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

©2017 Brooklyn Bar Association SUMMER 2017 Quarterly VOL. 67 NO. 5

Hon. Frank Seddio hosted the BrooklynBar Association’s Annual Meeting, his lastmeeting as president of the association, inBrooklyn Heights on Wednesday, May 10,where six people were honored.

“This is our meeting where we get toannounce the election of our officers [and]honor a number of people who have

worked in the legal community who wefound worthy,” said Seddio. “It is also thelast time that I get to speak with you pub-licly as president of the Bar Association, soit’s bittersweet for me.”

This year’s honorees included DianeGolkin, Adam Kalish and Joseph H. Dirks,who received the Distinguished ServiceAward. Sidney Cherubin, managing attorneyfor the Brooklyn Bar Association’s (BBA)Volunteer Lawyers Project (VLP), receivedthe Freda S. Nisnewitz Award and Lucinda

DiSalvo received the Hon. Nathan R. SobelAward.

“This evening, I’m filled with gratitudeand pride that Frank Seddio and the BBAhave selected me to win this award,” saidDiSalvo when presented with her award. “Iwould like to give a big thank you to mymom and son who give me the encourage-ment every day to be the person that I am.”

Frank Seddio Hosts Final Meeting as Brooklyn Bar President

What’s InsideLate Judge Ted Jones RememberedDuring BBA’s Fifth Annual Golf OutingBy Andy Katz, Brooklyn Daily Eagle ........................ Pg. 1

Hon. Frank Seddio Hosts Final MeetingAs BBA PresidentBy Rob Abruzzese Brooklyn Daily Eagle .................... Pg. 1

New Members ........................................................ Pg. 2

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

Respectfully SubmittedBy Hon. Frank Seddio. ............................................. Pg. 3

Tribute to Vivian AgressBy Roger Bennet Adler. ............................................ Pg. 3

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

Book Review: Broken Scales —Reflections on JusticeBy Roger Bennet Adler. ............................................. Pg. 5Medical Malpractice UpdateBy John Bonina, Esq. ................................................Pg. 9

Business and Commercial LitigationIn Federal CourtsBook Review by Mark A. Longo ............................... Pg. 11

Visit us at www.brooklynbar.org

By: Rob Abruzzese, Legal EditorBrooklyn Daily Eagle

Late Judge Ted Jones Remembered DuringBBA’s Fifth Annual

Golf OutingThird place trophies were awarded to(pictured from left) Michael Markus,Judge Lenny Austin, Frank Coroneand Brooklyn Bar Association Presi-dent Hon. Frank Seddio. Standing inthe background is BBA Executive Di-rector Avery Okin. See page 12.

Brooklyn Eagle photo by Andy Katz

Hon. Frank Seddio (left) hosted his final meeting as president of the Brooklyn Bar Association (BBA) on Wednesday, May 10.Aimee Richter (center, next to Avery Eli Okin, executive director of the BBA) was officially elected as the association’s next presidentat the meeting where six people were honored. Brooklyn Eagle photo by Rob Abruzzese

Please turn to page 6

“This is our meeting where weget to announce the election ofour officers, honor a number ofpeople who have worked in thelegal community who we foundworthy.” — HON. FRANK SEDDIO

Page 2, BROOKLYN BARRISTER SUMMER, 2017

Brooklyn Barrister is published by EBrooklyn Media, LLC, under the auspices of the Brooklyn Bar Association. For advertising information call (718) 422-7410. Mailing address 16 Court Street, 30th Floor, Brooklyn, New York 11241.Vol. 67 No. 5. Summer 2017. The Brooklyn Barrister (ISSN 007-232 USPS 066880) is published four times per year: Sping, Summer, Fall and Winter 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 changesto the Brooklyn Barrister, 123 Remsen Street, Brooklyn, NY 11201-4212.

BROOKLYN BARRISTER EDITORIAL BOARDAnthony J. Lamberti

Editor-in-ChiefDiana J. SzochetManaging Editor

Aimee L. RichterArticles Editor

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

Jason D. FriedmanMichael JaccarinoAnthony LambertiHemalee J. PatelRobert P. SantoriellaMichael Treybich

Glenn VerchickAlexis VigilanteShelly WerbelGregory Zenon

BROOKLYN BAR ASSOCIATION 2016-2017Hon. Frank R. Seddio, PresidentAimee L. Richter, President Elect

David M. Chidekel, First Vice President

Hon. Frank V. Carone, Second Vice PresidentAnthony J. Lamberti, Secretary

Armena D. Gayle, Treasurer

Avery Eli Okin, Esq., CAE: Executive Director

CLASS OF 2017Marianne BertunaJoseph R. Costello

Stefano A. FilippazzoDewey Golkin

Hemalee J. PatelSteven J. Harkavy

Jeffrey Miller

CLASS OF 2018Daniel Antonelli

Hon. Fidel F. Del ValleMichael FarkasJaime Lathrop

Andrew S. RendeiroAnthony W. Vaughn, Jr.

Glenn Verchick

CLASS OF 2019Elaine N. Avery

David J. HernandezAdam KalishRichard Klass

Deborah LashleyJoseph S. Rosato

Pauline Yeung

Roger Bennet AdlerVivian H. AgressArthur L. AidalaAndrea E. BoninaRose Ann C. BrandaGregory T. CerchioneSteven D. CohnHon. Miriam Cyrulnik

Lawrence F. DiGiovannaDavid J. Doyaga, Sr.Andrew M. FallekJoseph H. FarrellAndrew S. FisherEthan B. GerberPaul A. GolinskiDominic Gordano

Gregory X. HesterbergHon. Barry KaminsMarshall G. KaplanMark A. LongoJohn LonuzziJohn. E. MurphyDomenick NapoletanoManuel A. Romero

Barton L. SlavinHon. Jeffrey S. SunshineHon. Nancy T. SunshineDiana J. SzochetRebecca Rose Woodland

TRUSTEES COUNCIL (Past Presidents)

TRUSTEES

JUDICIALRECOGNITION

Co gratulatio s to Brookly Bar Asso-ciatio Preside t Hon. Frank R. Seddio whowas ho ored y the St. Joh ’s School of LawAlu i Associatio Brookly Chapter at the

th Spri g Alu i Di er held o May , at Marco Polo Ristora te. Also ho ored

at the di er was BBA e er Mark Cipolla,the ew Preside t of the Ki gs Cou ty Cri -i al Bar Associatio .

Brookly Bar Associatio e er Hon.Willia F. Kuntz, U ited States DistrictCourt Judge for the Easter District of NewYork was feted as the Jurist of the Year atthe A ual Di er of the MetropolitaBlack Bar Associatio .

For er Brookly Bar Associatio TrusteeHon. Lara J. Genovesi, Justice of theSupre e Court, Ki gs Cou ty was the Disti guished Judiciary Award recipie tprese ted y the Catholic Lawyers Guild,Diocese of Brookly , Ki gs Cou ty Chapterat their a ual di er held o May , at Gargiulo’s Restaura t. Alsolso recog izedwas Hon. Ingrid Joseph, the Supervisi gJudge of Civil Court, Ki gs Cou ty whoreceived the Ecu e ical Award a dHon. Carolyn E. Wade, Acti g Justice,Supre e Court, Ki gs Cou ty who receivedthe Ho . Willia T. Bellard Award. BBA PastPreside t Mark A. Longo received theCLA’s highest ho or the St. Tho asMoore Award.

O April , Hon. Lizette Colon ofthe Civil Court as well as Hon. JoanneQuinones, of the NYC Cri i al Court wereho ored y the Puerto Rica Bar Associa-tio at their Flor De Maga cele ratio heldat the offices of Patterso Belk ap We &Tyler LLP.

Brookly Bar Associatio E ploy e tCo ittee Chair Hon. Katherine Levinewas recog ized as o e of Brookly ’s Wo e of Disti ctio at a gala di er a daward cere o y hosted y the Courier LifePu licatio s. The award was prese tedo Ju e st at the di er held at Sirico’sCaterers. Also recog ized as that eve twas Brookly Bar Associatio TrusteePauline Yeung-Ha.

BBA e ers Hon. La ren e Knipel,Ad i istrative Judge for Civil Matters, Sec-o d Judicial District a d Hon. Sylvia G. Ash,Presdi g Justice Co ercial Divisio ,Supre e Court, Ki gs Cou ty alo g withBrookly Law School Dean Ni holas W. Allardparticipated i a New York State Bar Associ-atio Be ch a d Bar Co ercial DivisioMeet a d Greet held o April th at Brook-ly Law School.

Co gratulatio s to BBA Past Preside tHon. Barry Ka ins, of Aidala, Bertu a &Ka i s who was rece tly appoi ted yChief Judge Ja et DiFiore as a e er ofthe New York State Justice Task Force.

KUDOS AND PROFESSIONAL RECOGNITION

Brookly Bar Associatio Past Preside tHon. Nan y T. Sunshine, the Ki gs Cou tyClerk a d Co issio er of Jurors washo ored y the Brookly Wo e ’s BarAssociatio with the prese tatio of theHo . Beatrice M .Judge Recog itio Awardat their th A ual Di er held o Ju e

th at the Li erty Warehouse. Also recog-ized with The Sy il Hart Kooper Award was

BBA e er Lisa S hreibersdorf, thefou der a d E ecutive Director of BrooklyDefe der Services.

Ai ee L. Ri hter, the Preside t of theBrookly Bar Associatio was ho ored aspart of A Salute to Elected Officials a dCo u ity Stars at the th A iversaryDi er of The Se eca Clu of Ki gs Cou tyo Ju e th at Gia do o the Water.

BBA e er La ren e N. Rothbart wasa featured speaker at a CLE progra hostedat Cardozo Law School o March , .He participated i a pa el discussio oJewish Divorce, Do estic A use a d theI tersectio of Two Syste s of Law.

Co gratulatio s to BBA e er SidneyCherubin, the a agi g attor ey of theBrookly Volu teer Lawyers Project whowas the recipie t of the A gelo T.Co eta Award prese ted a ual y theNew York State Bar Associatio .

BBA e er Andre J. S iley of theLaw Fir of S iley & S iley was swor i asthe Preside t of the New York State Acade-

y of Trial Lawyers at their i ductio heldo May , at The Friars Clu .

FAMILY MATTERSCo gratulatio s to Hon. Donald S ott

Kurtz and Nina Kurtz o the graduatio oftheir so Ja ie fro Brookly Law Schoolwith the ho or of Valedictoria .

BEREAVEMENTSThe Brookly Bar Associatio e te ds its

deepest sy pathy to Li da Stoler a d fa i-ly o the passi g of Eugene Stoler o Ja u-ary , after a lo g attle withleuke ia. Euge e Stoler, who was at theti e of his passi g was for a y years thechair of the BBA Ta Co ittee.

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Legal Briefs is o piled and ritten yA ery Eli Okin, Es ., CAE the E e uti e Dire torof the Brooklyn Bar Asso iation and its Foun-dation. Ite s for in lusion in Legal Briefsshould e e ailed to aoki @ rook ly ar.org,fa ed to - - or ailed to the ar en-ter at Re sen Street, Brooklyn, Ne York

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LEGAL BRIEFS

NEW MEMBERSMarch 2017

VIELKA WILKINSONDIANE FISCHER

CHRISTIAN GRIMAURORE DECARLO

RICHARD FREIRELISA E. ZEIDERMAN

EMILY C. WALSH

STUDENT MEMBERSMarch 2017

MELLISSA GOBIN

KATHERINE ZARCHIKOFF

ood day, 565,300 minutes, the length oftime of a President’s term of office at theBrooklyn Bar Association. The first line

of a hit song of the Broadway play called “Rent”.This has been, for me, a year of love and affectionfor the greatest Bar Association in New York City..I have truly enjoyed the moments in the sun I havehad as President and want to say thank you to somany who have made it possible to do so.

No organization as big as our bar associationcan be effective and run smoothly without the fullsupport of its membership and most particularly itsstaff. Our Executive Director, Avery Okin, isextraordinary. He has, for over 31 years, done afantastic job as the man behind the scenes; insur-ing that the “I”s are dotted and the “t”s are crossed.He pays attention to every detail of every event,meeting and activity. Thank you Avery for all ofthis but most of all for the friendship we sharewhich I hope will last for the rest of our lives

Thank you to our office staff: Louise Feldman,Director of Membership and Social Media andMassiel Ventura, our Director of Operations andStaff Accountant. Both have done a noteworthyjob of keeping the Association’s membership in-formed and have insured that the day to day oper-ations of the Association are running smoothly.

Thank you to Roseann Hiebert, our Directorof the Lawyer Referral Service and her staff,Salaria Robinson, David Mejia and Silvia Mejiawho insure that this vital and most successfulfinancial venture continues to operate is themost efficient manner possible.

Thank you to Amber Evans our Director ofContinuing Legal Education. Her insight andunderstanding of the need to make this impor-tant facet of our organization function at its peakis commendable and an important service to ourmembership.

Finally thank you to Tom Visco. our Direc-tor of Building Operations. You make the placeshine Tommy and you do so always with a smileand a good natured Hello. I often kid peopleabout how Tom is responsible to turn the wheelon the elevator to make it have its ups anddowns. Do you really do that?

I have had to good fortune to have a greatgroup of officers and board of trustees. These aretruly a dedicated and cordial group of individualswho have volunteered their time, talents and effortsto make the Brooklyn Bar Association a priori-ty in their lives. They have insured that the barhas been the voice of the legal profession inBrooklyn. Our past presidents continue to com-mit time and effort to our success. They attendour meetings and participate in our operationsand continue to chair committees and run pro-grams for the benefit of the membership.

Our Committee Chairs and members arethe heart and soul of the organization.They plan our CLEs and activities and par-ticipate in the various events which bringattention to the bar in our community andespecially the judiciary.

Our accomplishments are the result of allthose who are willing to give their experienceand professional business acumen for thebetterment of others. You are part of thisgreat effort. Your willingness to belong toour organization and your interest in havinga successful, accomplished bar has madethe difference this year. Thank you

Finally I ask that you join me in givingyour full support to our next President,Aimee Richter. She is going to be fantastic.She brings youth and organizational experi-ence to the job. I can’t wait for her to takethe reins and go full speed ahead with herplans and activities which will bring us to ahigher level of success than we have everseen before.

I close with the words of a song fromanother Broadway play, “A Chorus Line”.

Kiss today goodbye and point me towardstomorrow. We did what we had to do. Can’tregret, won’t forget what we did for Love.

Thanks for the privilege and opportunityto share this part of my life with you.

By: Hon. Frank Seddio

G

President Hon. Frank Seddio

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

SUMMER, 2017 BROOKLYN BARRISTER, Page 3

Like the actress Judy Holliday, whenVivian Agress entered a room she lit it upwith her style and winning smile. As thefirst female President of the Brooklyn BarAssociation (1987-1988), she successful-ly navigated an “old boys’ network” notyet accustomed to the presence (and activeparticipation) in an evolving profession intransition.

As wise man once observed “you getmore with honey than with vinegar,” andVivian, on countless occasions, leveragedher winning smile and strong gaze tomove her agenda. No female Presidentwho followed in Vivian’s footsteps canlikely ever fully know (or appreciate) thechallenges which she faced as theB.B.A.’s first.

Vivian’s “back story” is a mixture ofboth privilege, and responsibility. Shewas born following World War I, andgrew up in the Flatbush section of Brook-lyn. She attended Erasmus High Schoolduring World War II, graduating in 1946.At a time when social mores (and theGreat Depression) limited many womento a high school education, Vivian earnedher B.A. degree from New York Universityin 1950, graduating early after attendingsummer sessions at Tufts University’sJackson College, the University of Vermont,and Harvard University.

She thereafter enrolled at St. John’sUniversity Law School (then located indowntown Brooklyn), graduating in 1953,and was undoubtedly one of few womenstudents then pursuing a legal education.

She was admitted to the bar in 1953. For41 years she diligently served as a vitalmember of the Committee on Characterand Fitness of the Appellate Division,Second Department. Appointed a memberin 1976, she was the longest servingmember on the Character Committee,until her passing.

An important component of Vivian’slife was her marriage to Arnold Hirsch, amember of a wealthy Brooklyn family(which, at one time, owned the famed“Turner Towers” on Eastern Parkway, op-posite the Brooklyn Museum in ProspectHeights). She is survived by her daughters,Jill (a doctor), and Sandy (a lawyer). InJune, 1978, Arnold and Vivian moved toManhattan’s Sutton Place, where theyresided until her death on March 21, 2017.She wintered in Boca Raton, Florida.

Vivian was also active in many philan-thropic organizations during her lifetime.She served on the boards and held leadershiproles in multiple executive committeeswithin the Metropolitan Jewish HealthSystem since 1969. As best said by theformer CEO of M.J.H.S., “Her efforts atM.J.H.S. have been indelibly imprintedon the many programs and servicesM.J.H.S. currently provides annually tomore than 50,000 persons, and their fam-ilies, throughout the Greater MetropolitanNew York area.”

As President of the B.B.A., Vivian’syear was a cavalcade of both activity (andachievement). In a time pre-dating iPhonesand computers, she worked tirelessly tocreate the B.B.A.’s first Membership Di-rectory, detailing the various B.B.A. com-mittees and sections, as well as their

chairs and members. This was an exhaust-ingly labor intensive undertaking, but gal-vanized committee chairs to undertakeprograms and initiatives during her termin office.

A highlight of each President’s year isthe December “Annual Dinner.” The hon-oree during Vivian’s year was AssociateAppellate Division (later Presiding Jus-tice) Guy James Mangano. Although thefeatured speaker was former AmericanBar Association (A.B.A.) PresidentRobert MacCrate, whose speech set newrecords for its duration (not Vivian’sfault!), the event was reportedly a suc-cessful standing room only (S.R.O.)event.

The March, 1988 issue of the “BrooklynBarrister” took note of a successful Janu-ary “Judiciary Night,” and a musical year-end holiday spoof “Law Review,” whichincluded scenery, sets, and costumes! The“Person of Revels” was the late (andbeloved) Chief Bankruptcy Judge ConnieDuberstein.

Vivian was to be followed by a suc-cession of women B.B.A. Presidents.However, not unlike Jackie Robinson’ssignal role in breaking the color barrier,Vivian was not merely the first B.B.A.President, but likely one of the first any-where across the state of New York. It islikely not an exaggeration to suggest thather successful tenure as B.B.A. Presidentfirmly opened a door through which manytalented successors followed. Each owesa deep debt of appreciation for creating a“new normal” in the formerly “old boys’club” of bar association politics. Stylishlygarbed and carefully coiffed, Vivian glidedacross the stage of “Legal Brooklyn,”radiating aplomb and confidence. For herthe glass was half full – not half empty.

Following the conclusion of her term

in office, Vivian continued to be a positiveforce in the legal community. She contin-ued to attend State Bar House of Dele-gates meetings, served diligently on theAppellate Division, Second Department’sCommittee on Character and Fitness, andattended the Annual Dinners of both theB.B.A., and the B.W.B.A. She was anAnnual Award recipient in tandem withthe late (and beloved) Justice VincentPizzuto.

Past President Mark Longo remindedme of the significant effort which Vivianexpended in traveling out to Bensonhurstlast Fall to attend the Frank Seddio, Esq.sponsored Past Presidents Dinner at“Spumoni Gardens.” The notion of in-cluding Vivian in the same sentence withthis colorful “red sauce” restaurant maybe incongruous to some, but likely not toVivian. She was determined to attend,meaningfully participate, and renewfriendships with colleagues. As incongru-ous as being the “uptown girl” in a“downtown world,” she was only tangen-tially connected, she was fully (and en-thusiastically) invested in the festivities.

A photograph of Vivian surrounded byall the other female B.B.A. Presidentswho followed her is a legacy of our localbar culture, and Vivian’s legacy.

Although the passage of time in-evitably dims memory, the golden hueand warm smile of Vivian Agress wereconsistent with her “can do” mindset. Isuspect that, for Vivian, every day maynot have been “sweetness and light”(particularly as health issues arose). Thatbeing said, she undoubtedly awoke everymorning and approached each day withgrace, optimism, and a desire to put it togood use.

Simply put, a life well lived! May sherest in peace.

Tribute to Vivian AgressTRIBUTE

By: Roger Bennet Adler, Esq.

Page 4, BROOKLYN BARRISTER SUMMER, 2017

After a brief interlude of spring weather, un-usual weather patterns have resumed, returningfall-like temperatures and winds. An active hurri-cane season also is anticipated. To fill time other-wise planned for warm summer endeavors, wesubmit some interesting cases involving the affir-mance of a Decree admitting a Will to probateeven though the decedent may have been gullibleand fallen victim to a con man, because the dece-dent’s rationale for disinheriting objectants wasbased in reality; reversal of a Decree requiring thetrustees of a testamentary Supplemental NeedsTrust to post a bond and account annually; a claimthat a Power of Attorney improperly was used byone of the decedent’s sons to remove the dece-dent’s other son from joint accounts; a directionthat the attorney/executor pay interest at a rate of2% on the whole amount of fees and disburse-ments previously paid out by her to her law firmwithout a Court Order, notwithstanding the factthat most of the fees and disbursements ultimatelywere allowed; disqualification of a nominated ex-ecutor for neglecting to obey the Court’s Order toaccount as preliminary executor for over four (4)years; the burden of proof being on the executor toprove that a closely-held family business had beentransferred to him by his parents during their life-times and was not an asset of their estates; the is-sues on which an objectant may be required to pro-vide a Bill of Particulars in a probate proceedingand when the objectants are required to providesame; expansion of probate discovery beyond thethree-year period prior to the date of the pro-pounded instrument and two years thereafter; a re-fusal by the Court to permit disinterment for lackof good and substantial reasons for disturbing thequiet of the grave and the repose of the dead, andthe failure of proof as to the status of the “heir” re-questing same; the reversal of a grant of summaryjudgment on the grounds that the Supreme Courthad decided the motion on grounds other than theissues and defenses that were the subject of themotion submitted and argued before the SupremeCourt; the denial of an application to reform a Willto avoid the effects of the New York State EstateTax ‘cliff’; the granting of an application to be per-mitted to file a late Notice of the Exercise of theRight of Election, long after the various statutorydeadlines had passed; the viability of a wrongfuldeath claim against a defendant who was foundnot guilty by reason of mental disease or defect forthe stabbing death of his mother, since an insaneperson may be liable in tort for his actions; and re-versal of an Order in favor of defendants whichhad dismissed a father (sole distributee) adminis-trator’s cause of action for wrongful death, on thegrounds that the defendants’submissions had failedto eliminate all triable issues of fact as to whetherthe decedent’s death frustrated the plaintiff’sreasonable expectation of future assistance or sup-port by the deceased.

Decree Affirmed Admitting a Will to Pro-bate Even Though the Decedent May HaveBeen Gullible and Fallen Victim to A Con Man,Because the Decedent’s Rationale for Disinher-iting Objectants Was Based in Reality- In a pro-bate proceeding, objectants asserted that decedentlacked testamentary capacity because she sufferedfrom insane delusions related to a companion, whoregaled her with tales of his exploits and influen-tial friends. Objectants also claimed that the attor-neys involved in drafting the Will exerted undueinfluence on the decedent. The proponents movedfor summary judgment, which was granted. TheObjectants appealed. HOLDING- The Surrogatewas affirmed. The Appellate Division stated that itwas proponent’s burden, in the first instance, tomake a prima facie showing that decedent pos-sessed testamentary capacity, i.e., that she under-stood the nature and extent of her property, wasaware of the natural objects of her bounty, and un-derstood that she was disposing of her propertythrough the Will. The Appellate Division ruled thatpetitioner had met this burden with the self-prov-ing affidavits of the attesting witnesses, stating thatdecedent was of sound mind, memory and under-standing, and was not incompetent. The AppellateDivision rejected objectants’ claim that the dece-dent suffered from insane delusions related to acompanion, finding that the record reflected thatthe decedent had stated to many people that shewanted to disinherit her daughters because theyhad brought an action against her that resulted inthe breakup of her company, and had received insettlement what she intended to leave to them in

her Will. The Appellate Division held that the Sur-rogate’s Court properly had concluded that, al-though decedent may have been gullible and fall-en victim to a con man, her rationale for disinher-iting objectants was based in reality. The AppellateDivision added that the right of a testator to dis-pose of her estate does not depend on the sound-ness of her reasoning or the justice of her preju-dices. The Appellate Division also rejected objec-tants’claims that attorneys involved in drafting theWill exerted undue influence on her, stating thatobjectants had failed to present evidence sufficientto raise a triable issue of fact as to any action bythese attorneys that restrained decedent’s inde-pendent action or destroyed her free will. The Ap-pellate Division noted that a prior Will prepared byan attorney not accused of undue influence alsodisinherited objectants. The Appellate Divisionopined further that the decedent’s attorneys had noduty to attempt to dissuade her from acting on herill feelings toward objectants. Matter of Martin,146 A.D.3d 619 (1st Dept., 2017)

Decree Requiring the Trustees of a Testa-mentary Supplemental Needs Trust to Post aBond and Account Annually Reversed- TheSurrogate’s Court issued a Decree which, inter alia,

required the trustees of a testamentary Supple-mental Needs Trust to execute, file, and maintain abond in the amount of $200,000, and required an-nual accountings. The trustees appealed. HOLD-ING- The Surrogate was reversed. The AppellateDivision noted that SCPA §806 states that when-ever a testamentary trustee is appointed by Will ororder of the Court he shall, unless the Will pro-vides otherwise, execute and file a bond. The Ap-pellate Division pointed out that in the case at bar,the Will provided otherwise, stating that no Ex-ecutor or Trustee shall be required to file or furnishany bond. The Appellate Division therefore con-cluded that the Surrogate’s Court should not haverequired petitioners to file a bond. The AppellateDivision added that there is no authority to justifyimpressing on a testamentary trust a greater obli-gation than the testator himself would have, if shewere alive. The Appellate Division pointed outthat there was no indication in the Will that the tes-tatrix wanted annual accountings for the trust thatshe established for her son, and held that there isno statutory requirement that annual accountingsbe filed with the Court. The Appellate Divisionadded that it was unnecessary to mandate an an-nual accounting and burden the trust with the in-herent costs. Matter of Feuerstein, 147 A.D.3d688 (1st Dept., 2017)

Claim That a Power of Attorney Improper-ly Was Used by One of The Decedent’s Sons toRemove the Decedent’s Other Son from JointAccounts- The decedent owned several accountsat a credit union. For each of those accounts, dece-dent named two of his sons, plaintiff and defen-dant, as equal beneficiaries. Defendant, acting pur-suant to a power of attorney that decedent signedwhile he was in a nursing home, directed the cred-it union to remove plaintiff as a beneficiary onthose accounts, and defendant withdrew the fundsfrom the accounts after decedent passed away.Plaintiff commenced an action seeking to recoverhalf of the funds that had been removed from thecredit union accounts, alleging, inter alia, that de-fendant breached his duty as attorney-in-fact andexercised undue influence over the decedent.

Defendant’s motion for summary judgmentdismissing the complaint was denied and defen-dant appealed. On the appeal the defendant con-tended that the Supreme Court erred in denyingthat part of his motion for summary judgment dis-missing the cause of action alleging that he exer-cised undue influence over decedent becauseplaintiff failed to establish that defendant exercisedsuch influence, and that the Supreme Court shouldhave dismissed the plaintiff’s claim that the defen-dant had misused the power of attorney. HOLD-ING- The Supreme Court was affirmed. The Ap-pellate Division stated that it is well settled thatwhere there is a confidential or fiduciary relation-ship between the beneficiary and the decedent, aninference of undue influence arises which requiresthe beneficiary to come forward with an explana-tion of the circumstances of the transaction. TheAppellate Division found that the allegations inthe complaint and the evidence submitted by de-fendant himself in support of his motion for sum-mary judgment, including his own affirmation, es-tablished that he had a confidential relationshipwith the decedent. Consequently, the Appellate Di-vision noted that in order to meet his burden on themotion of establishing his entitlement to judgmentas a matter of law the defendant was required to

show affirmatively that no deception was prac-ticed, no undue influence was used, and that allwas fair, open, voluntary, and well understood bythe decedent. The Appellate Division agreed withthe Supreme Court that the defendant had failed tomeet that burden, and thus ruled that that part ofthe defendant’s motion properly was denied re-gardless of the sufficiency of the opposing papers.The Appellate Division added that similarly, con-trary to defendant’s contention, defendant hadfailed to meet his burden on that part of his motionseeking summary judgment dismissing the re-maining causes of action, alleging that he breachedhis duty under the power of attorney, inasmuch ashe failed to establish that, in removing plaintiff asa beneficiary on the accounts, he had acted in theutmost good faith and undivided loyalty towardthe principal, and in accordance with the highestprinciples of morality, fidelity, loyalty and fairdealing. Consequently, the Appellate Divisionconcluded that the Supreme Court also properlyhad denied that part of the defendant’s motion.Blasé v Blasé, 148 A.D.3d 1777 (4th Dept., 2017)

Attorney/Executor Directed to Pay Interestat A Rate Of 2% On the Whole Amount of Feesand Disbursements Previously Paid Out byHer to Her Law Firm Without a Court Order,Notwithstanding the Fact That Most of TheFees and Disbursements Ultimately Were Al-lowed- An uncontested petition of the attorney/ex-ecutor of the estate, pursuant to SCPA 2110, wasbrought to fix the legal fees of her law firm forservices rendered. Petitioner requested that theCourt fix the firm’s compensation in the sum of$22,187.42, reflecting $19,642.50 in legal fees and$2,554.92 in disbursements. The estate was valuedat $465,820. Prior to making the application, peti-tioner paid $21,616.67 to her firm ($19,276.75 inlegal fees and $2,339.92 in disbursements) with-out the Court order (SCPA 2211). HOLDING-The Court reduced the fee and imposed interest onthe executor. The Court opined that it had the ulti-mate responsibility to determine the reasonable-ness of legal fees, and that an attorney is not al-lowed legal fees for rendering services that are ex-ecutorial in nature. The Court noted that the attor-ney/executor has the burden to differentiate be-tween executorial and legal services rendered. TheCourt acknowledged that the petitioner/executorhad offered that 7.733 hours, at the rate of$450/per hour ($3,480), were spent on executorialduties, yet mistakenly billed as legal fees, butpointed out that the petitioner/executor had notidentified the specific dates or services to whichshe referred. After reviewing the billing records,the Court found that approximately $4,680 in feeswere billed as legal services, but actually were ex-ecutorial in nature, including time spent makingarrangements for cremation, paying estate obliga-tions, reviewing and organizing decedent’s billsand mail, arranging for the cleaning out and sur-render of decedent’s apartment, emptying dece-dent’s safe deposit box, closing decedent’s bankaccounts, reviewing decedent’s past tax returnsand account statements, organizing paperwork, re-vising, reviewing and reconciling estate bank ac-count statements and estate account activity, send-ing out mailings, depositing checks, scanning andfiling, basic research regarding decedent’s distrib-utees, corresponding with an accountant regardingincome tax returns, photocopying, collecting as-sets and making partial distributions. Consequent-ly, the Court reduced the legal fees in the amountof $4,680, noting that these executorial serviceswere instead compensable by executor’s commis-sions (SCPA 2307). The Court further reduced thelegal fees in the sum of $1,700, representing nu-merous entries which it characterized as general orvague as to which the Court stated that it could notdiscern whether the services were legal or execu-torial, and the Court also reduced the fees by anadditional sum of $1,900, representing a partial re-duction for entries which it stated contained de-scriptions of both legal and executorial servicescombined. The remainder of the legal fees wereapproved in the amounts requested. Certain ex-penditures for which petitioner requested reim-bursement ($209.94 utility bill and $1,415.00 feefor cremation and death certificates) were denied,the Court stating that they constituted administra-tion expenses, rather than legal disbursements, andtherefore were not proper subjects of the proceed-ing. The Court also did not approve reimburse-ment for postage and express mail fees ($23.98),which it said were considered office overhead. Inits discretion, the Court directed petitioner to paythe estate interest, at the rate of two percent perannum, as compensation for the estate’s lost use ofthe sum of $21,616.67 which the executrix previ-

ously had paid out without a Court Order. Matterof Lourie, N.Y.L.J. 4/14/17, p. 21, c. 1 (Surr. Ct.,NY County, Surr. Anderson)

Nominated Executor Disqualified for Ne-glecting to Obey the Court’s Order to Accountas Preliminary Executor for Over Four (4)Years- In a probate proceeding, the objectantmoved for an order for summary judgment pur-suant to CPLR §3212 denying letters testamentaryto petitioner, and awarding letters of administrationc.t.a. to the objectant. The petitioner opposed themotion. The decedent died in April, 2003. The pe-titioner petitioned for probate of an instrumentdated August 3, 1994 and to be appointed executorthereunder. The objectant cross-petitioned for a de-cree admitting the proffered instrument to probate,but to deny letters testamentary to the petitionerand to appoint the objectant as the administratorc.t.a. The objectant also filed objections to the peti-tioner serving as the fiduciary in the estate upon thegrounds that the petitioner had failed to complywith a “So Ordered” Stipulation to account and thathe did not possess the qualifications required of afiduciary. The petitioner filed objections to the ob-jectant’s cross-petition upon the ground that the ob-jectant did not possess the qualifications of a fidu-ciary by reason of substance abuse, dishonesty, im-providence, want of understanding and was other-wise unfit for the execution of the office of execu-tor. Neither party objected to the admission of theproffered instrument to probate. In the proffered in-strument, the decedent nominated her predeceasedhusband as the executor and the petitioner as the al-ternate executor. In July, 2005, petitioner was ap-pointed preliminary executor. The estate containedassets (including a parcel of real property) that re-quired marshaling, maintaining, and administering.In March, 2012, the Court issued an Order direct-ing the petitioner to file a formal accounting with-in 45 days of the date of the Order. He was also or-dered to obtain jurisdiction on all interested per-sons with due diligence and without undue delay.On September 13, 2012, the time for the petitionerto file his accounting was extended to December13, 2012 and the petitioner was directed to com-plete jurisdiction in the probate proceeding by De-cember 13, 2012. In December 2012, the petition-er submitted an accounting to the accounting de-partment that was not accepted for filing, and, ac-cording to Court records, returned to the petitioneron December 24, 2012. In September, 2016, theCourt issued a Decision and Order revoking thepreliminary letters testamentary previously grantedto the petitioner upon the grounds that the petition-er had failed to account pursuant to the Court’sOrder. The Court appointed the Public Administra-tor of Kings County as the temporary administra-tor, and directed the petitioner to turn over the es-tate’s assets to the Public Administrator. In re-sponse to the objectant’s motion for summaryjudgment, the petitioner alleged that he was un-aware of the Order directing him to turn over of theestate’s assets to the Public Administrator, and thathe did not know that his accounting had not beenaccepted for filing by the Court. The petitioner sug-gested that the Court had lost the accounting.HOLDING- The Will was admitted to probate,petitioner was denied Letters Testamentary, objec-tant was granted Letters of Administration c.t.a.,and the Letters of Temporary Administration is-sued to the Public Administrator were vacated. TheCourt noted that neither party contested the probateof the proffered instrument. Based upon the record,the Court stated that it was satisfied that the prof-fered instrument was genuine and was validly exe-cuted and that at the time of the execution, thedecedent was competent in all respects to make awill and that the decedent was not under restraint orundue influence. Being satisfied that the genuine-ness of the Will and the validity of its execution hadbeen proven, the Court admitted to probate theproffered instrument. The Court opined that a tes-tator has the right to determine who is most suitableamong those legally qualified to settle his affairsand execute his Will, and that that selection was notto be lightly discarded. While acknowledging thata testator’s selection of a fiduciary must be givengreat deference, the Court pointed out that a nomi-nated executor may be removed as preliminary ex-ecutor and disqualified from acting as fiduciaryupon a showing of misconduct in the execution ofhis or her duties or unfitness for office. The Courtstated that even if it were to accept the petitioner’sallegation that he was unaware of the Court’s Orderdirecting the turnover of the estate’s property to thePublic Administrator, the petitioner had failed tooffer an acceptable excuse for his failure to complywith the Court’s Order to account.

Please turn to page 8

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

SUMMER, 2017 BROOKLYN BARRISTER, Page 5

Joel Cohen’s most recent book (au-thored with Dale J. Degenshein), “BrokenScales — Reflections on Injustice” (A.B.A.Books, 2017), raises important questionsabout our justice system (both the criminaland civil sides), and focuses powerful attentionon documented instances when it has fallendecidedly short, resulting in disastrous person-al consequences to those involved.

Cohen has carefully selected ten dra-matic instances of system failure, and focus-es attention on both the wronged, and the per-ceived wrongdoer, in deep diving into deeplydisturbing legal cases. Chapter 1 addressesthe wrongful conviction of Glenn Ford, whowas tried and convicted of the 1984 murder ofa Shreveport, Louisiana jeweler, IsadoreRozeman, was sentenced to death, andserved thirty years on Death Row for a crimewhich he never committed (Louisiana v.Ford*, 489 So. 2d 1250 [Sup. Ct. La. 1986].The State’s case against Ford was basedupon circumstantial evidence.

Southern justice “gone bad” is not an al-together new concept for us to confront. Forevery high profile Scottsboro Boys case (seeNorris v. Alabama, 294 U.S. 587 [1935];Patterson v. Alabama, 294 U.S. 600[1935]), there were undoubtedly hundreds(if not thousands) of murder, rape, and rob-bery cases prosecuted in the segregatedSouth under a then existing racist systemwhich doomed minorities to apartheid liketreatment (and justice).

A cruelly “rigged system” doomed minorityaccuseds to defending against criminalcharges which were all too often tainted byracism. A lack of qualified criminal defenseattorneys willing to defend poor minoritydefendants confronted a community bred tosee the world through the lens of discrimina-tion, and a pre-Batsonjury system whichexcluded jury service by those resemblingthe accused.

Where Cohen breaks new ground is hisquest to focus on the cost (and impact) uponthe prosecutor, Martin Stroud, Esq., whoprosecuted the Glenn Ford capital case inShreveport, Louisiana. In 2012, undisclosedcredible evidence came to the prosecutor’soffice, indicating that Ford didn’t killRozeman, and the new District Attorneyappropriately moved to vacate Ford’sconviction. Ford was ultimately freed fromLouisiana’s notorious Angola State Peniten-tiary, and spared wrongful execution. Howone attempts to recapture a life after threedecades of being cooped up on Death Row istoo haunting (and cruel) to long consider.

While Ford died at age 65 of lung cancershortly thereafter, for former prosecutorStroud it appears the personal torment hadonly begun. He “self reported” his conduct tothe applicable attorney disciplinary com-mittee, even though it appears to have beenthe police which generated the evidenceimplicating Ford.

Mindful that the litigative stakes aresignificantly higher in a capital case, theabolition of the death penalty is, as Stroudnotes, something which would have “put asmile on his face.” Such thoughts were like-ly cold comfort to Mr. Ford, who was deprivedof life’s potentials (and pleasures).

Injustice is clearly not merely a Southern“gothic narrative.” In “White Haired andSpirited — A Victim of the Red Scare,”Cohen focuses on the post-World War II“Red Scare,” and the investigations and trialsof Americans for communist leanings andsupport. Cohen details how MiriamMoskowitz found herself in a romanticrelationship with Abraham Brothman, anengineer by profession who, through a networkof Soviet spies, conspired to pass secrets to theSoviet Union. Brothman was charged withconspiracy to obstruct justice and witnesstampering, with a cooperating witness, HarryGold – who later testified in the case againstEthel and Julius Rosenberg.

Moskowitz was convicted and served twoyears imprisonment (United States v. Brothman,191 F. 2d 70 [2nd Cir. 1951]). In thosepre-“Jencks Act” (18 U.S.C. 3500, seeJencks v. United States*, 353 U.S. 657[1957], rev’g 226 F. 2d 540, 553 [5th Cir.1955]) days, trial counsel did not have auto-matic access to Gold’s prior statements —many of which were reportedly inconsistent(or exculpatory) concerning Moskowitz’sguilt.

Years later, an application to vacate theconviction was docketed (Moskowitz v. UnitedStates, 14 CV. 6389 (AKH), and subsequentlydenied (64 F. Supp. 3d 574 [S.D.N.Y. 2014]).Moskowitz relied upon the common lawpetition for a writ of error coram nobis, basedupon discovered (or alleged) inconsistenciesbetween Gold’s statements to the F.B.I.(3500 material), and his trial testimony. Itsfocus was on whether Gold and Brothmanactually discussed espionage activity inMoskowitz’s presence. Judge Hellersteinacknowledged the litigative use to which thestatements could have been used. He con-cluded that the withholding of the statement“did not make any difference to the outcomeof Moskowitz’s trial.” This writer believesthe Court failed to appropriately perceive howthe previously undisclosed statements couldhave generated a reasonable doubt in thehands of skilled defense counsel.

A poignant aspect of the case, touchedupon only in passing, was that she and herco-defendant, Brothman, were representedby a single lawyer — the legendary ColonelWilliam Kleinman, Esq.** In view of thepractice of not discussing sensitive mattersin front of her, the sense is that Kleinmanhad a clear conflict of interest, sinceMoskowitz and Brothman clearly hadantagonistic defenses.

Mindful that the trial preceded cases likeour People v. Gomberg, and “Curcio” warnings,it is still unclear why the Sixth Amendmentissue wasn’t raised before Judge Hellerstein,unless Ms. Moskowitz knowingly waivedany potential conflict. The book doesn’t say.

The chapter addressed to the travails ofDutchess County attorney Steven Pagones, Esq.at the hands of Tawana Brawley and her thenlawyers, C. Vernon Mason and Alton Maddox,Jr., as well as Brawley “Family Advisor”Reverend Al Sharpton, is a painful reminderof a dark chapter in twentieth century NewYork jurisprudence. Mindful of Shakespeare’sline from “Othello,” “he who steals my pursesteals trash, he who steals my reputationsteals all,” Pagones was cruelly linked toBrawley’s bogus abduction claim, ostensiblypresented as a fabricated excuse to avoid fam-ily discipline for socializing beyond her des-ignated curfew. Reverend Sharpton pro-fessed not to have discussed the actual de-tails with Ms. Brawley, an approach whichsmacks of “conscious avoidance.”

Exonerated by a Dutchess County GrandJury, Pagones sued civilly to clear hisname. Like former U.S. Labor SecretaryRay Donovan, he sought to reclaim his goodname following his acquittal in SupremeCourt, Bronx County. Mason and Maddoxwere disbarred and suspended, but the TeflonReverend Sharpton continued to brilliantly“grow his brand,” to the point of getting hiscalls taken in the Obama White House. Hewas perceived as a political “kingmaker” in2009, when he assisted Bill de Blasio in defeat-ing Billy Thompson in the race for the Democra-tic Party’s nomination for New York City Mayor.

If over the years Pagones has doggedly pur-sued his good name, Tawana Brawley, by con-trast, has lived in her own self-created,shadowy world. Two participants, involuntari-ly caught up in a tapestry of deception, and

dissembling. One is reminded of RabbiKushner’s famous book, “When Bad ThingsHappen to Good People,” when reflecting onthe fallout when s*** happens.

Pagones’ position is that “the media andthese politicians have allowed Sharpton to re-habilitate himself without actually rehabilitat-ing himself…I don’t want him to apologize.It’s not going to happen. I just want him toadmit that now he knows he was wrong aboutme…” For those who practice in the FederalCourt, we think of this as “acceptance of re-sponsibility” — a degree of personal recogni-tion which not everyone is capable of doing.

We clearly live in very turbulent times.Allegations of “fake news” (a/k/a propaganda)are now as common as the stars in the heavens.It is against this backdrop that Joel Cohen’s finebook should be read as a cautionary tale of thelimits of the law, and our need, now more thanever, for those who have the “right stuff,” andwho would be qualified for treatment in John F.Kennedy’s book “Profiles in Courage.”

Too often truth never eradicates the false-hood, and as the old judge once said — dothe best you can! The need to speak “truth topower” is needed now more than ever.

* Chief Judge Dixon’s decision found nomerit to Ford’s counsel’s 48 separate claimsthat Ford voluntarily made admissions, andto the fairness of jury selection, etc. JusticeColagero dissented, and Justice Lemon con-curred.

* The Government’s case was argued inthe U.S. Supreme Court by John V. Lindsay,later a Manhattan congressman, and subse-quently New York City Mayor.

** Kleinman was the senior partner atKleinman, Gold and Landsman, and a PastPresident of the Brooklyn Bar Associationduring the mid 1960s.

— A book by Joel Cohen A erica Bar Associatio , 7 —

Broken Scales — Reflections on InjusticeBOOK REVIEW

By Roger Bennet Adler, Esq.

Joseph R. Costello and Dewey Golkinwere both recognized as retiring trustees.Hon. John Ingram, who is filling in for Hon.Diana Johnson in the Surrogate’s Court,also briefly addressed the auditorium onhow his new gig is going.

When Seddio presented Cherubin withhis award, he spoke about all of the goodwork that the VLP does. Cherubin remind-ed Seddio that the first time he ever ap-

peared in court was in front of then-Surro-gate Court Judge Seddio.

“Frank taught me a very important les-son when I first started practicing,” Cheru-bin said. “I had no idea what I was doing,and nobody in my organization had anyidea what to do. I was sitting there, andFrank looks at me and said, ‘Would you liketo ask the court to waive the jury trial?’ Isaid yes. He said, ‘And then would you liketo ask...’ I said, ‘I don’t know what I’m

doing.’ Then he said, ‘Neither do I,’ andhanded me a piece of paper of the questionsthat I needed to ask during the hearing. Istill have that piece of paper, but I’ve up-dated it with a few additional questions.”

The BBA also announced the results ofits officer elections that were held immedi-ately prior to the meeting. Aimee Richterwill be the next president, David M.Chidekel will be president-elect, Frank V.Carone will be the first vice president, An-

thony J. Lamberti will be second vice pres-ident and Armena D. Gayle will serve assecretary.

Richard Klass was added to the slate ofofficers. He will be the treasurer.

Jason Friedman was named trustee ofthe Class of 2019. Marianne Bertuna, Ste-fano Filippazzo, Christina Golkin, Steven J.Harkavy, Gregory LaSpina, Jeffrey Millerand Hemalee J. Patel were named trusteesof the Class of 2020.

Continued from page 1

Page 6, BROOKLYN BARRISTER SUMMER, 2017

Frank Seddio Hosts Final Meeting as Brooklyn Bar President

Ho oree Sidney Cherubin right recalls howa appeara ce efore Hon. Frank Seddioleft helped hi get started duri g his you g

career as a attor ey.

Fro left: Kristen Borruso, Do DiSalvo, Moni ue Hola an, ho oree Lu y DiSalvo, Mark Willia s, Betty Matondo-John, Lu inda Cosentino, Betsy Jean-Ja ues a dJoseph Rosato. Brooklyn Eagle photos y Ro A ruzzese

SUMMER, 2017 BROOKLYN BARRISTER, Page 7

Frank Seddio Hosts Final Meeting as Brooklyn Bar President

Anthony La berti, BBA secretary left ; a d ho oree Joseph H. Dirks.

Ri hard Klass left, with Avery Eli Okin, e ecutive director was elected as the e t BBAtreasurer, putti g hi i li e to e preside t of the BBA i five years.

Fro left: Pa ela Golkin-Moro, Steve Cohn, Christina Golkin, ho oree Diane Golkin a d Jeni St. George.

De ey Golkin right was recog ized alo gside Joseph R. Costello ot pictured as a retiri g trustee.

Fro left: Hon. Andre Borrok, Hon. Miria Cyrulnik a d Hon. John G. Ingra .

Ho oree Ada Kalish with his wife Megan D’Onofrio a dtheir so Sebastian. Brooklyn Eagle photos y Ro A ruzzese

Page 8, BROOKLYN BARRISTER SUMMER, 2017

The Court found the petitioner’s allegationthat he did not know that the accounting had notbeen accepted for filing incredible in light of pe-titioner’s failure to show sufficient proof of fil-ing, such as proof that the filing fee had been paidor a copy of the papers indicating that the paperswere filed on the face thereof. The Court notedthat an accounting is a way for the Court and theinterested parties to ascertain that an estate hasbeen properly managed and distributed. TheCourt pointed out that by statute (SCPA §711(3))the failure of a fiduciary to, without good cause,obey the Court’s Order to account is just causefor a fiduciary to be removed from office. TheCourt added that even if the petitioner believedthat the accounting had been filed with the Court,and was subsequently lost, the petitioner failed toenumerate or explain what efforts he took, if any,to comply with the Court’s Order to diligentlyobtain jurisdiction in the accounting proceedingover all interested parties. The Court noted thatpetitioner sought to file his accounting in De-cember 2012, and over 4 years later had failed totake the necessary actions to ensure the account-ing was filed, to complete jurisdiction, and toprosecute the proceeding to conclusion. TheCourt stated that it may nullify the testator’schoice of fiduciary only upon a clear showing ofserious misconduct that endangers the safety ofthe estate. In the Court’s view, the petitioner’sneglectful attitude toward, and failure to complywith, the Court’s Orders, warranted the denial ofletters testamentary to the petitioner. The Courtalso found that the petitioner had failed to presentany evidence in support of his objections that theobjectant did not possess the qualifications re-quired of a fiduciary. Accordingly, the motion ofthe objectant was granted, letters testamentarywere denied to the petitioner, letters of adminis-tration c.t.a. were to be issued to the objectantupon her duly qualifying according to law in-cluding the filing of a bond, and the letters oftemporary administration previously issued tothe Public Administrator were revoked. TheCourt also directed that the Decree include a pro-vision that the petitioner turn over estate assets,documents, and records in his possession and/orcontrol to the objectant as administrator c.t.a.Matter of Henry, N.Y.L.J. 5/19/17, p.21, c. 1(Surr. Ct., Kings Co., Surr. Ingram).

Burden of Proof on The Executor to ProveThat a Closely-Held Family Business HadBeen Transferred to Him by His Parents Dur-ing Their Lifetimes and Was Not an Asset ofTheir Estates-

At issue was whether the shares of a closely-held family corporation had been transferred tothe executor individually by the parties’ parentsduring their lifetimes. The Surrogate denied peti-tioners’motion in limine seeking a determinationthat respondent had the burden of proof to estab-lish his ownership of the stock, and determinedthat petitioners had the burden of proof to estab-lish that the stock had not been transferred to re-spondent by decedents. The petitioners appealed.HOLDING- The Surrogate was reversed. TheAppellate Division stated that where an asset isnot included in the inventory of the estate basedupon respondent fiduciary’s assertion that he isthe owner of the asset, it is respondent-fiduciary’sburden to show a legal and sufficient reason forwithholding the asset from the estate. In the viewof the Appellate Division, such an assertion bythe fiduciary is in essence, the assertion of a per-sonal claim by the fiduciary, the burden ofdemonstration of which is upon the fiduciarywho claims adversely to the estate. The AppellateDivision ruled that such fiduciary should not bepermitted to jeopardize the interests of the bene-ficiaries by forcing them to demonstrate the sub-stantially impossible, to wit: that the stock wasnot transferred to the fiduciary by decedents. TheAppellate Division further concluded that theSurrogate had erred in directing a verdict in favorof respondent at the close of petitioners’ proof,and remitted the matter to Surrogate’s Court forfurther proceedings on the issue of ownership ofthe stock. Matter of Thomas, 148 A.D.3d 1764(4th Dept., 2017)

Issues on Which an Objectant May Be Re-quired to Provide a Bill of Particulars in AProbate Proceeding and When the ObjectantsAre Required to Provide Same; Expansion ofProbate Discovery Beyond the Three-Year Pe-riod Prior To The Date of The Propounded In-strument and Two Years Thereafter- In a pro-bate proceeding, objectant moved, inter alia, foran order striking that part of petitioners’ demand

for a bill of particulars which sought particularson the issues of due execution and testamentarycapacity, for a determination that petitioners’ de-mand for a bill of particulars on the issues ofundue influence and fraud was premature, for ex-pansion of the scope of discovery beyond thetime period set forth in the Uniform Rules for theSurrogate’s Court (22 NYCRR §207.27), and tocompel petitioners to respond to objectant’s dis-covery demands. Decedent was survived bythree children, the petitioner sons, and the objec-tant daughter. In the propounded instrumentdecedent bequeathed her interest in a certain cor-poration to her three children equally and left theresiduary estate only to her sons. The daughterfiled objections after SCPA §1404 examinationsof the attorney draftsperson and one witness. Al-though examinations before trial of the partieswere scheduled at the preliminary conference,they had not been conducted since objectantclaimed she had not received certain financialrecords and signed HIPPA authorizations frompetitioners. Petitioners claimed that objectant hadfailed to provide a response to their demand for averified bill of particulars. Objectant argued that,to the extent a bill of particulars was requiredfrom her on the issues of fraud and undue influ-ence, it need not be provided until after the dep-ositions of the parties and the completion of dis-covery. With regard to the objectant’s request toexpand the time period of permitted discovery,objectant argued that special circumstances exist-ed because the proponents had engaged in ascheme of fraudulent conduct and continuingcourse of undue influence. In support, the objec-tant submitted a letter from decedent’s treatingdoctor stating that decedent was diagnosed withdementia on October 19, 2000. Prior thereto,decedent had created an irrevocable trust in orabout December, 1999 which granted all three ofher children an equal interest in the trust incomeand residuary. Decedent thereafter gave both pro-ponents a power of attorney in 2006 that they al-legedly used to transfer $250,000.00 to them-selves prior to decedent’s death in 2016. In addi-tion, the documentary evidence showed thatdecedent executed a deed transferring a parcel ofreal property to the proponents in May, 2000,which was near in time to both the establishmentof the trust and the diagnosis of dementia.HOLDING- The motion to strike the demandfor a bill of particulars from objectant on the is-sues of due execution and testamentary capacitywas granted, objectant was directed to respond tothe demand for a bill of particulars on the issuesof fraud and undue influence, the time period forpermissible discovery was expanded, and peti-tioners were directed to provide the financialrecords and HIPAA forms requested by objec-tant. The Court stated that in probate proceed-ings, demands for bills of particulars and re-sponses are governed by CPLR §3041 and§3042, as well as the Uniform Rules for Surro-gate’s Courts, 22 NYCRR §207.23. The Courtpointed out that the Uniform Rule section pro-vides that when objections to probate are madeon the grounds of fraud or undue influence, theproponent is entitled to a verified bill of particu-lars setting forth particular, itemized information.The Court noted, however, that proponents maynot demand a bill of particulars with respect to is-sues on which they have the burden of proof,namely due execution and testamentary capacity.The Court held that petitioners had erroneouslydemanded a bill of particulars concerning the is-sues of due execution and testamentary capacity,and according granted the branch of the objec-tant’s motion to strike that part of petitioners’ de-mand seeking a bill of particulars on the issues ofdue execution and testamentary capacity. TheCourt disagreed with the objectant’s position thatto the extent a bill of particulars was requiredfrom her on the issues of fraud and undue influ-ence, it need not be provided until after the dep-ositions of the parties and the completion of dis-covery. The Court pointed out that 22 NYCRR§207.23 expressly provides that the proponentshall be entitled as of course to the bill of partic-ulars, and noted that should further informationbe obtained, objectant may amend the bill of par-ticulars once as of course prior to the filing of anote of issue pursuant to CPLR §3042 [b]. Ac-cordingly, objectant was directed by the Court toprovide petitioners with a verified bill of particu-lars setting forth the information required by 22NYCRR §207.23 concerning the allegations offraud and undue influence within her knowledge,within twenty (20) days from the date of the de-cision and order. The Court granted Objectant’srequested that discovery be expanded beyond the

time period set forth in the applicable UniformRules for the Surrogate’s Court, which confinesdiscovery to the three-year period prior to thedate of the propounded instrument and two yearsthereafter, or date of death if earlier, except upona showing of special circumstances (22 NYCRR§207.27. In the Court’s view, the limitation of thetime period for which discovery can be obtainedis a pragmatic rule designed to prevent the costsand burdens of a runaway inquisition. The Courtnoted that a determination whether to expand thescope of discovery is within the discretion of theCourt. With regard to objectant’s argument thatspecial circumstances existed because the propo-nents had engaged in a scheme of fraudulent con-duct and continuing course of undue influence,the Court stated that when special circumstancesare based upon this allegation they must be evi-denced by the facts. The Court found that thefacts and circumstances surrounding the transac-tions between decedent and the petitioners thatoccurred both before and after the purported Willwas executed demonstrated a change in dece-dent’s 1999 testamentary plan, and arguably, apotential course of conduct which could bear onthe question whether undue influence existed.Consequently, the Court found that a minor ex-tension of the discovery rule was warranted toallow objectant to inquire about these transac-tions. Accordingly, the branch of the motion toexpand the time period for discovery set forth in22 NYCRR §207.27 was granted to include thetime period of four (4) years prior to the date ofthe propounded instrument and three (3) yearsthereafter. The Court also granted the branch ofthe objectant’s motion to direct petitioners tocomply with her discovery demands for dece-dent’s financial records and duly executedHIPPA authorizations for medical providers, forthe expanded time frame, within twenty (20)days from the date of the decision and order.Matter of Chin, N.Y.L.J. 4/10/17, p.17, c. 3(Surr. Ct., Queens Co., Surr. Kelly)

Court Refuses to Permit Disinterment forLack of Good and Substantial Reasons forDisturbing the Quiet of The Grave and TheRepose of The Dead, And Because Of a Fail-ure of Proof as To the Status of the “Heir” Re-questing Same- An uncontested proceeding wasbrought for the disinterment and re-internment ofthe body of decedent. The petition was broughtunder Religious Corporations Law (RCL) §9,Removal of human remains from one cemeteryof a religious corporation to another cemeteryowned by it. The petition in support of disinter-ment stated that petitioner was the last survivingfriend of the decedent, and was the best friend ofthe decedent’s daughter. It was alleged that priorto her passing, the decedent lived with the peti-tioner for approximately twenty-five years, andthat petitioner had lived with the decedent’sdaughter for approximately forty years. The peti-tion stated that petitioner and the decedent’sdaughter lived together and planned on doing sountil their passing. There were no other immedi-ate family members whose consents would benecessary for the disinterment. The daughter sub-mitted a two-paragraph Affidavit, stating that shewas the daughter of the decedent and that sheconsented to the petition. According to the peti-tion, the petitioner was making the request be-cause she wanted the decedent to be re-internedwith the decedent’s best friend who was the peti-tioner’s mother. Further, the petitioner and thedecedent’s daughter wanted to pay their respectsat the cemetery on holidays and anniversariesand it would be more convenient if all of the re-mains were at the same cemetery. Lastly, it wasalleged that petitioner and the decedent’s daugh-ter intended to be laid to rest near their belovedmothers and had already bought plots. The ceme-tery consented to the disinterment. HOLDING-The Court denied the disinterment request. TheCourt stated that as a threshold matter, Courts arereluctant to require disturbance and removal of abody once it had been buried because they weresensitive to all those emotions that men andwomen hold for sacred in the disposition of theirdead. The Court added that the aversion to dis-turbance of one’s remains, it being an ordinarypractice of the times to transfer bones fromgraves to the charnel-house, doubtless originatedthe choice by Shakespeare of his own epitaph:“Good frend, for Jesus sake forbeare To digg thedust encloased heare; Bleste be the man thatspares thes stones, And curst be he that movesmy bones.” The Court noted that the pertinentstatute sets forth two alternative methods bywhich human remains may be transferred be-

tween two commonly owned cemeteries, thefirst, established when the statute was enacted in1909 (not being utilized in the case at bar) beingthrough a determination of the trustees of the re-ligious corporation, coupled with the requisitevote of the members of such corporation. Thesecond method of disinterment under the Statutedescribed by the Court (pertinent to the applica-tion before it) would be upon the application bythe surviving spouse or any heirof any decedent,upon obtaining permission of the Supreme Courtin the district where the cemetery from which theremoval was proposed, was situated. The Courtnoted that the second method of disintermentwas added to the statute in 1950. The Courtfound that the record was silent on two critical is-sues, whether the decedent’s daughter was anheir, as required by the statute, and what were thegood and substantial reasons for disturbing thequiet of the grave and the repose of the dead. Inthe Court’s view, the decedent’s daughter was notautomatically an “heir.” The Court stated thatEPTL §2-1.1 provides that whenever used in astatute or instrument, unless a contrary intentionis expressed therein, the term ‘heirs,’ ‘heirs atlaw,’ ‘next of kin’ or any term of like importmeans the distributees, as defined in EPTL §1-2.5. The Court added that EPTL §1-2.5, in turn,defines a “distributee” as a person entitled to takeor share in the property of a decedent under thestatutes governing descent and distribution. TheCourt noted that the record contained no refer-ences to decedent’s estate or administration doc-uments, and shed no light when decedent diedand when she was buried. The Court further stat-ed that the record contained no explanation as tothe decedent’s interment preference. The Courtnoted that the good and substantial reasons re-quirement typically is imposed in the instanceswhere disinterment is petitioned under N-PCL§1506 (e) but it determined that there was nocompelling reason why a parallel requirementshould not be imposed in an RCL §9 disinter-ment proceeding. Accordingly, the Court deniedthe petition, and the proceeding was dismissedwithout prejudice to refile on proper papers. Mat-ter of Doyle, N.Y.L.J. 3/31/17, p.21, c. 2 (Sup.Ct., Kings Co., Justice Rivera).

Brief briefs:The Grant of Summary Judgment Re-

versed on The Grounds That the SupremeCourt Had Decided the Motion on GroundsOther Than the Issues and Defenses ThatWere the Subject of The Motion Submittedand Argued Before the Supreme Court-Baron v Baron, 101 A.D.3d 915 (2nd Dept., 2012)

Application to Reform a Will to Avoid theEffects of The New York State Estate Tax‘Cliff’ Denied-

Matter of Stern, N.Y.L.J. 1/11/17, p.22, c.4(Surr. Ct., New York Co., Surr. Anderson)

Application Granted to Be Permitted toFile a Late Notice of The Exercise of TheRight of Election, Long After the VariousStatutory Deadlines Had Passed- In the ab-sence of surprise or prejudice, in the interest ofjustice, the Court found reasonable cause to ex-ercise its discretion to permit a late Notice ofElection, based upon what the Court character-ized as tantamount to law office failure by the at-torney for the spouse. Matter of James, N.Y.L.J.3/27/17, p.17, c.2 (Surr. Ct., Bronx Co., Surr.Malave Gonzalez)

AWrongful Death Claim Is Viable Againsta Defendant Who Was Found Not Guilty byReason of Mental Disease or Defect for TheStabbing Death of His Mother, Since an In-sane Person May Be Liable in Tort for His Ac-tions- Rosen v Schwartz, 148 A.D.3d 653 (1stDept., 2017)

Order in Favor of Defendants Which HadDismissed a Father (Sole Distributee) Adminis-trator’s Cause of Action for Wrongful Death,Reversed on The Grounds That the Defen-dants’Submissions Had Failed to Eliminate AllTriable Issues of Fact as To Whether the Dece-dent’s Death Frustrated the Plaintiff’s Reason-able Expectation of Future Assistance or Sup-port by The Deceased- Hart v Transel Elevator,146 A.D.3d 756 (2nd Dept., 2017)

Compiled by Hon. Bruce M. Balter, Jus-tice of the Supreme Court, Kings County,Chair, Brooklyn Bar Association, Surrogate’sCourt Committee, and Paul S. Forster, Esq.,Chair, Brooklyn Bar Association, Decedent’sEstates Section.

T H E S T A T E O F E S T A T E SContinued from page 4

SUMMER, 2017 BROOKLYN BARRISTER, Page 9

Medical Malpractice UpdateTHE FOLLOWING SUMMARY

OF SECOND DEPARTMENTDECISIONS IN

MEDICAL MALPRACTICE CASESDECIDED BETWEEN

FEBRUARY 1, 2017 AND MARCH 31, 2017WAS PREPARED BY

BROOKLYN BAR ASSOCIATIONMEDICAL MALPRACTICE COMMITTEE

CHAIRMAN JOHN BONINA

Lucas v. Stam, 2017 NY Slip Op 01190 [147AD3d 921].

Defendants’ Answers stricken for DiscoveryAbuses

This case arose out of the eye surgery per-formed upon plaintiff’s decedent on September 5,2007. Before the surgery, plaintiff was given ahistory and physical form to provide to his in-ternist to fill out. The internist, Dr. Stam, wrote onthe form that decedent was “moderate risk for sur-gery” and, when asked if she was in satisfactorycondition for local/standby Anesthesia, Dr. Stamwrote “yes.” However, the surgery was performedunder General Anesthesia, and lasted seven hours.Following the surgery decedent suffered a majorstroke.

During discovery plaintiffs demanded thenames of all surgical bookers working at defen-dant hospital. The hospital disclosed the names oftwo surgical bookers, and stated that they were nolonger employed by non-party 61 Street ServiceCorp. as of May 2008. However, plaintiff’s coun-sel then learned that one of those surgical bookerswas in fact still employed at the hospital. Defensecounsel attributed this to “an honest mistake.”

Plaintiff then served a subpoena upon 61Street Service Corp., and learned the name of an-other surgical booker Anthony Pastor, who wasemployed at the time of the subject surgery.Supreme Court held a sanctions hearing, at whichdefense counsel claimed that the failure to dis-close this witness was an “oversight.” However,plaintiffs’ counsel then learned that the defenselawyer had in fact interviewed Pastor in the sum-mer of 2012, at which time Pastor told him thathis handwriting was on the history and physicalform in question.

Additionally, plaintiff demanded all historyand physical forms used at defendant hospital inand around September 2007. Although the Courtordered defendant to provide an affidavit statingthat there was only one history and physical formused during 2007, or else the Answers of Schiff(the ophthalmologic surgeon in question) and thehospital would be stricken, the affidavit ultimate-ly provided by defense counsel did not complywith the Court Order.

Plaintiff moved to strike defendants’ answers,and to impose monetary sanctions on defensecounsel Martin Clearwater and Bell. Although theCourt concluded that defendants’ tactics “weremeant to delay and complicate these proceedings”the Court declined to strike defendants’ answers,instead imposing a $10,000 monetary sanctionagainst Martin Clearwater and Bell payable toplaintiff’s counsel, and an additional $5,000payable to the Lawyers’ Fund Client Protection.

On Appeal, the Court reversed, and instead offining defense counsel, struck the Answers of de-fendants. In the respect the Court held as follows:

The Supreme Court properly inferred the will-ful and contumacious character of the defendants’conduct from their repeated failures over an ex-tended period of time, without an adequate ex-cuse, to comply with the plaintiff’s discovery de-mands and the court’s discovery orders (seeLazar, Sanders, Thaler & Assoc., LLPv Lazar,131 AD3d 1133, 1134 [2015]; Brandenburg vCounty of Rockland Sewer Dist. #1, State of N.Y.,127 AD3d 680, 681 [2015]; Montemurro vMemorial Sloan-[*4]Kettering Cancer Ctr., 94AD3d 1066, 1066 [2012]). This conduct includ-ed: (1) misrepresenting that the surgical book-er Marcia Barnaby was no longer employed bythe Hospital; (2) failing to disclose AnthonyPastor as a surgical booker; and (3) failing totimely and fully comply with the court’s orderto produce an affidavit from Schiff in the formrequired by the court. “[P]arties, where neces-sary, will be held responsible for the failure oftheir lawyers to meet court-ordered deadlines and

provide meaningful responses to discovery de-mands” (Arpino v F.J.F. & Sons Elec. Co., Inc.,102 AD3d 201, 207-208 [2012]; see Andrea vArnone, Hedin, Casker, Kennedy & Drake, Archi-tects & Landscape Architects, P.C. [HabiterraAssoc.], 5 NY3d 514, 521 [2005]; Kihl v Pfeffer,94 NY2d 118, 123 [1999]).

“The nature and degree of the penalty to beimposed pursuant to CPLR 3126 lies within thesound discretion of the Supreme Court” (Lazar,Sanders, Thaler & Assoc., LLP v Lazar, 131AD3d at 1133; see Wolf v Flowers, 122 AD3d728, 728 [2014]; Arpino v F.J.F. & Sons Elec. Co.,Inc., 102 AD3d at 209). Even so, the AppellateDivision “?’is vested with its own discretion andcorresponding power to substitute its own discre-tion for that of the trial court, even in the absenceof abuse’?” (Arpino v F.J.F. & Sons Elec. Co.,Inc., 102 AD3d at 209, quoting Those CertainUnderwriters at Lloyds, London v OccidentalGems, Inc., 11 NY3d 843, 845 [2008]). In deter-mining the appropriate sanction to impose, we areguided by CPLR 3126, which permits courts to,among other things, “order that the issues towhich the information is relevant shall be deemedresolved for purposes of the action in accordancewith the claims of the party obtaining the order”(CPLR 3126 [1]), issue a preclusion order(see CPLR 3126 [2]), or strike a pleading(seeCPLR 3126 [3]). The striking of a pleading isa drastic remedy that may only be warranted upona clear showing that the failure to comply withdiscovery demands or court-ordered discoverywas willful and contumacious (see Lazar,Sanders, Thaler & Assoc., LLP v Lazar, 131AD3d at 1133; Brandenburg v County of Rock-land Sewer Dist. #1, State of N.Y., 127 AD3d at681; Arpino v F.J.F. & Sons Elec. Co., Inc., 102AD3d at 210). Although not expressly set forth asa sanction under CPLR 3126, we have held thatthe imposition of a monetary sanction underCPLR 3126 may be appropriate to compensatecounsel or a party for the time expended and costsincurred in connection with an offending party’sfailure to fully and timely comply with court-or-dered disclosure (see Knoch v City of New York,109 AD3d 459 [2013]; Friedman, Harfenist,Langer & Kraut v Rosenthal, 79 AD3d 798, 801[2010]; O’Neill v Ho, 28 AD3d 626, 627 [2006]).Here, contrary to the Supreme Court’s deter-mination, we find that the imposition of mone-tary sanctions was insufficient to punish thedefendants and their counsel for their willfuland contumacious conduct in failing to timelyand fully respond to discovery demands andcourt orders. Accordingly, the court shouldhave granted that branch of the plaintiff’s mo-tion which was to strike the defendants’ an-swers.

Borgia v Rothberg, 2017 NY Slip Op 02401.

Adverse Event Reports. Discoverable.

Following two cataract surgeries, defendantcorresponded with the manufacturer of the lensesused during the surgeries. Plaintiff demanded thecorrespondence. Defendant moved for a protec-tive Order, claiming that the documents constitut-ed voluntary adverse event reports by a physician,and were thus entitled to be protected from dis-closure under 21 USC 360i(b)(3)(C). The Courtinitially granted defendant’s motion for a protec-tive order. However, after defendant’s deposition,plaintiff moved to renew based upon new facts,and upon renewal, the court granted disclosure ofthe correspondence.

The Appellate Court affirmed, holding that theadverse event reports were discoverable.

As is relevant to this appeal, the plaintiffdemonstrated new facts unavailable to him atthe time of the defendant’s motion for a pro-tective order; to wit, the defendant’s testimonyat his deposition that he did not recall submit-ting the Alcon documents to anyone other thanAlcon, and had “no idea” whether the documentswere submitted to the Secretary of Health andHuman Services. The defendant further testifiedto his opinion, with a reasonable degree of med-ical certainty, that the first lens implanted did notcause serious illness or injury to the plaintiff; thedefendant’s counsel stipulated that if the lens didnot cause a serious injury or condition, it did notcontribute to it. The defendant had no opinionwith regard to the second lens. The defendant’stestimony constituted new facts that would have

changed the prior determination protecting theAlcon documents from disclosure, as the testimo-ny demonstrated that the Alcon documents do notfall within the ambit of 21 USC § 360i(b), whichprotects certain documents from disclosure.Specifically, the Alcon documents do not consti-tute “user reports,” as that term is used in 21 USC§ 360i(b). In fact, the defendant’s testimonydemonstrated that the Alcon documents do not“reasonably suggest[ ]” that the implants causedor contributed to a serious illness or injury (21USC § 360i[b][1][B][i]). Thus, contrary to the de-fendant’s contention, the Alcon documents do notqualify as “report[s] made under paragraph (1) [of21 USC § 360i(b)]” (21 USC § 360i[b][3]), whichaddresses reports a user device facility is requiredto make regarding “information that reasonablysuggests that a device has or may have caused orcontributed to the serious illness of, or serious in-jury to, a patient of the facility, or . . . other sig-nificant adverse device experiences as determinedby the Secretary by regulation to be necessary tobe reported” (21 USC § 360i[b][1][B]; see gener-ally Kubicki on behalf of Kubicki v Medtronic,307 FRD 291, 298 [D DC]).

Kleinman v North Shore Univ. Hosp., 2017NY Slip Op 01543.

Defendants’ Motion for Summary Judgmentwas denied, as they failed to make a prima facieshowing of entitlement to relief. In this respect,the expert affidavit which they submitted conflict-ed with the medical records in question.

With respect to the cause of action allegingmedical malpractice, the defendants failed [*2]toestablish their prima facie entitlement to judgmentas a matter of law. Specifically, in response to theplaintiff’s allegation that the defendants negli-gently failed to diagnose and treat his ACS, thedefendants’ expert, a board certified surgeon,opined that the plaintiff “never had ACS while ad-mitted to North Shore in July 2009” and that a di-agnosis of ACS had been “completely ruled out asthe cause of [the plaintiff’s] problems by 9 a.m. onJuly 4th.” As the plaintiff correctly points out,however, the expert’s opinion is contradicted bymedical records from July 4, July 6, and July 9,2009, as well as the plaintiff’s discharge summa-ry, which was electronically signed by DeNoto

himself on May 27, 2010, all of which refer to theplaintiff as having ACS. Accordingly, the defen-dants’ expert opinion was insufficient to establishthe defendants’ prima facie entitlement to judg-ment as a matter of law dismissing the medicalmalpractice cause of action, and that branch of themotion should have been denied regardless of thesufficiency of the plaintiff’s opposing papers (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d851, 853; Smalls v Mercy Med. Ctr., 50 AD3d670, 671).

Henry v Sunrise Manor Ctr. for Nursing &Rehabilitation, 2017 NY Slip Op 00634 [147AD3d 739].

Summary Judgment denied: Although defen-dant nursing facility made a prima facie showingof entitlement to judgment with respect to themedical malpractice and wrongful death causes ofaction by submitting a proper, detailed physi-cians’ affidavit, plaintiff raised a question of factthrough their own expert affidavit. With respect toplaintiffs’ expert affidavit, the Court notedas follows:

The plaintiff’s expert opined that SunriseManor deviated from the standard of care by,among other things, failing to inform the dece-dent’s attending physician of the decedent’s 100.7degree fever, and that Sunrise Manor’s deviations“resulted in a failure to implement the proper fol-low-up testing and assessment that would havelead to a diagnosis of recurrent urinary tract in-fection and sepsis.” The plaintiff’s expert opinedthat the failure to timely respond to the decedent’ssymptoms of infection was a proximate cause ofhis death. “Summary judgment is not appropriatein a medical malpractice action where the partiesadduce conflicting medical expert opinions”(Feinberg v Feit, 23 AD3d 517, 519 [2005]; seeKaous v Lutheran Med. Ctr., 138 AD3d 1065,1067 [2016]; Bengston v Wang, 41 AD3d 625,626 [2007]). Accordingly, the Supreme Courtproperly denied that branch of Sunrise Manor’smotion which was for summary judgment dis-missing the first cause of action, which was to re-cover damages for medical malpractice andwrongful death, insofar as asserted against it.

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Page 10, BROOKLYN BARRISTER SUMMER, 2017

Memoli v Winthrop-University Hosp., 2017NY Slip Op 01192 [147 AD3d 931].

Summary Judgment Denied. Neurologistmay render opinion against neurosurgeon withrespect to the post-operative standard of care.

Plaintiff was admitted to defendant hospital onOctober 12, 2008, and given sequential compres-sion devices on her legs to improve blood flowand reduce the risk of deep vein thrombosis(DVT). On October 15, surgery was performed toremove a colloid cyst. Post-operative orders in-cluded continuation of the sequential compressiondevices, as well as prophylactic administration ofheparin to prevent DVT. On October 20, in antic-ipation of removing a drain, the heparin was dis-continued. The drain was removed on October 21,but heparin was not reinstated thereafter. Decedentdied on October 24 of a pulmonary embolism.

Defendant moved for Summary Judgment,and submitted an affidavit from an expert neuro-surgeon stating that there was no consensus in theneurosurgery community concerning whether an-ticoagulants should be given after a neurosurgicalprocedure, as it may increase the risk of brainbleed. Nonetheless defendants’ Motion was de-nied, with the Court noting as follows:

In opposition, however, the plaintiff’s un-named expert, a board certified neurologist, raisedtriable issues of fact. Contrary to the neurologydefendants’ contention, the Supreme Court prop-erly found the plaintiff’s expert to be qualified torender an opinion as to the relevant post-operativestandard of care (see Lopez v Gramuglia, 133AD3d 424 [2015]). Based, inter alia, on a reviewof the decedent’s medical records, the plaintiff’sexpert opined that the decedent’s condition hadnot improved to the point where heparin was nolonger needed, thereby raising triable issues offact as to whether Tessler properly evaluated thedecedent’s risk factors for developing DVT (seeKitt v Okonta, 143 AD3d 601 [2016]; Matos vKhan, 119 AD3d 909 [2014]).

Cummings v Brooklyn Hosp. Ctr., 2017 NYSlip Op 01178 [147 AD3d 902].

Plaintiff’s decedent, who had been bedboundsince 2000, was admitted to defendant BrooklynHospital in 2006. During the admission she de-veloped a stage IV sacral decubitus ulcer. Plaintiffsued Brooklyn Hospital at Lenox Hill Hospital, towhich she had been transferred to, claiming theyhad failed to properly monitor, treat and preventher numerous pressure ulcers.

Defendants moved for Summary Judgment,and supported their Motions with separate physi-cians’ affidavits. Defendants’ motions were de-nied, with the Court noting as follows:

In opposition, the plaintiff raised a triableissue of fact by submitting an expert affirmationfrom a physician, who opined with a reasonabledegree of medical certainty that the defendantsdeparted from the accepted standard of care (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324[1986]). Contrary to the defendants’ contention,the plaintiff’s expert was qualified to render anopinion on the standard of care for the plaintiff’sdecedent. The plaintiff’s expert affirmed that shewas “thoroughly familiar with the standards forthe prevention and treatment of decubitus ulcersand skin ulcers existing for the dates of the ad-missions to the hospitals in this action” and sup-ported her statements as to the standard of care ap-plicable in this case with numerous medical jour-nals and textbooks, excerpts from which were at-tached to her affirmation as exhibits. “Any lack ofskill or expertise” that the plaintiff’s expert mayhave had “goes to the weight of his or her opinionas evidence, not its admissibility” (Erbstein vSavasatit, 274 AD2d 445, 445 [2000]).

Mackauer v Parikh, 2017 NY Slip Op 01847.

Defendant gastroenterologist performed acolonoscopy on April 13, 2009. Eight days later,plaintiff allegedly presented in a highly emotionalstate, and defendant referred him for a psychiatricevaluation. Two days after that, he was diagnosedwith a perforated appendicitis.

Plaintiff sued, initially claiming that defendanthad perforated his appendix during the April 13colonoscopy. Plaintiff testified that on the April 21visit, he was complaining of severe pain, and wasgray and sweating, but defendant refused to per-form an exam. He acknowledged that he was veryemotional, and attributed it to the extent of his ab-dominal pain.

On April 29, 2014, one day before filing aNote of Issue, plaintiff served a SupplementalBill of Particulars alleging additional theoriesof malpractice, including the failure to per-form a physical evaluation on April 21, negli-gently attributing his abdominal pain to a psy-chotic episode, failure to refer to the emer-gency room, refusing to evaluate him, allowinghis condition to worsen, and failure to conducttests to determine the cause of his abdominalpain.

Defendants’ Motion for Summary Judgmentwas denied. With respect to plaintiff’s Opposition,the Court noted as follows:

In opposition, the plaintiff raised a triableissue of fact (see Zuckerman v City of NewYork, 49 NY2d 557, 562) through the submissionof, inter alia, the expert affirmation of Dr. DavidZimmon, a gastroenterologist. Although Zimmonacknowledged that the plaintiff’s appendix wasnot perforated during the colonoscopy, he opinedthat Parikh departed from the standard of care byfailing to diagnose the plaintiff with appendicitisduring the April 21, 2009, follow-up visit, and thatthis departure directly caused the plaintiff to suf-fer severe complications associated with a perfo-rated appendix. Zimmon disagreed with Gren-dell’s conclusion that the plaintiff did not exhibitany signs or symptoms of appendicitis on April21, 2009, noting that, based upon his review of theplaintiff’s and Mackauer’s deposition testimony,there was a question as to whether Parikh actual-ly examined the plaintiff at all on that date. Zim-mon opined: “The type of severe pain the plaintifffelt on April 21st, is evidence of an obstructed ap-pendix before rupture or abscess formation.” Con-sidering the progression of the plaintiff’s appen-dix rupture and early abscess formation shortlyafter his admission to Staten Island UniversityHospital, Zimmon concluded that an earlier diag-nosis would have led to a better outcome for theplaintiff.

With respect to plaintiff’s alleged delay inamending his Bills of Particulars, and the adequa-cy of the allegations therein the Court held as fol-lows:

The defendant’s contentions regarding theplaintiff’s delay in amending his bill of particularsare misplaced. While it is true that “once discov-ery has been completed and the case has been cer-tified as ready for trial, [a] party will not be per-mitted to amend the bill of particulars except upona showing of special and extraordinary circum-stances’” (Schreiber-Cross v State of NewYork, 57 AD3d 881, 884, quoting McLeod vDuffy, 53 AD2d 1011, 1012), no such showing isrequired where a bill of particulars is amended asof right before the note of issue and certificate ofreadiness have been filed. The as-of-right amend-ment of a bill of particulars has been appropriate-ly compared to the as-of-right amendment of apleading: “Presumably this amendment [pursuantto CPLR 3042(b)] can make any change in thebill, just as an amendment as of course can makeany change in a pleading under CPLR 3025(a).But the latter is restricted in time to the outset ofthe action while CPLR 3042(b) keeps the bill’samendment time open during the whole pre-noteof issue period” (Siegel, NY Prac § 240 [5th edJan. 2017 update]).

Additionally, we disagree with the conclusionof our dissenting colleagues that the plaintiff’ssupplemental bill of particulars failed to place thedefendants on notice of his theory that Parikh de-parted from the accepted standard of care by fail-ing to diagnose the plaintiff with appendicitis atthe April 21, 2009, follow-up visit. Despite theabsence of the word “appendicitis,” the sup-plemental bill of particulars adequately setsforth an alternate theory that Parikh deviatedfrom the accepted standard of care on April 21,

2009, by failing to perform a more thoroughevaluation or to diagnose the source of theplaintiff’s abdominal pain. While the dissentconcludes that the supplemental bill did not placethe defendants on notice that this failure-to-diag-nose theory was “free-standing” from the plain-tiff’s theory that the appendix was perforated dur-ing the April 13, 2009, colonoscopy, this is a dis-tinction without a difference, as a plaintiff is per-mitted to pursue [*4]independent and overlappingtheories of liability, with each discrete departurerequiring separate consideration by a jury (seeSteidel v County of Nassau,182 AD2d 809,813; see also Davis v Caldwell,54 NY2d 176;NY PJI 2:150, Comment, Caveat 1).

DiLorenzo v Zaso, 2017 NY Slip Op 02402.

Summary Judgment was granted as to Dr.Zaso, Dr. Gottlieb, and the hospital. With respectto Dr. Zaso, plaintiff’s expert affidavit failed toraise a question of fact on causation, as it did notaddress defendant’s arguments on causation. Withrespect to the hospital and Dr. Gottlieb, plaintiff’sexpert affidavit was of no probative value, as theissues in the case dealt with the specialty of Pedi-atric Rheumatology, and plaintiff submitted an af-fidavit from a pediatric neurologist.

Kerrins v South Nassau Communities Hosp.,2017 NY Slip Op 01683.

Defendants’ Motions for Summary Judgmentwere granted, as plaintiffs’ expert affidavit wasconclusory, speculative, and unsupported by theevidence.

Hernandez v Nwaishienyi,2017 NY Slip Op01539.

Defendants’ Motions for Summary Judgmentwere granted, as plaintiffs’ expert affidavit wasconclusory and speculative.

Golan v North Shore-Long Is. Jewish HealthSys., Inc.,2017 NY Slip Op 01342 [147 AD3d1031].

In this surgical malpractice case plaintiffmoved to impose sanctions upon the defendantsfor the willful spoliation and destruction of evi-dence, to the extent of precluding them from con-testing that a suture failed for any reason otherthan the actions of the defendant surgeon. Thesurgeon had discarded the suture following the re-pair surgery.

The trial Court granted plaintiff’s Motion, butthe Second Department reversed, holding as fol-lows:

The plaintiff moved to impose sanctionsagainst the defendants based on spoliation of evi-dence, contending that the destruction of the brokensuture deprived her of vital evidence necessary torespond to any defense claim that a defective su-ture or other force was the cause of the failedanastomosis and not a departure from good med-ical and surgical care. In response to the plaintiff’smotion, the defendants submitted the affirmationof a medical expert, who opined that the defen-dants did not depart from the standard of care bydiscarding the broken suture and that preservationof the broken suture was immaterial to determin-ing the cause of the failed anastomosis.

Under the circumstances presented, theSupreme Court improvidently exercised itsdiscretion in granting the plaintiff’s motion toimpose sanctions against the defendants forthe wilful spoliation and destruction of evi-dence, as the plaintiff failed to demonstratethat the defendants were obligated to preservethe broken suture at the time of its destruction,that the suture was destroyed with a “culpablestate of mind,” and/or that the destroyed suturewas relevant to the plaintiff’s claim (Pegasus Avi-ation I, Inc. v Varig Logistica S.A., 26 NY3d at547; see Geffner v North Shore Univ. Hosp., 57AD3d 839 [2008]; Diaz v Rose, 40 AD3d429 [2007]; Hemingway v New York City Health& Hosps. Corp., 13 AD3d 484 [2004]; Iannucci vRose, 8 AD3d 437 [2004]; cf. Coleman v PutnamHosp. Ctr., 74 AD3d 1009 [2010]). In any event,

the plaintiff failed to establish that the defendantswere on notice that the suture might be needed forfuture litigation (see Weiss v Bellevue MaternityHosp., 121 AD3d 1480 [2014]; Diaz v Rose, 40AD3d 429 [2007]; cf. Ortiz v Bajwa Dev. Corp.,89 AD3d 999 [2011]). Chambers, J.P., Hall,Miller and Connolly, JJ., concur.

Pieter v Polin,2017 NY Slip Op 02455.

The trial Court dismissed plaintiff’s claim atthe close of her case, noting as follows:

Here, the plaintiff failed to adduce expert tes-timony to establish the standards of care applica-ble to the performance and interpretation of car-diac diagnostics tests and the development andexecution of treatment plans; that the defendantsdeparted from good and accepted practice in in-terpreting the results of the catheterizations, inmaking the determination to proceed with bypasssurgery, or in performing the surgery; or that theperformance of a second catheterization or thefailure to perform an intravascular ultrasoundproximately caused her injuries. The plaintiff,therefore, failed to establish a prima facie case ofmedical malpractice (see Brown v Shah, 109AD3d at 949; Perricone-Bernovich v Gentle Den-tal, 60 AD3d 744, 745; Deadwyler v North ShoreUniv. Hosp. at Plainview, 55 AD3d at781; Godlewska v Niznikiewicz, 8 AD3d 430,431).

The plaintiff also failed to establish a primafacie case of lack of informed consent due to thelack of any expert testimony adduced during hercase in support of the alleged qualitative insuffi-ciency of her consent (seeCPLR 4401; Orphan vPilnik, 15 NY3d 907, 908; Deadwyler v NorthShore Univ. Hosp. at Plainview, 55 AD3d at 781).

Marx v Rosalind & Joseph Gurwin JewishGeriatric Ctr. of Long Is., Inc.,2017 NY Slip Op01545.

Plaintiff alleged that decedent developed astage four pressure ulcer on her left heel. At trial,defense counsel continually cross examined theplaintiff about decedent’s prior admission toSouth Oaks Psychiatric Facility, over repeatedlysustained objections, and despite the plaintiff tes-tifying that she had no recollection of such an ad-mission. The Court declared a mistrial, findingthat the cross examination prejudiced the plaintiffand poisoned the jury, and sanctioned defensecounsel for engaging in frivolous conduct, be-cause there was no legal basis for continuing theline of questioning.

The Second Department reversed, holding asfollows:

Here, SanDonato’s cross-examination of theplaintiff regarding the decedent’s prior hospital-ization at South Oaks had a good faith basis in therecord that was before the trial court and was notfrivolous. At the beginning of the trial, the partiesstipulated to the admission into evidence of thedecedent’s medical records, which included a dis-charge summary from Brunswick Hospital Center(hereinafter Brunswick). The discharge summaryindicated that the decedent had been transferred toBrunswick from “South Oaks Psychiatric Facili-ty.” Further, under the circumstances of this case,the decedent’s prior hospitalization at South Oakshad some relevance in light of the parties’openingstatements. Accordingly, the Supreme Court im-providently exercised its discretion in awardingcosts to the plaintiff pursuant to 22 NYCRR 130-1.1 (see Hill v Arnold, 226 AD2d 232).

Continued from page 9

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Medical Malpractice Update

SUMMER, 2017 BROOKLYN BARRISTER, Page 11

Business and Commercial Litigation in Federal CourtsA BOOK REVIEW by Mark Longo, Esq.

For so many of us who practice primari-ly in state court, the prospect of litigatinga commercial matter in the federal courtscan present itself as a daunting experi-ence, kind of like going to the “Big Show”where it seems as If every Judge and mag-istrate judge has her or his own set ofrules governing their respective domainsor whether we wind up there when a casewe have initially brought in state courtquali fies for removal to a District Court atthe opt ion of another party, thereby tak-ing us out of our usual comfort zone.

Another plausible reason for why liti-gating in the federal court can be fraughtwith trepidation is that whether you repre-sent a plaintiff or a petitioner, a defendantor a respondent, the practitioner Is andmust be aware that discovery dates anddeadlines are more strictly construed thereso that a missed date by which to producedocumentat ion or records or the failure toconduct a deposit ion as directed mightwell lead to a waiver of a right or a de-fense thereby creating an ethical issue forthe practicing attorney.

Having said all that, there are a lot ofgood things to say about litigating in fed-eral court when we have the option to do

so, beyond the jurisdictional reasons forbringing an action there based solely uponits subject matter, since cases of whatevernature or sort generally move along morepromptly through the litigation processdue to a lower volume of case filingsand/or more litigation support within thesystem which translates to more hands-onattention — and therefore more efficiencyand an earlier resolution.

Of great assistance on both the proce-dural and substantive levels in navigatingthe nuances of modern federal commer-cial litigation Is the Fourth Edition ofBusiness and Commercial Litigation inFederal Courts of which Robert L. Haig,Esq, is Editor -in-Chief.

His perception of the philosophy, ifyou will, of effective legal scholarship hasIn the past gained him significant recogni-tion from within our profession by em-phasizing a “ how -to “ approach that as-sists the lawyer in getting the job done ef-fectively and successfully by a meld ingof the theoretical with the practical.

In the past, the range of topics in thiscompendium have run the gamut of whatone might expect from pre-suit Issues pre-sented in determining whether to accept acase, initial client Intake, all aspects ofmotion practice, resort to Magistrate

Judges and Special Masters, DeclaratoryJudgments, selection of expert wit nesses,negotiations, settlement, the trial and thepost.trial and beyond· and is impressivelyexhaustive.

In addition, virtually every substan-tive law area In the field Is explored Indetail in a way that Is readily understand-able, in no small part because its writersapproach the subject matters after yearsof experience laboring, as they say, in thet renches.

As in the first three editions, Mr. Haig,a partner in the law flrrn of Kelley Drye& Warren in Manhattan, brings togetherthe collective wisdom of both renownedjurists and seasoned practitioners in thecommercial litigation bar to guide usthrough the technical, and Importantly,the practical aspects of handling a casefrom pre-incept ion through appeals. Thisis accomplished not only by the use oftexts on substantive law topics and theprocedural aspects involved but by pro-viding roadrnaps relating to client coun-seling and checklists that address issuessuch as proof of essential allegations anddefenses. Also included in this veritablewealth of inforrnation are litigationforms, checklists and jury instructionsprovided on a separate CD-ROM for

quick and easy reference .

The Fourth Edition of this uniquelyconceived treatise consists of what hasnow grown to a fourteen volume com-pendium consisting of 153 chapters creat-ed by 296 authors, 27 of whom arejudges, and will again be supplementedby annual Pocket Parts as commerciallaw and Its practice continues its rapidpace of evolution, The twenty-five newchapters that have now been added ad-dress developing specialties as diverse asSocial Media, Advertising Media andPublishing, Marketing to Potential Busi-ness Clients, Civil Rights, Health CareInstitutions, Telephone Consurner Protec-tion Act, Fiduciary Duty Litigation, CivilJustice Reform and Fashion and Ret ail.

Whether you are contemplating aforay into the realm of federal commer-cial lit igation, whether you are already athome there or whether you want to beable to simply access its wealth of knowl-edge by being able to effectively respondto a pre -retention inquiry from aprospective client in a specific specialty,the technical meets the every-day practi-cal In the Fourth Edition of Business andCommercial Litigation in Federal Courtsand should be made a part of everyone’slegal arsenal in this practice area.

Robert L. Haig, Editor in Chief

Brooklyn Bar Association past President Arthur Aidala receives the Closest to the Pin trophyfrom current President Frank Seddio. See page 12.

Late Judge Ted Jones RememberedDuring BBA’s Fifth Annual Golf Outing

Page 12, BROOKLYN BARRISTER SUMMER, 2017

Members of the Brooklyn Bar Associa-tion (BBA) doffed their pinstripes for golfcleats to participate in the fifth annualHonorable Theodore T. Jones Jr. MemorialGolf Outing at the Colonia Country Club inColonia, New Jersey.

Jones, who was a helicopter pilot duringthe Vietnam War from 1967 to 1969, diedunexpectedly in 2012 after a distinguishedcareer that saw him rise to New York state’shighest court prior to his death.

“He was a good man and a great judge,”BBA President Frank Seddio told the audi-ence. “But what I liked about him the most isthat he never forgot where he came from …Brooklyn was always in his heart, and heloved it.”

Every year for the past five years, theBBA leaves Brooklyn and heads to Jersey toplay a round at Colonia, the judge’s favoritecourse. The memorial tournament helps theBBA Foundation to raise money which ituses for scholarships for Brooklyn LawSchool students.

Jones, a graduate of Hampton Universityand St. John’s University, started his legalcareer with the Legal Aid Society before hemoved to private practice in BrooklynHeights. In 1989, he was elected to the KingsCounty Supreme Court where he eventuallywas named administrative judge for the civilterm. In 2007, he was appointed by Gov.Eliot Spitzer to the New York State Court ofAppeals.

After his appointment to the Court ofAppeals, Jones co-chaired the Justice TaskForce, studying the causes and effects ofwrongful convictions. Task Force recom-mendations included enlarging the New Yorkstate DNA database, making videotapingcustodial interrogations, allowing greateraccess to forensic case materials, improvingdiscovery reform and performing line upidentifications supervised by a detectivewho does not know which individual is thesuspect.

One of Jones’ most prominent casesinvolved the 2005 New York City transitstrike, during which he fined TransitWorkers Local 100 $1 million per day fordefying his injunction against publicemployees striking and jailed local leaderRoger Touissant for contempt of court.

The Metropolitan Black Bar Associationsponsors the Hon. Theodore T. Jones TrialAdvocacy Workshop to train attorneys incourtroom methods such as jury selection,direct and cross-examinations and summations.

Late Judge Ted Jones

RememberedDuring BBA’sFifth Annual Golf Outing

Third place trophies were awarded to pictured fro left Mi hael Markus, Judge Lenny Austin, Frank Corone a d Brookly Bar Associatio Presi-de t Hon. Frank Seddio. Sta di g i the ackgrou d is BBA E ecutive Director Avery Okin. Eagle photos y A dy Katz

Fro left: Joseph Ba ellieri, Mi hael Magliano, Vin ent S iortino a d George Silver.

The Brookly Bar Associatio was i New Jersey o Mo day for its a ual Theodore T. Jo esMe orial Golf Outi g. Pictured here is BBA Preside t Hon. Frank Seddio with Mark I. Horo itz.

Fro left: Ji Caffrey a d Greg Elefterakis.

By: Andy Katz,Brooklyn Daily Eagle

Fro left: Joan Jones, the late JudgeTheodore Jo es Jr.’s widow, helps BrooklyBar Associatio E ecutive Director Avery EliOkin prese t a gift to Rob Evangelista.