©2012 Brooklyn Bar Association MAY 2012 Brooklyn Bar … · 2020. 7. 13. · On May 3, 2012, Law Day was commemorated at the Supreme Court, Kings County. Over 60 judges united outside

On May 3, 2012, Law Day was commemorated atthe Supreme Court, Kings County. Over 60 judgesunited outside 360 Adams Street on the Court Housesteps. This is the fifth year the judiciary has partici-pated in this tradition.

Addressing the assembled crowd were keynote speak-er Hon. Juanita Bing Newton of the Court of Claims,Kings County Administrative Judge for Civil Matters,

Hon. Sylvia O. Hinds-Radix, Kings County Administra-tive Judge for Criminal Matters, Hon. Barry Kamins andSupreme Court Justice Hon Marsha Steinhardt.

Brooklyn Bar Association President Ethan B. Ger-ber also addressed those assembled. His compellingspeech focused on the importance of access to justice.

The theme echoed by all of the speakers was thedangerous potential restriction of the public's accessto justice by cuts to the Court's budget. The themewas summed up as follows: "No Courts, No Justice,

MAY 2012©2012 Brooklyn Bar Association VOL. 64 NO. 8

What’s InsideBrooklyn Bar Association Judiciary Night

By Aimee L. Richter, Esq. . . . . . . . . . . . . . . . . . . . . . . Page 1

“No Courts, No Justice, No Freedom”- Law Day at The Court House, May 3, 2012 . . . . . . . Page 1

The DocketBy Compiled by Louise Feldman . . . . . . . . . . . . . . . . . Page 2

Legal BriefsBy Avery Eli Okin, Esq., CAE . . . . . . . . . . . . . . . . . . . Page 2

Respectfully SubmittedBy Ethan B. Gerber, Esq.. . . . . . . . . . . . . . . . . . . . . . . Page 3

Medical MalpracticeBy John Boniva, Esq.. . . . . . . . . . . . . . . . . . . . . . . . . . Page 3

The State of EstatesBy Hon. Bruce Balter, Esq.and Paul S. Foster, Esq.. . . . . . . . . . . . . . . . . . . . . . . . Page 4

Writing ContestWhen Wonder Was White BreadBy Enid W. Langbert. . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 5

Across My DeskBy Barton Slavin, Esq. . . . . . . . . . . . . . . . . . . . . . . . . Page 6

Roll CallBy Elena A. Popova, Esq.. . . . . . . . . . . . . . . . . . . . . . Page 15

By Glenn Verchick, Esq.

Where can you go to find a room packedwith over 300 of Brooklyn’s most belovedjudges and attorneys? It’s the first floor ofthe Brooklyn Bar Association’s Meeting Hallon Judiciary Night! This fantastic event,hosted by the Brooklyn Bar Association onApril 4, 2012, was a huge success. As al-ways, Judiciary Night was our opportunity tomeet the newly elected, re-elected, appointedand re-appointed judges from the Housing,Civil, Family, Criminal and Supreme Courtsof Kings County as well as the newly elect-ed, re-elected, appointed and re-appointedjudges from the Appellate Division, SecondDepartment, the United States Bankruptcyand Eastern District Courts and the Court ofAppeals. The event drew lawyers from di-verse private practice areas, the court systemand the government.

The evening was hosted by Andrew M.Fallek, Esq. Chair of the Brooklyn Bar Asso-ciation Judiciary Committee and First Vice-President of the Association. After Mr. Fall-ek’s remarks and introductions of the Judgeson the Dias, he turned the program over to theHon. Theodore T. Jones, Jr. Associate Justiceof the New York State Court of Appeals.Judge Jones, a huge supporter of Brooklyn,honors our association at every event and isproud to call Brooklyn home.

Thereafter the Chief AdministrativeJudges of the numerous Courts in attendance

gave updates on their respective courts, wel-comed their new judges and thanked theircurrent judges for all their hard work, espe-cially at a time when court resources havebeen severely limited. Notably, the HonorableCarol Bagley Amon, Chief Judge of the Unit-ed States District Court for the Eastern Dis-trict of New York welcomed two new judges,including the Hon. William Kuntz. There-after the Hon. Jerome Feller, Justice of theUnited States Bankruptcy Court, filling in forthe Honorable Carla Craig, Chief Judge of theBankruptcy Court, introduced Nancy Ger-shon-Lord, his court’s newest Justice.

The Hon. William F. Mastro, Acting Presid-ing Justice of the Appellate Division, SecondDepartment, reported that there were no newjudges this year, but said hello to the many Ap-pellate Division Judges from the Second De-partment who were present at the event, includ-ing the Hon. Renaldo Rivera, the Hon. JohnLeventhal, the Hon. Cheryl Chambers and theHon. Robert Miller. As always, we thank theAppellate Division, Second Department forsupporting the Brooklyn Bar Association.

Next to report was the Hon. Sylvia O.Hinds-Radix, Administrative Judge for CivilMatters Supreme Court, Kings County. JudgeHinds Radix introduced her court’s newestjudges; Carl Landicino (a former BrooklynBar Association Trustee), Johnny Lee Baynesand Rachel Adams. Thereafter, the Hon Patri-cia DiMango, Deputy Administrative Judgefor Criminal Matters, Supreme Court, Kings

County was proud to introduce Ruth Shilling-ford and the Hon. Paula Hepner, SupervisingJudge of the Family Court introduced FrankPerry and Anthony Cannataro.

At the end of the program Hon. Lisa Ottley,Supervisory Judge of the Civil Court, KingsCounty, the Hon. John Lansden, SupervisoryJudge of the Housing Court, Kings County andthe Hon. William Miller, Supervising Judge ofthe Criminal Court, Kings County. They intro-duced their newest Judges, Shelly Halpern,Kevin McClanahan, Lydia C. Lai, John Hechtand Sharon Hudson. Ethan Gerber, the es-teemed President of the Brooklyn Bar Associa-

tion, closed the program with his final remarks. After the speeches were over, the socializ-

ing began. Typically, it would be very difficultto get all of these people, from such diverseand specialized areas of law into one room.However at Judiciary night, some amazingnetworking goes on. Everywhere you looked,judges and attorneys were congregating ingroups and people mingled moving from onecircle to another. From one end of the room tothe next, all that could be seen and heard werebig smiles, hugs, handshakes and laughter;that is what Judiciary night is all about.

Brooklyn Bar AssociationJudiciary Night

By Aimee L. Richter, Esq.

Please turn to page 7

Hon. Frank R. Seddio, Steven D. Cohn, President Ethan B. Gerber

‘No Courts, No Justice, No Freedom’— Law Day at The Court House, May 3, 2012

No Freedom."Megan Faux of South Brooklyn Legal Services also spoke. The New York

State Supreme Court Pipes and Drums played beautifully and added a nicetouch of ceremony to the event.

No Courts, No Justice No Freedom — hopefully this concise poignant mes-sage, expounded upon so eloquently by the distinguished speakers, will not fallon deaf ears. Please turn to page 9

Page 2, BROOKLYN BARRISTER MAY, 2012

THE DOCKETTHE DOCKET

Included below are events which have been scheduled for the period May 28, 2012 through July 4, 2012

Compiled by Louise Feldman

May 28, 2012 Monday In observance of Memorial Daythe BBA Building, including theLawyer Referral Service, the Vol-unteer Lawyer Project and the Li-brary will be closed.

May 29, 2012 Tuesday CLE - Commercial Funding &Structured Products For a New EraAuditorium 6:00 PM

June 7, 2012 Thursday BBA Board & Foundation Meet-ings Conference Room, BoroughHall 5:00 PM BBA Induction ofOfficers & Trustees CeremonialCourtroom, Borough Hall 6:00 PM

June 11, 2012 Monday VLP CLE with Judith VolkmanAuditorium 6:00 PM

June 12, 2012 Tuesday 18B Family Court CommitteeMeeting Center Conference Room1:00 PMBBA & NYC Bar JudiciaryCommittee Auditorium5:30 PM

June 13, 2012 Wednesday BWBA Induction of Officers &Directors Auditorium5:00 PM

June 18, 2012 Monday VLP Gala FundraiserBridgewaters, South Street Seaport6:00 PM

June 19, 2012 Tuesday Foundation Public Education Pro-gram Board of Trustees Room6:00 PM

June 20, 2012 Wednesday CLE - Medicare LiensAuditorium 6:00 PM

June 21, 2012 Thursday VLP Board Meeting Board ofTrustees Room 5:30 PM

June 25, 2012 Monday Lawyers Helping Lawyers CLEProgram Auditorium 6:00 PM

June 26, 2012 Tuesday Criminal CLE - The Media & TheAttorney Auditorium6:00 PM

June 27, 2012 Wednesday BBA Cyclones OutingConey Island7:00 PM

July 4, 2012 Wednesday In observance of IndependenceDay the BBA Building, includingthe Lawyer Referral Service, theVolunteer Lawyer Project and theLibrary will be closed.

IF YOU HAVE ITEMS FOR INCLUSION IN THE DOCKET, PLEASE MAIL OR FAX THEMTO LOUISE FELDMAN, BROOKLYN BAR ASSOCIATION, 123 REMSEN STREET,

BROOKLYN, NEW YORK 11201. FAX NO.: (718-797-1713) E-mail: [email protected]

May 28, 2012 through July 4, 2012 Compiled by Louise Feldman

IF YOU HAVE ITEMS FOR INCLUSION IN THE DOCKET, PLEASE MAIL OR FAXOR EMAIL THEM TO LOUISE FELDMAN, BROOKLYN BAR ASSOCIATION,

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

BROOKLYN BAR ASSOCIATION2011-2012

Ethan B. Gerber, PresidentDomenick Napoletano, President-ElectAndrew M. Fallek, First Vice-President

Rebecca Woodland, Second Vice-PresidentArthur L. Aidala, SecretaryHon. Frank Seddio, Treasurer

Avery Eli Okin, Esq., CAEExecutive Director

CLASS OF 2012Elaine N. AveryFrank V. CaroneRichard S. GoldbergDeborah LashleyMichael S. LazarowitzJoseph RosatoGlenn Verchick

CLASS OF 2013David M. ChidekelFidel Del ValleArmena D. GayleSteven Jeffrey HarkavyAnthony J. LambertiHemalee J. PatelIsaac N. Tuchman

CLASS OF 2014Theresa CiccottoPamela ElisofonFern FinkelDewey GolkinDino MastropietroSteven H. RichmanAimee L. Richter

Roger Bennet AdlerVivian H. AgressAndrea E. BoninaRoss M. BrancaRoseAnn C. BrandaGregory T. CerchioneMaurice ChaytSteven D. CohnHon. Miriam Cyrulnik

Lawrence F. DiGiovannaDavid J. DoyagaJoseph H. FarrellAndrew S. FisherDominic GiordanoPaul A. GolinskiGregory X. HesterbergHon. Barry KaminsMarshall G. Kaplan

Allen LashleyMark A. LongoJohn. E. MurphyJohn LonuzziManuel A. RomeroHon. Harold RosenbaumBarton L. SlavinHon. Jeffrey S. SunshineHon. Nancy T. Sunshine

TRUSTEES COUNCIL (Past Presidents)

TRUSTEES

LEGAL BRIEFSJudicial Recognition

Congratulations to Brooklyn Bar Associ-ation member Hon. Ellen Spodek who wasthe recipient of the Sybil Hart KooperAward, which was presented at the AnnualDinner of the Brooklyn Women's Bar Asso-ciation. The Annual Dinner held on May23, 2012 at The Brooklyn Botanic Garden,also honored with a Special RecognitionAward is Jeannie Costello, the ExecutiveDirector of the Brooklyn Bar AssociationVolunteer Lawyer's Project.

Brooklyn Bar Association Past Presi-dent Hon. Jeffrey Sunshine, the Supervis-ing Judge for Matrimonial Matters willhost a Brooklyn Women's Bar AssociationLunch with the Law Program on Thursday,June 21, 2012.

Kudos and Professional RecognitionBrooklyn Bar Association President

Ethan B. Gerber has been appointed toserve as a member of the IndependentJudicial Election Qualification Commis-sion for the Second and Thirteenth Judi-cial Districts. The appointment, whichis for a two year term from January 1,2012 until December 31, 2014, wasmade by Hon. A. Gail Prudenti, ChiefAdministrative Judge upon the recom-

mendation of the Brooklyn Bar Associa-tion and Acting Presiding JusticeWilliam F. Mastro.

Brooklyn Bar Association Executive Di-rector Avery Eli Okin, Esq., CAE, waselected as the Second Vice President of the100 Year Association of the City of NewYork on May 16, 2012. At the Annual Meet-ing Avery Eli Okin, was reappointed as theChair of the Public Service Awards andScholarship Committees as well as to the Ex-ecutive Committee of that Association.

Congratulations to Brooklyn Bar Associ-ation Intellectual Property Chair BrunoCodispoti, who was elected the president ofthe Columbian Lawyers Association ofBrooklyn at the Annual Meeting on May 1,2012. Bruno Codispoti, was installed at adinner dance on Friday, June 8, 2012 at theEl Caribe County Club. Also elected at theMay 1st annual meeting were RobertMusso, 1st Vice-President, Bartholomew T.Russo, 2nd Vice-President, Rose Ann C.Branda, 3rd Vice-President,

Mark A. Longo, Treasurer, Dean G.Delianites, Corresponding Secretary, LindaLoCascio, Recording Secretary and AldoAllevaas Historian. Elected to the Board ofDirectors were Hon. Frank R. Seddio,

NEW MEMBERSFOR MAY 2012

BryndeRivkahBerkowitz

Jay Butterman

Dana CatanzaroShalom Doron

Robert Halpern

Marc IllishAlexis Vigilante

Waterman

STUDENT MEMBERSMatthew BaiottoKate Cavallaro

Rachel DrachmanJoseph Silberstein

Irene SinayskayaMichael Weiss


Diana J. Szochet

MAY, 2012 BROOKLYN BARRISTER, Page 3

Brooklyn Barrister is published by Everything Brooklyn Media, LLC, under the auspices of the Brooklyn Bar Association. For advertising information call (718) 422-7410. Mailing address 16 Court Street, Suite 1208, Brooklyn, New York 11241.Vol. 64 No. 8 May 2012. The Brooklyn Barrister (ISSN 007-232 USPS 066880) is published monthly except in August and December by the Brooklyn Bar Association. Office of publication is: Brooklyn Bar Association, 123 Remsen Street, Brooklyn,New York 11201-4212. Telephone No. (718) 624-0675. Periodical postage is paid in Brooklyn, New York and at additional mailing offices. Subscription price is $11.00 per year. POSTMASTER: Send address changes to the Brooklyn Barrister, 123 Rem-sen Street, Brooklyn, NY 11201-4212.

BROOKLYN BARRISTER EDITORIAL BOARDGlenn VerchickEditor-in-Chief

Diana J. SzochetManaging Editor

Hon. Barry KaminsAssociate Editor

Aimee L. RichterArticles Editor

Cecilia N. AnekweHon. Bruce M. BalterMarianne BertunaJaime J. BorerMark DiamondJason EldridgePaul S. Forster

Hon. David FriedmanJason D. FriedmanMichael HernandezHon. Allen Hurkin TorresRichard KlassAnthony LambertiSusan Master

Gregory MesserHemalee J. PatelElena PopovaRobert P. SantoriellaMichael TreybichShelly Werbel

THE FOLLOWING SUMMARY OFSECOND DEPARTMENT DECISIONS INMEDICAL MALPRACTICE CASESDECIDED BETWEEN SEPTEMBER 1,2011 AND OCTOBER 31, 201

by JOHN BONINA, Esq.

1. Baptiste v. Harding-Marin, 88 A.D.3d752 (2d Dept. 2011).Statute of Limitations - Claim Dismissed Ver-sus PCP for Lack of Continuous Treatment

On January 31, 2004, decedent visited herPrimary Care Physician complaining of uter-ine bleeding. The PCP ordered a pelvic sono-gram and referred her to a gynecologist forfurther consultation and treatment. Decedentreturned to defendant PCP several times there-after for treatment of diabetes and hyperten-sion, but her uterine bleeding complaints wereaddressed by the gynecologist.

On May 2, 2005 decedent was diagnosedwith Stage IV cervical cancer. She sued,amongst others, her PCP alleging a failure todiagnose the cervical cancer.

Defendant's motion to dismiss on Statuteof Limitations grounds was granted, with theCourt noting that plaintiff failed to raise a tri-able issue of fact as to whether the Statute ofLimitations was tolled by the continuous treat-ment doctrine. The Court noted that:In the absence of continuing efforts by a doc-tor to treat a particular condition, the policyunderlying the continuous treatment doctrinedoes not justify tolling the statute of limita-

tions. Here, the plaintiff, in essence, "allegesnothing more than [the] defendants' failure totimely diagnose and establish a course of treat-ment for [the decedent's] condition, omissionsthat do not amount to a 'course of treatment'".

2. Rumola v. Maimonides Medical Center, 88A.D.3d 78

Plaintiff in this medical malpractice casedied November 16, 1999. Eight years laterthe Supreme Court granted defendant's mo-tion pursuant to CPLR 1021 to dismiss theaction with prejudice due to the failure of thepersons interested in the decedent's estate tomove for a substitution within a reasonabletime. Plaintiff thereafter attempted to com-mence a new action, which was also dis-missed on Statute of Limitations grounds,with the Court noting that since the prior dis-missal was for neglect to prosecute, theStatute of Limitations exceptions in CPLR205(a) were inapplicable.

3. Wright v. Mount Vernon Hospital, 88A.D.3d 873 (2d Dept. 2011).Discovery - Plaintiff Precluded for Failureto Appear for Deposition

The Court held that although plaintiff'swillful and contumacious conduct could be in-ferred from her repeated failure to complywith orders directing that her deposition becompleted by a date certain, her repeated ad-journments of her deposition, and inadequateexcuses for her noncompliance, the sanc-

tioned of striking the complaint would havebeen too harsh. Instead, Supreme Court prov-idently exercised its discretion in precludingplaintiff from testifying at trial.

4. Meyers v. Greenberg, 87 A.D.3d 988 (2dDept. 2011).

Plaintiff's motion to strike defendant's an-swer for failure to provide discovery was de-nied, as defendant provided all the records re-quested during the pendency of motion, aswell as an affidavit from defendant's principalattesting that a diligent search had been un-dertaken and that these were the only recordsin their possession.

5. Upshur v. Staten Island Medical Group, 88A.D.3d 785 (2d Dept. 2011).

Summary judgment granted to defen-dant. Plaintiff failed to raise a question offact on the issue of causation.

6. Bedard v. Klein, 88 A.D.3d 754(2d Dept. 2011).

In this preventable prematurity case, the in-fant plaintiff's mother underwent a cerclage dueto funnelling of the internal orifice of her uterus.Thereafter she was admitted to defendantWinthrop University Hospital, where she wasseen and treated by her private OB/GYNs Dr.Spector and Dr. Klein. Several Winthrop resi-dents and nurses were also involved in her care.

Defendant hospital's motion for SummaryJudgment was granted, on the grounds that theWinthrop staff did not exercise independentjudgment over the mother's care, and the or-ders of her private attending physicians werenot so clearly contraindicated that ordinary

prudence would require inquiry into their cor-rectness.

7. Healy v. Damus, 88 A.D.3d 848(2d Dept. 2011).

Summary Judgment denied - defendantfailed to meet its initial burden. Merelypointing to gaps in plaintiff's evidence is in-sufficient to make a prima facie showingentitling defendant to Summary Judgment.

8. Young v. Struhl, 87 A.D.3d 1006(2d Dept. 2011).

Summary Judgment denied - sufficientPhysician's Affidavit submitted in opposi-tion.

9. Lugo v. New York City Health and Hospi-tals Corporation, 89 A.D.3d 42 (2d Dept.2011).Frye Hearing - Preclusion of Plaintiff's Ex-perts Reversed

Facts: On August 11, 2001 at 31 weeksgestation, the infant plaintiff's mother was ad-mitted to Woodhull Hospital for signs ofpreterm labor, at which time her blood sugarlevel was measured at 26 mg/dL, abnormallylow. It was subsequently measured at a nor-mal level, and she was discharged two dayslater. The infant's mother returned to Wood-hull on September 2, 2001, after experiencinga grand mal seizure, and was discharged.Thereafter, per the Court's decision: On October 5, 2001, the mother gave birth toLugo at Woodhull by normal spontaneousvaginal delivery at 11:39 a.m. Lugo's Apgarscores, 9 at one minute, and 9 at five minutes,

PresidentMartin Van Buren famouslyquipped that "[a]s to the presidency, the twohappiest days of my life were those of my en-trance upon the office and my surrender of it".As I near the end of my term as President ofthe Brooklyn Bar Association, I have an ideaof what he meant - this has been the most grat-ifying and rewarding year of my professionalcareer but also the most demanding and chal-lenging. I have endeavored to leave the BarAssociation better than I found it or at the veryleast to meet the lessor standard of Hip-pocrates and to "do no harm". I think this ad-ministration has succeeded in those goals. Iam gratified to know that the association willcontinue under gifted leadership and that theBBA has a glorious future ahead.

We have accomplished a great deal in thislast year. Our beautiful building on RemsenStreet is being renovated and undergoingmuch needed repairs. The exterior roof isbeing thoroughly redone and the exterior isgetting a face lift of sorts that will make it ap-pear younger and more vibrant than it has indecades. Through the hard work of the staff,the interior has been cleaned, painted and re-freshed. Our building is our home and themeeting place for our community. I'm proud

that it will once again reflect the august bodyit represents.

Our relationship with the courts has neverbeen better. We invited the chief Administra-tive Judges of the courts to call upon the BBAto help with their needs in light of draconianbudget cuts -Justices Hinds-Radix andKamins did so and we used our facilities tohouse events normally held in the courthouse.We also cosponsored court events such as theLaw Day and Black History Month. Wereached out to reflect the diversity of theBrooklyn Community by reaching out tomany other Bar Associations and cosponsoredour two events with the Metropolitan BlackBar Association.

We are financially sound - our Annual Din-ner was a huge success, one can say an out-standing success in light of the economy; OurVolunteer Lawyer's Project is doing greatwork for the county's indigents and is finan-cially viable. Our Lawyer Referral Service hasnever been more profitable. Our YoungLawyers section is thriving with many ener-getic talented young attorneys who will see toour future success.

I would love to take credit for the accom-plishments of this year but honesty forbids it -Nothing could have been accomplished with-out our officers and trustees; a roster of someof the greatest legal talent in the City. We also

could not have succeeded without our dedi-cated staff. I have been known to be a diffi-cult taskmaster -the staff rose to the challengeand did all I asked and much, much more. Ithank Executive Director Avery Eli Okin andhis team for handling the job so professional-ly.

I have many thanks to give -more thanspace allows. Any list will be marred by thenames I neglect to mention so I thank the en-tire staff, the Trustees and Officers and all thepast presidents for their advice and counsel.

I must, however, give special recognitionto Past Presidents Steve Cohn, Gregory T.Cerchione, Barton Slavin, Lawrence DiGio-vanna, and the Hon. Barry Kamins for theirconstant support and wise counsel. JudgeTheodore T. Jones of the Court of Appeals,Justice Cheryl Chambers of the Appellate Di-vision, Chief Administrative Judge SylviaHinds Radix also warrant special recognitionfor their generous support. Finally and mostimportantly, my wife and daughters also getmany thanks for allowing and understandingmy absence so many nights this past year.

While leaving this post is bitter sweet - Iam gratified to know that the Bar will havestrong capable leadership for many years tocome. The upcoming officers, Andrew Fallek,Rebecca Woodland, Arthur L. Aidala, Hon.Frank Sedio and Aimee Richter are all ex-tremely talented and dedicated professionalswho will all lead with wisdom and vigor.

Which brings me to the incoming Presi-dent- Domenick Napoletano: The past yearhas been infinitely easier because I hadDomenick in my administration. Domenickbrings intensity, focus, energy and talent toeverything he touches. I am confident that hisadministration will be a remarkably successfulone and we should all look forward to a greatyear.

I thank the entire membership for thiswonderful and exhilarating year.

By Ethan B. Gerber, EsqPresident

BROOKLYN BAR ASSOCIATION PRESIDENT

RESPECTFULLY SUBMITTEDPresident’s Message

President Ethan B. Gerber

Medical Malpractice Update



Amid the rush to wind things up and clearthe decks as the summer break beckons, wehope you can find the time to examine someinteresting cases involving the disqualifica-tion of a murderer from succeeding to assets,not from the estate of his victim, but from theestate of the victim’s post deceased heir whodied shortly after the victim; the rejection of aclaimed gift of savings bonds effective on thedecedent’s death by way of a letter deliveredduring lifetime; the invalidity of a claimagainst an intervivos trust after the grantor’sdeath based upon two alleged gifts purportedto have been made during the grantor’s life-time; creditors of a trust beneficiary deniedstatus to object to a trust accounting; joint ac-counts opened for the convenience of a thirdparty passing by operation of law to the sur-viving joint tenant not to the estate of the de-ceased tenant; and an unsuccessful attempt toenforce an alleged oral promise to make a tes-tamentary disposition.

Murderer Disqualified From Succeed-ing to Assets, Not from the Estate of HisVictim, But from the Estate of the Victim’sPost Deceased Heir Who Died Shortly Afterthe Victim- The decedent died as a result ofwhat was described in her death certificate as“neck compress.” The decedent-victim’s son-in-law was charged with Murder in the Sec-ond Degree, as well as lesser included offens-es, in connection with the death. The son inlaw subsequently entered a plea of guilty toManslaughter in the First Degree in satisfac-tion of the charges against him and was sen-tenced to twenty-five (25) years in prison. Aspart of the plea negotiation, he waived hisright to appeal. The decedent-victim’s daugh-ter, who was the wife of the murderer, was thesole beneficiary of her mother’s estate. Thesole asset of the decedent’s estate was dece-dent-victim’s house. A little more than a yearafter the decedent-victim’s death, her daughterdied as a result of an accidental drug overdose,leaving as her sole distributee her husband,who had murdered the decedent, her mother.The mother of the murderer was appointed ad-ministrator of the estate of the murderer’swife, her daughter in law. An accounting wasfiled by the decedent-victim’s fiduciary show-ing a principal balance on hand of approxi-mately $262,000. The accounting fiduciaryasked the court for direction on whether to paythe funds on hand to the estate of the dece-dent-victim’s post-deceased sole heir, herdaughter, or to the decedent-victim’s sister.The decedent-victim’s sister filed objectionsto the account, alleging that she was the dece-dent’s only sibling and that the murderer hadforfeited his right to inherit through the estateof his wife, assets attributable to his mother-in-law’s estate, as a matter of public policy,since he caused the death of the person whosefunds would inure to his benefit through theestate of his wife, who post-deceased thedecedent-victim a short time after the murder.The administrator of the daughter’s estate alsoappeared in the accounting proceeding andmoved to dismiss the objections filed by thedecedent-victim’s sister. The decedent-vic-tim’s sister cross-moved for summary judg-ment on her objections. The attorney for theestate of the daughter argued that the courseurged by the decedent-victim’s sister wascounter to the decedent-victim’s testamentaryscheme and the laws of intestacy. She alsoclaimed that the decedent and her sister hadbeen estranged for years as a result of a bitter-ly contested accounting in the estate of theirmother. It was alleged that the house ownedby the decedent-victim at her death was one ofthe assets in dispute during the prior account-ing proceeding involving the two siblings. Itwas alleged that the murderer and his wife, thedecedent-victim’s daughter, had dated sincehigh school, moved to Florida during thedaughter’s college years and returned to livewith the murderer’s mother, when they re-turned to New York. It also was alleged thatthe decedent and her daughter were close,

talked and visited daily, and that the decedentassisted her daughter financially. It also wasmaintained that even after his indictment, thedaughter never wavered in her support of herhusband. It was contended that, since thedecedent-victim’s daughter’s death, the dece-dent’s sister had engaged in a media campaignto implicate the daughter in her mother’sdeath. The Court stated that it had learnedfrom an Assistant District Attorney that pend-ing the murderer’s sentencing, the decedent-victim’s sister and her husband had contactedthe District Attorney’s Office in order to ne-gotiate a deal with the murderer that wouldallow them to collect the proceeds of sale ofthe decedent’s house. The District Attorney’sOffice refused to negotiate the sentence basedon funds being paid to the decedent-victim’ssister. The Court also stated that it had beenadvised that the murderer was appealing hisconviction. The attorney for the daughter’s es-tate took the position that the decedent-vic-tim’s sister lacked standing to object to the ac-counting in the decedent-victim’s estate. Thedaughter’s estate took the position that thedecedent-victim’s sister could only seek todisqualify the murderer within the context ofthe accounting to be brought by the adminis-trator of the daughter’s estate, which was notbefore the court. In the view of the daughter’sestate, the unconditional bequest in decedent-victim’s will vested in her daughter upon thedecedent-victim’s death. The daughter’s estateposited that, since the murderer had no in-volvement in his wife’s death, he could not bedisqualified as a distributee of his wife’s estateand that therefore, attempting to seek his dis-qualification in the decedent-victim’s estatewas merely an attempt by the decedent-vic-tim’s sister to establish a closer nexus betweenthe decedent-victim’s death and the disqualifi-cation/forfeiture issue. The daughter’s estatealso pointed out that to pay the proceeds of thedecedent-victim’s estate to the decedent-vic-tim’s sister would also prejudice the rights ofany creditors of the estate of the decedent-vic-tim’s daughter. The daughter’s estate alsomaintained that the decedent-victim’s sisterwas urging a result that extended beyond thetenets of Riggs v. Palmer, and its progeny,which prevents a murderer from inheritingfrom his victim’s estate. The daughter’s estatepointed out that the murderer, who was incar-cerated, had not been cited, and that aguardian ad litem had not been appointed torepresent him, as one would if he were madea party to the accounting. In addition, thedaughter’s estate claimed that only the prox-imity of the two deaths allowed the decedent-victim’s sister to make her argument, which ifsuccessful would upend the laws concerningvesting. The daughter’s estate also assertedthat the murderer’s waiver of his right to ap-peal was not conclusive and that a guilty pleadoes not extinguish every claim. While ac-knowledging that their relationship suffered asa result of the intense dispute over their moth-er’s estate, the decedent-victim’s sister disput-ed the characterization of her relationship withher sister, the decedent-victim. She also ac-knowledged statements having been made tothe media but did not apologize for her dismayupon learning that the murderer pled guilty toacts resulting in the decedent’s death, but stillsought to claim assets arising from her estate.In his plea allocution the murderer admitted toentering the decedent-victim’s home in orderto steal jewelry when he was surprised by thedecedent entering the upstairs bedroom. Headmitted to having fought with the decedent,holding her in a headlock or choke hold andsqueezing her neck intending to cause her se-rious physical injury. The plea bargain also in-cluded a waiver of Brandon’s right to appealfrom the judgment of conviction. HOLD-ING- The Court found that the murderer hadforfeited any claim to assets inherited throughhis spouse’s estate that were attributable to theestate of the decedent-victim. As a thresholdmatter, the Court stated that it doubted that aguardian ad litem appointed for the murderercould make a more eloquent argument thanhad counsel for the fiduciary of the daughter’sestate, an argument made, essentially, on be-

half of the murderer, since he succeeded to thedaughter’s estate. The Court opined that underthe well-settled principle that one who takesthe life of another should not be allowed toprofit from his wrongdoing, the murderercould not, were such the case, inherit from thedecedent-victim’s estate. The Court noted thatthe principle had been applied to life insur-ance proceeds, Social Security death benefits,joint property interests, and a law firm’s prof-it sharing plan. However, the Court pointedout that the funds at issue had vested in the es-tate of the murderer’s wife, who was not im-plicated in the crime resulting in the death ofher mother. The Court stated that the govern-ing principle nonetheless is that no one shouldbe permitted to profit by his own fraud, or totake advantage of his own wrong, or to foundany claim upon his own iniquity, or to acquireproperty by his own crime. While not suggest-ing that a temporal analysis was determina-tive, the Court reasoned that had the daughternot post-deceased her mother so soon after themother’s murder, the murderer’s expectationfrom his wife’s estate might not include theassets of the estate of his mother-in-law whomhe murdered. However it was clear to theCourt that but for the murderer’s actions, therewould have been be no inheritance for him toobtain through his wife’s estate. The Courtstated that the murderer had made that possi-ble, and ruled that, upon his conviction forManslaughter in the First Degree (a Class BFelony defined under the Penal Law§125.20(1) as intentionally causing seriousphysical injury to an individual resulting insuch individual’s death), he should not be al-lowed to profit in any way thereby. The Courtwas not persuaded by the argument that thedaughter’s interest vested upon her mother’sdeath, and that all inquiry should stop at thatpoint. The Court explained that were thedaughter eventually implicated in her moth-er’s death, the fact that her interest in hermother’s estate vested would not make her in-terest sacrosanct, since the daughter herselfwould be subject to disqualification as a ben-eficiary/distributee, whether or not her interesthad vested. The Court stated that it struggledwith the fact that the daughter apparently sup-ported her husband until her death, but notedthat it also was cognizant of the fact that thedaughter died approximately eight months be-fore the murderer pled guilty to the crime. TheCourt refused to speculate whether this wouldhave changed the daughter’s mind, and conse-quently abstained from drawing a conclusionone way or the other. The Court held, howev-er, that no speculation was required to see thecausal connection between the wrongdoingand the benefit. The Court asserted that to ig-nore the murderer’s admission concerning thedecedent-victim’s death and reward his ac-tions with an inheritance he would not haveotherwise acquired, albeit through the estateof his spouse, disturbed the conscience of theCourt, a Court of equity. The Court empha-sized that it is an old, old principle that aCourt, even in the absence of express statuto-ry warrant, must not allow itself to be madethe instrument of wrong, no less on account ofits detestation of everything conducive towrong than on account of that regard which itshould entertain for its own character and dig-nity. The Court found that the “but for” analy-sis concerning the murderer’s act should pro-hibit him from obtaining the fruits of such act,even though they may be obtained through anintervening estate. The Court acknowledgedthat a consistent application of the approachadopted might prove to be problematic if therewere a greater temporal separation betweenthe wrongful act and the wrongdoer’s succes-sion to the funds received by the original heirof the victim. The Court stated that it was wellaware that the tracing of such funds mightwell prove to be impossible in certain casesdue to their conversion, expenditure, deple-tion, or any other number of reasons. Howev-er, in the Court’s view, to take the position thatpotential hurdles to the enforcement of forfei-ture in certain instances should prevent theapplication in the case at bar, where the pre-cise tracing of the funds produced by the

wrong was possible, would make the court afacilitator of the wrongdoer, by shirking itsequitable responsibilities under the commonlaw and the long-standing public policy that awrongdoer should not profit from his inten-tionally committed wrongful acts. The Courtadded that even in the absence of a specificstatutory bar to a wrongdoer profiting from hiswrong, a Court should not, as a Court of equi-ty, put itself in the position of assisting thewrongdoer in profiting from his wrong by al-lowing the use of a technical argument, to wit:that the existence of an intervening inheritorwould sufficiently distance the wrongdoerfrom his wrong so as to permit him to profitthereby. Consequently, the Court found thatthe murderer forfeited any claim to assets in-herited through his spouse’s estate that wereattributable to the estate of the decedent-vic-tim. The Court, however, did not direct pay-ment directly to the decedent-victim’s sister.The Court provided that the funds be paid tothe daughter’s estate solely for the purpose ofpaying any outstanding debts/creditors of thedaughter’s estate. The Court also directed thatsince its holding had the effect in the daugh-ter’s estate as if her husband, the murderer,had predeceased her, distributees of thedaughter, if any, other than the objectant, heraunt (the decedent-victim’s sister) who werenot before the Court would be made interest-ed parties to an accounting in the daughter’sestate. Matter of Edwards, N.Y.L.J. 4/13/12,p.21, c.3 (Surr. Ct., Suffolk Co., Surr. Czygi-er)

A Claimed Gift of Savings Bonds Effec-tive on the Decedent’s Death By Way Of aLetter Delivered during Lifetime Rejected-The plaintiff was decedent’s son. The defen-dant was the decedent’s surviving spouse andthe plaintiff’s stepmother. At issue were cer-tain “EE” and “HH” federal bonds ownedunder the joint names of the decedent and thedefendant. The decedent had sent a letter tothe plaintiff and instructed the plaintiff not toopen the letter until the decedent’s death.When opened after the decedent’s death, theletter was found to contain a direction to re-name the bonds in the names of the plaintiffand the plaintiff’s daughter, and a form to beutilized for that purpose. The letter was signedby the decedent and the defendant. The defen-dant’s signature appeared below the state-ment, “witnessed by me today.” The plaintiffcommenced an action alleging that the defen-dant had converted the bonds and had refusedthe plaintiff’s demand to return the bonds tohim. The defendant moved for summary judg-ment dismissing so much of the complaint assought to recover damages for the allegedconversion of the bonds. The plaintiff cross-moved for summary judgment asserting thathe had established ownership of the bondsbased upon the decedent’s letter. The SupremeCourt granted the defendant’s motion to dis-miss the complaint for conversion and deniedthe plaintiff’s cross motion to declare him theowner of the bonds. The Supreme Court con-cluded that the decedent’s letter did not con-stitute a valid inter vivos gift or a valid testa-mentary disposition. The plaintiff appealed.HOLDING- The Appellate Division af-firmed. The Appellate Division stated that tomake a valid inter vivos gift the donor mustintend to make an irrevocable present transferof ownership, there must be a delivery of thegift, either by a physical delivery of the sub-ject of the gift or a constructive or symbolicdelivery, and there must be acceptance by thedonee. The Appellate Division added that aninter vivos gift requires that the donor intendto make an irrevocable present transfer ofownership, and that if the intention is to makea testamentary disposition effective only afterdeath, the gift is invalid unless made by will.The Appellate Division opined that the deliv-ery required must be such as to vest the doneewith control and dominion over the propertyand pointed out that intention or mere wordscannot supply the place of an actual surrenderof control and authority over the thing intend-ed to be given. The Appellate Division found

T H E S T A T E O F E S T A T E SBy Hon. Bruce M. Balter and Paul S. Forster, Esq.



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W R I T I N G C O N T E S TWHEN WONDER WAS WHITE BREAD By Enid W. Langbert, Esq.

CHAPTER ONE(1956, Brooklyn, New York)

I know what you're going to think. You're going to think I'm pathetic. I'm al-ready fourteen years old, it's been two years since I first heard rock and roll, andwhat do I have to show for it? Nothing.

I'll never forget that first minute. It was like waking up when you didn't know you wereasleep. The drums were pounding and the melody kept going around and around. My bodymoved by itself and I felt as if I was lost in a world I'd never been in before but might havebeen born in and never wanted to leave. Like I had been inside a little cage all my life and thedoor just swung open.

I said shake rattle and roll.I said shake rattle and roll.Well you never do nothin' to save your doggone soul.

Every song I ever heard before had music like a gentle horse that carried the singer on itsback. Each word was like a bubble, round and perfect, floating into the air. But this music waslike a bucking bronco. It argued with the singer. It answered back. You couldn't even hear thewords. I thought they were talking about a girl who had the "shape of Marilyn Monroe" until Iheard the name of the song on the radio. "Shake rattle and roll." It was the perfect name be-cause that's just what the music did. Every time I heard it. This music was going to shake andrattle and roll the whole world. It was going to change everything.

Well, it hasn't. Not yet, anyway. Even though the next song Bill Haley and the Cometssang, Rock Around the Clock, was the biggest hit record in the whole country.

Grown-ups hate rock & roll. At least the ones I know. My parents and my friends' parents.It's amazing how they all say the samething about it - like they had a meetingabout what to say about this crazy newthing that might actually make our kidsfeel happy for a change. They say it's aCommunist plot to undermine the youth ofAmerica. And my friends believe themand tell me I'm a dupe to listen to rock and roll. I didn't believe it. I figured the Communistswere probably so busy worrying about their own kids they didn't have time to even think aboutkids living in Queens, let alone plot to undermine us. But my friends believe everything theirparents tell them. Just because our parents have lived for such a long time and gone to collegeand stuff. Well, I hardly believe anything my parents tell me. And I have good reasons. Takemy father. He's what you would call an egghead. He thinks you can't even call somethingmusic if it has words and wasn't written at least a hundred years ago.

My father came into my room one night when the radio was playing my favorite song: Oh yes, I'm the great pretender.Dooey do.Pretending that I'm doing well.Dooey do.My need is such I pretend too much.I'm lonely but no one can tell.

I waited for him to smile and say what a beautiful song that was. Maybe even say he knewwhy I loved it so much because he was lonely too. But he just shook his head as if somethingreally sad had just happened and asked, "Paula Levy. What is that racket?"

That's my name by the way. My father loves to call me by my whole name. As if we don't exactly know each other that well. I looked into his eyes to see if he was

joking. He wasn't."It's called rock and roll, Daddy. It's a new kind of music.""Music she calls it! I thought the furnace had exploded."And my mother. I don't know what you would call her. But she thinks all you need to be

happy is to have enough to eat because when she was my age it was the middle of the Depres-sion and no one had any money.

I tried to tell her. I played "Shake Rattle and Roll" for her on the jukebox one timewhen we were having lunch at Murray's Luncheonette. Murray's sells soda and sandwichesreally big pickles. It has a beautiful jukebox, all blue and green neon with red and yellowflashing lights. Ever since I was little, I loved to watch the metal arm reach down and pick outthe record you picked from the row of records lined up inside the glass dome. I held my breathand out it came. Shaking and rattling. Everyone in the whole luncheonette started lookingaround, looking really angry. Like this racket was ruining their baloney sandwiches. I neversaw my mother look so embarrassed.

It was pretty cool actually. Them so mad. My mother so embarrassed. And all be-cause of rock & roll. It gave me a lot of hope. But it was practically the only thing that did.Because every night now, for months, after I come home from Chemistry Club or orchestra orthe other dumb things I do after school to help me get me into a good college so I can have agreat life, and after I finish my homework, I just listen to rock & roll on the radio in my room.

Pathetic, right? Well, not any more. Because last month a miracle happened. A cool girlbecame my friend.

Maybe that doesn't sound like a miracle to you. Maybe you have lots of cool friends andthink miracles haven't happened for thousands of years. Well, if that's what you think, youdon't go to my high school.

In my high school there are two kinds of people. Cool kids and us. And everybody knowswhich one you are the minute they see you. For one thing, we're younger than the cool kids be-cause we skip a grade. I don't know whose great idea that was, but somebody figured that wewere so smart we didn't need to go to the eighth grade. So, hopefully, the reason I'm so shortand, you know, younger looking in a sweater, is because I'm one year behind and I'm going tohave the enormous growth spurt anytime now. But if being one year younger wasn't enough ofa dead giveaway, you would know I wasn't cool the minute you saw me by my clothes because

anytime you see me I'll be dressed the way my mother thinks teenagers should dress. Saddleshoes. Fat white socks folded down over my ankles. Pleated skirts. But if you could see acool girl, you would know that she looks the way teenagers should really look. Tight blackskirts with a slit up the back. Tight sweaters. Bright red lipstick and big plastic earrings.

I think the cool kids do stuff teenagers should really do too. I don't even think they careabout getting into a good college. But I don't know that for sure because they never talk to us.And we never go to the places where they hang out. Because if one time, by mistake, you wentto the luncheonette across the street from school where the cool kids hang out, they wouldnudge each other and yell, "Hey, Brain, how're your cooties?" Or, "Cast your eyeball on thesquare." So you would leave as fast as you could and never go back. Even our parents knewcool kids would never have anything to do with us and that's why they never worried we wouldfall into "bad company."

But at night, in my room, when I listen to my radio, I close my eyes and go back tothe luncheonette wearing long plastic earrings and flat black shoes without socks. My sweatersticks out pretty far from my chest. Everyone smiles at me and I sit down in a booth next to aboy with blond hair slicked back and a white shirt with the collar open. He puts his armaround my shoulder and this strange feeling is squeezing my chest. We look into each other'seyes and listen to our song:

Why do birds sing so gayAnd lovers await the break of day?Why do they fall in love?

"Paula!"My mother is banging on my door. "What?"“Did you finish your homework?""Yes.”"Then go to sleep. It's after nine o'clock."

CHAPTER TWOSo you see, I wasn't kidding when I said it was a miracle for me to have a cool friend. It started when a new kind of store that no one had ever seen before opened a couple of

blocks from my house. A record store. Itwas like my radio was a pumpkin and myfairy godmother waved her wand andturned it into a chariot filled with music.The first time I walked into that store, andlooked at the walls covered with littlecubbies of records, I felt as if I was inchurch. Actually a synagogue, because

I've never been in a church. But I figure it feels the same way, you know, all special and quietand thrilling. I hope God isn't insulted when I say that. Not that He probably pays that muchattention to me and my family since we don't really pay much attention to Him. The onlytimes I've ever been in a synagogue was when I went with my friends.

Unfortunately, it was like an announcement went out over the cool kids' public address sys-tem because after a week or two they all started hanging out in the record store. Hundreds ofthem. So, of course, none of my friends wanted to go there. Their mothers told them goodgirls didn't go to places like that. Only tramps. Wasn't that ridiculous? What was trampyabout going to a store and buying something? Our mothers did that all day long. Of course, Iknew the answer to that question. Trampy was our mothers' word for cool.

So I went to the record store by myself. And I would have to pretend I didn't know theother kids were staring at me and nudging each other and smiling mean smiles. I pretended Icouldn't hear what they were saying about me, although they sure weren't calling each other"brain" and "creep." I would look at the floor and at the records and at Richie, the guy whoworked at the cash register. He looked like the boy in my dream luncheonette with his blondhair and white shirt. Whenever I paid him for my records, his blue eyes would look right intomine and he would smile and say, "Thanks, doll."

When Richie said, "Thanks, doll," my whole body felt like it was on fire, and I couldn'tcatch my breath. Anybody who looked at me would know how I was feeling, so I hurried outof the store even faster than I came in. But on this one day, I must've forgotten about neverlooking at the cool kids, because I saw it -- a paperback book sticking out of one of the coolgirl's coat pocket.

I know what you're going to say. You're going to say you've seen hundreds of peoplewith paperback books sticking out of their coat pockets. You don't know why I would betelling you about it as if it was an iceberg in the middle of a desert or an elephant withwings. Well I don't want to be a pest about this, but the fact is you don't go to my highschool. Because if you did, you would know that this was probably the first time in history

BROOKLYN BARRISTERFICTION CONTEST HONORABLE MENTION



Most members of the Brooklyn Bar As-sociation handle more than one type oflaw. We are all familiar with the basics ofsimple wills, health care proxies and livingwills. Trusts, on the other hand, are a littlebit more complicated. If an attorney is fa-miliar with the general principles of con-tract law then a Trust should not be soconfusing or daunting as to require a re-ferral out to an expert. Having said that,there is nothing wrong with contacting amember of the Brooklyn Bar Association’sTrust and Estates Committee for adviceafter you’ve done your basic research.

For example, a client who is a Physi-cian set up a life insurance Trust approxi-mately fifteen years ago: the assets of theTrust are life insurance policies whosecash benefits will vest after his death. Atthe time of the consultation, the Doctorand his wife Jane are in the process of ne-gotiating a legal separation. So, why arethey coming to you? The terms of theTrust state that the beneficiary is the wifeof the Settlor (Doctor). In the event thatthere is a legal separation or divorce thenthe current wife (Jane) will not be the“wife” as referenced in the Trust. As partof the mediated matrimonial separation itwas agreed that Jane would remain thebeneficiary of the Trust. Additionally, theTrust is appropriate in all respects relatingto the five (5) adult children and providesthat if the wife predeceases or dies duringthe administration of the Trust, the corpusof the Trust is to be distributed among thefive (5) children according to the laws ofIntestate Distribution in New York in ef-fect on the date of her death.

So, what is the plan of action? Ratherthan revoking the Trust, a modification ofthe Irrevocable Trust, prior to theGrantor’s or Settlor’s death is the properway to proceed. Initially, the attorneymust ascertain who the Beneficiaries ofthe Trust are, and that class of beneficiar-ies may include un-borns as long as theclass is limited by the applicable ruleagainst perpetuities. When a Trust is silentconcerning children born of bio-technolo-gy then it may be appropriate to add intothe Amendment Document a clause relat-ing to grand-children born of new technol-ogy with the consent of their parents, thatthey are entitled to the same rights for allpurposes as the natural child. See, In re:Martin V., 17 Misc. 3d 198, 841NYS2d 207(Surr. Ct., 2007).

Estate Powers and Trust Law § 7-1.9specifically provides that a Trust Grantorwho is still living may revoke or amend theTrust upon a written document acknowl-edged in the manner required for therecording of the conveyance of real prop-erty and that all the persons beneficiallyinterested in a Trust sign an appropriatedocument. All persons beneficially inter-ested in a Trust must sign their approvaland must be obtained as part of any revo-cation or amendment or else the Trust willnot be considered changed under the law.Even those persons who have a contingentremainder interest in the Trust must exe-cute a written consent to its revocation ormodification. In re: Mergenhagen,50AD3d 1486, 856 NYS2d 389 (4th Dept.,2008). Appropriate forms of Revocation ofTrusts and Modifications of Trusts canfound in McKinney’s Forms at § 10:46, et.seq.

The most important thing for the prac-titioner to remember is that these formsare just that, forms. A Trust is a written

agreement between the Settlor and theFiduciary Trustees concerning the man-agement of assets. Therefore, whenamending a Trust the attorney should beaware of the provisions of the Estate Pow-ers and Trust Laws, should review the rel-evant terms of the Trust relating to distri-butions and intestate distribution andshould draw the amendment or revocationin simple English, following the McKin-ney’s Forms as a guideline.

In the above referenced matter, anAmendment of Trust document wasdrawn up. The amendment stated, in sum,the term “wife” shall be read for all pur-poses as “Jane” and that the legal status ofthe marriage is to not be considered forthe purposes of the Trust. The documentstated that this change was being made asa result of the legal separation proceed-ings; the document acknowledged that ap-propriate consideration has been ex-changed; the document provided for thesignature and notarization of the twoTrustees, the husband Settlor, the soon tobe ex-wife, and the five (5) children. Therewere no grandchildren nor was anydaughter, or spouse, pregnant at the timeof execution of the amendment. All chil-dren were above the age of eighteen (18) atthe time of the execution of the amend-ment to the Trust.

An attorney who is familiar with gen-eral principles of contract law, who con-ducts appropriate research and works oncrafting a very specific document toachieve a particular result should be ableto work with client and continue to build aconfidential relationship with the family.

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Hon. Patricia DiMango, Hon. Frank Seddio, Hon. Sylvia O. Hinds-Radix

Guest, Aimee L. Richter, Hon. Sarah Kraus

Manuel A. Romero, Hon. Reginald Boddie, Hon. Andrew M. Fallek,Frederick C. Arriaga

Hon. Joanne Quinones, Hon. Lisa S. Ottley

Hon. William Kuntz, Gregory T. CerchioneHon. Jeffery Sunshine, Hon. Lawrence Knipel, and Hon. Nancy Sunshine

B r o o k l y n B a r A s s o c i a t i o n J u d i c i a r y N i g h tContinued from page 1


B r o o k l y n B a r A s s o c i a t i o n J u d i c i a r y N i g h t

Hiram Bell, III, Gregory T. CerchioneMartin Edelman, Hon. Sylvia O. Hinds-Radix, Diana J. Szochet

Hon. Debra Silber, Fern Finkel, Diana J. Szochet

Hon. William F. Matro, Acting Presiding Justice, Appellate Division,Second Department

Hon. Donald Scott Kurtz and Gregory T. CerchioneEthan B. Gerber, Hon. Theodore T. Jones

Continued from page 8



‘No Courts, No Justice, No Freedom’— Law Day at The Court House, May 3, 2012


President Gerber and Administrative Judge for the NYCCriminal Courts Barry Kamins.


"No Courts, No Justice, No Freedom" - Law Day at The Court House, May 3, 2012Continued from page 9


that a cool kid ever carried a book. I don't have to tell you that cool girls don't walk around with big leather book bags, like the

ones our parents give us for our birthdays, filled with textbooks that weigh about a ton each.They don't spend the first month of every term pasting little round paper doughnuts called "re-inforcements" around the holes on every single page of their looseleaf notebook. Cool girlscarry shiny little plastic purses full of make-up and cigarettes and I don't really know whatother wonderful stuff. A cool girl would no more carry a book than she would wear socks. Butthere it was. And even bent over and only half sticking out of her pocket, I knew what book itwas. The gold and red cover, all beat up. Catcher in the Rye. Just like my copy. Just like thecopy I kept in my book bag because everyone thought it was a dirty book and my motherwould've had a heart attack if she knew I read it even once, let alone four times.

Catcher in the Rye wasn't like any other book in the world. It knocked me out every time Iread it. Knocked me out. That's the way Holden talked. Holden Caulfield, that is, the hero ofCatcher in the Rye. Holden felt like I did about life. And he was the only person in the worldI knew who did. I guess you could say that Holden was my only real friend. I would talk tohim in my private thoughts and tell him things I couldn't tell anyone else. But, if there wassomeone else who was carrying his book around, she had to feel the same way.

I turned back to the records on the wall and pretended to be looking for something else.But really I was sneaking a peak at the girl who, at that very minute, turned around. She wasbeautiful. She had all this wavy blond hair and red lips and bright blue eyelids. She looked likeany other cool girls, leaning against the wall, looking up at a couple of the cool boys who weretalking to her. She didn't see me looking at her. But I knew that she wasn't like all the othercool girls. She had a secret. The same one I had.

In my room that night I started making a plan. I would search my high school. I wouldlook at every single cool kid until I found her. I was thinking up excuses for leaving home-room or going to a different period study hall. But I didn't have to do any of them. Becausethe very next morning, there she was, walking towards me in the hallway after third period,talking to a tall boy with a black pompadour that stuck up about six inches off his head.

I couldn't believe it was going to be that easy to find her. I mean, it had taken my wholelife to find rock and roll and another person who read Catcher in the Rye. I knew that you al-ways passed the same people on each class break because everyone had the same classeseveryday at the same time. Except like for art and music stuff, but they were always in the af-ternoon. And I knew that it didn't mean anything that I had never noticed her before. Becausebefore I saw the book, she just looked like all the other kids I never looked at. But I stillcouldn't believe it had been so easy. Maybe she was only walking there that day and neverwould again.

I practically held my breath until third period was over the next day. But sure enough.There she was again walking down the hall after third period. That was Friday. Then it wasthe week-end. For once, I couldn't wait for Monday, because I knew exactly what I was goingto do.

On Monday, when I walked in the hall after third period, I took out my copy of Catcher inthe Rye and held it in front of me, like I was reading it when I saw her coming towards me.She was walking with the tall boy. But when she looked around, she saw me. Her eyesopened wide in surprise, looking at the book and then at me. That afternoon I went to therecord store. I saw her sneak a peak at me. The next day I did the same thing again, walkingdown the hall, after third period, with the book in front of me. I could see her look at meagain and I knew what I was going to do next.

On Wednesday, when I walked down the hall after third period, I didn't take the book out.When she looked over, I smiled at her. She looked away.

On Thursday I smiled again. She smiled back. At least, I was pretty sure that she did. Itwas not a very big smile. Cool kids didn't smile big smiles. But sure enough, when I wasstanding on line waiting to pay for my lunch, she walked up to me.

"Hey, hi. Didn't I see you the other day, you know, at the record store?""Um, yeah, maybe." My heart was pounding so loud I was afraid she could hear it. A voice

in my head was saying, I'm talking to a cool kid. Another voice was telling that voice to shutup because it wasn't cool.

She was looking around as if she was a spy. "I'm going to be sitting over there. By thedoor. Want to sit with me?"

I looked to where she was pointing. The table was behind a pillar. "Sure. My name's Paula." She was walking away, and I didn't know if she heard me, or if

she cared.She looked up and nodded when I sat down. She was wearing a fuzzy white sweater that only came up a little ways over her brassiere.

A lot of her chest showed. She said, "You like rock and roll, huh? I mean, you're always buying records.""Oh, yeah. I love it. More than anything." I'd said too much. Cool kids never said long

sentences. Not that those were long sentences. There were just too many of them. "Yeah. You got some pretty cool records. We were surprised, you know. 'Cause you

know, I mean, you look like a creep."My eyes burned. I blinked to keep back tears."What's wrong with your eyes?""Nothing. I'm a little um nearsighted." Oh God, that sounded creepy. "Well... you know... the thing of it is, Paula, your name's Paula, right? My name's Barbara.

Not Barbie or Barb.""Hi, Barbara.""Yeah. So, anyway I saw you were reading that book. You know? Catcher in the Rye." "Yeah?""Yeah. Well, you know, I mean, I read it, too. I mean, do you like it?""It's my favorite book," I said. I bet you think that was an easy thing to say. Well, it was-

n't. I never told anyone the truth about how I felt about Catcher in the Rye, or much of any-thing before and now I just said it to someone I'd known for about 20 seconds.

"Yeah?""Yeah.""Well, it's mine too," she said.

I had to ask her. "Did you ... did you really read all of it? Not just the part in thehotel room?"

"Three times. I read it all the way though three times. How about you?"Four. I don't know anyone else who likes it.""Me, neither. Everyone just reads the part about the prostitute."I never heard the word "prostitute" said out loud. I felt cold. Then warm. Then cold and

warm at the same We were looking at each other like we were the only people in the cafeteria. Maybe in

the world. She asked, "Why do you like it so much?" I knew that was the moment. If I answered that question wrong, it would be all over. "Because ...I . .. You know ... Because I feel like he does. When he says how phony every-

one is and how dumb and fake everything is."I'd just said more truth than I'd ever said to anyone in my life before. I held my breath and

waited to see what she would say. She didn't say anything for a while. Then she nodded. Avery little nod and said, "I always thought it was weird, you know, 'cause he's like this richkid, and he goes to this fancy school, but he's just as unhappy as I ..... I mean, he's unhappy.And he's rich."

"I never thought about that. I guess he's rich. But it doesn't seem to make much differ-ence. Those schools he goes to don't sound so great."

"You must be rich. I mean, you buy so many records.""Me? No. I'm not rich. You could ...." I stopped before I made the mistake of inviting her

over to listen to my records. I wondered if being cool was like playing the violin and if I keptpracticing I would get better at it.

"I never talked about Catcher with anybody before," I said instead."Me neither." "My friends won't read it 'cause they think it's a dirty book.""My friends won't read it 'cause it's a book."She looked at me and smiled her almost smile. I started to smile back. She stood up. "Yeah. Well ... uh.. I got to go. Do you want to .... meet me here tomorrow?""Yeah.""OK. I'll see you. I mean, you know, maybe.""Yeah. You will. I mean, maybe."

Enid W. Langbert, Esq., is a law clerk to Justice Rachel Adams, Supreme Court, Kings County

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were "excellent," and he initially appeared normal. However, by the time Lugo was 40 minutesold, he was experiencing tremors and, at 12:25 p.m., he was admitted to the neonatal intensivecare unit.

According to the deposition testimony of Dr. Frantz Brea, the director of neonatology atWoodhull, tremors are a sign of hypoglycemia in a newborn. At 12:25 p.m., when Lugo was ad-mitted to the neonatal intensive care unit, his blood glucose level was measured, through a "heelstick" test, at less than 20 mg/dL, and laboratory testing of blood drawn from Lugo at that timelater measured a glucose level of 3 mg/dL. According to Dr. Brea, a normal glucose level for aninfant approximately 40 minutes old is about 40 mg/dL. Lugo was given a "glucose IV push" anda glucose infusion, and at 1:00 p.m., his blood glucose level was measured at 71 mg/dL, withinnormal limits. Thereafter, Lugo's blood glucose level remained within normal limits until he wasdischarged from Woodhull on October 7, 2001.

In 2002, Lugo was referred to Woodhull for evaluation due to his delays in reaching certaindevelopmental milestones. On April 29, 2003, Lugo underwent a brain magnetic resonance im-aging (hereinafter MRI) examination at Brookdale Hospital, and the resulting MRI report set fortha finding of "non-specific white matter loss in parietal and occipital lobes with dilation of the oc-cipital horn . . . which suggests periventricular leukomalacia, as can be seen with perinatal is-chemia." Ultimately, Lugo was diagnosed with cerebral palsy (spastic diplegia type).

Plaintiff sued NYCHHC, alleging that the hypoglycemia caused the child's brain damageand cerebral palsy. Defendant moved for Summary Judgment or, alternatively, a Frye hearing,claiming that the "possible transient episode" of hypoglycemia in the mother on August 11, orthe "transient episode" of hypoglycemia shortly after the child's birth, could not have causedhis brain damage.

In opposition, plaintiff submitted a physician's affidavit from a pediatric neurologist, whoopined that the child was born with profound hypoglycemia, and that the 81 minute delay in di-agnosis and treatment was a substantial factor in the child's brain damage. The expert reliedupon, amongst other things, the normal appearance and good Apgar scores at birth, the delay inonset of his tremors ("subtle seizures") until approximately 40 minutes of life, and various litera-ture including a standard pediatric neurology textbook and numerous journal articles.

Supreme Court granted the request for a Frye hearing, and held in abeyance defendant's mo-tion for Summary Judgment.

At the Frye hearing, plaintiff called a pediatric neurologist, who testified that the normalblood glucose range for newborns is between 40 and 60 mg/dL; that the child's blood sugarlevel of 3 was "profoundly low"; and that hypoglycemia is a medical emergency which must betreated immediately because it is a toxic state which causes brain damage. The expert furthertestified that an 81 minute episode of hypoglycemia at the level of 3 mg/dL could cause the neu-rological damage of the type sustained by the infant plaintiff based upon the following gener-ally accepted scientific principles: 1) hypoglycemia causes brain injury; 2) certain infants aremore susceptible to brain injury due to hypoglycemia than others; 3) hypoglycemia is a toxicand dangerous state; and 4) there is no safe level of hypoglycemia. The physician further tes-tified that his opinion to the effect that the child's brain injury was caused by hypoglycemia wasbased on the fact that the MRI film showed a brain injury, there was a period of proven and pro-found hypoglycemia, and there was nothing else in the record suggesting any other cause of thebrain injury. The expert relied upon a standard pediatric neurology textbook, as well as nu-merous journal articles. However, the expert acknowledged that it was unclear exactly whatduration and level of hypoglycemia would cause neurological injury in humans, and that therewas no specific article, study or report stating in unambiguous terms that 81 minutes of hypo-glycemia at 3 mg/dL could cause neonatal brain injury. However, the expert also testified thatthe lack of literature on the subject was because it would be impossible to prospectively lookat hypoglycemia in children, for medical ethics considerations.

Plaintiff also called a neuroradiology expert, who testified that the type of brain injury seen onthis child's MRI was caused by his hypoglycemia, and not by perinatal asphyxia. This physicianalso addressed the relevant medical literature at length, including the same pediatric neurologytextbook and numerous journal articles.

The defense called both a professor of radiology as well as a pediatric neurologist at the Fryehearing. The defendant's neuroradiologist testified that the child's MRI films depicted a classicpattern of injury in the context of oxygen deprivation, and that the hallmark of brain damage sec-ondary to hypoglycemia would be cortical involvement, which was not seen here. The expertalso attacked the literature which plaintiff's experts relied upon.

Defendant's pediatric neurology expert indicated that he performed a search and found no lit-erature on MRI changes due to hypoglycemia in newborns lasting less than two hours. Howev-er, he agreed that hypoglycemia can cause MRI abnormalities, and that severe hypoglycemia suchas that which the infant plaintiff suffered from could cause brain damage. Further, he acknowl-edged that the scientific community does not recognize any specific level or duration of hypo-glycemia which would not cause brain damage, and that it was a generally accepted medical prin-ciple that individual susceptibility to toxic states varies.

Holding:Supreme Court granted defendant's motion for Summary Judgment, concluding that plaintiff's

expert testimony regarding causation was inadmissible. In this respect, the Trial Court held thatplaintiffs failed to demonstrate that it was generally accepted that hypoglycemia can cause thetype of brain damage suffered by plaintiff. The Court concluded that plaintiff's expert's inabili-ty to label any of the medical literature he had reviewed as authoritative ran counter to any con-clusion that the findings set forth therein were generally accepted in the scientific community.

The Appellate Division reversed. In reversing, the Appellate Division held that: "A Frye inquiry is directed at the basis for the expert's opinion and does not examine whether

the expert's conclusion is sound. "Frye is not concerned with the reliability of a certain expert'sconclusions, but instead with 'whether the experts' deductions are based on principles that are suf-ficiently established to have gained general acceptance as reliable' " (Nonnon v City of New York,32 AD3d at 103, quoting Marsh v Smyth, 12 AD3d 307, 308 [2004]; see Lipschitz v Stein, 65AD3d at 576; Alston v Sunharbor Manor, LLC, 48 AD3d 600, 602 [2008]; DieJoia v Gacioch, 42AD3d 977, 979 [2007]; see also Ellis v Eng, 70 AD3d 887, 892 [2010]). Put another way, "[t]he[*7]court's job is not to decide who is right and who is wrong, but rather to decide whether or notthere is sufficient scientific support for the expert's theory" (Gallegos v Elite Model Mgt. Corp.,195 Misc 2d 223, 225 [2003]). " '[G]eneral acceptance does not necessarily mean that a majorityof the scientists involved subscribe to the conclusion. Rather it means that those espousing thetheory or opinion have followed generally accepted scientific principles and methodology in eval-uating clinical data to reach their conclusions' " (Zito v Zabarsky, 28 AD3d at 44, quoting Beck vWarner-Lambert Co., 2002 NY Slip Op 40431[U], *6-7 [2002]).

The Court also noted that it was not necessary for the underlying support for the theory of cau-sation to consist of cases or studies considering circumstances exactly parallel to the case at bar.Rather, it was sufficient if a synthesis of various studies reasonably permits the conclusions

reached by the plaintiff's experts. "The fact that there [is] no textual authority directly on pointto support the [expert's] opinion is relevant only to the weight to be given the testimony, but doesnot preclude its admissibility".

10. Banister v. Marquis, 87 A.D.3d 1046 (2d Dept. 2011).Expert Witness Disclosure - Plaintiff Precluded

The Trial Court providently exercised its discretion in precluding plaintiffs from callingan expert radiologist to testify. The explanation given for failing to identify the witness until afterthe trial had begun was insufficient.

* John Bonina, Esq., is the co-chairman of the BBA Medical Malpractice Committee.

Medical Malpractice UpdateContinued from page 3

Grace M. Borrino, Ben Bartolotta, Su-sanne Gennusaand Ralph Marra.

Congratulations to Brooklyn Bar Asso-ciation member Hon. Sylvia O. Hinds-Radix, the Administrative Judge for CivilMatters, who was elected as the Presidentof the Brooklyn Women's Bar Associationat the Annual Meeting on May 8, 2012.Hon. Sylvia O. Hinds-Radix will be in-stalled on Wednesday June 13, 2012 in theauditorium of the Brooklyn Bar Associa-tion. Also elected at the Annual Meetingwere Holly Peck, Sue Novick Wasko andJohn Coffey as Vice Presidents along withHon. Marsha Steinhardt, CorrespondingSecretarty, Jeannie Costello, RecordingSecretary and Joy Thompson, Treasurer.Elected as members of the Board wereHon. Genine Edwards, Hon. Sylvia Ash,Hon. Joanne Quinones, Sara Gozo, PamElisofon, Barbara Grcevic, Hon. LisaOttley, Hon. Margaret Chan, LillianWan, Helene Blank, BB Liu, NatoyaMcGhie, Derafim Neckles, JoanneCohen and Carrie Anne Cavallo.

Selected as delegates to the Women'sBar Association of the State of New Yorkwere Elaine Avery, Theresa Ciccotto, Hon.Deborah Kaplan and Hon. Nancy Bannon.

Congratulations to Brooklyn Bar Asso-ciation member Andrea F. Composto,who has been selected to be one of threeVice Presidents of the Women's Bar Asso-

ciation of the State of New York, effectiveJune 1, 2012.

Heard on the StreetThe New York State Worker's Compen-

sation Board is seeking attorneys, admittedas least five years, who currently do notappear before the Workers' CompensationBoard, to serve as part-time, outside arbi-trators in Employee Claims Resolution("ECR") cases. Membership in the AAA orother ADR resolutions organizations "is aplus." The "work is sporadic and the percase pay is modest."

To apply send a resume by email to [email protected]

BereavementsThe Brooklyn Bar Association extends

its deepest sympathy to Hon. Carl J.Landicino, on the passing of his grand-mother Lily Calogera Stincone last month.

Legal Briefs is compiled and written byAvery Eli Okin, Esq., CAE the ExecutiveDirector of the Brooklyn Bar Associationand its Foundation. Items for inclusion in"Legal Briefs" should be send [email protected], faxed to 718-797-1713 or mailed to 123 Remsen Street,Brooklyn, NY 11201-4212.

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that in support of her motion for summaryjudgment dismissing the claim to recoverdamages for the alleged conversion of thebonds, the defendant had established, primafacie, that the decedent did not, by the dece-dent’s letter, make a valid inter vivos gift ofthe bonds to the plaintiff. The Appellate Divi-sion ruled that the content of the letter and thedecedent’s instructions to the plaintiff that henot open the letter until after the decedent’sdeath demonstrated that the decedent did not,by the letter, make an irrevocable presenttransfer of ownership of the bonds to theplaintiff. The Appellate Division noted furtherthat to the extent that the decedent attemptedto make a testamentary disposition of thebonds, the disposition was ineffective, as itfailed to comply with the requirements ofEPTL §3-2.1. The Appellate Division heldthat in opposition to the defendant’s primafacie showing that the plaintiff did not haveany enforceable ownership interest in thebonds, the plaintiff had failed to raise a triableissue of fact. Accordingly, the Appellate Divi-sion determined that the Supreme Court prop-erly had granted the defendant’s motion forsummary judgment dismissing the claim fordamages for the alleged conversion of thebonds, and properly denied the plaintiff’scross motion for summary judgment declaringhim the owner of the bonds. Greene v.Greene, 92 A.D.3d 838 (2nd Dept., 2012)

Claim against an Intervivos Trust afterthe Grantor’s Death Based upon Two Al-leged Gifts Purported to Have Been Madeduring the Grantor’s Lifetime Invalid- Abank petitioned for settlement of its accountas surviving trustee of an intervivos trust. Theco-trustee had been the settlor at the time ofwhose death the trust was valued at $6.5 mil-lion. The trust instrument provided for the ter-mination of the trust upon the settlor’s deathand the distribution to the settlor’s companionof many years of $2 million. Additionally itwas claimed by the companion that the settloralso had made two inter vivos gifts to herfrom the trust more than four years before hisdeath, aggregating to an additional $3 million.One of the claims, for $2 million, was basedon the allegation that the settlor made an oralgift to her of $2 million. In support of theclaim the companion submitted a CD withtelephone conversations recorded from herand the settlor’s home. There were tworecorded telephone conversations between thesettlor and his personal banker. After the bankofficer explained the bank’s policy that in-structions for a gift would need to be in writ-ing, the second call ended with the settlor’sagreement that there would be a follow up callthe next day. In neither conversation was thesettlor speaking with his trust officer, and henever mentioned the trust. The companion’sother claim, for $1 million, was based on adocument entitled “Deed of Gift” which, ac-cording to her, the settlor signed and gave toher approximately four years before his death,and which provided in its entirety: “[settlor],hereby irrevocably and unconditionally trans-fers and gives to [companion] the sum of OneMillion Dollars ($1,000,000).” The bankmoved to dismiss the companion’s claims.The companion contended that the question ofwhether the settlor gave $3 million to hercould be determined only after discovery anda trial. The Attorney General, on behalf of theultimate charitable beneficiaries of the trustremainder, supported the bank’s motion.HOLDING- The Court rejected the claims.The Court stated that on a summary judgmentmotion, the court must examine the evidencein a light most favorable to the party opposingsummary judgment. The Court stated that thatparty must assemble and lay bare its affirma-tive proof to demonstrate the existence ofgenuine, triable issues, noting that mere con-clusions, expressions of hope or unsubstanti-ated allegations or assertions are insufficient.

The Court ruled that given the strict test thatmust be applied to prove an inter vivos gift,the facts presented by the companion —viewed in the light most favorable to her —failed to support her claims. The Court saidthat an inter vivos gift has three elements,each of which must be proved by clear andconvincing evidence: intent on the part of thedonor to make a gift, delivery of property pur-suant to such intent, and acceptance of theproperty by the donee. The Court stated that arigorous standard is imposed in assessing theelement of delivery required for a valid gift, towit: the nature of the delivery must be suchthat the donor is divested of all control overthe property. The Court opined that deliveryby the donor, either actual or constructive, op-erating to divest the donor of possession ofand dominion over the thing, was a constantand essential factor in every transaction whichtakes effect as a completed gift. The Courtadded that anything short of this strips it of thequality of completeness which distinguishesan intention to give, which alone amounts tonothing, from the consummated act, whichchanges the title. The Court explained that ap-plication of this strict standard by New York’scourts grows out of the inherent susceptibilityof these transactions to fraud or mistake, par-ticularly after the death of the putative donor.In the Court’s view, because many gifts aresought to be shown by oral evidence after thedonor’s death, it is necessary for the publicgood to require clear and satisfactory evi-dence of the fact to prevent fraud and perjury.The Court noted that there must be a deliverywhich results in a present change of dominionand ownership, and that intention or merewords cannot supply the place of an actualsurrender of control and authority over thething intended to be given. The Court ac-knowledged that while the nature of the re-quired delivery is flexible to the extent appro-priate in any particular set of circumstances,delivery nevertheless must be as perfect as thenature of the property and the circumstancesand surroundings of the parties will reason-ably permit. As to the $2 million that was thesubject of the alleged oral gift, the Courtfound that there was no question that the prop-erty remained in the settlor’s trust account,vested in the co-trustees. The Court added thatthe conduct of all parties involved reflectedtheir unanimous understanding that the settlormaintained dominion and control over thetrust assets in question. In the Court’s view,there was no evidence that decedent ever re-linquished dominion and control over theproperty, and the decedent was free to changehis mind at any time. The Court ruled that thesettlor’s fragmented conversations with thebank officer on the date he allegedly made thegift satisfy the requirement that a donor do allthat is reasonably possible to transfer proper-ty when actual delivery is not possible. TheCourt stated that in the days, months, andeven years that followed prior to his death,nothing — assuming he had the requisite ca-pacity — prevented the settlor from giving thewritten instructions requested by the bank toeffectuate a gift. As to the alleged later gift of$1 million, the Court also determined that notransfer ever occurred. The Court rejected thecompanion’s argument that the “deed of gift”was symbolic of a transfer to her of $1 millionfrom the trust. The Court held however thateven if the settlor had signed and delivered thedocument entitled “deed of gift” to her, itwould not have effectuated such a gift, sincethe trust assets, securities and cash, were sus-ceptible of actual delivery. The Court pointedout that delivery of securities to the compan-ion could have been accomplished by the set-tlor’s written instructions to the depository ofhis funds either for the transfer of securitiesinto a brokerage account in her name, or forthe re-registration of securities directly intoher name. Similarly, the Court stated, the set-tlor could have accomplished delivery of cashto the companion by giving written instruc-

tions, first, for the sale of securities to the ex-tent necessary to raise cash, and then for theissuance of a draft payable to her. The Courtpointed out that many years intervened be-tween the date on the instrument and the dateof the settlor’s death. Consequently, the Courtheld that in such circumstances, symbolic de-livery was not available. The Court added thatthe document presented also would fail evenif symbolic delivery were otherwise available.In the Court’s view, a deed of gift is an intervivos donative document which may effect atransfer of personal property. The Court statedthat an essential component of a deed of gift isthat it describes the subject matter of the gift.The Court ruled that with no instruction as tothe intended source of the gift — leaving thepossibility that the gift had previously beenmade from another source — no depositorycould reasonably act on the strength of thedocument the companion presented.

As demonstrated, symbolic or constructivedelivery to sustain the alleged gifts is notavailable with respect to either alleged gift.Even if circumstances were different andsymbolic delivery were available, neither thesettlor’s conversations with his personalbanker nor the “deed of gift” would havequalified as a substitute for actual delivery.The Court also rejected the companion’s argu-ment that discovery of the bank was necessaryto aid her in eliciting information to opposethe motion for summary judgment. While ac-knowledging that summary judgment is notjustified where the existence of essential factsdepends upon knowledge exclusively withinthe possession of the moving party, the Courtheld that the companion gave no indication of“essential facts” within or even possibly with-in the bank’s knowledge that would have abearing on the validity of the alleged gifts.Consequently, the Court ruled that lack of dis-covery was not a bar to summary judgment,and granted the bank’s motion to dismiss thecompanion’s claims. Matter of Eisenberg,N.Y.L.J. 3/26/12, p.17, c.1 (Surr. Ct., NewYork Co., Surr. Glen)

Creditors of a Trust Beneficiary DeniedStatus to Object to a Trust Accounting- Thetrustee of a testamentary trust sought judicialsettlement of his account. A Guardian ad litemwas appointed for two minor contingent re-maindermen of the trust. Under the decedent’swill a trust was created for the benefit of hisson, his only child. The will further directedthat the trust would terminate ten years afterdecedent’s death. Upon termination, all re-maining principal and income was to be dis-tributed to the son if he were then living. Inthe event that the son died before the termina-tion of the trust, his minor daughters wouldbecome the remaindermen of the trust. Theson survived the trust term. At the time of thetrust accounting the son was imprisoned, hav-ing been convicted of criminal offenses in-volving client funds. The accounting petitionand account indicated that the Crime VictimsProject (Fund) might be an interested party.The Fund filed objections to the account onthe basis of its claimed status as a creditor ofthe son. Subsequently, the objections filed onbehalf of the Fund were adopted by the Nas-sau County Attorney. The Fund had paid$288,750.00 to 10 of the son’s former lawclients. The Crime Victims’ Project, a divisionof the Nassau County Attorney’s Office, hadrepresented the son’s former clients in theirclaims against him. Neither was a creditor ofthe decedent, the decedent’s estate, or of thetrust created under decedent’s will. TheGuardian ad litem moved for an order drop-ping and striking the Nassau County Attorneyas an interested party in the accounting pro-ceeding; disallowing the joinder of TheLawyers’ Fund for Client Protection of theState of New York as an interested party in theproceeding; amending the petition and ac-count to strike the name of the Nassau Coun-ty Attorney and the Fund as interested parties;

and dismissing the verified objections filed bythe Nassau County Attorney and the Fund.The Guardian ad litem asserted that a poten-tial creditor of a trust beneficiary is not an in-terested party for purposes of the trust ac-counting, and on that basis sought removal ofthe alleged creditors as interested parties andto dismiss their objections to the account. TheFund noted that after the son was ordered topay restitution to his clients, a criminal resti-tution order was entered as a judgment againstthe son. All of the clients who received moneyfrom the Fund assigned and subrogated all oftheir claims against the son to the Fund. TheFund asserted that it had an interest in the ac-counting proceeding because of unresolvedquestions as to whether certain estate assetsbeing administered by the trustee, includingan annuity, actually were part of the trust orwere separate non-trust assets owned outrightby the son. Counsel for the Fund referred tothe son’s withdrawal of $600,000.00 from anannuity in 2007 and argued that the Fund hada statutory obligation to determine whetherthe funds used to replenish the annuity weredrawn from the son’s client escrow accounts.The Fund maintained that the trustee appearedto be administering non-trust assets in addi-tion to trust assets, and argued that the Fundmight have rights to these non-trust assets inits capacity as a judgment creditor or as theorganization charged with the protection ofclient escrow funds. The Fund also arguedthat allowing the Fund to seek informationabout the non-trust property from the trusteein the context of the accounting proceedingwould be a more efficient use of time andcosts than if the Fund sought this informationby other discovery methods. HOLDING- TheGuardian ad litem’s motion was granted,without prejudice to respondents to com-mencing a proceeding pursuant to ExecutiveLaw §632-a (6) to seek the issuance of a pre-liminary injunction restraining the payment oftrust principal to the son upon the terminationof the trust. The Court opined that underCPLR §1003, parties may be dropped by theCourt, on motion of any party or on its owninitiative, at any stage of the action and uponsuch terms as may be just. The Court ac-knowledged that might be a more efficient useof time and costs for the Fund to obtain infor-mation in the context of the trust accounting,but stated that the goal of efficiency, howeverlaudable, did not give rise to a privilege, right,or status which otherwise would be unavail-able. The Court noted that “persons interest-ed” is a defined term under SCPA §103 (9),and that SCPA §103 (11) specifically excludescreditors from the category of persons inter-ested. The Court stated that a creditor of abeneficiary who is still alive is not a properparty to an account in which the beneficiaryhas an interest. The Court added that a credi-tor of a beneficiary of an estate is not a personinterested in the estate, nor is the creditor anecessary party to the account. While recog-nizing that the Fund and the Nassau CountyAttorney were potential creditors of a livingtrust beneficiary, the Court noted that such in-terest was insufficient for them to attain thestatus of persons interested in decedent’s es-tate or in the account before the court. Ac-cordingly, the Court ruled that the Fund andthe Nassau County Attorney should not havebeen listed on the petition or in the account asinterested parties, and should not have beenpermitted to join the proceeding. Matter ofCohen, N.Y.L.J. 3/15/12 (Surr. Ct., NassauCo., Surr. McCarty)

Joint Accounts Opened For the Conve-nience of A Third Party Pass By Operationof Law to the Surviving Joint Tenant Not tothe Estate of the Deceased Tenant- Dece-dent was survived by his life partner, withwhom he had lived with for almost 30 years,and by an estranged brother. The life partnerowned and operated businesses where dece-dent had worked. The decedent did not accu-mulate any significant savings. To save for the


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couple’s retirement and protect her assetsfrom business-related liability, the life partnerasked the decedent and her sister to open jointbank accounts with rights of survivorship, inwhich the life partner then deposited hermoney. The life partner also conveyed to thedecedent and to the life partner’s sister asjoint tenants with rights of survivorship mul-tiple parcels of real property all purchasedwith the life partner’s funds. The decedent didnot contribute any money to the joint bank ac-counts or to the acquisition of the real proper-ty. Decedent’s estranged brother was appoint-ed administrator of his estate and brought aproceeding under SCPA §2103 to recover theassets in the joint bank accounts and the realproperty on behalf of the estate. The adminis-trator sought to recover assets from six bankaccounts held by decedent and the sister. Withregard to all of the accounts either the signa-ture cards or the underlying account agree-ments all included survivorship language. Theadministrator asserted that the accounts wereonly opened as a matter of convenience andwere never intended to be joint accounts. Thesister admitted during discovery that the ac-counts were created for the convenience ofthe decedent’s life partner, in that they weredesigned to protect the life partner’s assets.The life partner testified that it was her intent,in funding all of the subject accounts, to cre-ate joint accounts with rights of survivorship.After discovery, the administrator moved forsummary judgment and the sister, the surviv-ing joint tenant, cross-moved for summaryjudgment. Surrogate’s Court denied the ad-ministrator’s motion and granted the sister’scross motion. The administrator appealed. Onthe appeal, the administrator did not challengethe Supreme Court’s holding that the parcelswere conveyed to the decedent and the sisteras joint tenants with rights of survivorship,and did not submit any evidence raising a tri-able issue of fact that the properties were nottransferred as such, or that there was any otherdeficiency in the sister’s title as survivor tothe properties. The administrator’s only argu-ment with respect to the real property per-tained to his challenge to the Supreme Court’salternate finding that, if the assets did not passby operation of law to the sister, then a con-structive trust should be imposed in favor ofthe life partner. HOLDING- The SupremeCourt was affirmed. The Appellate Divisionopined that when a bank account is opened intwo names, in form to be paid or delivered toeither, or the survivor of them and survivor-ship language appears on a joint bank ac-count’s signature card, a statutory presump-tion arises that the parties intended to create ajoint account with rights of survivorship,thereby shifting the burden to administrator,as the party challenging the title of the sur-vivor, to establish—by clear and convincingevidence—fraud, undue influence, lack of ca-pacity or that the accounts were only openedas a matter of convenience and were never in-tended to be joint accounts. The Appellate Di-vision found that the administrator had failedto present any evidence raising a materialissue of fact on the issue of whether dece-dent’s estate was entitled to the accounts, es-tablishing that the accounts were convenienceaccounts and not valid joint accounts. The Ap-pellate Division stated that the administrator’sargument misconstrued the law. According tothe Appellate Division, a bank account that islabeled as joint will nevertheless be held to re-

main the sole property of the depositor as aconvenience account only where it is foundthat the account was established as a matter ofconvenience for one co-tenant and that nojoint tenancy was intended. The Appellate Di-vision stated that absolutely no evidence ex-isted that the account was established for theconvenience of either co-tenant. The Appel-late Division asserted that even if it were toentertain the argument that this rule of lawcould apply to an account where the only con-venience involved was the sheltering of one’sassets, since the life partner was not a co-ten-ant on either account, neither account couldbe considered a convenience account for her.As the administrator had provided no contraryevidence of the life partner’s intent and hadfailed to support the argument that any of theaccounts were convenience accounts, the Ap-pellate Division held that, as the survivor ofthese joint accounts with rights of survivor-ship, the sister took legal title to each of thesubject accounts. As to the real property, theAppellate Division found no need to invokethe doctrine of constructive trust since theproperty had passed to the sister by operationof law, and the life partner, the potential ben-eficiary of the constructive trust, had not ob-jected to her sister’s ownership and had notalleged any breach of promise on her sister’spart. The Appellate Division noted that a con-structive trust is a fraud-rectifying remedywhich may be imposed where a party, becauseof a confidential relationship, transfers prop-erty in reliance upon a promise of anotherwhich is later breached, resulting in unjustenrichment. [emphasis in the original]. Here,although the life partner and her sister testi-fied that the transfers were structured to pro-tect the life partner’s assets from claimsagainst the businesses that she owned, the sis-ter continued to acknowledge that she held theassets for her sister’s benefit. The AppellateDivision ruled that under such circumstances,the imposition of a constructive trust was notnecessary. Matter of Grancaric, 91 A.D.3d1104 (3rd Dept., 2012)

Attempt To Enforce an Alleged OralPromise to Make a Testamentary Disposi-tion Unsuccessful- Plaintiff alleged that thedecedent had made an oral agreement to makea testamentary disposition to the plaintiff inexchange for certain nursing services per-formed by the plaintiff for the decedent. Thedefendant, individually and as executrix ofthe estate of the decedent’s estate moved todismiss pursuant to CPLR § 3211(a) (7) forfailure to state a cause of action. The SupremeCourt granted the motion to dismiss and theplaintiff appealed. HOLDING- The Appel-late Division affirmed. The Appellate Divi-sion stated that an agreement to make a testa-mentary disposition of any kind must be inwriting and signed by the party to be charged.Consequently, since the complaint did not al-lege the existence of an enforceable writtenagreement between the decedent and theplaintiff, the Appellate Division ruled thatplaintiffs’ allegation that there was a breach ofan oral agreement failed to state a cause of ac-tion. Hauck v. Lombardo, 92 A.D.3d 638(2nd Dept., 2012)

Compiled by Hon. Bruce M. Balter, Jus-tice of the Supreme Court, State of NewYork, and Chair, Brooklyn Bar Associa-tion, Surrogate’s Court Committee, andPaul S. Forster, Esq., Chair, Brooklyn BarAssociation, Decedent’s Estates Section.

THE STATE OF ESTATESContinued from page 14 The Following Attorneys Were Dis-

barred By Order Of The Appellate Divi-sion, Second Judicial Department:

Howard Finkelstein (February 7, 2012)The respondent tendered a resignation

wherein he acknowledged that he could notsuccessfully defend himself on the meritsagainst allegations that he engaged in conductinvolving dishonesty, fraud, deceit, or misrep-resentation; conduct adversely reflecting onhis fitness as a lawyer; and neglecting legalmatters entrusted to him.

Eric Michael Manganelli (February 7,2012)

On April 1, 2011, the respondent pleadedguilty in Supreme Court, Kings County, toGrand Larceny in the Third Degree, a class Dfelony in violation of Penal Law §155.35; At-tempted Grand Larceny in the Second Degree,a class D felony in violation of Penal Law§110.00 and §155.40; and Scheme to Defraudin the First Degree, a class E felony in viola-tion of Penal Law §190.65(1). By virtue ofhis felony convictions, the respondent auto-matically ceased to be an attorney and coun-selor-at-law effective April 1, 2011.

Charlotte T. Watson, admitted as Char-lotte Teresa Watson (February 7, 2012)

The respondent tendered a resignationwherein she acknowledged that she could notsuccessfully defend herself on the meritsagainst pending charges that she, inter alia, en-gaged in conduct involving dishonesty, fraud,deceit and misrepresentation; converted escrowfunds; engaged in conduct prejudicial to the ad-ministration of justice; neglected legal mattersentrusted to her; failed to seek the lawful objec-tives of a client; failed to carry out a contract ofemployment; misappropriated funds entrustedto her; failed to safeguard funds entrusted toher; and failed to promptly pay parties entitledto receive funds entrusted to her.

Anthony Okechukwu Onua (February14, 2012)

On October 5, 2010 the respondent plead-ed guilty in the United States District Courtfor the Eastern District of New York to onecount of Conspiracy to Commit Wire Fraudand Bank Fraud, a class B felony in violationof 18 USC §1349. He was sentenced to a termof five years imprisonment and five years ofsupervised release, and was directed to makerestitution in the sum of $2,704,739. The re-spondent subsequently tendered his resigna-tion as an attorney and counselor-at-law.

Frantz Metellus, a suspended attorney(February 21, 2012)

On March 20, 2009 the respondent pleadedguilty in the United States District Court forthe Eastern District of New York to Conspira-cy to Commit Wire Fraud and Bank Fraud, aclass B felony in violation of 18 USC §1349.He was sentenced to a term of imprisonmentof six months plus three years of post releasesupervision, and was directed to pay restitu-tion in the amount of $5,166,900 jointly andseverally with all codefendants at the rate of$100 per month, beginning one year after hisrelease from prison. Following a disciplinaryhearing, the respondent was disbarred.

The Following Attorneys Were Sus-pended By Order Of The Appellate Divi-sion, Second Judicial Department:

Christopher J. Maloney, admitted asChristopher John Maloney (February 7,2012)

The respondent was reciprocally suspendedin New York for a period of six (6) months, ef-fective immediately and pending further orderof the Appellate Division, as a result of anorder of the Superior Court – Judicial Districtof Hartford (Connecticut), dated September 4,2001, which administratively suspended himfrom the practice of law in Connecticut for fail-ing to pay the annual client security fee dueJune 15, 2000, and subsequent administrative

suspensions for nonpayment of the client secu-rity fee for calendar years 2006 through 2010.

Ihab Hussam Tartir, a suspended attor-ney (February 7, 2012)

On October 14, 2008, the respondent wasconvicted, after a jury trial in the UnitedStates District Court, Southern District ofNew York, of one count of Marriage Fraud forthe Purpose of Evading the ImmigrationLaws, in violation of 8 USC §1325(c), andconspiracy to commit that crime, in violationof 18 USC §371 (two counts). On February13, 2009, the respondent was sentenced to 24months imprisonment, to run concurrently oneach of counts one, two and three, for a totalterm of 24 months, followed by three years ofsupervised release. In addition, he was finedthe sum of $40,000, to be paid in monthly in-stallments of 15% of his gross monthly in-come, to commence 30 days after his releasefrom custody. Following a disciplinary hear-ing, the respondent was suspended from thepractice of law for a period of five (5) years.

Peter J. Galasso, admitted as Peter JohnGalasso (February 21, 2012)

Following a disciplinary hearing, the re-spondent was suspended from the practice oflaw in New York for a period of two years,commencing March 21, 2012, upon a findingthat he was guilty of failing to promptly pay ordeliver funds received pursuant to a written es-crow agreement to the person(s) entitled to re-ceive such funds; failing to safeguard clients’funds; misappropriating clients’ funds; failingto provide appropriate accounts to his clientswith respect to funds entrusted to him; failingto supervise a nonlawyer employee, resultingin the misappropriation of clients’ funds; andfailing to timely comply with lawful demandsfor information made by the Grievance Com-mittee in connection with an investigation ofhis alleged professional misconduct.

Nadeen R. Gayle, a suspended attorney(February 21, 2012)

On June 10, 2009, the respondent pleadedguilty in the United States District Court forthe Eastern District of New York to Conspira-cy to Commit Wire and Bank Fraud, a class Dfelony in violation of 18 USC 1349. She wassentenced to five years probation. Following adisciplinary hearing, the respondent was sus-pended from the practice of law in New Yorkfor a period of two years, commencing imme-diately, with credit for the time she was sus-pended under an interim order of suspension.

The Following Attorneys Were PubliclyCensured By Order Of The Appellate Divi-sion, Second Judicial Department:

Kevin J. Gilvary, admitted as KevinJames Gilvary (February 14, 2012)

The respondent was publicly censured fol-lowing a disciplinary hearing upon a findingthat he was guilty of engaging in conduct in-volving dishonesty, fraud, deceit, or misrepre-sentation, which adversely reflects on his fit-ness as a lawyer, as a result of signing hisname to checks on an account to which he wasnot a signatory. The respondent offered sub-stantial mitigation including, but not limitedto, the fact that he harbored no venal intentand that no party was injured.

Paul E. Warburgh, Jr. (February 21,2012)

The respondent was reciprocally censuredfollowing an order of the United States Courtof Appeals for the Second Circuit (hereinafterSecond Circuit) dated May 22, 2011, whichpublicly reprimanded him and granted himleave to resign from that Court based upon hisfailure to comply with that Court’s schedulingorders, failure to respond to that Court’s in-quiries and failure to communicate with hisclients in matters pending before that Court.

This edition of ROLL CALL was com-piled by Elena A. Popova, Esq., Kings Coun-ty, Civil Court.

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