eli Okin andI already have a meeting scheduled with BoroughPresident Adams for this summer.

I also have to thank Administrative JusticeLawrence Knipel for taking part in our Installa-tion ceremony. It is extremely important to methat the bench and the bar in Brooklyn maintaina strong relationship. Since becoming AJ of theCivil Term of the Kings Supreme Court, JusticeKnipel has gone out of his way to reach out to theBrooklyn Bar and seek our input on importantissues. I look forward to working with JusticeKnipel on a host of issues affecting the bench and

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


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

Weather conditions continue to be confound-ing and we still expect a scorching summer. It ishoped that you will be able to find respite andrefuge in cool environs and will enjoy informationabout a new Court Rule restricting “public” accessto certain parts of Surrogate’s Court files and someinteresting cases involving the liability of a plain-tiff in a contract action for the attorney’s fees of adefendant from that point forward, where theplaintiff fails at trial to obtain a better result thanwas offered by defendant; the amount of attor-neys’ fees payable out of an estate for prosecutionof a cause of action for wrongful death and for rep-resenting the fiduciary of the estate in the Surro-gate’s Court proceedings being limited in the ag-gregate to one-third of the estate; the Surrogate’sCourt transfer to itself of an eviction case againstthe estate pending in the Housing Part of the CivilCourt brought by a cooperative corporation fornonpayment of maintenance and other fees; puta-tive objectants to a will being allowed to withdrawWaivers and Consents to Probate previously exe-cuted and filed; the interpretation of a testamentaryinstrument as effectuating only the appointment ofan executor with no direction as to the dispositionof the decedent’s assets; reservation of the ques-tion whether the terms of a testamentary instru-ment are precatory to a construction proceedingafter the will is admitted to probate, and the valid-ity of an instrument which does not name an ex-ecutor; one-third of an estate passing by intestacyby reason of a claimed scrivener’s error in omit-ting a paragraph in the residuary clause in thedecedent’s will; denial of summary judgment for agift by implication even though the decedent’s willby its terms did not provide for a complete dispo-sition of the decedent’s property; the denial of a re-quest to terminate a $250,000 trust as uneconomi-cal; the incapacity of a fiduciary to appear pro seon behalf of an estate; the inability of an heir of a‘parent’ of an alleged equitable adoptee to obtainletters of administration to commence a suit for thewrongful death of the alleged ‘adoptee’; the un-availability of a statute of limitations defense at theinquisitorial stage of an SCPA §2103 discoveryproceeding; and the strong presumption of the va-lidity of a second marriage where there have beentwo ceremonial marriages.

New Surrogate’s Court Rule Restricts“Public” Access to Certain Parts of Surrogate’sCourt Files- A new official Surrogate’s CourtRule §207.64 has been promulgated which statesas follows:

“The following documents may be viewedonly by persons interested in the estate of the dece-dent, as defined by SCPA § 103(39), or their coun-sel; the Public Administrator or counsel thereto;counsel for any Federal, State or local governmen-tal agency; or court personnel; except upon writtenpermission of the Surrogate or Chief Clerk of thecourt, which shall not be unreasonably withheld:

(1) all papers and documents in proceedingsinstituted pursuant to Articles 17 or 17-A of theSCPA;

(2) death certificates;(3) tax returns;(4) documents containing social security

numbers;(5) Firearms Inventory; and(6) Inventory of Assets.”After Rejecting Defendant’s Settlement

Offer, Plaintiff in a Contract Action Liable forthe Attorney’s Fees of a Defendant from ThatPoint Forward, Where the Plaintiff Fails atTrial to Obtain a Better Result than Was Of-fered by Defendant- Plaintiff brought a breach ofcontract claim against defendant corporation andagainst a corporate principal individually. Prior totrial, defendant made an offer to liquidate. Duringthe trial, plaintiff stipulated to withdraw her claimsagainst the individual defendant. The plaintiff suc-ceeded against the corporate defendant. The indi-vidual defendant sought her legal fees underCPLR §3220 in as much as, by reason of the with-drawal of the plaintiff’s claim against her duringtrial, the plaintiff received less ($0) than had beenoffered prior to trial. The request for legal fees bythe individual defendant was denied and she ap-pealed. HOLDING- The Appellate Division re-versed, ruling that the individual defendant wasentitled to a hearing on the amount of her individ-ual attorney’s fees, if any, under CPLR §3220. TheAppellate Division held that having failed to ob-tain a more favorable judgment than the offer,plaintiff became liable for defendant’s costs and

attorney’s fees thereafter. Abreu v. Barkin and As-sociates, Inc., et. al., 115 A.D.3d 624 (2nd Dept.,2014) [Authors’ note: under the Court’s hold-ing, the right to attorney’s fees under CPLR§3220 would appear also to apply to its com-panion section, CPLR §3221, and would seemto have broad and significant application.]

The Amount of Attorneys’ Fees Payable outof an Estate for Prosecution of a Cause of Ac-tion for Wrongful Death and for Representingthe Fiduciary of the Estate in the Surrogate’sCourt Proceedings Limited in the Aggregate toOne-Third of the Estate- The administrator ofthe decedent’s estate sought authority to compro-mise and enter into a $150,000 settlement of heraction in Supreme Court for decedent’s wrongfuldeath. Petitioner also sought to judicially settle heraccount for and distribute the proceeds. The dece-dent died at age 46 from blunt impact trauma,which he suffered when he was hit by a taxi as apedestrian. He never regained consciousness afterthe impact. The settlement amount was alleged tobe the limit of defendants’ insurance coverage.The petition requested that amounts be paid to theattorney handling the tort action in Supreme Courtfor reimbursement of disbursements and 33 and1/3 percent of the remaining proceeds as attor-neys’ fees. The petition also sought to pay differ-ent counsel, who handled the applications in theSurrogate’s Court that concerned the wrongfuldeath action, additional attorney’s fees and dis-bursements. HOLDING- The Court limited theaggregate attorneys’ fees to one-third of the net re-covery. The Court found that given that the Appel-late Division, First Department rule mandates thatlegal fees shall not exceed one-third (net of certainexpenses) of the settlement, the Court was re-quired to include the legal fees of the administra-tor’s counsel for applications in the Surrogate’sCourt in respect of the action within the one-thirdcontingency fee permitted. The Court ruled that toallow fees to separate counsel in an amount thatexceeded the 33 and 1/3 percent for work doneonly to obtain limited letters of administration tobring that action and to seek compromise of itwould circumvent the Appellate Division rule.Matter of Diouf, N.Y.L.J. 4/14/14, p. 17, c. 1(Surr. Ct., New York Co., Surr. Mella) [Authors’note: although not discussed in the Decision,under EPTL 5-4.4(b) the commissions of a fi-duciary are calculated upon the net, not gross,wrongful death recovery.]

Surrogate’s Court Transfers to Itself anEviction Case Against an Estate Pending in theHousing Part of the Civil Court Brought by aCooperative Corporation for Nonpayment ofMaintenance and Other Fees- During the pen-dency of a contested accounting proceeding, theexecutor sought to transfer a case from Civil Courtof the City of New York where the cooperativecorporation had moved to evict the estate from thedecedent’s apartment for non-payment of mainte-nance and additional fees. The executor’s requestwas opposed by the cooperative corporation butwas supported by the fiduciary of the primary ben-eficiary, who argued that the two proceedings havecommon issues and thus are best tried in one court.HOLDING- The executor’s application wasgranted. The Court opined that the Surrogate’sCourt clearly had jurisdiction to order such a trans-fer under SCPA §§209[3] and 501), and thatwhether or not to do so was a matter within theCourt’s discretion. The Court ruled that in further-ance of the general principle that wherever possi-ble, all litigation involving the property and fundsof a decedent’s estate should be disposed of in theSurrogate’s Court, the Court would exercise itsdiscretion in favor of the requested transfer. Ac-cordingly, the executor’s motion to transfer theCivil Court proceeding to the Surrogate’s Courtwas granted. Matter of Clark, N.Y.L.J. 1/31/14, p.21, c. 2 (Surr. Ct., New York Co., Surr. Anderson)

Putative Objectants to a will Allowed toWithdraw Waivers And Consents to ProbatePreviously Executed and Filed- In a probate pro-ceeding, the decedent’s children moved to vacatetheir Waivers of Process and Consents to Probatein order to object to the appointment of the nomi-nated executor, the decedent’s surviving spouse.The spouse executor objected to the application.According to the decedent’s children, they execut-ed the Waivers of Process and Consents to Probatebased upon an assurance from the spouse’s first re-tained attorney that probate would proceedpromptly and smoothly and that he would cooper-ate with their desire to retain the decedent’s twen-ty-five (25) per cent interest in real property locat-ed in Brooklyn, New York. The spouse then firedhis first retained attorney and retained a new

attorney. The decedent’s children were aware ofthe change in counsel and of the new counsel’s in-tention to proceed with the filing of the probate pe-tition. However, a day before the probate petitionwas filed, counsel for the decedent’s children senta letter by facsimile and electronic mail to the es-tate counsel stating that they revoked their Waiversof Process and Consents to Probate. Estate counseldid not receive the correspondence regarding thedecedent’s children’s revocation of their Waiversthe day of, but after, the filing of the petition andWaivers. The decedent’s children allege that theyshould be permitted to withdraw their Waivers be-cause, pursuant to SCPA §707 (1)(e), they hadmeritorious objections to the issuance of letters tothe spouse, they had demonstrated a reasonableprobability of success on said objections, and thatit was in the interest of justice to restore all partiesto their former position. It was alleged that thespouse had removed and retained valuable items,including cash and jewelry, from a safe depositbox that the decedent’s daughter owned with thedecedent. The spouse opposed the motion, assert-ing that had there been no delay due to his substi-tution of attorneys, Letters Testamentary would al-ready had been issued to him, and the distributionof estate assets completed. The spouse alleged thatthe claims of misappropriation of funds madeagainst him were false in that the property from thesafe deposit box he held jointly with the decedentbecame his by operation of law, and that the nameof the decedent’s daughter was added to a box thatcontained items of the decedent as a matter of con-venience, so that she would have access to thedecedent’s important papers. The spouse alsonoted the need to bring a wrongful death action onbehalf of the decedent’s estate and several hospitaland physician’s invoices which needed to be paid.HOLDING- The children were allowed to with-draw their Waivers. The Court opined that the testfor determining whether to grant leave to with-draw a Waiver and Consent to Probate differs, de-pending on whether or not a probate decree had is-sued. The Court stated that where the applicationis made prior to the entry of a probate Decree, theCourts liken the Waiver and Consent to a stipula-tion, and treat the application accordingly. TheCourt said that the parties may be relived from theterms if the consent was entered into inadvisedlyor if it would be inequitable to hold the parties toits terms. The Court added that where the Will hasnot been admitted to probate, an application towithdraw a Waiver and Consent should be grantedif it appears that none of the parties will be preju-diced, and can be restored to substantially thesame former position. The Court noted that thedecedent’s children had moved expeditiously towithdraw their Waivers and Consents to thespouse’s appointment as executor, and that hadthere not been a missed communication betweencounsel, the need for the motion might not evenhave arisen. The Court pointed out that the dece-dent’s children objected to the appointment of thespouse as the executor of their mother’s estate, butnot to the probate of the will, and that should thespouse be appointed as the executor, it expectedthat a motion to revoke his letters pursuant toSCPA §707 would shortly follow, thereby only de-laying the inevitable proceedings to determine hiseligibility to serve as a fiduciary. Accordingly, theCourt found that it would be inequitable to holdthe decedent’s children to the terms of theirWaivers and Consents, and that no prejudice wouldresult by permitting the Waivers and Consents to bewithdrawn. Consequently, the application wasgranted. Matter of Knee, N.Y.L.J. 4/21/14, p. 26, c.4 (Surr. Ct., Richmond Co., Surr. Gigante)

A Testamentary Instrument Interpreted asEffectuating Only the Appointment of an Ex-ecutor With no Direction as to the Dispositionof the Decedent’s Assets- Decedent died at age 88survived by his wife and an adult daughter. Hiswill was admitted to probate and letters testamen-tary thereunder were issued to his wife. The wife-executrix petitioned for a construction of the dece-dent’s will that would leave the entire estate to her.In pertinent part, the decedent’s will stated only “IRichard J. Borowiak, being of Sound mind andbody, Without any ones influence, am designatingmy wife, MARIAN M. BOROWIAK, To b[e]sole executor of my estate — (Property, Bank Ac-counts Stocks & Equipment). In the event of anyaccidents, Health Failures or otherwise, I do notwish to be resuscitated.” The wife contended that,because this was not an attorney drafted will, a re-laxed view of the contents of the instrumentshould be taken and that the designation of her ”tob[e] sole executor of my estate“ should be con-strued as encompassing language somewhat along

the lines of ”to inherit all of my estate“. The wifeasked that the language of the will be interpretedfrom decedent’s point of view as a layman, andmore liberally than would be the language of an at-torney, particularly that the testator’s use of theterm ‘sole executor’ be interpreted to mean that heintended the phrase ‘sole executor’ to both appointhis spouse as fiduciary and name her as his solebeneficiary. In the wife’s view, any other readingwould be contrary to the intent and dominant planor purpose’ of the testator when the will is read asa whole. HOLDING- The Court denied the con-struction requested and ruled the estate be distrib-uted under intestacy. The Court opined that thepurpose of a will construction proceeding is to de-termine decedent’s intent from a reading of the en-tire instrument. The Court added that the primeconsideration in all construction proceedings is toascertain the intention of the testator as expressedin the will. The Court noted that all rules of inter-pretation are subordinated to the requirement thatthe actual purpose of the testator be sought and ef-fectuated as far as is consonant with principles oflaw and public policy. The Court pointed out thatthis intent must be gleaned not from a single wordor phrase but from a sympathetic reading of thewill as an entirety and in view of all the facts andcircumstances under which the provisions of thewill were framed. The Court opined that if theCourt upon reading the will in this setting discernsa dominant purpose or plan of distribution, the in-dividual parts of the will must be read in relationto that purpose and given effect accordingly, de-spite the fact that a literal reading of the portionunder construction might yield an inconsistent orcontradictory meaning. The Court noted that thedecedent’s will contained only two substantiveprovisions, the designation of his wife to be thesole executor of his estate, and the decedent’s donot resuscitate instructions in the case of an acci-dent or in the event of health failures or otherwise.The Court found no provision in the instrumentdisposing of any of decedent’s property. In theCourt’s view, the will was a hybrid document, thedo not resuscitate provision clearly being intendedas a direction to anyone reading the document tobe followed while decedent was alive, in the na-ture of a living will. The Court contrasted that withthe statutory definition of a will as an oral declara-tion or written instrument, made as prescribed byEPTL §3-2.1 or EPTL §3-2.2, to take effect upondeath, whereby a person appoints a fiduciary ormakes any other provision for the administrationof his estate. The Court pointed out that only thefirst provision of the decedent’s will, which nomi-nated his wife as executor of his estate, took effectafter his death. The Court found this to be a prop-er testamentary direction, even if it was the onlydirection to take effect once decedent had died.The Court acknowledged that most often wills dis-pose of the decedent’s property, but pointed outthat it was not an unknown thing that the sole ob-ject of the making of a last will has been to appointan executor, giving no testamentary disposition ofthe estate, but leaving the executor to dispose of itaccording to the statute of distribution. The Courtadded that EPTL 1-2.19(a) expressly so provides.The Court concluded that only the first substantiveparagraph of the subject instrument constituted awill within the meaning of the statute and relevantcase law, its sole purpose being to direct who shallbe the executor of decedent’s estate. The Courtfound that to be the instrument’s dominant purposeand plan, and in fact its only purpose and plan. TheCourt further found and concluded that there wereno provisions in the instrument directing the dis-position of decedent’s property, in whole or in part.The Court ruled that it was not statutorily, linguis-tically, or legally proper to construe the instrumentas the wife requested, and denied the wife’s requestin all respects, and directed that the decedent’s es-tate pass according to the laws of intestate distribu-tion. Matter of Borowiak, 2014 N.Y. Slip Op.50444 (Surr. Ct., Erie Co., Surr. Howe, 3/25/14)

Question Whether the Terms of a Testa-mentary Instrument Are Precatory Reservedto a Construction Proceeding After the will isAdmitted to Probate; Instrument May Be ValidEven if it Doesn’t Name an Executor- In a pro-bate proceeding, the respondent moved for anorder determining that the document offered forprobate was not a testamentary instrument. It wasalleged by the respondent that the instrument didnot direct the disposition of the testator’s propertyand therefore was not a testamentary instrument. Itfurther was alleged that the failure to provide forthe appointment of an executor should result in adenial of probate. Respondent moved for an order

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


Gerald Lebovits is a New York City CivilCourt judge and an adjunct professor of law atColumbia, Fordham, NYU, and New York LawSchool. Michael B. Terk is an associate withDavid Rozenholc & Associates. The authorsthank Shogik Oganisyan, an associate at CohenHochman & Allen, and Todd M. Neuhaus, a stu-dent at Benjamin N. Cardozo School of Law, fortheir generous contributions. Some research inthis article comes from Gerald Lebovits, DamonP. Howard & Michael B. Terk, New York Resi-dential Landlord-Tenant Law and Procedure —2012-2013 (5th ed. 2013).

Parts I and II of this article, published in theFebruary and March 2014 issues of the BrooklynBarrister, covered general procedures and plead-ings in summary proceedings, holdover proceed-ings, nonpayment proceedings, illegal lockoutproceedings by tenants against landlords, andpersonal jurisdiction and service of process insummary proceedings. We continue with defensesagainst summary proceedings, trials and set-tlements in summary proceedings, defaults andevictions in summary proceedings, venues wheresummary proceedings are adjudicated, variousplenary actions between landlords and tenantsoutside the context of summary proceedings, andthe implications of bankruptcy on the landlord-tenant relationship.

F. Defenses against Summary Proceedings

The foregoing requirements for summaryproceedings might seem like a guide for land-lords’ attorneys seeking to commence and prose-cute summary proceedings. But these require-ments are equally relevant and useful to tenants’attorneys defending against summary proceed-ings, as a landlord’s failure to comply with any ofthese requirements will form a defense againstthe landlord’s petition and be a potential groundfor dismissal.

Some of the more common defenses againstsummary proceedings by commercial tenantsinclude the following:

Traverse/service of process/lack of personaljurisdiction.

Omitting required elements of the petition. Apetition is defective if it is missing or misstatesrequired elements of the petition under RPAPL741, such as an accurate description of eachparty’s interest in the property and a completeand accurate description of the premises fromwhich removal is sought. These omissions ormisstatements, however, are typically amend-able. Absent prejudice to the respondent, thepetition can usually avoid dismissal by thepetitioner’s cross-moving to amend the petitionto correct those defects.

Defective predicate notice. The proceedingmust be dismissed if a notice to cure, terminationnotice, rent demand, or other predicate noticerequired by statute or lease is either (i) notproperly and timely served or (ii) is substantivelydefective or insufficient in its contents. Unlike apetition, predicate notices are not amendable.i

Defects or omissions may not be corrected byamendment or otherwise. A defective predicatenotice is not only fatal to the proceeding, but thepetitioner must start from scratch by issuing anew underlying predicate notice.

Predicate notice vitiated (in holdover pro-ceedings). A petitioner will likely be deemed tohave vitiated a termination notice and reinstatedthe tenancy by accepting rent for a period of timeafter the termination date, commencing a non-payment proceeding, or issuing a subsequenttermination notice or notice to cure.

Breach of the lease waived (in breach-of-lease holdover proceedings). When the proceed-ing is based on a breach of the lease or a violationof a substantial obligation of the tenancy, a peti-tioner will have waived its right to object to thebreach by accepting rent for a period of time if itknows about the breach and took no step toterminate the tenancy.ii Even a lease’s “no waiver”clause can sometimes itself be waived by thisacceptance of rent.iii

Stale predicate notice. The predicate noticecan be stale based on the passage of time, or if a

termination notice was previously used as thepredicate for an earlier dismissed or discontinuedproceeding and the current proceeding was notcommenced promptly while the earlier proceed-ing was still pending and absent discernableprejudice to the tenant.

Conditions precedent to exercising an earlytermination option not met (in early cancellationholdover proceedings). If the lease has an earlycancellation option that allows early terminationupon limited conditions such as a planned demo-lition of the building, the petitioner must provethe conditions precedent to exercising the earlytermination option. The petitioner must prove thatit is planning to demolish the building and that itdid not issue the notice in bad faith to free thespace up for another tenant offering a higher rent.

Other substantive defenses in breach-of-leasedisputes (in breach-of-lease holdover pro-ceedings). When a landlord alleges a breach ofa provision of the lease and the parties disputewhether a breach that forms the basis fortermination has occurred, the specific, sub-stantive provisions of a lease often come intoplay. When the lease is on a form provided orsubstantially prepared by the landlord, ambi-guities in the lease terms will be construedagainst the landlord.iv

Incorrect calculation of rent or additional rentdue under the lease; payment of rent owed, andrent not owed (in nonpayment proceedings).

Constructive eviction and actual eviction (innonpayment proceedings). To prove constructiveeviction sufficient to form a complete defenseagainst the landlord’s rent claim, the tenant mustestablish that (i) the landlord’s intentional acts oromissions created conditions that rendered thepremises unusable for its intended purposes andthereby deprived the tenant of the use and enjoy-ment of the premises and (ii) the tenant vacatedand was out of possession of the premises for thetime period for which rent is sought.v To claimconstructive eviction, the tenant must actually beout of possession; the tenant cannot remain in fullpossession and simultaneously be constructivelyevicted. Although the old common-law rule wasan “all or nothing” rule requiring the tenant tovacate and abandon the entire premises to claimconstructive eviction, the law now recognizes theconcept of a partial constructive eviction, inwhich a tenant can claim a partial constructiveeviction from only a portion of the premises toobtain a rent abatement proportional to theportion of the premises that the tenant was unableto use and which was abandoned.vi An actualphysical eviction that prevents the tenant’s accessto all or part of the subject premises likewise con-stitutes a defense against all or part of the rent.vii

Lease provisions barring tenants from claimingrent abatements for interruption or loss of busi-ness contemplate situations in which the inter-ruption or loss occurs while the tenant remainsfully in possession. These provisions do not barconstructive or actual eviction defenses.viii

Similar to but separate from a constructive-eviction defense is a tenant’s entitlement to aset-off in rent if a landlord fails to provide serv-ices a lease requires. A commercial tenant is enti-tled to utilities and building services like heat,water, electricity, and elevator service providedby the landlord to the extent that such services areprovided for in the tenant’s lease. A tenant maydefend against a landlord’s rent claims and obtainan abatement of rent if the landlord fails to pro-vide the building services required under thelease.ix Unlike residential tenants, however, theRPL 235-b warranty of habitability does not pro-tect commercial tenants.

If a landlord illegally rents commercial prem-ises for residential purposes, an eviction proceed-ing in the commercial landlord-tenant part is im-proper. It must be brought in a residential Hous-ing Part. If the petitioner leased the premisesknowing that it would be used residentially or ifthe residential use was with the landlord’s knowl-edge and acquiescence, the tenancy is deemedresidential, even if the premises are leased undera commercial lease. A residential proceedingbrought in the commercial landlord-tenant part isimproper and must be dismissed.x

In a breach-of-lease holdover, the summary-proceeding court has the equitable power to excusea breach, even where it has occurred, and dismissthe proceeding if the breach is not material but,rather, de minimis and inconsequential.xi

G. Trials in Summary ProceedingsA summary proceeding not dismissed, dis-

continued, or settled must be tried. A petitioner’sprima facie case at trial includes:

Proving that the petitioner is the real proper-ty’s owner, net lessee, sublessor, receiver, orotherwise authorized to maintain the proceeding.An owner should have an original or certifiedcopy of the deed to introduce into evidence.

If the subject commercial premises are in abuilding that contains three or more residentialunits, proof of a valid MDR statement. Ifapplicable, the petitioner should have a certifiedMDR statement from HPD.

Other than for month-to-month tenants, thelease between the parties. The petitioner shouldhave the original lease or a satisfactory explana-tion for its absence from a credible witness if aphotocopy is sought to be used.

Other than a no-grounds holdover based onthe natural expiration of the full term of a writtenlease, the predicate notice(s) (rent demand in anonpayment proceeding; notice of terminationand, if applicable, notice to cure in a holdoverproceeding), and proof of serving the predicatenotice(s) as required by the lease, statute, or both.This might require the testimony of the processserver or individual who served the predicatenotice(s).

In a nonpayment proceeding, proof that therent demanded is owed. This should include arent ledger setting forth each month’s rent thathas come due and each payment that has beenmade since the last undisputed zero balance. Awitness must authenticate the rent ledger andexplain and confirm the accuracy of the figuresin the ledger based upon personal knowledge.

In the case of a breach-of-lease holdoverproceeding, testimonial and documentary evi-dence proving the respondent’s the breach and, ifapplicable, the failure to cure the breach by thedeadline in the notice to cure.

In the case of a holdover proceeding in whichthe petitioner has exercised an early terminationoption, such as pursuant to a demolition clause,testimonial and documentary proof of theexistence of the condition(s) precedent to thepetitioner’s right to exercise the early termina-tion option (such as, in the case of a demoli-tion clause, proof of the existence demolitionthe landlord alleges).xii

At the end of the petitioner’s prima facie case,the petitioner should ask the court to amend thepleadings to add rent or use and occupancy thathas become due, to conform the pleadings to theproof, and to take judicial notice of all thepleadings and papers in the court file.

H. Settlements of Summary ProceedingsThe overwhelming majority of landlord-ten-

ant summary proceedings settle without a trial.There are endless permutations of potential set-tlements and settlement structures. Among themore common settlement structures are (i) innonpayment proceedings, agreed upon “pay-outs” of rent arrears over a period of time, withjudgments of possession and warrants of evictionissued with execution stayed pending paymentunder the “pay-out” schedule, and (ii) inholdover proceedings, the respondent’s agree-ment to vacate within an agreed-upon period oftime (sometimes coupled with a rent/use and oc-cupancy concession, sometimes not), again withjudgments of possession and warrants of evictionissued with execution stayed through and includ-ing the agreed-upon vacate date.

Respondents prefer to settle per stipulation,without a judgment, and even to ask the petition-er for written notice of any default. These thingswill force a petitioner to mail a notice and thenmove for a judgment if the respondent defaults,thus giving a respondent extra time to satisfy thestipulation and prevent an eviction. Settling with-out a judgment also prevents credit problems.

A respondent that fails to make timely pay-ments after a trial or under a payout schedule orrequires additional time beyond the agreed-uponvacate date may bring a post-judgment order toshow cause for an extension of time. Similarly,when a respondent fails timely to vacate under ajudgment of possession issued upon a stipulationof settlement or after a trial in a holdover pro-ceeding, the respondent may move by order toshow to extend the time to vacate. If granted, the

court will typically grant the stay conditioned onthe respondent’s paying use and occupancy forthe additional time the respondent remains inpossession.

Whether to decline to sign or to sign and grantthese orders to show cause is reserved to thecourt’s discretion. Judges exercise their discre-tion less liberally after a trial than after a stipula-tion resolves the proceeding. Judges are also lessliberal in granting extra time in commercial casesthan in residential cases.

Petitioners whose priority is to remove therespondents from possession as quickly as possi-ble will vigorously oppose these orders to showcause to extend a respondent’s time to pay orvacate under a stipulation. But it is strategicallypreferable for a petitioner whose priority is to bepaid to consent to extensions if the petitionerbelieves that the respondent is likely to makeadditional payments with an extension of timebut will be judgment-proof once evicted.

I. Defaults in Summary ProceedingsIn New York City, if the tenant fails to appear

on an initial or adjourned return date in aholdover proceeding, the court will conduct aninquest. The inquest, which requires that awitness with actual knowledge offer testimonyestablishing the petitioner’s prima facie case, isrequired before a default judgment may beentered and the inquest sustained. Outside NewYork City, courts often award default judgmentsin holdover proceedings without holdinginquests.

If a tenant fails to answer or otherwise appearin a nonpayment proceeding and still owes thepetitioner rent at the time of the default, thepetitioner may apply for a judgment of posses-sion and warrant of eviction on default. In addi-tion, a respondent who files an answer but thenfails to appear on any return date will be held indefault, and a default judgment will be awardedto the landlord. Unlike in a holdover proceeding,an inquest is not held upon a respondent’s defaultin a nonpayment proceeding. Courts may notrequire an inquest before issuing a default judg-ment. The issuance of a default judgment is anondiscretionary, ministerial act if the respondentdoes not appear and the petitioner’s papers aresufficient on their face.xiii

J. Carrying Out the EvictionOnce a warrant of eviction has issued, the

warrant must be delivered to an enforcementofficer, along with the appropriate fees. Awarrantof eviction will be executed by a city marshal inNew York City and by the county sheriff’s officein counties outside New York City. The sheriff ormarshal must issue a final notice at least 72 hoursbefore removal. City marshals in New York Cityserve notice at least six business days before thewarrant is executed. Sheriffs or marshals typ-ically serve these notices, commonly knownas “eviction notices,” by posting them to thedoor of the subject premises.

K. The Courts in which Summary Proceedings are Adjudicated

The courts in which a summary evictionproceeding may be brought depend on thegeographic location of the real property.Below is a breakdown of summary-proceed-ing courts by geography:

(a) Statewide: Supreme Court in the appli-cable county has jurisdiction to hear the pro-ceeding. As a practical matter, summary pro-ceedings are almost never brought in SupremeCourt. When another type of action is broughtseeking relief that can be awarded in a sum-mary proceeding, Supreme Court will typical-ly exercise its discretion to decline to adjudi-cate the matter in favor of requiring the peti-tioner to commence a summary proceeding inthe appropriate local court.xiv

(b) New York City: Civil Court of the City ofNew York (governed by the New York City CivilCourt Act). In Civil Court, each of New YorkCity’s five boroughs has a Civil Court court-house. In each borough, non-residential summa-ry proceedings are commenced in a commerciallandlord-tenant part known as Part 52. Allcommercial summary proceedings are initially


By: Hon. Gerald Lebovits &Michael B. Terk, Esq.


New York State Commercial Landlord-Tenant Law And Procedure: A Primer — PART III


New Trustee Michael A. Farkas. Trustees taking oath of office: Jeffrey Miller, Hemalee Patel, Marianne Bertuna, Joseph R. Costello, Steven J. Harkavy and Stefano D. Filippazzo.

Induction participants: NYSBA President Glenn Lau Kee, President Rebecca Rose Woodland,Past President Steven D. Cohn, Hon. Lawrence Knipel and Hon. Frank R. Seddio.

Officers taking oath of office: Secretary David M. Chidekel, Second Vice President AimeeL. Richter, First Vice President Hon. Frank R. Seddio, President-elect Arthur L. Aidala.

BBA’s Induction Ceremony

Andrew Gounardis, General Counsel to BrooklynBorough President Eric Adams.

Past President Domenick Napoletano, Trustees Steven J. Harkavy,Past President Manuel A. Romero. President Rebecca Rose Woodland and Hon. Sylvia Ash

Trustee Hemalee J. Patel, Past Presidents Rose Ann C. Branda andHon. Jeffrey S. Sunshine. Photo courtesy of the Brooklyn Bar Association

Executive Director Avery Eli Okin, Esq.,CAE andImmediate Past President Andrew M. Fallek.


Past President Lawrence F. DiGiovanna, Past President Rose Ann C. Branda, Gregory LaSpina, TrusteeDino Mastropietro. Photos courtesy of the Brooklyn Bar Association

Installing officer Hon. Cheryl Chambers and Supreme Court JusticeMarsha Steinhardt.


President Rebecca Rose Woodland andSupreme Court Justice Carl Landicino.

Past President Domenick Napoletano, Trustee Stefano Filippazzo and Trustee Richard Klass.

Past President John Lonuzzi.

Trustee Marianne Bertuna, Past President Gregory T. Cerchione and President-electArthur L. Aidala.

Past President Mark A. Longo and TrusteeAnthony J. Lamberti.

Rabbi Joseph Potasnik, Hon. Donald Scott Kurtz, George Farkas, Hon. Ellen Spodek and Secretary David M. Chidekel.

Immediate Past President and Master ofCeremonies Andrew M. Fallek and Presi-dent Rebecca Rose Woodland.


T H E S T A T E O F E S T A T E S“rejecting probate” which the Court treated as amotion to dismiss the probate petition. The instru-ment provided in pertinent part: “On this day the7th of June, 2, 2004 being of sound mind it is mywish that when I die my son … become the soleowner of my house and anything in it that hechooses to have. At this point in time he lives inthis location with me and has been my caregiverand I needed [undecipherable] a lot. He has takenon many difficult and time consuming chores toenrich my life.” The instrument contained the pur-ported signatures of the decedent, and two otherpersons. Respondent alleged that the language per-taining to the house was precatory and the instru-ment therefore made no direction as to the dispo-sition of property. Petitioner argued that a determi-nation as to meaning of the word “wish” should bedetermined in a construction proceeding, not aproceeding to determine the validity of the will.HOLDING- The respondent’s motion was de-nied. The Court opined that only an instrumentwhich is testamentary in nature can be admitted toprobate, and agreed with the respondent that thequestion as to whether a document was testamen-tary can be addressed on a motion to dismiss a pe-tition for probate. The Court stated that generally,the two indicia of a testamentary instrument arethat it expresses an intention to dispose of the tes-tator’s property and that it takes effect at death.The Court said that where a document satisfiesthese requirements, it meets the threshold require-ment of a testamentary instrument. The Courtadded that these requirements are separate andapart from issues which may be raised as to ca-

pacity, due execution and fraud or undue influ-ence. The Court noted that a will may contain a re-quest rather than a direction by the testator as to thedisposition of property, and that it is not necessarythat a disposition take the form of a mandatory di-rection. The Court ruled that the probate of an in-strument is not affected by the fact that a questionis raised as to whether language in a sole disposi-tive provision is precatory, and pointed out thateven where the provisions in an instrument arewholly inoperative, probate cannot be denied if theinstrument is otherwise valid. The Court addedthat a determination as to whether language in awill is precatory or mandatory requires a construc-tion of the instrument, and that questions relatingto the validity, effect and/or disposition of proper-ty are reserved for consideration after the instru-ment is admitted to probate. The Court also reject-ed the respondent’s argument that the probate peti-tion should be dismissed on the grounds that theinstrument did not nominate an executor. the Courtpointed out that although the sole provision in awill may be the selection of an executor, there is norequirement that a will provide for the appoint-ment of an executor. Consequently, the Court de-nied the motion to dismiss the probate petition.Matter of Langdon, 2014 N.Y. Slip Op. 50599(Surr. Ct., Nassau Co., Surr. McCarty, 3/13/14)

One-Third of an Estate to Pass by Intestacyby Reason of a Claimed Scrivener’s Error inOmitting a Paragraph in the Residuary Clausein the Decedent’s will- The executor of the estatepetitioned for a reformation of the sole, but in-complete, dispositive provision of the decedent’swill. Petitioner, on consent of all parties, requested

that the Court supply a dispositive provision al-legedly omitted through the inadvertence of the at-torney-drafter. Testator was survived by one dis-tributee, her mother, and left a $1,265,000 estate.The will, as admitted to probate, left one-third ofall of the decedent’s property to one of her siblings,and one-third to the decedent’s nieces andnephews. There was no disposition of the otherone-third. According to the attorney-drafter, whichhe supported by an email to him from the decedentto that effect, the testator intended to dispose of thebalance of her estate to her five other siblings. Theattorney drafter attributed the omission of suchprovision to his own scrivener’s error. Petitionerasked the Court to supply it. HOLDING- The ref-ormation was denied. The Court opined that as arule, extrinsic evidence will not be admissible tovary or contradict the unambiguous expression ofthe decedent. The Court added that only if theterms are ambiguous may a Court consider extrin-sic evidence. The Court found that the decedent’swill was unambiguous in that the testator clearlyand unarguably disposed of only a portion of herestate. The Court noted that the extrinsic evidenceproffered by petitioner as to testator’s alleged in-tent regarding the disposition of the balance of herestate was unsupported by testator’s actual words,and thus contradicted rather than clarified the ex-press terms of the will. The Court concluded there-fore that it could not consider the affidavit of theattorney-drafter and was bound by the language ofthe will. While acknowledging that the mere exis-tence of a testamentary instrument gives rise to apresumption against intestacy, the Court stated thatit should not rewrite a will or supply an omissionnot necessarily implied from the language usedeven though intestacy would result. Accordingly,the petition for reformation was denied. Matter ofIsasi-Diaz, N.Y.L.J. 3/28/14, p. 21, c. 2 (Surr. Ct.,New York Co., Surr. Mella)

Summary Judgment for a Gift by Implica-tion Denied Even Though the Decedent’s willby Its Terms Did Not Provide for a CompleteDisposition of the Decedent’s Property- The ex-ecutrix, the decedent’s niece, sought a constructionof the decedent’s will. The decedent was survivedby two distributees, a sister, and the niece-executrix,who was the daughter of a predeceased brother.

The executrix sought the construction of thedecedent’s will so as to include a gift by implica-tion of the residuary to her. The respondent sisteralleged that it would not be appropriate for theCourt to find a gift by implication and that theresiduary of the decedent’s estate should be dis-tributed in accordance with the laws of intestacy.The decedent and her husband contemporaneous-ly executed identical wills. The spouses left theirestates to each other, they nominated petitioner asalternate executrix, and they provided that the hus-band’s will would control if the spouses perishedin a common disaster. The decedent’s will provid-ed that in the event she and her husband were todie in and by a common disaster, or in any othermanner so that it would not be definitely knownwhich of them survived, then it should be deemedthat her husband survived and distribution of herestate should be made in accordance with the pro-visions of his will. The husband’s will providedthat in the event the decedent predeceased him, hisestate was to pass the petitioner-executrix. Thedecedent’s will failed to make any provision forthe distribution of her estate if her husband prede-ceased her, which occurred. Both sides moved forsummary judgment. HOLDING- Summary judg-ment was denied. The Court opined that the intentof the testator must be the overriding considerationin determining the import of the terms of her will,and that the intent of the testator must be gleanednot from a single word or phrase, but from a sym-pathetic reading of the will in its entirety and inview of all the facts and circumstances underwhich the provisions of the will were framed. TheCourt added that by the act of making a will, a tes-tator expressly demonstrates the intention to com-pletely dispose of his or her estate, and that thestrong presumption against intestacy is particular-ly weighty where the subject of the gift is the resid-uary estate. The Court stated that the obligation ofthe Court in a construction proceeding is to discernand effectuate the intention or purpose of the tes-tator, and that accordingly, where the express lan-guage of the entire will reveals such intention orpurpose, the possibility follows that the testatrixmay dispose of property by implication as well asformal disposition. The Court noted, however, thatthe implication must be a necessary one, not mere-ly one that is possible or probable, and it mustleave no hesitation in the mind of the Court as towhat was the testatrix’ dominant purpose. The

Court explained that where the entire will unques-tionably revealed a conscientious effort to providefor a complete disposition of the decedent’s prop-erty, but the testator inadvertently had neglected toforesee every contingency, the presumptionagainst intestacy may be applied and a gift by im-plication found. The Court noted that summaryjudgment should not be granted where there is anydoubt as to the existence of triable issues, and thatif a genuine issue of fact is found to exist, summa-ry judgment must be denied. The Court foundthere to be issues of fact as to the intent of the tes-tator, and accordingly, the motion and cross mo-tion for summary judgment were denied. Matterof Thompson, N.Y.L.J. 1/15/14, p. 26, c. 4 (Surr.Ct., Richmond Co., Surr. Gigante)

Request to Terminate a $250,000 Trust asUneconomical Denied- An application was madeunder EPTL §7-1.19 to terminate a trust on theground that the trust’s continuation no longer waseconomical. All interested parties consented to therelief sought. The trust in question was establishedunder testator’s will, which was admitted to pro-bate in 1945. Testator’s daughter was the trust’ssole income beneficiary. Upon her death, the prin-cipal was to be disposed of as she appointed in herwill or, in default of such appointment, distributedto testator’s descendants. The presumptive remain-der beneficiaries were the four children of testa-tor’s deceased son. The trustees requested that thetrust be terminated and that all the principal be dis-tributed to the beneficiary. The value of the trustprincipal was approximately $250,000. Accordingto the petition, income distributed annually, net ofexpenses, was less than $5,000. The petitionerscontended that the figures justified the conclusionthat continuation of the trust was uneconomicalwithin the meaning of EPTL §7-1.19 and that ter-mination therefore was warranted. HOLDING-The application was denied. The Court noted thatwhen the expense of administering a trust is un-economical, EPTL § 7-1.19 permits a court to ter-minate the trust as long as the terms of the trust in-strument do not prohibit early termination andprovided that such termination would not defeatthe specified purpose of the trust and would be inthe best interests of the beneficiaries. The Courtopined that the statute was enacted in 2004 as anarrow exception to the general rule that a testa-mentary trust, as an irrevocable expression of atestator’s intent, was indestructible. The Court stat-ed that after reviewing the petition and the terms ofthe trust, the court was not persuaded that early ter-mination was warranted. The Court pointed outthat although the testator left half of her residuaryestate in trust for the beneficiary for the duration ofher lifetime, she left the other half of her estate out-right to her other child when the latter attained theage of 30. The Court added that the terms of thetrust provided the beneficiary with only the trust’sincome during her lifetime, with no discretionarydistributions from trust principal being permitted.In the Court’s view, the testator clearly intendedthat the trust corpus would be distributed outrightonly upon the beneficiary’s death. The Court as-serted that such an intent should be respected bythe Court, even where all the interested partieswere willing to ignore it. The Court also found thatthe size of the trust fund was not so insignificant asto render its continuation impracticable. Conse-quently, in light of petitioners’ failure to demon-strate that the continuation of the trust would beeconomically impracticable as required by EPTL§7-1.19, the Court denied their request for its earlytermination. Matter of Zara, N.Y.L.J. 4/11/14, p.21, c. 2, (Surr. Ct., New York Co., Surr. Anderson)

Fiduciary May Not Appear Pro Se On Be-half Of an Estate- In an accounting proceedingthe trustee moved to dismiss objections filed pro seby the executor of the estate of an income benefi-ciary of the trust. The objections alleged that thetrustee failed to produce all documents to whichthe objectant was entitled, that the trustee overpaidlegal fees, and that her decedent did not receive allthe income to which he was entitled during his life.The trustee moved to dismiss the objections, interalia, on the grounds that the executrix lacked thelegal capacity to sue. The trustee argued that, whilea lay person can represent her own interests pro se,she cannot represent the interests of an estate be-cause such representation implicates the interestsof other interested persons. Objectant argued thatthe rule allowing pro se representation of one’sown interests should prevail because she was theonly beneficiary of the estate. HOLDING- TheCourt agreed with the trustee and conditionallydismissed the objections. The Court stated thatSCPA §401(1) provides that, with certain excep-

Continued from page 4


bar this coming year. Having Justice Knipelspeak at the Installation, and having so manydistinguished Kings County judges in attendancewas truly an honor and a privilege for us.

My friend, Justice Marsha Steinhardt was kindenough to take part in our Installation ceremonyas well. Justice Steinhardt joined us just twentyfour hours after having been installed as theBrooklyn Women’s Bar Association President in alovely ceremony that was highlighted by ChiefJustice Jonathan Lippmann giving remarks anddelivering the oath of office. I look forward toworking closely with Justice Steinhardt this year —we plan to join forces on several important issuescommon to our respective associations.

The Honorable Frank Seddio, our KingsCounty Democratic Leader, had a unique roleat the Installation. Not only did County LeaderSeddio deliver words of encouragement andheartfelt wishes for the year to come, he was alsosworn in as the First Vice President of the BBA.Frank also entertained us with one of his signaturejokes that brought the house down in laughter. Itwas a great honor to have Frank speak at the In-stallation and it will be an even greater honor towork with him this coming year. Frank is some-one I’ll be turning to often during my presi-dency for advice and counsel.

As everyone knows, speaking after FrankSeddio in a program is no easy task. That chal-lenge fell to my partner and Past President, JohnLonuzzi, who, in keeping with the evening’stheme, opened his speech with a witty joke with avery surprising punch line. I can’t say enoughhow lucky I am to have the benefit of John’sknowledge and experience to help guide methrough this coming year.

My dear friend, the Honorable George J. Silvertravelled from what he referred to as the “outerborough” of Manhattan to help us install our officersand trustees in Brooklyn. While it’s no secret thatJudge Silver had an incredible sense of humor andwit, the speech he delivered at the Installation wasone for the ages. I’m forever grateful to JusticeSilver for his friendship, his support and hismentoring.

Appellate Division Justice Cheryl Chambersdid us the honor of administering the oath ofoffice to our new officers and trustees. On apersonal level, I was thrilled to have JusticeChambers swear me in as the 99th President ofthe Brooklyn Bar Association. Justice Chambersis an incredible woman and a great role model forso many of us, for so many reasons. Her intellect,integrity, ability and character are second to none.I can’t thank Justice Chambers enough for doing

us the honor of taking part in our Installation, andfor being my friend.

I’m so thrilled to be stepping into this positionat such an exciting time for Brooklyn. As we allknow, Brooklyn is one of the most dynamic andemerging places in the world right now. And theBrooklyn Bar Association is right in the middle ofthe transformation. Industry of every kind isgrowing as an incredible pace, and that includesthe legal profession. One of the things we plan ondoing this coming year is tapping into that growthand figuring out more ways for our members tobenefit from it.

But we don’t just have a responsibility to ourmembers. There is a great responsibility to thecommunity. Such a diverse population deservesthe knowledge and understanding that justice isavailable to all in this country, and this county. Ibelieve it’s also our responsibility to make surethat those who live in Brooklyn know their rights,have access to the courts, and have access toaffordable legal representation.

I also hope to achieve diversity within ourorganization by outreach programs to membersand leaders, and to reach the diverse inhabitants ofBrooklyn. It is important to me that our Associa-tion reflect the diversity of the community it serves.I want to send a message that we understand theneeds of the community, that we are part of thecommunity, and that we are here to serve thecommunity by providing access to justice.

I was so proud and happy to announce at myinstallation the creation of a scholarship in the nameand memory of my dear friend, the late JudgeTheodore T. Jones, Jr., Associate Judge of the Courtof Appeals. It will be a yearly scholarship award-ed to a law student who exemplifies and embodiesthe qualities and characteristics that that madeJudge Jones the incredible man he was. JudgeJones was a great judge, a wonderful person, andsuch an integral part of this Association. JudgeJones possessed exceptional values and was abrilliant jurist. He had a knack for making thecomplicated seem very simple, and an incompara-ble ability to communicate with people and bringthem together. He went about his job, and his life,with an incredible sense of grace and humility. Tobe able to start this scholarship program during myterm is an incredible honor. I know that my term asPresident will be guided by the light of Teddy Jones.

These will be the issues that I focus on inthe coming year. With a lot of help from myfellow officers and trustees, as well as from ourExecutive Director, Avery Eli-Okin and hisstaff, I know we will accomplish these goalsand do some great things for the legal profes-sion and for the people of Brooklyn.

RESPECTFULLY SUBMITTEDContinued from page 3


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T H E S T A T E O F E S T A T E Stions, a person may represent him or herself in lit-igation. The Court added that the statute favors theprinciple that a party can choose his or her owncounsel, constituting an exception to the generalrule that prohibits the practice of law by a non-lawyer. Nonetheless, the Court said that when theinterests of an estate are at issue, the fiduciary ofthe estate is named as a party not as an individual,but in her capacity as a representative of the per-sons interested in the estate. The Court noted thatif she is not a lawyer and appears pro se, such rep-resentation is not merely a matter of a person’schoice to be her own counsel, but constitutes a pro-hibited practice of law without a license. TheCourt noted that this principle has been firmly es-tablished in New York case law in the context ofpowers of attorney. The Court opined that al-though a validly appointed lay attorney-in-factmay appear in a litigation in her representative ca-pacity with regard to the interests of the principalwho appointed her, she cannot prosecute or defendthe matter pro se, even though her principal couldhave done so, such representation constituting anunlawful practice of law. The Court noted that anon-lawyer attorney-in-fact must be representedby counsel. The Court rejected objectant’s argu-

ment that the rule allowing pro se representation ofone’s own interests should prevail because she wasthe only beneficiary of the estate. The Court statedthat as executor of the trust beneficiary’s estate, theobjectant had fiduciary responsibilities to creditorsof the estate, and thus did not represent only herown beneficial interests, especially in view of theobjectant’s admission that the estate was in deficit.Accordingly, the motion to dismiss was grantedconditionally unless the objectant appeared bycounsel within 30 days of the service of the Deci-sion and Order upon her. Matter of Van Patten,N.Y.L.J. 2/24/14, p.17, c. 2 (Surr. Ct., New YorkCo., Surr. Anderson)

An Heir of a ‘Parent’ of an Alleged Equi-table Adoptee not Permitted to Petition to Ob-tain Letters of Administration to Commence aSuit for the Wrongful Death of the Alleged‘Adoptee’- The Court was asked to entertain a pe-tition for letters of administration under the doc-trine of equitable adoption. The decedent died as aresult of an accident. As a child, the decedentresided at an orphanage. Petitioner’s motherworked at the facility. Petitioner alleged that atsome point in time the decedent lived with hisfamily as a foster child. He contended that the doc-trine of equitable adoption should be applied to

permit him to receive letters of administration forthe purpose of commencing a wrongful death ac-tion on behalf of the estate. HOLDING- TheCourt declined to entertain the petition for lettersof administration. The Court acknowledged that itcould find an equitable adoption where there hadbeen an agreement for adoption with an agencyhaving the care and custody of a child, but pointedout that it was conceded by the petitioner that therehad been no agreement for adoption. The Courtfound that petitioner lacked standing to receive let-ters of administration. The Court opined that anequitably adopted child lacks standing to receiveletters in the parent’s estate. The Court added thatan equitable adoption does not create a legal adop-tion of a child but merely is an exercise of theCourt’s equitable powers to permit the child to ac-quire rights in intestacy based upon an agreementto adopt. The Court stated that the doctrine doesnot create a legal relationship between the equi-tably adopted child and the heirs of the adoptiveparent. The Court added that inasmuch as the doc-trine of equitable adoption is applied for the bene-fit of the child, the weight of authority is that the“parent” cannot commence a wrongful death ac-tion on behalf of the child. The Court concludedthat consequently, the heirs of the deceased

“parent” lack standing to commence a wrongfuldeath action. Accordingly, the Court declined toentertain the petition for letters of administration.Matter of Fairhurst, 2014 N.Y. Slip Op. 50600(Surr. Ct., Nassau Co., Surr. McCarty, 3/31/14)

Brief briefs:Statute of limitations defense unavailable at the

inquisitorial stage of an SCPA §2103 discoveryproceeding. Matter of Schleger, 2014 N.Y. SlipOp. 50598 (Surr. Ct., Nassau Co., Surr. McCarty,2/28/14)

Where there have been two ceremonial mar-riages there is a strong presumption of the validityof a second marriage. The heavy burden of prov-ing invalidity is on the person challenging the latermarriage, frequently requiring proof of a negative,to wit: that the earlier marriage was not dissolvedby death, divorce or annulment. Matter of Perez,N.Y.L.J. 5/2/15, p. 21, c. 3 (Surr. Ct., Nassau Co.,Surr. McCarty)__________________________________

Compiled by Hon. Bruce M. Balter, Justice ofthe Supreme Court, Kings County, Chair, Brook-lyn Bar Association, Surrogate’s Court Commit-tee, and Paul S. Forster, Esq., Chair, BrooklynBarAssociation, Decedent’s Estates Section.


2014 Changes to New York’s Estate, Gift, and Trust Income Taxes

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ELDER LAW UPDATE

Effective April 1, 2014 the 2014-2015budget legislation (the “Executive Budget”)makes significant changes to New York’s estatetax and the income taxation of certain trusts.These changes will have a major effect onestate planning for New York residents andnon-residents. Although these changes pro-vide some tax relief for the moderately wealthy,they will clearly have a negative effect on thevery wealthy, who will likely see an increasein their estate and income taxes.

Estate Tax Exclusion Increased- but only forsome. The Executive Budget increases NewYork’s basic exclusion amount ($1 million perdecedent prior to April1, 2014) to $2.0625Million per decedent as of April 1, 2014 withgradual increases annually until January 1,2019 when the basic exclusion amount willreach $5.25 million. Thereafter, it will beindexed for inflation, which should link NewYork’s basic exclusion amount to the federalamount (presently $5,340,000, but also indexed

for inflation). The basic exclusion amount isincreased as follows:

Read on, however, because what appears tobenefit New Yorkers has a negative effect onthe very wealthy under what is referred to asthe “cliff.” Because of this quirk in the wayNew York calculates its estate tax, the basicexclusion amount is rapidly phased out once thevalue of a decedent’s taxable estate is greaterthan 105% of the basic exclusion amount.

The Executive Budget implements the ex-clusion by allowing a credit of the “ApplicableCredit Amount” to be taken against the tax im-posed by the statute as follows:

• If the New York taxable estate is less thanor equal to the basic exclusion amount, theApplicable Credit Amount will be the amountof the tax so computed and, therefore, serves asa wash.

• If the New York taxable estate is up to 5%greater than the basic exclusion amount, theApplicable Credit Amount will be limited tothe amount of the tax resulting in no tax.

• If the New York taxable estate is greaterthan 105% of the basic exclusion amount,no credit is allowed.

Congress Delays Anti-Ah/born Medicaid Lien Amendment

Congress has delayed by two years a provisionin last year’s budget bill that gives states theability to recover Medicaid costs from a beneficia-ry’s full personal injury settlement or award. Thelaw, which negates the U.S. Supreme Court’s deci-sions in Arkansas Department of Health andHuman Services v. Ahlborn, 547 U.S. 268 (2006)and Was v. E.M.A, 133 S. Ct. 1391(2013), was setto go into effect on October 1, 2014, but now hasbeen delayed until October 1, 2016.

In December 2013, Congress’ budget com-promise unexpectedly contained language thatamended the Social Security Act to give states theright to recover from Medicaid beneficiaries’ entiresettlements and to place a lien on those settlementsor awards. Last month Congress passed- andPresident Obama signed- HR 4302, which post-pones pending Medicare physician payment cuts byone year. But tucked into the legislation is a onesentence provision (Sec.211) that delays theeffective date of the anti-Ahlbom provision for twoyears, until October 1, 2016. This means thatMedicaid will continue to be able to recoveronly from the portion of a personal injury set-tlement or award that was allocated to medicalexpenses until then.

The original budget bill amendment was passedwith no notice and advocates did not have a chanceto challenge it. Advocates worry that the result ofthe new law will be that Medicaid recipientswill receive less in personal injury settlements

because their full recovery will be subject to aMedicaid lien. The American Association forJustice (formerly the Association of TrialLawyers of America) has been working toeliminate the provision.

Another noteworthy piece of legislation didnot make it into the final physician payment bill—The Fairness Act, which would have allowedmentally competent people with special needs tocreate their own special needs trusts. The Act wasincluded in a Senate bill to permanently fixMedicare’s physician payment scheme, but law-makers chose not to include it in the one-year“patch” measure.

Uniform Adult Guardian Jurisdictionand Protective Proceedings Act

By virtue of legislation passed in the fall of2013, a New Article 83 of the Mental HygieneLaw became effective on April 21, 2014.

This Act provides for resolution of jurisdictionalissues in cases where an elderly person in need of aGuardian may have contact with multiple states.

They may be complex cases like granny nap-ping cases or situations where an elderly personmay be a snowbird and moves between New Yorkand a southern state. It can also be something assimple as an elderly driving into an adjoining stateand having a medical event in that state.

As of this writing, there have been no reportedcases on this statute.

A more expansive article on this subject willbe written in the near future.

By Anthony Lamberti, Esq.


on the calendar in Part 52. In Manhattan, Part 52 isjust a calendar part that will entertain applicationsfor adjournments or pendente lite use andoccupancy. Trials, hearings, and motions willeither be adjourned in Part 52 or, if not adjourned,sent out to another Civil Court “back up part” to beheard, tried, and decided by another judge. Inthe outer boroughs, the entire disposition of thecase, including motions and trials, will oftenoccur in Part 52 itself.

(c) Long Island: District Court (governed bythe Uniform District Court Act). Nassau Countyand most of Suffolk County (with the exception ofthe four east-end towns of Riverhead, Southold,Shelter Island, Southampton, and East Hampton)are under the jurisdiction of the two counties’respective District Courts, which are Long Island’sjurisdictional equivalents of the New York CityCivil Court. The District Court has a designatedlandlord-tenant part, in which commercial andresidential summary proceedings are adjudicated.

(d) Any city outside New York City: CityCourt (governed by the Uniform City Court Act).City Court is the jurisdictional equivalent, in theState’s other cities, of the New York City CivilCourt and the District Court.

(e) Any town or village other than on LongIsland (and also within Suffolk County’s foureast-end towns on Long Island): town or villageJustice Court (governed by the Uniform JusticeCourt Act). These courts are typically in sessiononly once or twice a week, frequently in theevening, and are presided over by part-time judgeswho usually hold full-time day jobs, often asnon-lawyers. Eviction proceedings, particularly insmaller towns and villages, will often be on thesame calendar as traffic tickets, violations,infractions, and small claims.

(f) Surrogate’s Court: In the limited situation inwhich the real property at issue is the subject of apending probate proceeding, a summary proceed-ing relating to that property may be commenced inthe Surrogate’s Court for the applicable county.

Appeals from the above-listed courts aredirected as follows:

(a) To the Appellate Term: In the First and Sec-ond Departments, appeals from (i) New York CityCivil Court, (ii) District Court in Nassau Countyand Suffolk County, and (iii) any City Court orJustice Court in Westchester, Rockland, Putnam,Orange, Dutchess, Nassau, and Suffolk Countiesare taken to an appellate part of the SupremeCourt, known as the Appellate Term.

(b) To the County Court: In the Third and FourthDepartments, appeals from City Court and JusticeCourt are taken to the County Court for the countyin which the city, town, or village is located.

(c) To the Appellate Division: Appeals fromSupreme Court and Surrogate’s Court are taken tothe Appellate Division for the judicial departmentin which the county is located.

III. PLENARY ACTIONS BETWEEN

COMMERCIAL LANDLORDS AND TENANTS

A. Ejectment ActionsBefore the New York Legislature’s codifica-

tion of the summary proceeding in 1820, recover-ing possession of real property through the judicialprocess could be effectuated only through a com-mon-law action for ejectment.

While rare, common-law ejectment actions arestill available and commenced on occasion, usual-ly based on strategic considerations. These includea plaintiff’s desire to have the matter adjudicatedbefore the Supreme Court’s Commercial Divisionif the plaintiff deems it a more favorable forum; aplaintiff’s wish to conduct disclosure, which isavailable as of right in Supreme Court ejectmentactions; to cause the litigation to be more expen-sive for the respondent; or when a petitioner is un-able to maintain a summary proceeding, as whenthe property lacks an MDR statement.

B. Actions for Rent or Use and Occupancy

When a tenant vacates with remaining rentarrears, damages may be recovered in an ordi-nary contract action for unpaid rent for the termof the lease.

When an occupant was or is in possession ofreal property and the landlord is not limited to re-covering a reserved rent under a lease or rentalagreement, RPL § 220 authorizes an action to re-cover use and occupancy.

If the building in which the property is locatedis destroyed or so severely damaged by the ele-ments so as to be effectively destroyed and unus-able, the tenant is entitled to break its lease, aban-don the property, and be relieved of any further ob-ligation for the duration of the lease.xv

C. Yellowstone Injunction ActionsThe opportunity to avoid eviction by effectu-

ating a post-judgment cure after a landlord pre-vails in a holdover proceeding predicated on abreach of lease and a failure to cure is availableonly to residential tenants in New York City.xvi

Commercial tenants are not entitled to a statutorycure period once the court in a holdover proceed-ing rules in the petitioner’s favor and grants ajudgment of possession. To challenge the breachalleged in the notice to cure, a tenant’s only optionunder RPAPL Article 7 is to litigate the holdoverproceeding and risk eviction if the petitionerprevails. Even if the respondent is willing and ableto cure the breach, the RPAPL does not afford acommercial tenant an opportunity to cure once theholdover proceeding has been adjudicated in thepetitioner’s favor.

When a petitioner issues a notice to cure ornotice of default to a commercial tenant and thecommercial tenant disputes that it has breached thelease and thus refuses to cure an alleged breachthat the respondent maintains does not exist, therespondent may assert in defense to the holdoverproceeding that no breach occurred in the firstplace. If the court agrees with the respondent, thetenant will prevail, and the holdover petition willbe dismissed.

If the court disagrees and the petitioner prevails,the respondent will have no opportunity to cureand will lose the tenancy. Recognizing the pref-erence against forfeiting tenancies,xvii New Yorklaw has developed the Yellowstone injunction toprevent the tenant from being forced to roll thedice in the high-stakes gamble that is a com-mercial breach-of-lease holdover proceeding.In addition to commercial tenants who receivea notice to cure or notice of default and argue thatthere has been no breach, those that do not disputethe breach and wish to cure but which areincapable of doing so within the limited cureperiod a lease will afford may obtain an extensionof their time to cure by a Yellowstone injunction.

Yellowstone injunctions are limited to tenantswho have been issued a notice to cure as a predi-cate to a holdover proceeding and are unavailableto a tenant who has been issued a rent demand asa predicate to a nonpayment proceeding to extendits time to pay.

In First National Stores, Inc. v. YellowstoneShopping Center, Inc.,xviii the Court of Appeals heldthat a tenant may prevent forfeiting a tenancy byobtaining an injunction, now commonly known asa “Yellowstone injunction,” before the expirationof the notice to cure and issuance of the notice oftermination. The injunction, if granted, will staythe landlord from terminating the lease while thecourt determines whether a breach has occurred.Yellowstone actions are brought in Supreme Court,typically by filing an order to show cause seekinga preliminary Yellowstone injunction simultane-ously with the summons and complaint andrequest for judicial intervention (RJI).

The order to show cause should contain arequest for a temporary restraining order to toll thecure period and prohibit the landlord from termi-nating the tenancy pending a determination of themotion, as the cure deadline will come before thereturn date of the order to show cause and theorder deciding it.

A Yellowstone injunction “maintain[s] thestatus quo” to permit the tenant to “challenge thelandlord’s assessment of [its] rights without . . .forfeiting its valuable interest in the leasehold.”xix

Although a Yellowstone injunction is a form ofpreliminary injunction, courts have held that the“standards normally applicable to temporaryinjunctive relief have little application to a Yellow-stone situation.”xx Courts have dispensed with therequirement that the tenant demonstrate a likeli-hood of success on the merits; courts have showna willingness to grant the injunction without thatshowing.xxi

A tenant seeking a Yellowstone injunction mustestablish four elements to be entitled to the injunc-tion: (i) it is the tenant under a commercial lease,(ii) it has received a notice to cure or notice ofdefault, or the landlord has threatened to terminatethe lease, (iii) the tenant’s application for a Yellow-stone injunction was made before the terminationof the lease, and (iv) the tenant has the desire andcurrent ability to cure the alleged lease breach byany means short of vacating the premises.xxii Toobtain a Yellowstone injunction, a tenant mustdemonstrate in Supreme Court that it is ready,willing, and able to cure if the Supreme Courtultimately finds that the tenant’s conduct consti-tutes a default under the lease and that the notice tocure is valid.xxiii

If the tenant’s conduct at issue breaches a leaseincurably, Yellowstone relief is unavailable.xxiv

In the Second Department, there is an absolutebar against an application for a Yellowstoneinjunction made after a cure period hasexpired.xxv Although this is generally the rule inthe First Department, when the lease requires thetenant to commence curing the breach withinthe cure period and the tenant has done so butcannot complete a cure within the cure period, aYellowstone injunction may be granted even if it isbrought after the expiration of the notice to cure.xxvi

Nonetheless, even in the First Department, atenant’s attorney is well-advised to bring theYellowstone injunction application before theexpiration of the cure period rather than to rely onthis narrow exception.

As a condition of a Yellowstone injunction,courts will typically require the tenant to payongoing use and occupancy during the pendencyof the Yellowstone action, based on the rate of themonthly rent in the lease.xxvii In addition to use andoccupancy, upon the defendant-landlord mak-ing a showing of its potential damages the courtmay also, it its discretion, direct the posting of anundertaking rationally related to the landlord’spotential damages.xxviii It is also properly in thecourt’s discretion, if the tenant obtaining theYellowstone injunction has made substantialcapital improvements to the property, to directa minimal undertaking or dispense with anundertaking altogether.xxix

Courts have also granted Yellowstone-typeinjunctive relief in other contexts, such as when alandlord threatens a tenant’s time to exercise apurchase option or right of first refusal.xxx

D. Declaratory Judgments to Excuse a Failure to Renew TimelyExcusing a failure to exercise a renewal

option: If a respondent fails to timely exercise alease renewal option, Supreme Court may exerciseits equitable powers to excuse an inadvertent fail-ure to renew under some circumstances in atenant-commenced action for a declaration of thetenant’s right to continue its tenancy, in particularif the failure to exercise the option resulted from anhonest mistake, the tenant has invested substantialsums of money to improve the property, and thelandlord suffers no prejudice.xxxi

E. Collateral Effect of Bankruptcy Proceedings on Landlord-Tenant

ProceedingsAlthough not technically a proceeding com-

menced against a landlord by a tenant, a tenant’sfiling of a bankruptcy petition in the United StatesBankruptcy Court has critical implications onlandlord-tenant proceedings.

Under Bankruptcy Code § 362, a respondent’sfiling a bankruptcy petition effectuates an auto-matic stay of all proceedings against thedebtor-respondent to enforce any of the creditor-petitioner’s existing claims, including staying thecommencement or continuation of any nonpay-ment or holdover proceeding.xxxii

Two exceptions to this automatic stay arise.First, under Bankruptcy Code § 362(b)(22), arespondent’s eviction in a pending summaryproceeding may go forward if a judgment ofpossession has already been issued before thebankruptcy petition was filed. Second, underSection 362(b)(23), an eviction based on en-dangering the subject property or illegallyusing controlled substances may go forward ifthe endangerment or illegal use occurred with-in thirty days before the bankruptcy petitionwas filed.xxxiii

If the respondent-debtor has personal propertyremaining in the premises after the bankruptcy pe-tition is filed and the Section 362 stay takes effect,the stay must be vacated because the remainingproperty might be available as funds to pay credi-tors in connection with the bankruptcy proceed-ing.xxxiv A petitioner seeking to claim an excep-tion to the Section 362 automatic stay must filewith the Bankruptcy Court and serve on the re-spondent-debtor a certificate setting forth the basisfor the exception. The tenant-debtor then has theopportunity to object to the certificate claiming anexception, in which case the Bankruptcy Courtmust hold a hearing to determine the petitioner’sclaimed exception.xxxv

Once a commercial tenant files a bankruptcypetition, it must assume or reject an unexpiredlease.xxxvi A tenant that assumes the lease mustpay all outstanding arrears and continue to pay therent as it comes due. If the tenant rejects the leaseand continues in occupancy, the landlord is enti-tled to damages for the lease rejection.xxxvii

IV. CONCLUSION

Commercial landlord-tenant law is a field inwhich seemingly minor and inconsequential detailsare often crucial, or even dispositive. We hope thatthis three-part article has identified the more impor-tant details and most commonly litigated issues,both procedural and substantive, so that practition-ers can obtain favorable outcomes for their clients.

i Chinatown Apts., Inc. v. Chu Cho Lam, 51 N.Y.2d 786, 787,412 N.E.2d 1312, 1313, 433 N.Y.S.2d 86, 87 (1980).

ii United States v. Schmitt, 999 F. Supp. 317, 371(E.D.N.Y. 1998) (finding that petitioner waived defaultwhere rent is accepted with knowledge of particular conductclaimed to be a default); In re Duplan Corp., 473 F. Supp.1089, 1091-93 (S.D.N.Y. 1979); In re City Stores Company,42 B.R. 685, 691-93 (S.D.N.Y. 1984); Jefpaul Garage Corp.v. Presbyterian Hosp., 61 N.Y.2d 442, 446-48, 462 N.E.2d1176, 1178-79, 474 N.Y.S.2d 458, 459-60 (1984); Atkin’sWaste Materials, Inc. v. May, 34 N.Y.2d 422, 427, 314N.E.2d 871, 873, 358 N.Y.S.2d 129, 132 (1974) (“When rentis accepted with knowledge of particular conduct which isclaimed to be a default, the acceptance of such rent consti-tutes a waiver by the landlord of the default. The acceptanceof the rent is in effect an election by the landlord to contin-ue the relationship of landlord and tenant.”) (internal citationomitted); Woollard v. Schaffer Stores Co., 272 N.Y. 304, 312,5 N.E.2d 829, 832 (1936); P&D Cards & Gifts, Inc. v. Mate-jka, 150 A.D.2d 660, 662, 541 N.Y.S.2d 533, 535 (2d Dep’t1989) (finding waiver where commercial landlord had ac-cepted rent before attempting to terminate lease); 201 E. 37Owners Corp. v. Cass, 3 Misc. 3d 1102(A), 787 N.Y.S.2d682, 2004 N.Y. Slip Op. 50339(U), **2-3 (Civ. Ct. N.Y.County 2004).

iii TSS-Seedman’s, Inc. v. Elota Realty Co., 72 N.Y.2d 1024,1027, 531 N.E.2d 646, 648, 534 N.Y.S.2d 925, 927 (1988) (“[W]ereject defendant’s contention that, because the leases contained‘nonwaiver’ clauses, acceptance of the withheld rents did not pre-vent it from terminating the leases.”); Madison Ave. Leasehold,LLC v. Madison Bentley Assoc. LLC, 30 A.D.3d 1, 6, 811N.Y.S.2d 47, 51 (1st Dep’t 2006) (“[A] no-waiver clause is waivedby the acceptance of rent.”); Lee v. Wright, 108 A.D.2d 678, 680,485 N.Y.S.2d 543, 544 (1st Dep’t 1985) (“[I]t has long been therule that parties may waive a ‘no-waiver’ clause.”).

iv Graff v. Billet, 64 N.Y.2d 899, 902, 477 N.E.2d 212, 213,487 N.Y.S.2d 733, 734 (1985); 151 W. Assoc. v. Printsiples Fab-ric Corp., 61 N.Y.2d 732, 733-34, 460 N.E.2d 1344, 1344-45, 472N.Y.S.2d 909, 910 (1984); Syed v. Normel Constr. Corp., 4 A.D.3d303, 304, 773 N.Y.S.2d 345, 346 (1st Dep’t 2004); Fabulous Sta-tioners, Inc. v. Regency Joint Venture, 44 A.D.2d 547, 547, 353N.Y.S.2d 766, 768 (1st Dep’t 1974).

v Barash v. Pennsylvania Terminal Real Estate Corp., 26N.Y.2d 77, 81-85, 256 N.E.2d 707, 709-11, 308 N.Y.S.2d 649,652-54 (1970); Johnson v. Cabrera, 246 A.D.2d 578, 578-79, 668N.Y.S.2d 45, 45 (2d Dep’t 1998); Joylaine Realty Co. LLC v.Samuel, 100 A.D.3d 706, 706-07, 954 N.Y.S.2d 179, 180 (1stDep’t 2012); Serge Joseph, Defending the Commercial Tenant inSummary Proceedings 9-10 (N.Y. City Civ. Ct. Bd. of Judges, Jud.Conf., Oct. 22, 2013).

vi Minjak Co. v. Randolph, 140 A.D.2d 245, 247-49, 528N.Y.S.2d 554, 556-57 (1st Dep’t 1988); E. Haven Assoc. v. Guri-an, 64 Misc. 2d 276, 279, 313 N.Y.S.2d 927, 929-30 (Civ. Ct..N.Y. County 1970).

vii Fifth Ave. Bldg. Co v. Kernochan, 221 N.Y. 370, 372-77,117 N.E. 579, 580-82 (1917).

viii Camatron Sewing Machine, Inc. v. F.M. Ring Assoc., Inc.,179 A.D.2d 165, 168-69, 582 N.Y.S.2d 396, 398-99 (1st Dep’t1992); Sidereal Studios v. 214 Franklin LLC, 18 Misc. 3d 1110(A),856 N.Y.S.2d 26, 2008 N.Y. Slip Op. 50004(U), *10.

ix George Locker, Outside Counsel, Defending the Commer-cial Tenant in Civil Court, NYLJ, Feb. 1, 2002, at 4, col. 1.

x U.B.O. Realty Corp. v. Mollica, 257 A.D.2d 460, 460, 683N.Y.S.2d 532, 533 (1st Dep’t 1999); 379 E. 10th St., LLC v. Miller,23 Misc. 3d 137(A), 886 N.Y.S.2d 72, 2009 N.Y. Slip Op.50864(U), *1 (App. Term 1st Dep’t 2009); Benroal Realty Assoc.,LPv. Lowe, 9 Misc. 3d 4, 5-6, 801 N.Y.S.2d 114, 115-17 (App. Term2d Dep’t 2005); A Real Good Plumber, Inc. v. Kelleher, 191 Misc.2d 94, 95-96, 740 N.Y.S.2d 745, 746-47 (App Term 2d Dep’t 2002).

New York State Commercial Landlord-Tenant LawAnd Procedure: A Primer — PART III



xi Helsam Realty Co., Inc. v. H.J.A. Holding Corp., 4Misc. 3d 64, 66-68, 781 N.Y.S.2d 554, 556-57 (App. Term2d Dep’t 2002).

xii Madison 45 Co. v. Travel Overseas, Inc., NYLJ, Nov. 7,1999, at 28, col. 4 (Civ. Ct. N.Y. County) (determining after trialwhether petitioner had a good-faith demolition consistent with thelease-demolition clause and termination notice).

xiii Brusco v. Braun, 84 N.Y.2d 674, 679-81, 645 N.E.2d724, 725-27, 621 N.Y.S.2d 291, 292-94 (1994).

xiv Post v. 120 E. End Ave. Corp., 62 N.Y.2d 19, 28-29, 464N.E.2d 125, 129, 475 N.Y.S.2d 821, 825 (1984); A1 Entertain-ment LLC v. 27th St. Prop. LLC, 60 A.D.3d 516, 516-517, 875N.Y.S.2d 463, 463-64 (1st Dep’t 2009); All 4 Sports & Fitness,Inc. v. Hamilton, Kane, Martin Enters., Inc., 22 A.D.3d 512, 513,802 N.Y.S.2d 470 (2d Dep’t 2005); 44-46 W. 65th Apt. Corp. v.Stvan, 3 A.D.3d 440, 441, 772 N.Y.S.2d 4, 5 (1st Dep’t 2004);Lexington Ave. Assoc. v. Kandell, 283 A.D.2d 379, 379, 724N.Y.S.2d 864, 864-65 (1st Dep’t 2001); E. 41st. St. Assoc. v. 18 E.42nd St., 248 A.D.2d 112, 114, 669 N.Y.S.2d 546, 548 (1st Dep’t1998); Phillips-Beirne v. Classic Residences, 203 A.D.2d 151,152, 610 N.Y.S.2d 252, 253 (1st Dep’t 1994); Parksouth DentalGroup v. E. River Realty, 122 A.D.2d 708, 709, 505 N.Y.S.2d 633,635 (1st Dep’t 1986).

xv RPL § 227 (“Where any building, which is leased or oc-cupied, is destroyed or so injured by the elements, or any othercause as to be untenantable, and unfit for occupancy, and no ex-press agreement to the contrary has been made in writing, the les-see or occupant may, if the destruction or injury occurred withouthis or her fault or neglect, quit and surrender possession of theleasehold premises, and of the land so leased or occupied; and heor she is not liable to pay to the lessor or owner, rent for the timesubsequent to the surrender. Any rent paid in advance or whichmay have accrued by the terms of a lease or any other hiring shallbe adjusted to the date of such surrender.”); Locker, supra note 9.

xvi RPAPL 753(4).xvii JNA Realty Corp v. Cross Bay Chelsea, Inc., 42 N.Y.2d

392, 399-400, 366 N.E.2d 1313, 1317-18, 397 N.Y.S.2d 958, 962-63 (1977); 57 E. 54 Realty Corp. v. Gay Nineties, 71 Misc. 2d 353,354, 335 N.Y.S.2d 872, 873 (App. Term 1st Dep’t 1972).

xviii 21 N.Y.2d 630, 634-638, 237 N.E.2d 868, 689-871, 290N.Y.S.2d 721, 722-26 (1968).

xix See, e.g., Post v. 120 E. End Ave. Corp., 62 N.Y.2d 19, 25-26, 464 N.E.2d 125, 1237-28, 475 N.Y.S.2d 821, 823-24 (1984);); Xiotis Rest. Corp. v. LSS Leasing, LLC, 50 A.D.3d 678, 678-79,855 N.Y.S.2d 578, 579 (2d Dep’t 2008). Lexington Ave. & 42ndSt. Corp. v. 380 Lexchamp Operating, 205 A.D.2d 421, 423, 613N.Y.S.2d 402, 403 (1st Dep’t 1994).

xx E.g., Finley v. Park Ten Assoc., 83 A.D.2d 537, 538, 441N.Y.S.2d 475, 476 (1st Dep’t 1981).

xxi TSI W. 14, Inc. v. Samson Assoc., 8 A.D.3d 51, 53, 778N.Y.S.2d 29, 31 (1st Dep’t 2004); Herzfeld & Stern v. IronwoodRealty Corp., 102 A.D.2d 737, 738 , 477 N.Y.S.2d 7, 8 (1st Dep’t1984); Ameurasia Int’l Corp. v. Finch Realty Co., 90 A.D.2d 760,760, 455 N.Y.S.2d 900, 90 (1st Dep’t 1982); Podosky v. Hoffman,82 A.D.2d 763, 763, 441 N.Y.S.2d 238, 239 (1st Dep’t 1981).

xxii Graubard Mollen Horowitz Pomeranz & Shapiro v. 600

Third Ave. Assoc., 93 N.Y.2d 508, 514, 715 N.E.2d 117, 120, 693N.Y.S.2d 91, 94-95 (1999); Purdue Pharma, LP v. Ardsley Part-ners, LP, 5 A.D.3d 654, 655, 774 N.Y.S.2d 540, 541 (2d Dep’t2004); WPA/Partners LLC v. Port Imperial Ferry Corp., 307A.D.2d 234, 236-37, 763 N.Y.S.2d 266, 268-69 (1st Dep’t 2003);Lee v. TT & PP Main St. Realty Corp., 286 A.D.2d 665, 666, 729N.Y.S.2d 775,776 (2d Dep’t 2001); Empire State Bldg. Assoc. v.Trump Empire State Partners, 245 A.D.2d 225, 227-28, 667N.Y.S.2d 31, 34-35 (1st Dep’t 1997); 225 E. 36th St. GarageCorp. v. 221 E. 36th Owners Corp., 211 A.D.2d 420, 421, 621N.Y.S.2d 302, 303-04 (1st Dep’t 1995); Herzfeld & Stern, 102A.D.2d at 738, 477 N.Y.S.2d at 8-9.

xxiii 51 Park Place LH, LLC v. Consolidated Edison Co. ofN.Y., 34 Misc. 3d 590, 592-93, 939 N.Y.S.2d 255, 256-57 (Sup.Ct. N.Y. County 2011); Fifth Ave. Restaurant Corp. v. RCPILandmark Props, LLC, 13 Misc. 3d 1206(A), 824 N.Y.S.2d 753,2006 N.Y. Slip Op. 51708(U), **1-2 (Sup. Ct. N.Y. County 2006).

xxiv Excel Graphics Tech. v. CFG/AGSCB 75 Ninth Ave., 1A.D.3d 65, 70-71, 767 N.Y.S.2d 99, 103-04 (1st Dep’t 2003).

xxv Korova Milk Bar of White Plains, Inc. v. PRE Props.,LLC, 70 A.D.3d 646, 647-48, 894 N.Y.S.2d 499, 500-01 (2dDep’t 2010); King Party Ctr. of Pitkin Ave. v. Minco Realty, 286A.D.2d 373, 375, 729 N.Y.S.2d 183, 185 (2d Dep’t 2001).

xxvi Vill. Ctr. for Care v. Sligo Realty & Serv. Corp., 95A.D.3d 219, 220-22, 943 N.Y.S.2d 11, 11-13 (1st Dep’t 2012).

xxvii Metropolitan Transit Auth. v. 2 Broadway LLC, 279A.D.2d 315, 315, 720 N.Y.S.2d 12, 13 (1st Dep’t 2001); 401Hotel, L.P. v. MTI/The Image Group, Inc., 271 A.D.2d 228, 230,705 N.Y.S.2d 364, 366 (1st Dep’t 2000); Phillips & Huyler Assoc.v. Flynn, 225 A.D.2d 475, 475, 640 N.Y.S.2d 26, 27 (1st Dept.1996).

xxviii Medical Bldgs. Assoc. v. Abner Props. Co., 103 A.D.3d488, 488-89, 959 N.Y.S.2d 476, 476-77 (1st Dep’t 2013); Sport-splex of Middletown, Inc. v. Catskill Regional Off-Track BettingCorp., 221 A.D.2d 428, 428-29, 633 N.Y.S.2d 588, 588 (2d Dep’t1995); 61 W. 62nd Owners Corp. v. Harkness Apt. Owners Corp.,173 A.D.2d 372, 372-73, 570 N.Y.S.2d 8, 8-9 (1st Dep’t 1991).

xxix John A. Reisenbach Charter Sch. v. Wolfson, 298A.D.2d 224, 224, 748 N.Y.S.2d 247, 247-48 (1st Dep’t 2002).

xxx Syndicom Corp. v. Shoichi Takaya, 275 A.D.2d 676,677-78, 714 N.Y.S.2d 256, 256-57 (1st Dep’t 2000); S.B.R.’s Rest.v. Towey, 130 A.D.2d 645, 647, 515 N.Y.S.2d 573, 575 (2d Dep’t1987).

xxxi Godnig v Belmont Realty Corp., 124 A.D.2d 701, 702,508 N.Y.S.2d 213, 214-15 (2d Dep’t 1986); Tritt v. Huffman &Boyle Co., 121 A.D.2d 531, 531, 503 N.Y.S.2d 842, 843 (2ndDep’t 1986); Joseph, supra note 5, at 12-13.

xxxii Homeside Lending, Inc. v. Watts, 16 A.D.3d 551, 552-53, 792 N.Y.S.2d 513, 513-14 (2d Dep’t 2005); Lewis A. Linden-berg, A Commercial Tenant’s Perspective to Defending its Lease-hold Interest in a Summary Proceeding 3-4 (N.Y. City Civ. Ct. Bd.of Judges, Jud. Conf., Oct. 22, 2013).

xxxiii Lindenberg, supra note 32, at 4.xxxiv Id. at 3.xxxv Id. at 4-5.xxxvi Id. at 5-6.

New York State Commercial Landlord-Tenant Law—Part III

word, remarkable.”Next up was President Woodland’s law partner and husband,

Past President John Lonuzzi. Past President Lonuzzi opened hisremarks with one of the funniest jokes I have ever heard in allmy years of attending BBA events. It was too well delivered torepeat effectively herein, but the punch line involved one of theBBA’s favorite Justices, Hon. George Silver, and it broughtdown the house with laughter. He then went on to praise hiswife as one of the smartest persons he has ever met, who helpedhim build a law practice from a one laptop operation to what itis today. He remarked that not only is she able to be a vital partof their successful law practice, but she does so while having asuccessful second career as a television personality (PresidentWoodland regularly appears as a legal analyst and commentatoron NBC, CNN and Fox, as well as other networks). TheLonuzzis are longtime friends of recently deceased Hon.Theodore Jones and his family; John expressed his belief that,“today Ted Jones would have been just as proud of you as I am.”Certainly, it is no easy task to address a luminous crowd andspeak about one’s wife and her accomplishments with objectiv-ity, candor and style, but Past President Lonuzzi managed to doso in a way that genuinely expressed his appreciation for havingRebecca, not only as his wife and law partner, but also as theperson set to lead our Brooklyn Bar Association for the nexttwelve months.

Hon George Silver spoke next and said that President Wood-land has vision and predicted that it will be a great year for theBBA. He praised our incoming President as being, “kind, intel-ligent, brilliant and my good friend.” Hon. Cheryl Chambersnext related to the assembled that she met Rebecca Woodandeight years ago at the Kings County Inns of Court and describedRebecca as, “passionate about making a difference in the lives ofthe less fortunate.” Judge Chambers was certain that President

Woodland, at the end of her term, “will have made her mark andmade a difference.”

In addition to the induction of our new President, the eveningalso honored the newly installed Officers and Trustees. Hon.Cheryl Chambers inducted the following officers: Arthur L.Aidala, President-Elect, Hon. Frank R. Seddio, First Vice Presi-dent, Aimee L. Richter, Second Vice President, David M.Chidekel, Secretary and Hon. Frank V. Carone, Treasurer. JudgeChambers also inducted the Trustees of the Class of 2017: Mar-ianne Bertuna, Joseph R. Costello, Dewey Golkin, Hemalee J.Patel, Steven J. Harkavy, Jeffrey Miller and Stefano A. Filipaz-zo. Also inducted was Michael Farkas, Trustee Class of 2015.

The last to speak, after her induction by Judge Chambers, wasour new President, Rebecca Rose Woodland. She first thanked An-drew M. Fallek for all his help over the past weeks in working onthe transition. She thanked everyone on the dais and, in particular,her husband, and expressed that she is grateful to have him andapologized for all the time she will miss from their law practice incarrying out her duties as the Association’s President. She thankedher parents and noted that her father, early in her career, urged herto join the Brooklyn Bar Association, “because there is no betterway to learn and grow than to be active with those that are accom-plished.” President Woodland stated that one of the goals of herpresidency was to work through community outreach toward di-versity and noted that to further this goal she has scheduled meet-ings with the Brooklyn Borough President and General Counsel.Certainly, this is a laudable goal, different from the goals pursuedby recent Past Presidents of the organization, and the Associationas a whole should do everything it can to help our President withthis task as any progress in this regard will shine an extremely pos-itive light on our Association.

At the close of the ceremony, all retired to the Rotunda of theBorough Hall for food and drink. It was a wonderful evening anda great start to the Presidency of Rebecca Rose Woodland.


Rebecca Rose Woodland Inducted as The Ninety-Ninth President of The BBA

Rebecca Rose Woodland, President of the BrooklynBar Association. Photo by Mario Belluomo



Brooklyn Bar Associatin President Rebecca Rose Woodland, at podium, addresses a raptaudience of legal professionals and guests in the rotunda of the Borough Hall courthouse.

Photos courtesy of the Brooklyn Bar Association

Documents

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