THE OFFICIAL PUBLICATION OF THE BROOKLYN BAR ASSOCIATION ...€¦ · THE OFFICIAL PUBLICATION OF THE BROOKLYN BAR ASSOCIATION ©2015 Brooklyn Bar Association OCTOBER2015 VOL. 66 NO

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

©2015 Brooklyn Bar Association OCTOBER 2015 VOL. 66 NO. 17

On December 19, 2014, President Obamasigned into law the Achieving a Better LifeExperience Act (ABLE ACT) with signifi-cant bipartisan support. The intent of this Actis to solve the problems individuals face infinding and holding employment and livingindependently because their access to certainsafety net programs can be lost once they

establish a minimum level of savings andincome creating a disincentive to work.

The ABLE ACT encourages individualsto save private funds to support individualswith disabilities to maintain health, inde-pendence and quality of life.

In order for a person to be a beneficiaryof an account under the ABLE ACT, theymust have evidence of disability (i.e., SSD,SSI or some other determination) and thedisability must have commenced before thebeneficiary attained the age of 26 years.

These ABLE accounts are modeled after currentSection 529 college savings accounts.

SIGNIFICANT FEATURES OF THE ABLE ACT

1. Contributions into an ABLE accountcould be made by any person;

2. Contributions are not tax deductable;3. Income earned by accounts would

not be taxed;4. Account withdrawals, including

portions attributable to investment earningsgenerated by the account, for qualifiedexpenses are not taxable;

5. Individuals would be limited to oneABLE account and total annual contribu-tions by all individuals to any one accountcould be made up to the annual giftingexemption ($14,000 in 2014);

6. Aggregate contributions to an ABLEaccount are subject to an overall limitmatching the State limit for Section 529college accounts;

7. Individuals with an ABLE accountcould maintain eligibility for means testedbenefits, ABLE account balances andwithdrawals are completely excluded forthe purpose of Medicaid and other ben-efits programs. In SSI situations, the first$100,000 is excluded from counting as aresource, as are most account with-drawals;

8. Upon the death of the ABLEaccount beneficiary, any amount remain-ing in the account is subject to Medicaidpayback. If any funds remain afterMedicaid payback, the remainder there-of is paid to a designated beneficiary orthe beneficiary’s estate and subject toincome tax on investment earnings.

The ABLE Act is an additional tool toaid in planning for a person with a dis-ability while keeping eligibility formeans tested governmental benefits.

DISABLED CHILD MILITARYPROTECTION ACT

On December 19, 2014, PresidentObama signed into law the National De-fense Authorization Act. Included in thisAct was an amendment titled the DisabledChild Military Protection Act (DCMPA).The purpose of the amendment is intended

New Federal Laws Aid Persons With DisabilitiesABLE ACT Becomes Law

Please turn to page 9

What’s Inside

Visit us at www.brooklynbar.org

Liability for the Cost of Nursing Home Care

I. INTRODUCTIONThe issue of liability for the cost of care at

nursing homes on its surface does not seemto be very complicated but various factualcircumstances that occur in these cases canadd to the complications.

The case usually starts with a call thatGrandma was just admitted to the nursinghome for short term rehabilitation and theyhope she will return home with home care.An initial consultation may explore carecosts for home care and facility care, theneed for Guardianship and whether or notprior assets transfers occurred in the previousfive (5) years. It usually does not encompassthe nursing home admission agreement.

This article will address the liability is-sues for cost of care at nursing homes whichusually arise under the terms of an admissionagreement.

II. ADMISSION AGREEMENTThe first significant legal issue that must

be presented is the federal law and New YorkState Regulations regarding the admissionagreement.

Generally, when a non-resident partysigns an admission agreement on behalf ofthe resident, there is no contractual personalliability for the non-resident party for unpaidservice bills nor could a nursing home facili-ty legally require such a guaranty as a condi-tion of the resident’s admission. However,these federal laws and state regulationspermit nursing homes to legally require theauthorized representative (i.e., spouse, attor-ney in fact or joint account holder) or anindividual having access and control over theresident’s assets and income to provide thefacility with payment using that access to theresident’s available income or resourceswithout incurring any personal financialliability. See 42 U.S.C. 1396r(c)(5)(A)(ii);42 U.S.C.1396r(c)(B)(ii); and 10 NYCRR415.3(b).

By: Anthony J. Lamberti, Esq.,Elder Law Committee

By: Anthony J. Lamberti, Esq.,Elder Law Committee


New Federal Laws Aid Persons With DisabilitiesBy Anthony J. Lamberti, Esq. ............................. Pg. 1Liability for the Cost of Nursing Home CareBy Anthony J. Lamberti, Esq. ............................. Pg. 1New Members ................................................... Pg. 2Legal BriefsBy Avery Eli Okin, Esq., CAE ............................ Pg. 2Respectfully SubmittedBy Arthur L. Aidala, Esq. .................................... Pg. 3Roll CallBy Diana J. Szochet, Esq. ........................................ Pg. 4An Overview of the Justice forVictims of Trafficking Act of 2015By Barbara H. Grcevic, Esq. ............................................ Pg.5State and City Crackdown on Real Estate Tax Exemption AbusesBy Lawrence F. DiGiovanna, Esq. ................................. Pg. 6Culinary Delights On Display in Brooklyn .......................... Pgs. 7 & 12State of EstatesBy By Hon. Bruce M. Balter andPaul S. Forster, Esq.. .............................................. Pg. 8

President Arthur L. Aidala with Executive Director Avery Eli Okin.BBA Past President Lawrence F. DiGiovanna, left.

Brooklyn Eagle photos by Rob Abruzzese

Chef Lennyof L&B Spumuni Gardens, Justice Michael L . Pesce.

Culinary Delights OnDisplay In Brooklyn

—See page 7—

Page 2, BROOKLYN BARRISTER OCTOBER 2015

JUDICIALRECOGNITIONCongratulations to Brooklyn Bar Associa-

tion member Hon. Marsha Steinhardt who

was presented with The Award for Out-

standing Jurisprudence by the New York

State Medical Defense Bar Association at an

event held on October 7, 2015 at The

Harmonie Club.

Congratulations to former Brooklyn Bar

Association Trustee Hon. John Ingram who

was honored by the Irish American Bar As-

sociation of New York at it’s 5th Annual

Thomas Jefferson Memorial Wine Geese

Wine Tasting and Wild Goose Award in

celebration of his legal work. This event,

which was held on September 9, 2015,

was hosted at the Irish Consul General’s

Apartment in New York.

Congratulations to Brooklyn Bar Asso-

ciation member and former Civil Court

Judge Hon. Alice Fisher Rubin who was

appointed for a two year term on the

Board of Trustees of the Brooklyn Law Li-

brary earlier this month. In addition, last

month Judge Rubin was elected as the

first woman chair of the CUNY College of

Technology Foundation.

KUDOS AND

PROFESSIONAL RECOGNITIONBrooklyn Bar Association President

Arthur L. Aidala, BBA Trustee and Kings

County Criminal Bar Association President

Michael C. Farkas and BBA Criminal Law

Section Chair George A. Farkas were recog-

nized as Attorneys of Valor by DROR an

organization which promotes delinquency

prevention, encourages law abiding behav-

ior and assists incarcerated individuals, at

their 4th Annual Freedom & Unity dinner

held on September 10., 2015 at the Broad

Street Ballroom.

Congratulations to Brooklyn Bar Associa-

tion Trustee Richard Klass, who was ap-

pointed by the Appellate Division, Second

Department to a four year term on the

Grievance Committee for the 2nd, 11th and

13th Judicial Districts.

On August 25, 2015 BBA Trustee Jimmy

Lathrop was profiled in the Brooklyn Daily

Eagle where he was recognized for his vol-

unteerism and his role in pro bono service

both with the Volunteer Lawyers Project

and in private practice.

Also recognized by the New York Law

Journal as a 2015 Lawyer Who Leads by Ex-

ample for his pro bono service was former

Brooklyn Bar Association trustee and cur-

rent president of the Volunteer Lawyers

Project James Slattery. James Slattery was

one of only three attorneys citywide in the

attorneys emeritus group who was singled

out for that recognition.

On October 28, 2015 The Cervantes So-

ciety will be hosting its 20th Annual Award

Ceremony in the Rotunda of the New York

County Supreme Court which will feature

former BBA trustee Hon. Ariel E. Belen,

Court of Appeals Judge Jenny Rivera and

Chief Administrative Judge of the Courts of

the State of New York Hon. Lawrence K.

Marks. Being honored at that event are

BBA member Betty Lugo, the President of

the Puerto Rican Bar Association and

Christina Golkin the founding chairperson

of the LGBTQ Committee of the Brooklyn

Bar Association.

PROFESSIONALADVANCEMENTS

The Second Circuit Judicial Council has

announced that it is seeking candidates for

a Bankruptcy Judge position in the District

of Connecticut, with chambers in Hartford.

Applications are available online at

[email protected] or by calling 212-

857-8700. Applications must be submitted

by noon on Friday, October 30, 2015.

FAMILY MATTERS

Brooklyn Bar Association member Mark

Friedman and his wife announce the birth

of their first child, a daughter, Tiffany Rose

Friedman on April 12, 2015.

Legal Briefs is compiled and written by

Avery Eli Okin, Esq.,CAE the Executive Direc-

tor of the Brooklyn Bar Association and its

Foundation. Items for inclusion in “Legal

Briefs” should be emailed to aokin@brook

lynbar.org, faxed to 718-797-1713 or mailed

to the bar center at 123 Remsen Street,

Brooklyn, New York 11201-4212.

Brooklyn Barrister is published by Everything Brooklyn Media, LLC, under the auspices of the Brooklyn Bar Association. For advertising information call (718) 422-7410. Mailing address 16 Court Street, Suite 1208, Brooklyn, New York 11241.Vol. 66 No. 17. October 2015. The Brooklyn Barrister (ISSN 007-232 USPS 066880) is published monthly except in August and December by the Brooklyn Bar Association. Office of publication is: Brooklyn Bar Association,123 Remsen Street, Brooklyn, New York 11201-4212. Telephone No. (718) 624-0675. Periodical postage is paid in Brooklyn, New York and at additional mailing offices. Subscription price is $11.00 per year. POSTMASTER: Send ad-dress changes to the Brooklyn Barrister, 123 Remsen Street, Brooklyn, NY 11201-4212.

BROOKLYN BARRISTER EDITORIAL BOARDAnthony J. Lamberti

Editor-in-ChiefDiana J. SzochetManaging Editor

Aimee L. RichterArticles Editor

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

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

Michael TreybichAlexis VigilanteShelly WerbelGlenn VerchickGregory Zenon

BROOKLYN BAR ASSOCIATION 2015-2016Arthur L. Aidala, President

Hon. Frank R. Seddio, President ElectAimee L. Richter, First Vice President

David M. Chidekel, Second Vice PresidentHon. Frank V. Carone, SecretaryAnthony J. Lamberti, Treasurer

Avery Eli Okin, Esq., CAE: Executive Director

CLASS OF 2016Elaine N. Avery

Armena D. GayleDavid J. Hernandez

Richard KlassDeborah LashleyJoseph S. Rosato

Pauline Yeung

CLASS OF 2017Marianne BertunaJoseph R. Costello

Stefano A. FilippazzoDewey Golkin

Hemalee J. PatelSteven J. Harkavy

Jeffrey Miller

CLASS OF 2018Daniel Antonelli

Hon. Fidel F. Del ValleMichael FarkasJaime Lathrop

Andrew S. RendeiroAnthony W. Vaughn, Jr.

Glenn Verchick

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. SzochetRebecca Rose Woodland

TRUSTEES COUNCIL (Past Presidents)

TRUSTEES

NEW MEMBERSNew Members for the Month of SEPTEMBER 2015

MARK ANDERSONJILLIAN CASTRELLONBTZALEL HIRSCHHORNMICHAEL MANOUSSOSJUAN ORTIZ

DEANNA PAULSEAN SMITH

OLUGBENGA SOPEJUANDREW STENGEL

STUDENT MEMBERSDESIREE ALEXANDER MUBEEN CHUGHTAI

LEGAL BRIEFS

OCTOBER 2015 BROOKLYN BARRISTER, Page 3

I am happy to report that many positiveevents have taken place over the last severalweeks. Allow me to begin with the mostexciting news: we have announced the hon-orees for our December 7th 2015 Founda-tion Annual Dinner to be held in the GrandBallroom of the Brooklyn Bridge MarriottHotel. Our 2015 Annual Award recipientswill be Harvard Law School Professor AlanDershowitz; Eastern District of New YorkJudge Sterling Johnson; Appellate DivisionSecond Department Justice John Leventhal;and former Kings County AdministrativeJudge of the Supreme Court Criminal Term,the Honorable Patricia DiMango. The BarAssociation is very excited and honored tohave a group that does not only containshining stars of the Brooklyn legal commu-nity but each of our honorees is nationallyknown in their respective areas of expertise.We ask that our members support our pre-miere event as generously as possible anduse what is sure to be an exceptionalevening as an opportunity to expose ourAssociation to potential new members.

Speaking of the best of our legal commu-nity, on September 9th after our monthlyBoard meeting, our Executive Director AveryOkin and President-Elect Frank Seddiojoined me in hosting a private dinner atMarco Polo Ristorante for the Past Presidentsof our Association. We were twenty in totalas Andrew Fallek represented our most re-cent office holder and Joseph H.Farrell whoheld office 1986-1987 representing the indi-vidual who held the position the longest timeago. Each President regaled us with both hi-lights and also some low-lights of their re-spective tenures. Both President-Elect Seddioand I listened very carefully and I am confi-dent we both learned a lot. A definite high-light was President Farrell speaking of hisfirst encounters with a very young Avery EliOkin more than 30 years ago. A great mealand a great time was had by all.

Also during the month of Septemberour trip to Cuba was sold out to our mem-bership. Thirty five of us will set out fromFebruary 28 to March 5th accompanied bya tour agency dedicated to serving attor-neys and bar associations on an educa-tional exploration of the island. Our tripwill be covered extensively in this period-ical upon our return.

On a more serious note, I was joined lastweek by Board member and President ofthe Kings County Criminal Bar Association

Michael Farkas as well as our BoardMember Marianne Bertuna in meetingwith Administrative Judge of the CriminalCourt Michael Yavinsky. We discussedseveral topics that affect criminal practi-tioners. At the top of our list was to obtaina definition of the standards used in deter-mining if a criminal defendant is actuallyindigent and entitled to one of the publicdefenders available versus someone whohas the financial means to retain a privatelawyer. Currently the topic of eligibilityfor free legal services is not addressed atthe arraignment and many defendants areassigned a public defender to which he orshe is not legally entitled. The U.S.Supreme Court case of Gideon v. Wainwrightensures that INDIGENT citizens are entitledto a free lawyer, NOT that every citizen is en-titled to a free lawyer. Our Justice system doesnot have a regulated method in place to verifya defendant's finances and their eligibility tofree legal counsel and therefore abuses of thesystem are taking place.

Judge Yavinsky could not have beenmore receptive and accommodating and hisassurances of addressing our issues are al-ready being put into effect at his court-house. We look forward to our meeting withJustice Matthew D'Emic of the SupremeCourt in the coming weeks.

Finally, on October 14th every seat in ourauditorium was full as Presiding Justice ofthe Appellate Term, Honorable MichaelPesce and Chef Leonardo "Lenny" Kern ofL&B Spumoni Gardens lead us on a culinary

and wine experience that will not soon be for-gotten. Justice Pesce guided us through thetasting of five wines and two after dinner cor-dials while Chef Lenny and his remarkableteam served five different courses comprisingseven different creations. After Judge Pesceexplained how and where the wines weremade, Chef Lenny let us in on some of hiscooking secrets and the origins of many ofthe foods we shared. The evening stretched

late into the night clearly demonstrating howmuch our members enjoyed themselves.Thank you to everyone who attended andparticipated in the event, it was a uniquenight for our Association.

Please make every effort to attend andsupport our December 7th Annual Dinnerand help us to continue our tradition ofmaking this the best night of the year forour Association.

By: Arthur L. Aidala, Esq

PAST PRESIDENTS DINNER HELD SEPTEMBER 9, 2015 AT MARCO POLO RESTAURANT. Seated Left-to-Right: Lawrence F. DiGiovanna, Paul A. Golinski,Arthur L. Aidala, Hon. Barry Kamins, Joseph H. Farrell. (Not shown: Vivian H. Agress). Standing Left-to-Right: Executive Director Avery Eli Okin, Esq.,CAE,Domenick Napoletano, Gregory T. Cerchione, Ethan B. Gerber, Barton L. Slavin, Hon. Miriam Cyrulnik, Steven D. Cohn, Andrew M. Fallek, Diana J.

Szochet, Roger Bennet Adler, Hon. Jeffrey Sunshine and Hon. Nancy T. Sunshine.

President Arthur L. Aidala, Esq.

RESPECTFULLY SUBMITTED—————————————— PRESIDENT’S MESSAGE —————————————


•••Frank Adipietro, a suspended attorney,resignor (August 12, 2015)

By decision and order dated March 6,2015, the respondent was immediately sus-pended from the practice of law, pending fur-ther order of the Court, and the GrievanceCommittee was authorized to institute andprosecute a disciplinary proceeding, basedupon a verified petition containing 11 chargesof professional misconduct. The respondenthas now tendered an affidavit of resignation,wherein he acknowledges that he would not beable to defend himself on the merits against 16complaints of professional misconduct filedagainst him by clients and former clients, 11 ofwhich were included in the foregoing petition.The complaints generally allege that the re-spondent neglected, or acted incompetentlywith respect to, clients’ legal matters; intention-ally failed to seek the lawful objectives of hisclients or former clients, thereby prejudicing orinjuring the clients or former clients during thecourse of his representation; regularly and sys-tematically lied to his clients or former clientsconcerning his activities and the status of theirlegal matters, as well as his intention to refundunearned fees or remit other funds to whichthey were entitled; misappropriated funds en-trusted to him for his own use and benefit; andfailed to refund unearned fees.

•••Thomas G. DeVivo, Jr., admitted asThomas Guy DeVivo, Jr., resignor(August 19, 2015)

The respondent tendered an affidavit ofresignation wherein he acknowledged thathe would not be able to successfully defendhimself against charges predicated upon twocomplaints of professional misconduct filedagainst him. The respondent averred that hemisappropriated approximately $216,000entrusted to him as attorney for the executorof an estate; presented the executor with acheck register in which the respondent,among other things, entered false payeenames for checks actually made payable tohim, or falsely recorded as “void” checks ac-

tually made payable to him, while deliber-ately withholding the monthly bank state-ments and canceled checks from the execu-tor; failed to properly re-register as an attor-ney for two consecutive registration periods;and failed to submit answers to pendingcomplaints or otherwise respond to lawfulinquiries of the Grievance Committee.

•••Timothy G. Griffin, a suspended attor-ney (August 19, 2015

By decision and order dated November12, 2014, the respondent was immediatelysuspended from the practice of law, pendingfurther order of the Court, based upon hisfailure to cooperate with the GrievanceCommittee and other uncontroverted evi-dence of serious professional misconductimmediately threatening the public interest,and the Grievance Committee was author-ized to institute and prosecute a disciplinaryproceeding. On February 4, 2015, the re-spondent entered a plea of guilty in theSupreme Court, Richmond County (Rooney,J.) to one count of Grand Larceny in the FirstDegree, a class B felony. By virtue of hisNew York felony conviction, the respondentceased to be an attorney and counselor-at-law and was automatically disbarred as ofFebruary 4, 2015. Upon the Grievance Com-mittee’s motion, the respondent’s name wasstricken from the roll of attorneys and coun-selors-at-law, to reflect his automatic disbar-ment as of February 4, 2015.

•••The Following Attorneys AndCounselors-At-Law Were Suspend-ed From The Practice Of Law ByOrder Of The Appellate Division,Second Judicial Department:

Damian J. Pietanza, admitted as DamianJoseph Pietanza (August 19, 2015)

Following a disciplinary proceeding, therespondent was found guilty of commin-gling personal funds with funds entrusted tohim as a fiduciary, incident to the practice of

law; failing to maintain required bookkeep-ing records for his attorney escrow account;engaging in a pattern and practice of misap-propriating funds held in his attorney escrowaccount; improperly advancing financial as-sistance to clients while representing them inconnection with pending litigation; neglect-ing legal matters entrusted to him; and en-gaging in dishonesty, deceit, fraud and mis-representation with respect to the status of aclient’s legal matters, including advising theclient that her divorce had been filed, fur-nishing the client with a false document infurtherance of the foregoing claim, and pro-viding the client with a document the re-spondent fabricated. He was suspended fromthe practice of law for a period of threeyears, commencing September 18, 2015.Contrary to the respondent’s claim that hisconduct was “not venal,” the Court foundthat he “deliberately and intentionally en-gaged in deception by preparing and pre-senting fictitious documents…designed tomislead his client as to the true status of herlegal matters, and [to] conceal his neg-lect…[citation omitted].”

•••Elliott Bakst (August 28, 2015)

The respondent was immediately sus-pended from the practice of law, pendingfurther Order of the Court, as a result of hisadmissions and other uncontroverted evi-dence of professional misconduct immedi-ately threatening the public interest, andthe Grievance Committee was authorizedto institute and prosecute a disciplinaryproceeding.

•••Robert C. Fishman (August 28, 2015)

On December 19, 2008, the respondentappeared in the Superior Court of California,in and for Los Angeles County (Titus, J.),where he entered a plea of nolo contendereto two felony counts of possession of childpornography and was found guilty. Upon in-formation and belief, the respondent failedto report his California conviction to theState of New York, as required by JudiciaryLaw Section 90. Upon the Grievance Com-mittee’s motion to strike the respondent’s

name from the roll of attorneys and coun-selors-at-law in New York, the Appellate Di-vision, on its own motion, immediately sus-pended the respondent from the practice oflaw, pending further order of the Court, as aresult of his conviction of a “serious crime”pursuant to Judiciary Law Section 90, andthe Grievance Committee was authorized toinstitute and prosecute a disciplinary pro-ceeding.

•••The Following Attorney AndCounselor-At-Law Was PubliclyCensured By Order Of The Appel-late Division, Second JudicialDepartment:

Nicholas M. Nudo, III (August 19, 2015)Following a disciplinary proceeding, the

respondent was found guilty of engaging inconduct involving dishonesty, fraud, deceit,or misrepresentation, and conduct prejudi-cial to the administration of justice, emanat-ing from his representation of a client in hisattempt to refinance a mortgage, whichtransaction did not close, and his false repre-sentation to a bank attorney, some 11 yearslater, that he was authorized to accept receiptof $1,227.00, which he then deposited in hisescrow account. In light of the “serious na-ture” of the respondent’s misconduct, theCourt rejected his request to remit the matterto the Grievance Committee for a privatesanction. However, the Court considered, inmitigation, the isolated nature of the miscon-duct in an otherwise unblemished careerspanning 30 years.

——ROLL CALL was compiled by Diana J. Szochet,a Court Attorney-Referee in Supreme Court,Kings County. Previously, Ms. Szochet wasan assistant counsel to the GrievanceCommittee for the Second, Eleventh andThirteenth Judicial Districts in Brooklyn,and Assistant Deputy Chief Appellate CourtAttorney at the Appellate Division, SecondJudicial Department, focusing on attorneydisciplinary matters.

The Following Attorneys And Counselors-At-Law Were DisbarredBy Order Of The Appellate Division, Second Judicial Department:

Roll Call

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An Overview of the Justice forVictimsof Trafficking Actof 2015

Human trafficking involves the use offorce, fraud or coercion to compel a person’slabor or sexual exploitation.1 It includes abroad range of activity from compellingdomestic workers to toil for little or nomoney to selling individuals into prostitution.Approximately 27 million people and 13million children around the world havebeen trafficked.2 Between 14,500 and17,500 people are trafficked into the UnitedStates each year.3 Sadly, more than100,000 American children are forced intoprostitution each year.4

In an effort to combat human trafficking,President Obama signed the Justice for Vic-tims of Trafficking Act of 2015 on May 29,2015. The bipartisan federal legislation,composed of ten titles, authorizes services tovictims of human trafficking and establishes afund to pay for the costs of those services.This article briefly outlines some of the moresignificant provisions of the new law (seePublic Law No. 114 - 22, 129 Stat. 227).

Title I of the new law, Justice for Victimsof Trafficking, sets up a Domestic TraffickingVictims Fund financed by a $5000 penaltyassessed on convicted sex offenders andhuman smugglers who transport individualsin interstate or foreign commerce for traf-ficking purposes. These assessments supple-ment existing federal resources available forhuman trafficking victim support. The fundawards grants to states and localities tocounter trafficking, protect and assist victims,create and implement child abuse preventionprograms, and provide services to victims ofchild pornography. The law also expands thedefinition of “child abuse” under the Victimsof Child Abuse Act of 1990 to incorporatehuman trafficking and the production ofchild pornography. Child pornography pro-duction is now classified as a form of humantrafficking. The legislation strengthens lawenforcement mechanisms for prosecutinghuman trafficking offenses. It ensures that

patrons of traffickers are equally responsiblefor trafficking crimes, thereby imposingharsher penalties on so-called “johns.”

Under Title II, Combating Human Traf-ficking, services are enhanced for runawayand homeless victims of youth trafficking.The Department of Justice is authorized toprovide housing to trafficking victims. Thelaw also creates an interagency task force toinvestigate, monitor and combat trafficking.

Pursuant to Title III, Human ExploitationRescue Operation Act of 2015 (HERO Act),the U.S. Immigration and Customs Enforce-ment (ICE), within the Department of Home-land Security, establishes a Cyber CrimesCenter comprised of a Computer ForensicsUnit and a Child Exploitation InvestigationsUnit (CEIU). The Center offers investiga-tive assistance, training, and equipment toaid investigations by ICE of cyber-relatedcrimes involving child exploitation. Alsounder this title, the federal criminal code isamended to impose a fine and/or prison termof up to 10 years on anyone who knowinglytransports any individual in interstate or foreigncommerce with the intent of having thatindividual engage in any criminal sexualactivity.

Title IV, Rape Survivor Child Custody,provides for the Department of Justice toincrease grant funding to any state that has inplace a law that allows the mother of anychild that was conceived through rape toseek court-ordered termination of theparental rights of the rapist as to that child.Five million dollars is authorized annuallythrough fiscal year 2019 to carry out themandates of this Title.

Under Title V, Military Sex Offender Re-porting, the Department of Defense shallprovide the Department of Justice with sexoffender registration information of individ-uals who are: (1) released from military cor-rections facilities, or (2) convicted, if thesentences adjudged by court-martial underthe Uniform Code of Military Justice ofcriminal sexual activity, do not include

confinement. Title VI, Stopping Exploitation Through

Trafficking, establishes a national strategyfor combating human trafficking by integrat-ing federal, state, local and tribal efforts toinvestigate and prosecute human traffickingcases. This legislation also authorizes theU.S. Marshals Service to assist state, local,and other Federal law enforcement agenciesin locating and recovering missing children.In addition, the law creates a national humantrafficking hotline so that victims can com-municate with service providers.

Pursuant to Title VII, Trafficking Aware-ness Training for Health Care, the HealthResources and Services Administration at theDepartment of Health and Human Servicesshall award a grant or contract to an accreditedschool of medicine or nursing with experiencein the study or treatment of a severe form oftrafficking to train health care professionals torecognize and respond to trafficking victims.

Title VIII, Better Response for Victims ofChild Sex Trafficking, requires that a state’schild protective services system include acertified assurance that the state has in effectand is enforcing a law that: 1) requiresidentification and assessment of all reportsinvolving children known or suspected to bevictims of sex trafficking and 2) trains childprotective services workers in identifying,assessing, and providing comprehensiveservices for children who are victims of sextrafficking.

Under Title IX, Anti-Trafficking Trainingfor the Department of Homeland SecurityPersonnel, the Department of HomelandSecurity (DHS) shall train and retrain appro-priate personnel in the Transportation Secu-rity Administration, the US Customs andBorder Protection, and other DHS personnelon how to effectively deter, detect, anddisrupt human trafficking. The Departmentmay also provide training to assist non-fed-eral entities, i.e., any state, local, or tribalgovernment or private organization in estab-lishing a program of training to identify

human trafficking. Money from the DomesticTrafficking Victims Fund may be used toinclude grant funding for state and localInternet Crimes Against Children TaskForces to combat child exploitation.

Title X, Human Trafficking SurvivorsRelief and Empowerment Act, allows prefer-ential treatment of grant applications underthe public safety and community-orientedpolicing grant program of the OmnibusCrime Control and Safe Streets Act of 1968to applicants from states that: 1) allow ahuman trafficking survivor to vacate anyarrest or conviction records for a non-violentoffense committed as a direct result of traf-ficking, 2) protect the identity of individualswho are human trafficking survivors in publicrecords, and 3) do not mandate that anyindividual who is a human trafficking sur-vivor provide official documentation inorder to receive protection under the law.

This critical piece of legislation, whenfully enforced and implemented, will sig-nificantly advance efforts to eradicate themodern-day slavery that is human trafficking.

——

1U.S. Department of Defense, Combatting Traf-

ficking in Persons, ctip.defense.gov/ Home.aspr

(accessed Aug. 31, 2015).

255 Little Known Facts About Human Trafficking,

Facts.randomhistory.com/human-trafficking-

facts.html,(accessed Aug. 31, 2015); Skinner, E.

Benjamin, A Crime so Murderous: Face-to-Face

with Modern-Day Slavery, New York, NY: Free

Press, 2008.

3Christian Sabayan, Emily Smith, and Manay Tan-

neeru, The CNN Freedom Project, Ending Modern-

Day Slavery,

Thecnnfreedomproject.blogs.cnn/com/catego-

ry/the-facts/the-number (posted Jan. 2, 2011).

4Youth Radio, Trafficked Teen Girls Describe Life in

“The Game,” www.npr.org/2010/

12/06/131757019/youth-radio-trafficked-teen-

girls-describe-life-in-the-game (posted Dec. 6, 2010).

By: Barbara H. Grcevic, Esq.

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III. RESIDENT’S LIABILITY

A. SIGNED ADMISSION AGREEMENT

The clearest case, in terms of liability forcost of care, is that where a resident with fullmental capacity signs an admission agree-ment and payment is not forthcoming. Theusual cause of action for breach of contract isasserted by the nursing home and the resi-dent may answer with any number of de-fenses to this type of action.

The most significant issue in these type ofcases is whether the resident voluntarilysigned the admission agreement and under-stood the consequences in doing so. In BaptistHome of Brooklyn v. Schott, 902 NYS 2d 368(2d Dept. 2010), the Court denied the nursinghome’s motion for summary judgment be-cause there was a triable issue of fact regardingthe voluntary signing of the agreement issue.

B. WITHOUT A SIGNED ADMISSION AGREEMENT

The most common scenario occurs wherea resident has mental capacity and is admit-ted for long term care and the facility staffdoes not obtain a signed agreement.

1. QUANTUM MERUITThe quantum meruit claim is an implied

contract based upon the conduct of the par-ties. Generally, the elements of a quantummeruit claim are as follows:

a. performance of services in good faith;b. acceptance of services;c. expectation of compensation by provider;d. reasonable value should be awarded

for services rendered.

This is usually the strongest cause of ac-tion against a resident who has not signed anadmission agreement.

2. ACCOUNT STATEDIn order to promulgate this cause of action a

facility needs to establish the following:a. a bill is rendered and delivered to resident;b. resident is bound to examine the bill

that is being charged;c. a reasonable time passes where no

objection is made by resident and the resident’s silence is construed as acceptance.

In Erdman Anthony & Associates v. Barkstrom298 A.D. 2d 981 (4th Dept., 2002), the Courtheld that oral objections are sufficient torebut an inference of an implied contract topay the account.

3. UNJUST ENRICHMENTThis is essentially an equitable claim where

it needs to be established that a nursing homeconferred a benefit to the resident and the resi-dent obtained the benefit without having ten-dered adequate consideration for services.

IV. LIABILITY OF THE RESIDENT’S SPOUSEA. COMMON LAWThe common doctrine of the law of nec-

essaries is often cited as a cause of action bynursing homes against the spouses of resi-dents. The main element under this cause ofaction would be a reciprocal duty upon eachspouse to furnish the other with reasonablenecessaries including medical care (MedicalBusiness Associates v. Steiner, 183 A.D. 2d588 (2d Dept. 1992)).

This common law theory of necessariesmay be applied against a spouse of a residentas long as the non-resident spouse has theability to pay the debt and an attempt wasmade to secure payment form the debtorspouse first.

B. LIABILITY UNDER STATUTESection 412 of the Family Court Act

provides that:“…..A married person is charge-

able with the support of his or herspouse and, if possessed of sufficientmeans or able to earn such means,may be required to pay for his or hersupport a fair and reasonable sum, asthe court may determine, having dueregard to the circumstances of the re-spective parties.”

This statute seems to imply that there is alegal obligation that one spouse is responsiblefor the other spouse’s financial obligations.However, further analysis of the Family CourtAct (Section 422) does not give standing tothird parties (i.e. creditors) to assert their claims.

This is not to be confused with actions broughtby Medicaid against a spouse who has filed aspousal refusal. In that circumstance, a Medicaidrecipient has subrogated his rights against thespouse who has filed a spousal refusal.

V. THIRD PARTY LIABILITY

A. DOES A SIGNED ADMISSIONAGREEMENT EXISTFederal and state law clearly set forth that

a facility shall not require a third party guar-anty of payment as a condition of admission.However, the facility may require an indi-vidual who has legal access to a resident’sincome or resources available to pay forcare, to sign a contract without incurring per-sonal liability to provide payment from theresident’s income or resources.

In Prospect Park Nursing Home v. Gouti-er, 12 Misc. 3d 1192(A), 824 NYS 2d 770(NYC Civil Ct 2006), the Court held thateven though the defendant (a friend of theresident) signed an admission agreement, hewas not liable for the resident’s unpaid nurs-ing home charges. The defendant did nothave legal access to the resident’s funds atthe time the agreement was signed and thedebt was incurred.

B. DOES LEGAL ACCESS TO RESIDENT’S FUNDS EXISTIn Amersterdam Nursing Home Corp. v.

Lang, 16 Misc. 3d 1138(A), 824 NYS 2d 56(Sup Ct 2007), the facility sought to have theresident’s grandson held liable for unpaid netavailable monthly income (NAMI) as deter-mined by the budgeting of the local socialservices district.

The nursing home did not present any ev-idence that the defendant had any legal ac-cess to the resident’s assets or income.

The holdings in the Goutier and Lang casesappear to support the proposition that a thirdparty can be liable for a resident’s nursing homebill but only where the third party has legal ac-cess or control over the resident’s funds.

C. WHAT IF A DESIGNATEDREPRESENTATIVE HAS BEENAPPOINTED BY THE RESIDENTIn many admission agreements, a resident

may appoint a designated representative. InNew York Congregational Nursing Center v.Gilchrist, 21 Misc. 3d 1136(A) (Sup Ct 2008)a designated representative (who did not signthe admission agreement) was sued for the out-standing bill of the resident. The Court heldthat the defendant was not the designated repre-sentative and thus could not be held liable forthe cost of care under the agreement.

D. LIABILITY OFATTORNEY-IN-FACT

Another interesting issue is whether athird party attorney-in-fact can be held liablefor the resident’s cost of care in cases wherethe attorney-in-fact fails to use the resident’sincome and assets for the resident’s nursinghome costs.

This issue was addressed in Troy Nursing &Rehabilitation Center v. Naylor and Gaetano,(3d Dept. 2012). The defendant, Gaetano, is theresident’s daughter and attorney-in-fact of theresident (defendant Naylor). She signed anadmission agreement on behalf of her fatherwherein she agreed to utilize her access to herfather’s assets (by virtue of his power of attor-ney) to pay for his care.

The record indicates that the attorney-in-fact used the resident’s funds to maintain andupkeep real property which had been trans-ferred to a trust and made no payment to-ward the cost of his care.

The attorney-in-fact contended that shecannot be personally liable since she signedthe document as “POA” and it violated fed-eral law by making her a guarantor for pay-ment as a condition of admission.

The Appellate Division affirmed theSupreme Court’s decision that the defendantaccepted personal responsibility to utilizeher access to her father’s funds to pay for hiscare and then breached that agreement byfailing to use available assets to pay the nurs-ing home bill.

VI. CONCLUSIONIt appears that there are some clearly de-

fined statutory and case law doctrines thathave emerged in nursing home litigationcases. It’s imperative for the practitioner tobe diligent in fact gathering with their clientto determine a course of action to defend anaction brought by a nursing home.

Liability for the Cost of Nursing Home CareContinued from page 1

A coalition of New York state and cityagencies led by Atty. Gen. Eric T. Schneider-man has notified approximately 200 buildingowners-many in the Williamsburg, Bedford-Stuyvesant, Ocean Hill, Coney Island,Brighton Beach and Bensonhurst neighbor-hoods of Brooklyn-that they are in violationof the rent registration requirements ofSection 421-a of the New York State RealProperty Tax Law based upon an investiga-tion conducted by the agencies.

The owners had constructed new resi-dential buildings and sought the benefits ofthe State’s 421-a program, which grantsbuildings exemptions from the increase inreal estate taxes occasioned by the improve-ment of the property. The benefits can lastfrom 10 to 25 years depending on the prop-erty’s location and can be worth hundreds ofthousands of dollars in tax savings to abuilding that qualifies for them.

In order to be eligible for 421-a benefits,an owner must represent to the City’s De-partment of Housing Preservation & Devel-

opment (“HPD”) whether the building willbe constructed as a condominium or as arental. Rental buildings must register theapartments as rent stabilized apartmentswith the State’s Department of Housing andCommunity Renewal (“DHCR”) in order toqualify. Condominiums need not be regis-tered and the residential units in a properlyformed condominium are not subject to therent stabilization laws.

On September 25, 2015, the agencieswrote to owners who had represented toHPD that their buildings would becomecondominiums but which had not been con-summated according to the investigation. Itappears that, for the most part, the buildingshad not become condominiums due to thedownturn in the real estate market in 2008-2009. When the building owners found thatthe condominium units were not salable,they rented the units in order to cover theexpense of operating the buildings.

The error of their ways was that oncethe buildings became rentals the buildingowners should have registered those apart-ments as rent stabilized in order to qualifyto retain the 421-a tax exemption benefits.

The investigation revealed that approx-imately 2400 residential units were enti-tled to the protection of the rent stabiliza-tion laws. Those laws obligate landlordsto offer one or two-year renewal leases totenant’s at rent increases that do not ex-ceed the increases promulgated by theRent Guidelines Board every year. Apart-ments that are not subject to rent regulato-ry laws can be re-rented upon the expira-tion of a lease at free market rents or thelandlord can refuse to renew the lease.

The letter sent to the landlords who are inviolation of the rent regulatory laws wassigned by representatives of all three agen-cies. The letter notifies the building ownersthat they are in violation of the rent registra-tion requirements of Section 421-a andoffers them a “one-time, non-negotiableopportunity to cure these violations” by par-ticipating in the Real Estate Tax ComplianceProgram. The letter describing the Programprovides a 7-step process that must be fol-lowed in order to avoid revocation of 421-abenefits and other enforcement action.

By October 2, 2015, landlords of these200 buildings must notify their tenants that

their dwellings are rent stabilized using aform letter drafted by the investigatorswhich cannot be changed or edited. ByOctober 30, 2015, owners must notifyDHCR that they will participate in theCompliance Program and provide proofthat the tenants have been notified. Land-lords must also follow up by registeringproperly with HPD and DHCR, abandontheir condominium offering plans at theAttorney General’s office and provide rentstabilized leases to all tenants.

Failure to comply with the 7-step Com-pliance Program can result not only in rev-ocation of tax exemption benefits but alsopenalties, disgorgement of past tax bene-fits, a rent freeze order, and an overchargeproceeding which can subject owners totreble damages.

The Real Estate Tax Compliance Pro-gram can be viewed in its entirety atwww.ag.ny.gov/421a-compliance-program.

(The author is a Past President and For-mer Chair of the Real Property Section ofthe Brooklyn Bar Association.)

By: Lawrence F. DiGiovanna, Esq.

State and City Crackdown on Real Estate Tax Exemption Abuses

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n Wednesday, October 14, 2015 theAssociation meeting room was trans-

formed into a dining room for a festive night ofculinary delights from Italy for over 60 attendees.

The event, hosted by Association PresidentArthur L. Aidala, included wine pairings selectedby Supreme Court Justice Michael L. Pesce. Thefood was exquisitely prepared by Chef Leonardoof the L & B Spumoni Gardens (a Brooklynmainstay for over 60 years).

Justice Pesce’s wine selections matched thevarious food offerings prepared by our Chef.Justice Pesce explained some general things tolook for when selecting any wine.

The overall goal is to find a wine that balancesall the elements to look for in a good wine. Anywine analysis should include looking at thecolor of the wine, the aroma (bouquet of thewine) and the palette (taste) should be consid-ered. Is the wine fruity, sweet, sharp, acidic?Finally, one should consider the wine’s finish.What is it like when you swallow the wine!

The Judge explained to us that even an inex-pensive wine can be a good wine if it meets allthe criteria. The Judge proved that by includinga Proseco ( which costs $15 - $20 a bottle) and aSicilian white wine (Cusumano) at a similar price.

The food presentation was quite impressive.Chef Leonardo presented everyone with a rice ballat the time of arrival. He explained the Sicilianorigins of the rice ball and the arrival of rice fromNorthern Africa to Sicily. He told us of the varia-tions of food into Sicily because it had been con-quered by numerous nations. Past PresidentLawrence DiGiovanna told the attendees that thebest rice ball he had ever eaten was on the ferryfrom Messina, Sicily to Bari.

The remainder of the food selections were afeast for the palette. They included a seafoodmanicotti, chicken and veal dishes, ziti and aneggplant lasagna. These food selections pairedwith the excellent wine choices created anexceptionally festive event.

The dessert course was no surprise — L & B’sfamous spumoni which was the proverbial showstopper. An enjoyable evening was had by all!

A single malt scotch tasting event is slated forMarch 9, 2016. Keep an eye out for announcement.

Culinary Delights On Display In BrooklynBy: Anthony J. Lamberti, Esq.

O

Ramon Galper, Adam Kalish, Joe Caldarera, Rob Raghunath, Dan Antonelli, Dylan Neves-Cox, Patrick Maguire, Daniel Chertok and Arthur Aidala.

Arthur Aidala, Hon. Lawrence Knipel, Hon. Mark Partnow, Chef Lenny Kern, Hon. Wayne Saitta, Hon. David B. Vaughan, Hon. Albert Tomei, Hon. Michael L. Pesce.

Salvatore Scibetta and BBA Trustee Joseph S. Rosato. See page 12 for more photos.Hon. Elizabeth Bonina, Michael Treybich, and past president Andrea E. Bonina.

Past President Lawrence F. DiGiovanna, rear center. Brooklyn Eagle photos by Rob Abruzzese State Supreme Court justice Michael L. Pesce with microphone.

Chef Leonardo, and Hon. Pesce looking on. Rice Balls from L&B Spumoni Gardens. Chef Leonardo, and president Arthur Aidala.

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

Unusual weather patterns continue toswirl around the mountain and plains states,so we can expect more erratic weather in ourarea in the months to come. To occupy youas the storms swirl we offer some interestingcases involving the reversal of the admissionof a Will to probate on appeal, and remand tothe Surrogate for a determination whetherthe decedent had executed her Will in fouroriginal counterparts, only one of which wasfound after her death, thereby effectuating arevocation of the instrument; a holding that aclaim against a forged deed, such a deedbeing void and a nullity, is not subject to astatute of limitations defense; the survival ofa vested right to equitable distributionagainst the estate of a spouse who dies dur-ing the pendency of a divorce action; the pre-sumption that a party is competent to enterinto a transaction, even if the party suffersfrom a condition affecting cognitive func-tion; the standing of the Attorney General topursue objections to a trust accounting evenwhen all charitable remaindermen had with-drawn their objections and consented to theaccounting as filed; the successful renuncia-tion of his interest in his mother’s estate by aconvicted murderer over the opposition ofthe New York State Office of Victim Ser-vices (OVS) and the father of the murder vic-tim; a fiduciary being required to submit toan psychiatric examination in a proceedingto revoke her letters to permit the Surrogateto determine whether the fiduciary had therequisite understanding of her duties and re-sponsibilities when serious questions wereraised on the record concerning the fiducia-ry’s mental state; and the ability of a trusteeto maintain an action against another in thename of the trustee individually.

The bar also is alerted to a New York StateMemorandum updating estate tax guidance,and new forms, for decedents whose dates ofdeath occur on or after April 1, 2014.

Admission of Will to Probate Reversedon Appeal, and Remanded to the Surrogatefor a Determination Whether the DecedentHad Executed Her Will in Four OriginalCounterparts, Only One of Which WasFound After Her Death, Thereby Effectu-ating a Revocation of the Instrument- Atthe time of her death it appeared after a thor-ough search that the decedent had left no will.Letters of estate administration were thereforeissued to her parents. Although decedent hadbeen married, the marriage ended withoutissue when the couple divorced, leaving dece-dent’s parents as her sole distributees. Thedecedent’s New York residence, which hadbeen in decedent’s family for generations,thus would have passed to decedent’s bloodrelations but for the filing approximately ninemonths after her death of petitions to revokethe parents’ letters of administration and toadmit to probate a Will executed by decedentin Texas fourteen years before her death,while she still was married. That will be-queathed all of decedent’s property, real andpersonal, to her then husband, and named himas the will’s executor. The Will had been inthe possession of the ex-husband’s motherwho retrieved it from her dresser after her soninformed her that he had learned during a re-cent Internet search of his former wife’s deathsome eight months before. The proceedingswere commenced shortly thereafter. The peti-tions were brought not by the son but, nomi-nally, by his father. Although the son was dis-qualified by reason of his divorce from dece-dent from serving as her executor or takingunder the proffered pre-divorce Will by rea-son of EPTL §5-1.4, decedent’s former father-in-law, who was named in the Will as dece-

dent’s alternate executor and beneficiary, wasnot so disqualified under New Yorklaw, which governed the disposition of dece-dent’s New York real property [EPTL §3-5.1(b) (1)], the sole asset of significant valuein her estate. The Court of Appeals noted par-enthetically that the former husband’s fatherwould have been disqualified under the lawsof Texas, which provide in relevant part thatif, after the testator makes a Will, the testator’smarriage is dissolved by divorce, annulment,or a declaration that the marriage is void, allprovisions in the Will, including all fiduciaryappointments, shall be read as if the formerspouse and each relative of the former spousewho is not a relative of the testator failed tosurvive the testator, unless the Will expresslyprovides otherwise, which the propoundedWill did not. Objections to probate thereafterwere filed. During the ensuing probate pro-ceedings, decedent’s ex-husband testified thatthe Will offered for probate was one of a pairof reciprocal or “mirror” Wills made by thethen married couple. Those Wills and severalother instruments bearing on end-of-life deci-sions were, according to the former husband,executed during a single session at an attor-ney’s office in Texas. Each instrument, hesaid, was generated in quadruplicate, and al-though he described each set of four as com-posed of one original and three “copies,” theCourt of Appeals interpreted the natural, al-beit less than certain, import of his testimonyto be that each copy was intended to be afunctional instrument. The former husbandhad testified, “they were all done [the sameday] at [the attorney’s] office, both the origi-nals of course and the copies. And we plannedfrom that day, [decedent] and I, to leave oneset at my parents’ house, one set at our Texashouse, one set at the New York house and oneset in a safe deposit box. That was all plannedout before we sat down that day and — andsigned all those signatures.” Later in his testi-mony the former souse explained, “we hadfour sets of everything at each house for a rea-son. We both traveled. We knew that onehouse could burn down, this, that and theother.” During the probate proceeding, testi-mony was also elicited from the decedent’sfriend, neighbor and confidante. The friendhad been given powers of attorney by dece-dent—both legal and medical—and had as-sisted decedent with financial and health-re-lated matters during the period following herdivorce when her ability to manage her ownaffairs was compromised by the debilitatingand ultimately fatal sequelae of alcohol addic-tion. The friend stated that it had been a prior-ity of decedent’s to make a new Will once herdivorce became final, and that three years be-fore her death the decedent had brought to herfor her examination, and then discussed withher, what she understood to be a Will that con-tained a provision revoking all prior Wills andcodicils. Nonetheless, no Will was found dur-ing a diligent postmortem search of dece-dent’s home and possessions.

The Surrogate, while not skeptical of thefriend’s account as to what she saw and read,and while acknowledging “how the fact thatthe will [offered for probate] was drafted tenyears prior to the decedent’s divorce raisessuspicion in [objectants’] eyes as to whetherthe will truly reflects what the decedentwould have wanted when she passed in2010,” nevertheless understood himself to bebound to dismiss the objections to the [pro-pounded] will and to admit it to probate. Thiswas because the friend had not witnessed thesigning of the evidently lost Will and her tes-timony, therefore, could not prove that theWill had been duly executed. Without proofof due execution, the lost Will could not, inthe Surrogate’s view, be given effect, even forthe limited purpose of revoking the [pro-pounded] will. As to the ex-husband’s testi-mony indicating that the [propounded] Willhad, by design, been executed in four equallyfunctional counterparts to be kept separatelyat specified locations, among them dece-dent’s post-divorce New York residence, theSurrogate noted only that “[i]t is not clearfrom the testimony of the witnesses if the

decedent and [the former spouse] left the at-torney’s office with four original instrumentsor one original and three copies.” A dividedAppellate Division affirmed the Surrogate’sdecision and decree. The Court of Appealsgranted objectants’ motion for leave to ap-peal. HOLDING- The Court of Appeals“modified” the “Orders” below and remittedthe case to the Surrogate’s Court for furtherproceedings in accordance with its Decision.Preliminarily, the Court of Appeals noted thatthe lower courts properly refused to give re-vocatory effect to the lost Will described bythe decedent’s friend and neighbor. The Courtof Appeals stated that its precedents com-manded categorically that revocation of aWill by a subsequent Will or other writingmust be accomplished only by executing therevoking instrument with the formalities pre-scribed for the execution and attestation of aWill. The Court of Appeals observed that thisrequirement’s stringency had been deemednecessary to prevent fraud and flippancy inthe making and revocation of testamentaryinstruments generally and that its prophylac-tic utility would be largely undone if it weredispensable in an individual, seemingly sym-pathetic case. The Court of Appeals went onto say that although objectants’ claim of rev-ocation by a subsequent writing properly wasrejected, it did not follow that the propound-ed Will was proved. In the view of the Courtof Appeals, the evidence before the Surrogateraised a most serious, and unresolved, ques-tion as to whether the propounded Will hadotherwise been revoked. The Court of Ap-peals ruled that while that question persisted,the Will should not have been admitted toprobate. The Court of Appeals opined that aWill may be revoked not only by means of awriting executed in the manner of a Will, butby the testator’s act of destroying it with re-vocatory intent, which act achieves the revo-catory purpose even if there remain Will du-plicates outstanding. The Court of Appealsnoted that that a testator has in fact revoked aWill by destruction is strongly presumedwhere the Will, although once possessed bythe testator, cannot be found posthumouslydespite a thorough search. The Court of Ap-peals added that such presumption of revoca-tion, once raised, stands in the place of posi-tive proof, and must be rebutted by the Will’sproponent as a condition of probate. TheCourt of Appeals found that the facts ofrecord, adduced in critical part through thetestimony of the decedent’s former spouse,supported inferences that decedent executedthe propounded Will in quadruplicate, witheach document having been meant to possessthe force of an original instrument; that oneof the Will duplicates was kept at the NewYork home where decedent resided after herdivorce; and that, after a thorough search, noWill was found there. The Court of Appealsruled that these circumstances plainly suf-ficed to raise the presumption that decedentrevoked the propounded Will by destroyingit. The Court of Appeals also found it plainthat that presumption was not rebutted. TheCourt of Appeals noted that none of the otherduplicate wills was produced or otherwise ac-counted for. Acknowledging that the propo-nent had alleged before it that the unproducedduplicates were merely copies, the Court ofAppeals pointed out that the uncertain statusof the Will duplicates, although commentedupon by the Surrogate, never was resolved. Inthe view of the Court of Appeals the Courtwas left with a Will admitted to probate upona record sufficient only to disprove it. TheCourt of Appeals went on to say that it wasprecisely to avoid such an incongruous out-come that the governing rule of such pro-ceedings long has been that as soon as it isbrought to the attention of the surrogate thatthere are duplicates of a Will presented to himfor probate, it is proper that he should requirethe duplicates to be presented, not for the pur-pose of admitting them as separate instru-ments to probate, but that he may be assuredwhether the Will has been revoked, andwhether each completely contains the Will of

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



T H E S T A T E O F E S T A T E Sthe testator. The Court of Appeals found thatit was manifest that the Surrogate’s attentionhad been drawn to the existence of Will du-plicates, but that the consequently arising is-sues as to the Will’s validity were not re-solved as they should have been. The Courtof Appeals ruled that the proponent was re-quired not merely to exclude the possibility,but to rebut the legal presumption of revoca-tion, sufficiently raised by the formerspouse’s testimony as to the existence of Willduplicates, one of which had been kept, butwas not found after decedent’s passing, at herpost-divorce residence. The Court of Appealsfound that the necessity of such a showingwas highlighted in the proceeding by the cir-cumstance that the propounded Will, recipro-cally bequeathing all of decedent’s propertyto her then husband, reflected a testamentarydesign irretrievably bound up with the testa-tor’s subsequently terminated spousal status.Noting that the record before it only wouldsupport a denial of probate, the Court of Ap-peals stated that it recognized that the crucialissues raised by the duplicate Will testimonywere not framed for resolution as they shouldhave been and that this might have operatedto deprive proponent of a fair opportunity toavoid or rebut the presumption of revocationwhich otherwise would control the outcomeof the proceeding. The Court of Appealstherefore remanded the matter to the Surro-gate so that what it termed pivotal issuescould be fully litigated and determined, in ac-cordance with its opinion. Matter of Lewis,25 NY3rd 456 (2015)

A Claim against a Forged Deed, Such aDeed Being Void and a Nullity, Is Not Sub-ject To a Statute Of Limitations Defense-Plaintiff is the daughter and administrator ofthe estate of her father, Percy. Percy and hissister, defendant Dorothy, inherited from theirmother, as tenants in common, a three-familyhouse in Brooklyn. A few years after themother’s death, in May 2000, Dorothy con-veyed by quitclaim deed her half-interest inthe property to her daughter Tonya. In Febru-ary 2001, Tonya recorded a deed claiming tocorrect the prior deed from Dorothy. This cor-rected deed, dated December 14, 2000, al-

legedly conveyed Percy’s half-interest in thereal property to Tonya. Thus, if the correcteddeed were valid, it would convey to Tonya afee interest in the property. Percy passed awayin March 2001. In September 2002, plaintifffiled an action on behalf of Percy’s estateagainst Dorothy and Tonya, claiming the cor-rected deed was void because her father’s sig-nature was a forgery. In April 2003, SupremeCourt dismissed the complaint on the groundthat plaintiff lacked capacity to sue becauseshe was not the estate’s administrator. At thetime, Percy’s widow was the administrator. InDecember 2009, Tonya borrowed $269,332from defendant bank which she secured witha mortgage in favor of defendant MERS. Sev-eral months later, in July 2010, Surrogate’sCourt appointed plaintiff administrator ofPercy’s estate. In her supporting affidavit ex-plaining her delay in seeking appointment,plaintiff asserted that her mother’s lawyer ledher to believe that he had secured a judgmentin favor of the estate, when in fact the lawyer,now disbarred, had failed to take action on hermother’s behalf. The month following her ap-pointment, in August 2010, plaintiff filed theunderlying action against Dorothy, Tonya, thebank and MERS to declare the deed and mort-gage null and void based on the alleged for-gery. Thereafter, the bank moved to dismissthe complaint under CPLR §3211 (a) (5) asuntimely under CPLR §213 (8), and plaintiffcross-moved to dismiss the statute of limita-tions affirmative defense asserted in the jointanswer by the bank and MERS. SupremeCourt granted the motion to dismiss the com-plaint in its entirety as time-barred, and deniedplaintiff’s cross motion as moot.

The Appellate Division modified the order,denying the motion to dismiss as against theindividual defendants and MERS on procedur-al grounds, leaving the action pending againstthose defendants. On the merits, the AppellateDivision concluded, in reliance on Second De-partment precedent, that plaintiff’s forgery-based claim against the defendant bank wassubject to the six-year statute of limitations forfraud claims set forth in CPLR §213 (8). TheCourt of Appeals granted plaintiff leave to ap-peal against defendant bank. HOLDING- TheCourt of Appeals reversed the Appellate Divi-

sion and held that it is well-settled law that aforged deed is void ab initio, meaning a legalnullity at its inception, and as such, any en-cumbrance upon real property based ona forged deed is null and void. Consequently,the Court of Appeals ruled that the statute oflimitations set forth in CPLR §213 (8) does notforeclose plaintiff’s claim against defendantbank. Because the case before it was an appealfrom a dismissal under CPLR §3211 (a) (5),the Court of Appeals stated that it accepted thefacts as alleged in the complaint as true, ac-corded plaintiff the benefit of every possiblefavorable inference, and determined onlywhether the facts as alleged fit within any cog-nizable legal theory. Accordingly, for purposesof the appeal, the Court of Appeals assumedthat the deed was forged. The Court of Appealsnoted that a forged deed that contains a fraud-ulent signature is distinguished from a deedwhere the signature and authority for con-veyance are acquired by fraudulent means. Insuch latter cases, the Court of Appeals opined,the deed is voidable. In the view of the Courtof Appeals the difference in the nature of thetwo justifies this different legal status. TheCourt of Appeals said that a deedcontaining the title holder’s actual signaturereflects the assent of the will to the use of thepaper or the transfer, although it is assent in-duced by fraud, mistake or misplaced confi-dence, and such deed merely is voidable. TheCourt of Appeals pointed out that unlike aforged deed, which is void initially, a voidabledeed, until set aside, has the effect of transfer-ring the title to the fraudulent grantee, andbeing thus clothed with all the evidences of

good title, may encumber the property to aparty who becomes a purchaser in good faith.In contrast the Court of Appeals stated that aforged deed, however, cannot convey goodtitle, and it is legally impossible for anyone tobecome a bona fide purchaser of real estate, ora purchaser at all, from one who never had anytitle. The Court of Appeals added that a pur-chaser who takes title through a forged deedcannot be a bona fide purchaser, even if thepurchaser did not have knowledge of the for-gery. The Court of Appeals added that a mort-gage based on a forged deed is likewise in-valid. The Court of Appeals ruled that giventhe clarity of our law that a forged deed is voidab initio, and that it is a document withoutlegal capacity to have any effect on ownershiprights, a claim challenging a conveyance or en-cumbrance of real property based on such deedis not subject to a statute of limitations de-fense. The Court of Appeals held that

a statute of limitations does not make anagreement that was void at its inception validby the mere passage of time, and that conse-quently, plaintiff could seek to vacate the deedand defendant’s encumbrance upon the prop-erty, since if, as plaintiff claimed, the deedwas a forgery, then it was never valid andTonya lacked title to Percy’s half-interest inthe property based on the “corrected” deed.

The Court concluded that as the lawmakes clear, a forged deed has no legal sig-nificance and cannot convey title, and assert-ed that therefore there was no reason to im-pose barriers to those who sought to vacatesuch deed as null and void.

Continued from page 8



New Federal Laws AidPersons With Disabilities

to enable veterans who invest in the SurvivorBenefit Plan to transfer benefits, upon death,to a Supplemental Needs Trust (SNT) fortheir disabled or special needs child.

The need for the DCMPA is to correctthe problem of returning military memberswho participate in the Survivor BenefitPlan (SBP). The SBP is a benefit militarymembers can choose at the time of retire-ment allocating a portion of their monthlyretirement benefit to provide (after theirdeath) a monthly survivor benefit to theirspouse or child. The prior law only permit-ted these payments to go directly to the re-cipient (child) and could be counted as in-

come or resources for Medicaid or SSIthereby rendering the child ineligible forgovernmental benefits.

This amendment allows the SPB pay-ment to be placed in a SNT for the disabledchild of a deceased military veteran therebymaintaining eligibility for means testedgovernmental entitlements.

A mandatory requirement of the bill isthe use of a first party SNT which requiresa Medicaid payback provision when thebeneficiary of the SNT dies.

The enactment of these bills has createdadditional options for families to provide fortheir disabled or special need child orchildren.


Advertise in Brooklyn Eagle’s LEGAL SERVICES DIRECTORY

Call (718) 422-7400


Accordingly, the order of the AppellateDivision, was reversed and the defendantbank’s motion to dismiss the complaintagainst it pursuant to CPLR §3211 (a)(5) was denied. Faison v. Tonya Lewis, et.al, 25 NY3d 220 (2015)

A Vested Right to Equitable Distribu-tion Survives the Death of a Spouse dur-ing the Pendency of a Divorce Action andMay be Continued Against His Estate-Two related actions for a divorce and ancil-lary relief were commenced, one by the hus-band (#1) and one by the wife (#2). The ac-tions were jointly tried, and the SupremeCourt granted the husband a divorce on theground of constructive abandonment. TheCourt, however, withheld entry of a judg-ment of divorce until the trial of the ancillaryissues was completed. After the trial of theancillary issues largely was completed, butbefore a decision was rendered on those is-sues, the husband died. Thereafter, the wifemoved to substitute the executor of the hus-band’s estate as the plaintiff in action No. 1and as the defendant in action No. 2. The ex-ecutor of the husband’s estate, in opposition,contended that the actions should be dis-missed, because the actions abated upon thehusband’s death. The Supreme Court,among other things, granted the wife’s mo-tion. The executor of the husband’s estateappealed. HOLDING- The Appellate Divi-sion affirmed. The Appellate Division heldthat contrary to the contention of the execu-tor of the husband’s estate, the actions didnot abate upon the death of the husband. TheAppellate Division ruled that the SupremeCourt had made the final adjudication of di-vorce before the husband’s death, but hadnot performed the mere ministerial act of en-tering the final judgment. The Appellate Di-vision added that a cause of action for equi-table distribution does not abate upon thedeath of a spouse, and ruled that consequent-ly, if a party dies in possession of a vestedright to equitable distribution, and that righthas been asserted during the party’s lifetimein an action in a Court of this State, that rightsurvives the party’s death and may be assert-ed by the estate. Charasz v. Rozenblum, 128A.D.3d 631 (2nd Dept., 2015)

A Party Is Presumed Competent ToEnter Into a Transaction, Even If theParty Suffers From a Condition AffectingCognitive Function- The 21-year-old Spinnerwas diagnosed with a benign brain tumor. Sheexecuted a durable power of attorney in whichshe designated her mother, to serve as her at-torney-in-fact and as her guardian, shouldguardianship proceedings become necessary.Spinner’s signature was acknowledged by herphysician and notarized by a witness. Actingpursuant to powers given to her by the validlyexecuted power of attorney the mother com-menced a medical malpractice action against aphysician and a hospital. The Supreme Court,sua sponte, without a hearing, appointed Spin-ner’s mother as her Guardian ad litem. Defen-dants moved to dismiss pursuant to CPLR§3211 (a) (3), asserting that Spinner was notcompetent to execute the power of attorney,which was denied by the Supreme Court. Thedefendant hospital appealed. HOLDING-The Supreme Court was affirmed. The Appel-late Division stated that a party’s competenceto enter into a transaction is presumed, even ifthe party suffers from a condition affectingcognitive function, and the party asserting in-capacity bears the burden of proof otherwise.The Appellate Division found that since de-fendant hospital failed to submit any evidenceconcerning Spinner’s competence at the timeshe executed the power of attorney, other thanthe document itself, it did not meet its initialburden in support of the motion, and the bur-den did not shift to plaintiff to demonstratecompetency. The Appellate Division furtherruled that under the circumstances presented,where Spinner had been rendered quadriplegicand unable to communicate, the Court actedwithin its discretion in appointing her motherto be Spinner’s guardian ad litem without ahearing. Pruden v.Bruce, et., al., 129 A.D.3d

506 (1st Dept., 2015)The Attorney General Has Standing to

Pursue Objections to a Trust AccountingEven When All Charitable Remainder-men Have Withdrawn Their Objectionsand Consented to the Accounting as Filed-The trustee sought an order granting summa-ry judgment in his favor dismissing the ob-jections to his accounting filed by the Officeof the Attorney General of the State of NewYork. The Attorney General opposed themotion and cross-moved for summary judg-ment finding the trustee liable for the loss of$613,000.00 in trust funds or in the alterna-tive, for an extension of time for further dis-covery. Under the decedent’s Will, a Supple-mental Needs Trust was established for thebenefit of decedent’s brother who was 85years old, disabled and resided in an assist-ed-living facility. The Will provided thatupon the brother’s death, the corpus of thetrust would be distributed to seven designat-ed charitable organizations, namely: St. JudeChildren Research Hospital, St. Vincent’sHome, St. Agatha’s Roman Catholic Church,Our Lady of Perpetual Help, RomanCatholic Church, American Cancer Society,American Heart Association and AmericanDiabetes Association. At the time of dece-dent’s death, there was the sum of$1,232,053.00 to fund the Trust. At the timeof the brother’s death, the funds remaining inthe trust were $548,042.62. Initially themovant provided all seven charities with aninformal accounting, and a proposal for dis-tribution and releases. Four of the charitiesexecuted releases and returned them to thetrustee. Three of the charities, AmericanCancer Society, American Heart Associationand St. Jude Children’s Hospital did not.Thereafter, movant filed his account alongwith a petition for judicial settlement. Thethree charities that did not execute releasesfiled objections to the accounting. The Attor-ney General filed objections to the account-ing on behalf of all seven charities. One ofthe remainder charitable beneficiaries,which had previously executed a release andaccepted payment, the American DiabetesAssociation, moved the Court to allow it tofile late objections to the accounting. Themotion was denied. Thereafter, the charitiesthat had filed objections to the accountingsubmitted withdrawals of their objectionswith prejudice and consented to the account-ing as filed. The Trustee contended that sinceall seven charities had settled and withdrawntheir objections to the trustee’s accounting,the Attorney General no longer had standingto pursue any objections to the trustee’s ac-counting. HOLDING- The Court denied thetrustees motion and the Attorney General’scross motion for summary judgment. TheCourt opined that EPTL §8-1.1(f) provides:“The Attorney General shall represent thebeneficiaries of such dispositions for reli-gious charitable, educational or benevolentpurposes and it shall be his duty to enforcethe rights of such beneficiaries by appropri-ate proceedings in the courts.” The Courtstated that it is well settled that the OAG hasa statutory, independent power and duty torepresent beneficiaries of any disposition forcharitable purposes, and that the OAG doesnot represent the individual charities, butrather the ultimate beneficiaries of suchcharitable disposition. The Court added thatthe Attorney General exercises a parens pa-triae function, representing the interests ofthe ultimate beneficiaries of the gift, the per-sons who are the real objects of the charita-ble donation. The Court stated that this statusis conferred upon the Attorney General evenif his position does not comport with that ofthe charitable entities. The Court found itclear thathttps://www.lexis.com/research/buttonT-FLink?_m=6268c18c09d47c822b8806abf388d463&_butType=3&_butStat=2&_but-Num=7&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b45%20A.D.2d%20849%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzt-

zSkAl&_md5=cd38aad34268013d2d8915c8967e3747the fact that all seven charitableorganizations had settled with the trusteewas irrelevant to the standing of the AttorneyGeneral. The Court pointed out that the At-torney General has the duty to assure that allthe charitable beneficiaries are treated fairlyand appropriately in accordance with dece-dent’s Will and statutory requirements. TheCourt denied the Attorney General’s cross-motion to the extent it sought to hold thetrustee liable for the loss of $613,000.00, oftrust funds. The Court stated that issue ofwhether a fiduciary has acted prudently isgenerally a question of fact to be determinedby the trial court. The Court added that noprecise formula exist for determiningwhether the prudent person standard hasbeen violated in a particular situation; rather,the determination depends on an examina-tion of the facts and circumstances of eachcase. The Court noted that the Attorney Gen-eral quoted extensively from the trustee’sdeposition transcript in support of its cross-motion. However, the Court pointed out thatthe transcript of petitioner’s deposition wasnever served on petitioner for his review andsignature, in compliance with the require-ments of CPLR §3116. The Court added thatthe transcripts were unsworn and unsignedand not in admissible form, and thereforecould be used as evidence in support of thecross-motion. Consequently, the motion andcross-motion were denied except to the ex-tent that the Attorney General was given 90days from the date of the decision and orderto complete any discovery it deemed neces-sary and appropriate. Matter of Towey,N.Y.L.J. 7/24/15, p. 21, c. 1 (Surr. Ct., KingsCo., Surr. Johnson) [Authors’ note: While itlong has been settled that the Attorney Gen-eral represents the “ultimate charitable bene-ficiaries- the people of the State of NewYork,” and not any particular individualcharitable organization, the fact that in thiscase all of the charities had settled and with-drawn their objections with prejudice, raisesthe questions that if the Attorney General issuccessful and the Court surcharges the fidu-ciary, to whom would payment be made inlight of the so-called pro tanto rule. Underthat rule, it would appear that even if the ef-forts of the Attorney General benefit or en-large the trust, the other persons interested inthe accounting, the remaindermen, not hav-ing objected, would be entitled to no benefit.Matter of Hurewitz, 174 Misc. 182 (Surr.Ct., Kings Co., Surr. Wingate, 5/24/40);Matter of Hyde, 15 N.Y.3d 179 (2010).]

Convicted Murderer Allowed to Re-nounce His Interest in His Mother’s Es-tate over the Opposition of the New YorkState Office of Victim Services (OVS) andthe Father of the Murder Victim- Thedecedent devised her entire estate to her son,John. The Will provided that if John prede-ceased the decedent, the estate would pass todecedent’s friend, Cari, who survived dece-dent and was also nominated as Executor inthe Will. The decedent’s son John was a con-victed murderer and had been incarceratedlong before the Will was prepared. After theprobate petition was filed, the Court forward-ed a letter to the New York State Office ofVictim Services (OVS) advising it of theson’s status as a beneficiary, as required bySCPA §2222-a. The decedent’s Will was ad-mitted to probate, and Letters Testamentarywere issued to the named Executor on Octo-ber 1, 2014. On or about November 24, 2014,the Court received for filing a renunciation(Renunciation 1) prepared and executed bythe son pursuant to EPTL §2-1.11 on No-vember 19, 2014, renouncing all but $7,500of his interest in his mother’s residuary es-tate. The papers sent to the Court for filingdid include the required affidavit by the sonthat he had not and would not receive anyconsideration for his renunciation from theperson whose interest would be acceleratedby his renunciation, and the notice of renun-ciation required to be served upon the Execu-tor, both as fiduciary and (in this case) as theperson benefitted by the renunciation, all as

required by EPTL §2-1.11(c) (2). No affi-davit of service of said notice was submittedwith Renunciation 1. The renunciation pack-age was returned to the son due to that defectand Renunciation 1 was not filed. The sonwas advised by the Court that upon receipt ofan affidavit of service of the required notice,the renunciation documents would be filed.On February 9, 2015, a copy of an Order toShow Cause and Petition from an AlbanyCounty Supreme Court action commencedby OVS was received by the Court. TheOrder to Show Cause, dated February 4,2015, included a Temporary RestrainingOrder directed to the son, to the Executor,and to her attorney, restraining their distribu-tion, encumbrance or any transfer of any por-tion of the estate payable to the son. OnMarch 3, 2015, the Court received and filed aNotice of Motion and supporting affidavitdated February 22, 2015 from the son. Themotion papers request the appointment of aGuardian ad Litem to represent the son; dis-puted the ability of the Albany SupremeCourt to restrain the son’s effort to renounce;and included a new renunciation (Renuncia-tion 2), renouncing the son’s entire interest inhis mother’s residuary estate, with the re-quired affidavit of no consideration, a noticeof renunciation and an affidavit of service ofthe notice, all dated February 15, 2015. Theson’s affidavit also provided additional infor-mation on the service of Renunciation 1 uponthe fiduciary and impacted beneficiary andrequested that in the event his February 15,2015 renunciation was not accepted for fil-ing, that his November 19, 2014 renunciationbe accepted for filing with the Court, nuncpro tunc to the date that it was originally re-ceived by the Court. On March 24, 2015, theNew York State Attorney General’s Office,representing OVS, the petitioner in the Al-bany County Supreme Court proceeding,filed with the Surrogate’s Court a copy of anaffirmation submitted in Albany CountySupreme Court in response to an answer filedin that action by the son. By cover letter sub-mitted with the affirmation, the AttorneyGeneral requested that the affirmation beconsidered in opposition to the son’s Surro-gate’s Court motions regarding his renuncia-tions, though the affirmation did not directlyaddress the motions filed by the son. OnMarch 25, 2015, the Surrogate’s Court ap-pointed a Guardian ad Litem for the son.Thereafter the father of the murder victimfiled opposition papers to the son’s motions.Under Executive Law §632-a, the father ofthe murder victim had the right to pursue aclaim against the son, as the beneficiary ofthe estate. OVS and the murder victim’s fa-ther urged the Court to void the son’s renun-ciation as a violation of Debtor & CreditorLaw §273. HOLDING- The Court grantedthe son the right to renounce his interest inhis mother’s estate under her Will. The Courtopined that a renunciation is a declination ofa right or property bestowed by another,without the disclaiming party ever cominglegally into possession of that right or prop-erty. The Court stated that the right to re-nounce has existed in New York in the com-mon law for two centuries, and that the steps,conditions and effects of a renunciation noware codified in EPTL §2-1.11. The Courtnoted that under both common law andstatute, only assets which have not vested in,or have been in some way accepted by, thepotential recipient can be disclaimed. TheCourt found it clear that an inheritance maybe disclaimed, although action by the namedbeneficiary to accept property may precluderenunciation. The Court set forth the ele-ments of a statutory renunciation, to wit: 1. awritten renunciation of interest; 2. an affi-davit from the renouncing party that he hadnot and would not receive consideration forthe renunciation from a person whose interestwould be accelerated by the renunciation; 3.service of a notice of renunciation upon thefiduciary or other individual/entity holdingthe assets to be disclaimed, and upon the in-dividual(s) whose interest would be acceler-


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


T H E S T A T E O F E S T A T E Sated by virtue of the renunciation. The Courtadded that the renunciation and affidavit of noconsideration are filed in the Surrogate’sCourt, together with proof of service of the no-tice of renunciation upon the proper persons,all steps needing to be taken within ninemonths of the decedent’s death as pertinent tothe case at bar. The Court added that a renun-ciation is irrevocable and the effect of the re-nunciation is that the renouncing party is treat-ed as if he had predeceased the decedent, withrespect to the interest renounced. The Courtpointed out that a partial renunciation such asRenunciation 1 by the son is authorized by thestatute. Although a proper Affidavit of Serviceof the Notice of Renunciation 1 never was re-ceived by the Court, the Court accepted certainallegations in the son’s sworn motion papersfiled March 3, 2015, as an affidavit of serviceof the notice of Renunciation 1 on November19, 2014. The Court found that all of the stepsrequired by the statute with respect to the Re-nunciation 1 were completed by the son wellwithin the statutory nine month period and allpredated the action commenced in the AlbanyCounty Supreme Court by OVS. The Courtnoted that the renunciation statute does not re-quire the contemporaneous filing of proof ofservice of the notice of renunciation with therenunciation and the affidavit of no considera-tion. The Court added that it long has beenheld that service of process is distinguishablefrom proof of service. The Court opined thatproper service gives jurisdiction; improperproof of service neither voids service nor de-feats jurisdiction. the Court added that failureto file proof of service within a statutory peri-od may be corrected by the Court, nunc protunc, as an irregularity, curable by motion. TheCourt found that the proof of service was notfiled late, but well within the 9 months re-

quired by statute, so no motion was required.The Court ruled that the son was entitled tohave Renunciation 1 filed as of the date of itsoriginal receipt in November of 2014, as amatter of law. In the Court’s view, since the ex-ecution and filing of Renunciation 1 were allproperly completed by the son before the com-mencement of the OVS action, Executive Law§623-a did not come into play with respect toRenunciation 1. The Court explained that Ex-ecutive Law §623-a creates a cause of actionfor victims of crimes and their representatives,and provides the opportunity for restraints tobe put in place against a convicted person,pending resolution of a claim, or even an in-tended claim, but held that none of such as-pects impacted Renunciation 1. The Courtnoted that it had given OVS the required SCPA§2222-a notice on September 30, 2014, butthat the Albany County Supreme Court actionwas not filed until February 4, 2015. The Courtrejected the position of OVS and the victim’sfather that the son’s renunciation should bevoided as a violation of Debtor & CreditorLaw §273, holding that it is well establishedthat the renunciation statute specifically con-templates the use of a renunciation to avoidcreditors. The Court also noted that there wasnot yet even a claim filed against son, letalone a judgment, to put anyone in the shoesof a creditor. The Court also accepted theson’s Renunciation 2 which renounced hisshare of his mother’s residuary estate in its en-tirety. The Court stated that those, in properform and received by the Court well withinthe nine month window for renunciation, mustbe accepted for filing by the Court, since theson’s execution of them was not a violation ofthe restraining notice in the Order to ShowCause in the Albany County Supreme Courtmatter, which predated Renunciation 2. TheCourt noted that the restraint against the son

only precluded him “from in any way disburs-ing, distributing, encumbering, transferring orassigning, to anyone and for any reason what-soever, the whole or any portion of any dis-tributive share of the aforesaid inheritance,which is or may be payable to” him. TheCourt added that it was not unaware of its roleas a Court of equity and was not without em-pathy for the position of the victim’s father.However, the Court reasoned that to hold oth-erwise with respect to the statutory renuncia-tions would be completely contrary to estab-lished case law and statute. The Court pointedout that it must also be sensitive to the impacton other renunciations, should it fashion somebasis to decline to accept the son’s renuncia-tions. The Court commented that ExecutiveLaw §632-a is a statutory remedy and as suchwas to be strictly construed. The Court addedthat the Legislature clearly is aware that itslaudable goals are limited in effect, and notedthat the Legislature amended the statute andrelated laws in 2001, to expand it to its cur-rent form. The Court suggested that the Leg-islature could choose to further expand Ex-ecutive Law §632-a by restricting the rightsof a convicted person to disclaim, but notedthat to date it had not done so. The Court as-serted that it must abide by the law as it cur-rently exists, not as it might wish it to be.Matter of Grochocki, NYLJ 7/28/15, p.1, c.3(Surr. Ct., Broome Co., Surr. Guy) [Authors’note: The equitable powers of the Surro-gate’s Court are quite broad and it was heldin Matter of Berk, 71 AD3d 883(2010) andin Campbell v. Thomas, 73 AD3d 103(2010) that the Court should not allow itselfto be the instrument of a wrong which inthose cases would have occurred if the Courthad followed the pertinent statutory languageliterally.]

Brief briefs: A New York State Memoran-

dum [TSB-M-15(3)M, 2015 LegislationAmending the New York State Estate Tax] up-dating estate tax guidance, and new forms,[ET-706, New York State Estate Tax Returnand ET-706-I, Instructions for Form ET-706,New York State Estate Tax Return] fordecedents whose dates of death occur onor after April 1, 2014, can be found atwww.tax.ny.gov/pubs_and_bulls/memos/estate_memos.htm andwww.tax.ny.gov/forms/estate_cur_forms.htmrespectively.

Fiduciary required to submit to an psy-chiatric examination in a proceeding to re-voke her letters to permit the Surrogate todetermine whether the fiduciary had therequisite understanding of her duties andresponsibilities when serious questionswere raised on the record concerning thefiduciary’s mental state. Matter of Levitin,2015 N.Y. Slip Op. 25184 (Surr. Ct., Westch-ester Co., Surr. Everett, May 26, 2015)

Trustee allowed to maintain an actionagainst another in the name of the trusteeindividually. A trustee may maintain an ac-tion against another as he could maintain if heheld the trust property free of trust. It is un-necessary for the trustee in the pleadings orother proceedings to describe himself astrustee. He can proceed in the action as thoughhe were the owner of the claim which he is en-forcing. If he does describe himself as trusteethe description is treated as mere surplusage.Connery, et. al. v. Sultan, 129 A.D.3d 455(2nd Dept., 2015)

——Compiled by Hon. Bruce M. Balter,

Justice of the Supreme Court, KingsCounty, Chair, Brooklyn Bar Association,Surrogate’s Court Committee, and Paul S.Forster, Esq., Chair, Brooklyn Bar Associa-tion, Decedent’s Estates Section.




—Culinary Delights on Display in Brooklyn—

Hon. Michael Pesce, Salvatore Scibetta, Hon. Wayne Saitta and Hon. Lawrence Knipel.

Hon. Joseph Bova, Hon. David B. Vaughan and Hon. Mark Partnow. Brooklyn Eagle photos by Rob Abruzzese

Hon. Michael L. Pesce, Supreme Court.Food from L & B Spumoni Gardens restaurant.

BBA Continuing Legal Education (CLE) staffer Amber N. Evans and Daniel Antonelli.

Documents

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