The ‘Guru’ of No-Fault Law asked to teach new judges all ... · ©2012 Brooklyn Bar Association JANUARY 2012 VOL. 64 NO. 4 “A smart person knows that a tomato is a fruit; a

JANUARY 2012©2012 Brooklyn Bar Association VOL. 64 NO. 4

“A smart person knows that a tomato is afruit; a wise one knows not to put it in a fruitsalad.” That was just one of the many pearls ofwisdom given to the nearly 700 attendees fromthe dais at the Brooklyn Bar Association An-nual Foundation Dinner on December 5, 2011.Once again, the dinner was a huge success,drawing lawyers from diverse private practiceareas, the court system and the government.

Our Judiciary was well represented as always,including Judges from the Civil Court, theFamily Court, the Supreme Court, the Appel-late Divisions and the Court of Appeals. Thisformal affair at the Brooklyn Marriot is alwaysa fantastic opportunity for the members of thelegal community to dress up, get together andenjoy the fantastic food and drink at theBrooklyn Marriott Hotel. But that is not theonly reason for the gathering! We also cometogether yearly, as members of the bar, to rec-

ognize the outstandingachievements of our Hon-orees, the members of ourvery own legal communi-ty who have distinguishedthemselves as attorneysand jurists.

This year, the associa-Please turn to page 6

By Aimee L. Richter, Esq.

Judge Sweeney was born in Brooklyn andgrew up in the Bay Ridge section. His mother,Lucille, was a homemaker. His father, EugeneSweeney, was a well-regarded defense attor-ney in Brooklyn; a “fixture” in the then-equiv-alent of the Brooklyn Trial Assignment Part(TAP). A veteran of World War II, EugeneSweeney was a bombardier in the Air Force;he also spent nine torturous months in a Naziprison camp after his plane was shot down.

Peter Sweeney went to Brooklyn Tech forhigh school and Marywood University in Scran-ton, Pennsylvania, majoring in political science.He attended law school at Catholic University inWashington, DC, obtaining his JD in 1985.

Judge Sweeney is married to his wife,Dorothy, and they have two children, Melanieand Jessica Casey. They reside in Staten Is-land. His sisters, Joanne and Jean, are both ex-ecutives with major banking institutions.

Peter loves cooking as a hobby. In hisyouth, he worked as a cook in a couple of Ital-ian restaurants.

After being admitted to the practice of law,Peter joined his father’s law firm in lowerManhattan, Sheft, Wright & Sweeney, as anassociate handling mainly defense work fordifferent insurance carriers. During the eightyears he worked at the firm, he handled all as-pects of the various litigation. He left the firmto become partners with Jeffrey Schwimmer,forming the law firm of Schwimmer &Sweeney. His new partnership focused moreon the plaintiff’s side of personal injury law,along with other types of cases that camethrough the door. He maintained his partner-ship for about nine years.

In 2001, Judge Sweeney decided to cam-paign for office, running for a Civil Courtseat. After he was elected, he sat for about twoweeks in Manhattan’s Civil Court until he“got the call” — Judge Karen Rothenbergneeded one of the newly-elected judges tocover matters in Kings County Civil Court,and he came back to Brooklyn.

As part of his tenure in Civil Court, JudgeSweeney sat on rotation in the four generalparts of the court (Small Claims, Pro Se, Mo-tions and Special Term II/Orders to ShowCause); he additionally sat in the CommercialLandlord-Tenant Part 52 on occasion. In 2009,Judge Sweeney was elevated to the position ofSupervising Judge of the Kings County CivilCourt after the prior Supervising Judge, Jus-tice Ellen Spodek, won election to the

Supreme Court. Around 2002, Judge Sweeney started re-

ceiving the occasional no-fault case for deci-sions; at first, he found the cases to be a nov-elty because there were so few of them. At thetime he left Civil Court, he estimated thatthere were at least 300 motions and 100 trialsa day of strictly no-fault cases. JudgeSweeney considers the no-fault cases to be the“hydrogen bomb” that hit the courts for thelast 6-7 years!

During his tenure in Civil Court, JudgeSweeney got to delve into the newish area ofno-fault law because so many medicalproviders decided to abandon no-fault arbitra-tions and, instead, bring lawsuits on theirclaims. In the beginning, there were very fewcourt decisions in this area of law and novellegal issues arose in each case. JudgeSweeney believes that no-fault was the“fastest growing” area of law ever, mainly be-cause there was very little case precedent towork with and there were literally hundreds ofcases passing by in any given month. Indeed,Judge Sweeney is most proud of the decisionshe has written in the no-fault area, includingone case with which every other court dis-agreed — until the New York State Court ofAppeals reversed and agreed with him! Whileserving as a Civil Court Judge, Sweeney wasasked to teach new judges all about no-faultThe ‘Guru’ of No-Fault Law

JUDICIAL PROFILE OF HON. PETER PAUL SWEENEY

By Richard A. Klass, Esq.

What’s InsideThe Docket

By Louise Feldman. . . . . . . . . Page 2New Members Novemberand December 2011 . . . . . . . . Page 2Legal Briefs

By Avery Eli Okin, Esq., CAE . . . . . . . . . . . . . . . . . . . . . . . . . Page 2Respectfully Submitted

By Ethan B. Gerber, Esq. . . . . Page 3Survey of Verdicts and Settlementsin Kings Supreme

By Hon. Donald Scott Kurtzand Michael Treybich, Esq. . Page 3

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

Roll CallBy Elena Popova, Esq. . . . . . . Page 5

Across My DeskBy Barton Slavin, Esq. . . . . . . Page 5

Annual Dinner Photographs. . . . . . . . . . . . . . . . . . . . . . Pages 6–8

Hon. Peter Paul Sweeney

Please turn to page 8

Honorees

Hon. Donald Scott Kurtz,

Hon. Plummer E. Lott

and retiree

Hon. Gerard H. Rosenberg

Brooklyn Bar Association Annual Foundation Dinner

Dinner Chair

Domenick Napoletano

welcoming the guests

Page 2, BROOKLYN BARRISTER JANUARY 2012

THE DOCKETIncluded below are events which have been scheduled for the period

January 16, 2012 through March 15, 2012 Compiled by Louise Feldman

January 16, 2012 Monday In observance of Martin Luther King Jr., Day, the Brooklyn Bar Association,Lawyer Referral Service andthe Volunteer Lawyer Projectwill be closed.

January 18, 2012 Wednesday Brooklyn Women’s BarAssociation Board MeetingBoard of Trustees Room5:00 P.M.

Brooklyn Women’s BarAssociation CLEAuditorium6:00 P.M.

January 19, 2012 Thursday Elder Law Committee Study GroupRear Conference Room1:00 P.M.

KCCBA Board MeetingBoard of Trustees Room5:00 P.M.

KCCBA CLEAuditorium6:00 P.M.

January 24, 2012 Tuesday American Inns of CourtAuditorium5:00 P.M.

Pro-Bono Committee MeetingBoard of Trustees Room6:00 P.M.

January 31, 2012 Tuesday CLE Real Property SectionAuditorium6:00 P.M.

February 1, 2012 Wednesday CLE Bankruptcy (VLP)Auditorium6:00 P.M.

February 15, 2012 Wednesday Brooklyn Women’s BarAssociation Board MeetingBoard of Trustees Room5:00 P.M.

CLE Bankruptcy (VLP)Auditorium6:00 P.M.

February 20, 2012 Monday In observance of President’s Day, the Brooklyn BarAssociation, Lawyer Referral Service and the Volunteer Lawyer Project will be closed.

February 28, 2012 Tuesday American Inns of CourtAuditorium5:00 P.M.

March 1, 2012 Thursday KCCBA Board MeetingBoard of Trustees Room5:00 P.M.

KCCBA CLEAuditorium6:00 P.M.

IF YOU HAVE ITEMS FOR INCLUSION IN THE DOCKET, PLEASE MAILOR FAX THEM TO LOUISE FELDMAN, BROOKLYN BAR ASSOCIATION,

123 REMSEN STREET, BROOKLYN, NEW YORK 11201. FAX NO.: (718-797-1713)

E-mail: [email protected]

BROOKLYN BAR ASSOCIATION2011-2012

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

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

Avery Eli Okin, Esq., CAEExecutive Director

CLASS OF 2012

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

CLASS OF 2013

David M. ChidekelArmena D. GayleSteven Jeffrey HarkavyAnthony J. LambertiHemalee J. PatelIsaac N. Tuchman

CLASS OF 2014

Theresa CiccottoPamela ElisofonFern FinkelDewey GolkinDino MastropietroSteven H. RichmanAimee L. Richter

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

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

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

TRUSTEES COUNCIL (Past Presidents)

TRUSTEES

LEGAL BRIEFSJudicial Recognition

Congratulations to Brooklyn Bar Associa-tion Trustee Carl Landicino who was electedto the Supreme Court, Kings County.

Congratulations to Brooklyn Bar Associa-tion members Hon. Johnny Baynes and Hon.Rachel Adams of the Civil Court who wereelected to the Supreme Court, Kings County.

Congratulations to Brooklyn Bar Associa-tion members Hon. David Friedman, Appel-late Division, First Department and Hon.Lawrence Knipel and Hon. Betsy Barros ontheir re-election to the Supreme Court, KingsCounty.

Congratulations to Brooklyn Bar Associa-tion member and Acting Supreme Court Jus-tice Hon. Peter Sweeney on his re-election tothe Civil Court of the City of New York.

Congratulations to Brooklyn Bar Associa-tion member Sharen Hudson who was elect-ed to the Civil Court of the City of New York.

Congratulations to Brooklyn Bar Associa-tion member Vincent J. Martorana who waselected to the District Court in Suffolk Coun-ty for a six year term.

Court of Appeals Associate JudgeTheodore T. Jones, Jr. was honored by theBeta Alpha Foundation, which was celebrat-ing 100 Years of Omega Psi Phi Fraternity,

Inc. at the 23rd Annual Scholarship Gala Lun-cheon held on November 19, 2011

Kudos and Professional RecognitionJoanne Minsky Cohen, was selected as

the 2011 Employee of the Year in the Brook-lyn Supreme Court. A court clerk since the1980’s Joanne Minsky Cohen was presentedwith a plaque at ceremony at the SupremeCourt, Kings County in October.

Brooklyn Bar Association Trustee StevenJeffrey Harkavy was honored on November16, 2011, as the East Brunswick Jewish Cen-ter Man of the Year at an award dinner spon-sored by the North New Jersey Federation.

BereavementsThe Brooklyn Bar Association extends its

deepest sympathy to Dewey Golkin and fam-ily on the passing of his mother-in-law, EdithConstantino, on December 4, 2011.

The Brooklyn Bar Association extends itsdeepest sympathy to the Lebowitz family onthe passing of Hon. Alan Lebowitz on De-cember 11, 2011.

Legal Briefs is compiled and written byAvery Eli Okin, Esq., CAE, the Executive Di-rector of the Brooklyn Bar Association and itsFoundation. Items for inclusion in “LegalBriefs” should be sent to [email protected], faxed to 718-797-1713 or mailed to123 Remsen Street, Brooklyn, NY 11201-4212.

NEW MEMBERS FOR NOVEMBER 2011& DECEMBER 2011

Michelle ArmstrongJason BeckermanErin Cummings

Judith Elsherbini

Olivia KrausRoy McKenzieJulie Mirman

David MorrissyLaura Outeda

Hal RoseAndrew Siegel

Brittiny SessionsPamela Walker

STUDENT MEMBERSQuincy Auger

Brionna DenbyAlberto Gonzalez

Naf KwunWilliam Neri

Stephanie Prignoff

Monique SterlingElizabeth VerilloElie Worenklein


JANUARY 2012 BROOKLYN BARRISTER, Page 3

Brooklyn Barrister is published by Everything Brooklyn Media, LLC, under the auspices of the Brooklyn Bar Association. For advertising information call (718) 422-7410. Mailing address 30 Henry Street, Brooklyn, New York 11201.Vol. 64 No. 4 January 2012. The Brooklyn Barrister (ISSN 007-232 USPS 066880) is published monthly except in August and December by the Brooklyn Bar Association. Office of publication is: Brooklyn Bar Association, 123 Remsen Street, Brooklyn,New York 11201-4212. Telephone No. (718) 624-0675. Periodical postage is paid in Brooklyn, New York and at additional mailing offices. Subscription price is $11.00 per year. POSTMASTER: Send address changes to the Brooklyn Barrister, 123 Rem-sen Street, Brooklyn, NY 11201-4212.

BROOKLYN BARRISTER EDITORIAL BOARDGlenn VerchickEditor-in-Chief

Diana J. SzochetManaging Editor

Hon. Barry KaminsAssociate Editor

Aimee L. RichterArticles Editor

Cecilia N. AnekweHon. Bruce M. BalterMarianne BertunaJaime J. BorerMark DiamondJason Eldridge

Paul S. ForsterHon. David FriedmanJason D. FriedmanMichael HernandezHon. Allen Hurkin TorresRichard KlassAnthony Lamberti

Susan MasterGregory MesserHemalee J. PatelElena PopovaRobert P. SantoriellaMichael TreybichShelly Werbel

As we all take our running dives into thefrigid waters of the New Year, I hope we all doso rested and relaxed from the holiday season.I, for one, feel that I am just emerging from amonth of festivities that officially began onDecember 5, 2011. For my family and formany Brooklyn Attorneys the season waskicked off with the famous Brooklyn Bar As-sociation Foundation’s fabulous AnnualAwards Dinner. Seven Hundred of our profes-sion joined us at the Marriot for a very mem-orable evening.

The dinner at the New York Marriot at theBrooklyn Bridge honored two outstanding Ju-rists — Associate Justice of the Appellate Di-vision, Second Department, the HonorablePlummer E. Lott and Supreme Court Justice,the Honorable Donald Scott Kurtz. The respectthat we and our colleagues have for thesejudges no doubt accounted for the large atten-dance. Not only did 700 people attend but newrecords were set in the amounts of donationsmade by Patrons (those who donated $2,500 ormore) and by Enhanced Sponsors (those whodonated $750). The dinner raised more thanwas anticipated in our budget and leaves us ina strong position as we enter 2012.

In previous columns I have described

some of the many benefits and vital servicesthe BBA provides. Our services benefit notjust our members but the entire Brooklyn andNew York City Community. On December21, 2011, I had the wonderful opportunityand privilege of participating in one of themany matters that make me proud to be amember and President of the Brooklyn BarAssociation: The annual Awards Ceremonyof the 100 Year Association. The 100 YearAssociation is an exclusive organizationcomprised of other associations, businessesand commissions which have all been in ex-istence for at least 100 years. As one of NewYork’s oldest Bar Associations, we are proudmembers of the 100 Year Association. TheBBA’s venerated Executive Director, AveryEli Okin is Chairman of the Awards commit-tee and had a place of honor on the dais alongwith Mayor Bloomberg and some of NewYork’s biggest and brightest stars. Theawards ceremony took place at One PolicePlaza and was held with the cooperation andpartnership of the Department for CitywideAdministrative Services. The Brooklyn BarAssociation gave two $2,000 scholar awardsto two promising and deserving young stu-dents — Desiree Daring of Williams Collegeand Riddhi Doshi of Stony Brook University.It was indeed a pleasure for me to hand theseawards to their recipients and a proud mo-

By Ethan B. Gerber, EsqPresident

ment for the BBA to have our Executive Di-rector in a leadership role in this prestigiousorganization.

Our Semi-annual dues statement containsa $100 request for a Special Contributionwhich is earmarked for the Association Build-ing Fund. If you stop by our building on Rem-sen Street, you will notice major changes areunder way — our building is finally getting amuch needed face lift in the form of repairs tothe façade and roof. These repairs were neces-sary and somewhat overdue. This is a majorundertaking which I urged our Board ofTrustees to approve and which they did so attheir December meeting. We are thankful toChairman of the Building Committee andTrustee Frank Carone for his diligence andtenacity in spearheading this project. Pleasesupport us and honor the request for theBuilding Fund. These repairs will leave ourbuilding, like our association, strong and for-midable for generations to come.

BROOKLYN BAR ASSOCIATION PRESIDENT

RESPECTFULLY SUBMITTED

President Ethan B. Gerber

The Following Attorneys WereDisbarred by Order of the Appellate

Division, Second Judicial Department:

Enid J. Cruz, also known as Enid Nale-rio, voluntary resignor (September 27, 2011)

By order of the Supreme Court of Floridadated August 18, 1988, the resignor was dis-barred in that State, based upon her neglectof legal matters entrusted to her. Respondentis aware that based upon her disbarment inFlorida she is subject to reciprocal disciplinein New York pursuant to 22 NYCRR 691.3and that there is a pending investigation bythe Grievance Committee for the Ninth Judi-cial District (“the Grievance Committee”)into allegations of her professional miscon-duct for failure to re-register as an attorneywith the Office of Court Administration(“OCA”) since 1990. Accordingly, the re-spondent tendered a resignation wherein sheacknowledged that she could not successful-ly defend herself on the merits againstcharges predicated upon the foregoing.

Ted Doumazios, a suspended attorney(October 18, 2011)

On December 15, 2010, the respondentpleaded guilty, in the United States DistrictCourt for the Eastern District of New York, toconspiracy to commit bank fraud and wire fraud,a felony in violation of 18 USC §§1343 and1344, and fraud by wire, a felony in violation of18 USC 1343. By virtue of his felony convic-tion, the respondent was automatically disbarred

and ceased to be an attorney pursuant to Judicia-ry Law §90(4)(a) as of December 15, 1010.

Leonanous A. Moore, admitted as Leo-nanous Australia Moore (November 15,2011)

By order of the Supreme Court of Georgiadated September 8, 2009, the respondent wasdisbarred in that State, based upon her neglectof legal matters entrusted to her and misap-propriation of funds entrusted to her as a fidu-ciary, inter alia. Upon the Grievance Com-mittee’s application for reciprocal disciplinepursuant to 22 NYCRR 691.3, the respondentwas disbarred in New York.

The Following Attorneys WereSuspended by Order Of The AppellateDivision, Second Judicial Department:

Charles Adam Willinger, a suspendedattorney (November 1, 2011)

Following a disciplinary hearing, the re-spondent was suspended from the practice oflaw in New York for a period of three years,effective immediately; upon a finding that hewas guilty of engaging in a pattern and prac-tice of neglecting matters entrusted to him andfailing to cooperate with the Grievance Com-mittee’s lawful demands.

Ralph E. Ciervo, admitted as Ralph Eu-gene Ciervo (November 2, 2011)

The respondent was suspended from the

Roll Call


Of Banquets, Bequests and Buildings


We hope that the shovels are ready, cal-cium chloride handy, and snow blowers gassedup for what we hope won’t, but expect will, bea moist and white winter. To while away theparalyzed hours we present some interestingcases and a New York State Department ofTaxation and Finance Advisory Opinion in-volving an additional probate filing fee beingdue where the Inventory of Assets listed realestate outside New York State in the decedent’sname alone which property was not includedon the original probate petition; the interest ofa decedent, a nonresident, in a revocable trust,holding an interest in a partnership owningNew York real property, being an intangibleand not includable in the decedent’s New Yorkgross estate for estate tax purposes; a maritalresidence still held by the decedent and hiswife as tenants by the entirety on the date ofhis death passing to the surviving spouse eventhough the parties had executed a separationagreement providing for the sales of the houseand an equal division of the proceeds; an estatenot being able to recover from a surviving jointtenant one half of the payments made by thedecedent for the purchase and upkeep of thesubject real estate; the unsealing of adoptionrecords in order to allow a nominated executorto locate the decedent’s biological daughter inorder to serve her with process in a probateproceeding; the invalidity of a purported exer-cise of a right of election under EPTL §5-1.1-A by a putative spouse whose divorce from hisprevious spouse had not been dissolved at thetime he had married the decedent; an unsuc-cessful attempt to bring a partition action in theSurrogate’s Court; and the dismissal of objec-tions to probate for respondent’s delay in seek-ing discovery.

Additional Probate Filing Fee dueWhere the Inventory of Assets Lists RealEstate outside New York State in the Dece-dent’s Name Alone Where the Property wasnot Included on the Original Probate Peti-tion — Counsel for the executor objected to arequest from the Court’s accounting depart-ment for the payment of an additional fee of$625.00 pursuant to 22 NYCCR 207.20 [d]upon the executor’s required filing of his “Listof Assets-Inventory” (22 NYCCR 207.20 [a]).The additional payment was requested basedupon the inclusion in the Inventory of Assetsof real property located in North Carolina. Theexecutor excluded that property from the grossvalue of the estate as reported on the probatepetition, when the value based fee was initial-ly calculated, because the form for that petitionrequired that improved and unimproved realproperty be listed only if it was located in NewYork State. The probate petition stated the ap-proximate value of decedent’s gross testamen-tary estate as greater than $250,000.00 but lessthan $500,000.00, requiring a filing fee of$625.00. The inclusion of the foreign realty inthe Inventory of Assets brought the total to$545,066.61, requiring a total fee under SCPA2402(7) of $1,250.00, causing the clerk to re-quest the additional probate filing fee. HOLD-ING — The additional probate filing fee re-quested by reason of the inclusion of the realestate in North Carolina was required to bepaid. The Court stated that pursuant to SCPA§725, the Uniform Rules provide for the filingof the List of Assets-Inventory (22 NYCCR207.20 [a]). As noted by the Court, the rulestates in part that the fiduciary or the attorneyof record shall furnish the court a list of assetsconstituting the gross estate for tax purposes,but separately listing those assets that eitherwere owned by the decedent individually in-cluding those in which the decedent has a par-tial interest, or were payable or transferrable tothe decedent’s estate; and those assets held intrust, those assets over which the decedent hadthe power to designate a beneficiary, jointlyowned property, and all other nonprobateproperty of the decedent. The Court added thatthe rule requires that if any additional filingfees are due, they are to be paid to the Court atthe time of the submission of the Inventory ofAssets. The Court pointed out that the basis for

the fees is found in SCPA §2402, which pro-vides that upon filing a petition to commence aproceeding for probate of a will the fee is to becomputed initially upon the gross estate pass-ing by will as stated in the petition, but that ifthe value of the estate as subsequently shownby a tax return filed under article twenty six ofthe tax law, by a proceeding under such article,by any proceeding in surrogate’s court involv-ing such estate, or by such papers or docu-ments in connection with such estate as courtrules may require to be filed with the court, ex-ceeds the value originally stated and uponwhich the fee was paid, then an additional pro-bate fee must be paid immediately. The Courtadded that such additional fee is the differencebetween the fee based on the value subse-quently shown and the fee which was initiallypaid. The Court found no basis for excludingnon-New York real property from the valua-tion of the gross estate passing by will, and thatthe section specifically required the collectionof the additional fee upon the filing of the In-ventory of Assets, as contemplated by SCPA§725. The Court did not find official form P-1(Probate Petition), paragraph 9(a) of whichreads as follows: (a) To the best of the knowl-edge of the undersigned, the approximate totalvalue of all property constituting the dece-dent’s gross testamentary estate is greater than$_________ but less than $____________;Personal Property $__________ Improved realproperty in New York State $___________Unimproved property in New York State$___________ Estimated gross rents for a pe-riod of 18 months $____________, as eitherintending or requiring exclusion of non-NewYork State realty from the valuation of thedecedent’s gross testamentary estate. TheCourt noted that the form does not have anentry for either all real property or all non-NewYork realty, nor instructions to omit non-NewYork realty from the petitioner’s estimate ofthe total value of all property constituting thedecedent’s gross testamentary estate. In theCourt’s view, the initial probate fee is basedupon the petitioner’s estimate of the value ofthe gross testamentary estate required by thefirst sentence of paragraph 9 (a). The Courtfound unclear from either the form or thestatute the purpose of the additional informa-tion required in the probate petition concerningthe New York State real property. The Courtacknowledged that the language used in the of-ficial form for a probate petition suggests thata distinction should be drawn between realproperty located within and without New YorkState, but held that there is no statutory direc-tion as to the significance of the distinction.The Court determined that SCPA §2402 re-quires that the probate fee be computed basedupon the gross value of the estate passing bywill, with an initial valuation at the time of theprobate filing and a subsequent valuation thatmay require an additional probate filing fee.The Court pointed out that SCPA §725 author-izes the chief administrator to promulgate rulesto assure that the proper fee is ultimately paid,and that 22 NYCCR 207.20 was adopted to ac-complish that purpose. The Court determinedthat the out-of-state property properly is to beincluded because it is part of the decedent’staxable estate. The Court ruled that as the ini-tial probate fee paid only was $625.00, theclerk was mandated to collect an additionalprobate filing fee of $625.00, upon the filing ofthe Inventory of Assets. Matter of Piccolo,N.Y.L.J. 11/21/11, p. 17, c. 2 (Surr. Ct., NassauCo., Surr. McCarty)

The Interest of a Decedent, a Nonresi-dent, in a Revocable Trust, Holding an In-terest in a Partnership Owning New YorkReal Property, is an Intangible and is notIncludable in the Decedent’s New YorkGross Estate — The Department of Taxationand Finance received a Petition for AdvisoryOpinion asking whether the interest of thedecedent, a nonresident, in a revocable trust,which held an interest in a partnership owningNew York real property constituted an intangi-ble and thus was not to be included in the dece-dent’s New York gross estate for purposes ofNew York’s estate tax. Petitioner maintainedthat, at the time of her death, decedent was a

resident and domiciliary of Virginia, com-mencing in 2006. Thereafter decedent did notmaintain any residence in the State of NewYork. Decedent had established a revocabletrust in 1997. The Trust was the owner of a 1/2interest in a general partnership, which interestwas transferred to the trust by the decedent in2002. The partnership owned eight coopera-tive apartments in Brooklyn, New York. Theeight apartments were rented to persons unre-lated to the decedent or any other partners. Thepartnership filed federal and New York Statepartnership tax returns and issued form K-1 toits partners. Decedent owned no real propertyor tangible personal property in the State ofNew York. OPINION — The revocable trustconstituted an intangible and thus did not forma part of the decedent’s gross estate for NewYork State Estate Tax purposes. According tothe opinion, the New York State Tax Law im-poses an estate tax, the measure of which is themaximum allowable Federal state death taxcredit under the Internal Revenue Code (IRC)as amended through July 22, 1998. The opin-ion stated that in the case of a non-resident, thetax is calculated by multiplying the amount ofthe maximum state death tax credit by a frac-tion, the numerator of which is the decedent’sNew York State gross estate and the denomi-nator of which is the decedent’s Federal grossestate. The opinion continued that a non-resi-dent decedent’s New York State gross estate isequal to the tangible personal and real proper-ty in the Federal gross estate that have an actu-al situs in New York State, while a nonresidentdecedent’s intangible property is considered tohave a situs outside New York State and is notincludible in the decedent’s New York grossestate even though it is part of the decedent’sfederal gross estate. The opinion concludedthat the decedent’s revocable trust constitutedan intangible and thus was not part of the dece-dent’s New York State gross estate. New YorkState Department of Taxation and Finance,Office of Counsel, Advisory Opinion Unit,TSB-A-11(1)M, Estate Tax, 10/12/11.

A Marital Residence Still Held by theDecedent and His Wife as Tenants by theEntirety on the Date of His Death Passes tothe Surviving Spouse Even Though the Par-ties Had Executed a Separation AgreementProviding for the Sales of the House and anEqual Division of the Proceeds — At the timeof his death the decedent and his wife ownedthe marital residence as tenants by the entirety.The decedent had entered into a separationagreement with his wife under which the mari-tal residence was to be sold and the proceedsdivided equally between them. The sale wasnot consummated during the decedent’s life-time. The spouse brought a proceeding seekinga determination that notwithstanding the sepa-ration agreement the marital residence vestedin her solely upon the decedent’s death and thatthe net proceeds of the sale of that residenceshould be awarded to her. The decedent’s estateclaimed that it was entitled to one-half of theproceeds from the sale of the marital residence.HOLDING — The Court ruled that the surviv-ing spouse was entitled to all of the net pro-ceeds of the real property. In the Court’s view,a tenancy by the entirety is not terminatedmerely by a provision in a separation agree-ment or the sale of a marital home at a futuredate. The Court noted that the marital residencewas not sold until after the decedent died and atthe time of his death the parties were still mar-ried. Consequently, the Court concluded thatsince the property was not sold prior to the par-ties’ divorce it passed by operation of law to thedecedent’s spouse upon the decedent’s death,and that the entire net proceeds of the sale ofthe parties’ real property should be awarded tothe surviving spouse. Matter of Griffin,N.Y.L.J. 10/24/11, p. 17, c. 3 (Surr. Ct., MonroeCo., Surr. Calvaruso) [Authors’ Note: it is notstated in the opinion, but it appears that the con-tract of sale may have been entered into prior tothe decedent’s death, in which event a doctrinesimilar to equitable conversion might apply,and require the proceeds to be divided equally;see e.g. Matter of Price, 56 Misc.2d 774 (Surr.Ct., Suffolk Co., Surr. Hildreth, 5/13/68)]

Estate May Not Recover From a Surviv-

ing Joint Tenant One Half of the PaymentsMade By the Decedent for the Purchase andUpkeep of the Subject Real Estate — Theestate of a deceased joint tenant, alleging un-just enrichment, sued a surviving joint tenantto recover one-half of payments made by thedecedent for the purchase and upkeep of thesubject property. After the decedent’s death herfiduciary made mortgage and other paymentson the property totaling $7,500, which the es-tate also sought to recover in full. No cause ofaction was asserted for an accounting, nor aproceeding commenced in the Surrogate’sCourt to compel an accounting or for discov-ery. The co-owners lived together as an un-married couple for a period of time after theypurchased the property. The decedent paid$90,000 toward the purchase price, a construc-tion loan, and other closing costs and expensesfrom her own funds. In the years that followed,the decedent also paid from her own funds thesums of $102,000 for the mortgage, $20,000for property insurance, $11,000 for repairs,$2,500 for utilities, and $1,000 for replace-ment appliances. In total, the decedent expend-ed $226,500 from her own funds. Allegedly,the surviving joint tenant did not contribute tothe purchase and carrying charges of the prop-erty or, if he ever did, his contributions werenot equal to those of the decedent. However, atno time did either the decedent or the survivingjoint tenant ever seek a partition of the proper-ty. The surviving joint tenant made a pre-an-swer motion to dismiss the complaint pursuantto CPLR §3211(a)(7), arguing that because nopartition action had been commenced whilethe decedent was alive, and sole ownership ofthe property passed to him upon The dece-dent’s death, the complaint failed to state a vi-able cause of action for damages with respectto any payments made by the decedent duringher lifetime. The surviving joint tenant also ar-gued that the Estate’s remaining claim for the$7,500 for carrying charges paid after thedecedent’s death was below the monetary sub-ject matter jurisdiction of the Supreme Court.The estate opposed the surviving joint tenant’smotion to dismiss, arguing that RPAPL §1201authorizes a joint tenant, tenant in common, oran executor or administrator to maintain an ac-tion to recover from the co-tenant a just pro-portion of money paid toward the jointly heldproperty. The estate further argued that absentsuch a reimbursement, the surviving joint ten-ant would be unjustly enriched by becomingsole owner of the property without having eq-uitably contributed toward its purchase andcarrying expenses since the purchase of theproperty. The Supreme Court granted the sur-viving joint tenant’s motion to dismiss, deter-mining that the estate’s reimbursement claimdid not survive the decedent’s death, and thatRPAPL §1201 was inapplicable. The estate ap-pealed. HOLDING — The Appellate Divisionaffirmed the Supreme Court in part, holdingthat the complaint failed to state a cause of ac-tion as to any of the expenses paid by the dece-dent prior to her death, but found that the com-plaint did state a cognizable cause of action forunjust enrichment, for the reimbursement fromthe surviving joint tenant of the $7,500 paid bythe estate toward the property’s expenses afterthe decedent’s death. The Court opined thatwhen a party moves to dismiss a complaintpursuant to CPLR §3211(a)(7), the standard iswhether the pleading states a cause of action,not whether the proponent of the pleading hasa cause of action. The Court stated that in con-sidering a motion to dismiss pursuant to CPLR§3211(a)(7), the court should accept the factsas alleged in the complaint as true, accordplaintiffs the benefit of every possible favor-able inference, and determine only whether thefacts as alleged fit within any cognizable legaltheory. The Court explained that to prevail onthe claim for unjust enrichment at issue the es-tate would have to show that (1) the survivingjoint tenant was enriched, (2) at the estate’sexpense, and that (3) it was against equity andgood conscience to permit the surviving jointtenant to retain what was sought to be recov-ered. The Court noted that the essential in-quiry in any action for unjust enrichment or

THE STATE OF ESTATES


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


The economics of litigation has beenchanged by the Appellate Division, SecondDepartment. The holding of Pellechia v. Part-ner Aviation Enterprises, Inc., 80 AD3d 740(2nd Dept., 2011) seems to require that if aParty desires the Court to consider an ExpertAffidavit on a Summary Judgment Motion,that the CPLR §3101(d) disclosure statementbe previously served. The Pellechia Courtstated: “The plaintiff’s expert affidavit wasproperly rejected by the Supreme Court be-cause the plaintiff never complied with any ofthe disclosure requirements of CPLR3101(d)(1)(i), and only first identified his ex-pert witness in opposition to the defendant’ssummary judgment motion, after the plaintifffiled the note of issue and certificate of readi-ness”. Therefore, based upon Pellechia it ap-pears that the Trial Level Court should notconsider an Expert Affidavit on a SummaryJudgment Motion if that Expert had not pre-viously been disclosed.

Not surprisingly, lower Court Justices arefollowing the mandates of Pellechia. In anAugust 25, 2011 decision, Justice ThomasFeinman, Supreme Court, Nassau County, ad-hered to the holding of Pellechia. (Vlahakis v.Belcom Development LLC., (NYLJ Case cita-tion: 1202512440529). Justice Feinman stat-ed that he refused to consider the Expert’s Af-fidavit that was submitted in Reply papers inthe Motion for Summary Judgment sequence.The basis for the Court’s refusal to considerthe Expert’s Affidavit was the Party’s failureto provide a pre-trial CPLR §3101(d) disclo-sure statement for such Expert. In as much asthe Party that submitted the Reply Expert Af-fidavit offered “no valid excuse for the delay”in the disclosure, the Trial Court refused toconsider such Expert Affidavit. There is noclear answer if a Court will refuse to consider

a Reply Expert Affidavit if the CPLR§3101(d) is served after the Note of Issue hasbeen filed but before the Summary JudgmentMotion has been issued.

There has been one (1) case relating tothe issue whether the Court will consider anExpert Affidavit offered in support of a Mo-tion for Summary Judgment if no pre-trialCPLR §3101(d) has been exchanged but thatsame was exchanged after the Note of Issuewas filed. Stolarski, v. DeSimone, 83 AD3d1042 (2nd Dept., 2011) held that when thePlaintiff failed to identify their Expert “untilafter the note of issue and certificate ofreadiness were filed attesting to the comple-tion of discovery, and [Plaintiff] offered novalid excuse for the delay” the lower Courtwas correct in not considering the Expert Af-fidavit on the moving papers.

It is this writer’s opinion that under thePellechia set of procedural facts the Courtwill consider the previously non-disclosedExpert’s Affidavit because the opposingParty has the opportunity to address the is-sues in Opposition thereto. The Pellechiadenial of consideration arose in the contextof a Reply. As most litigators know, there isno Sur-Reply allowed under CPLR. It seemsthat the Court’s rationale for rejecting theExpert’s Affidavit under this set of procedur-al facts is that it appears that the acceptanceof the Reply would prejudice the other Party.The subject of this article has also been ad-dressed in the “Outside Counsel” column ofthe August 5, 2011 issue of the NYLJ. Insum, it appears that both the Plaintiff’s barand the Defense bar should, if there is anyissue of CPLR §3101(d) timeliness, on Mo-tion Practice, ‘offer a valid excuse for thedelay’ and should address discovery and trialstrategy earlier in the life of a case.

Across My DeskBarton Slavin, Esq.

The Changing Ground Rules of ExpertDisclosure in the Second Department

Crystal Vargas v. Edwin Rosario, AngelCruz, Martin Navedo and The City of NewYork

Index No.: 31269/04Judges: Hon. Donald S. Kurtz, J.S.C.Plaintiff’s Attorneys: Michael Jaffe, Matthew Feinand John Lonnuzi (of counsel) for Pazer, Epstein &Jaffe, P.C.Defendants’ Attorneys: Jessica Malkin andNicholas Kovner for Kaye Scholer, LLP for City ofNew York, all other defendants defaulted.Insurer: none

The Plaintiff, a sixteen year old student atthe time of the accident, was a passenger on awaverunner operated by defendant Rosario inthe waters adjacent to Marine Park Golf Course.In the waterway was a dilapidated woodenstructure, owned by the City of New York.

The wooden structure is a bridge spanningthe water between Marine Park Golf Courseand Whites Island, which is now in ruins, hasbeen so for decades and no longer has crossbeams. The state of the bridge at the time ofthe accident was essentially a series of pilingssticking up out of the water and other pilingswhich were cut away at the high tide line. De-fendant Rosario was operating his waverun-ner in the vicinity of the dilapidated structure,attempting to navigate through and under theruined bridge as he followed Defendant Nave-do.

In attempting to cross the area, DefendantRosario struck a piling with his waverunnercausing the Plaintiff to be ejected from thewaverunner and thrown through the air andinto another piling, striking her head and rightarm. As a result of the impact, the Plaintifflost consciousness and sustained traumaticbrain injury and a Monteggia Type II fractureof the right elbow requiring open reductionwith internal fixation which caused ongoinglimitations and disability.

The claim against the City of New Yorkwas for its failure to remove the pilings fromthe waterway for several decades. The City ofNew York argued it was not responsible forcausing the accident but merely furnished theoccasion for the event and further argued thatthe operator, Rosario, was fully at fault incausing the accident which occurred.

The case was trial ready and was negotiat-ed before Justice Donald Scott Kurtz on sev-eral afternoons over a week and a half’s timeand, on October 19, 2011, settled against theCity of New York for $850,000.00, a portionof which will be structured.

The Hon. Donald Scott Kurtz is a Justice ofthe New York State Supreme Court, KingsCounty, and presides in the Jury CoordinatingPart and the City Trial Readiness Part. MichaelTreybich is a member of the editorial board ofthe Brooklyn Barrister and is an Associate At-torney at Tsyngauz & Associates, P.C.

For the inaugural run of this column,which we hope will be informative and pro-vide members of the bar with helpful guid-ance for valuing their personal injury andmedical malpractice cases tried in Brooklyn,we have a $60,000,000.00 med-mal verdict, a$2,253,490.00 verdict in favor of an“eggshell” plaintiff with pre-existing injuriesaggravated by a relatively minor motor vehi-cle accident and an $850,000.00 settlementbetween the City of New York and the pas-senger of a waverunner injured in the watersadjacent to the Marine Park Golf Course.

Kaitlyn Nelson v. Shivinder Narwal, M.D.,

Millennium Pediatrics Care, P.C., Dr. S. Nar-wal Physician, P.C., Edward Shlasko, M.D.,Christian Oraedu, M.D., Navinderdeep S. Ni-jher, M.D., Koteswararao V. Marella, M.D.,and Maimonides Medical Center,

Index No.: 31707/05Judge: Hon. Marsha L. Steinhardt, J.S.C.Plaintiff’s Attorney: James Wilkens of Duffy& DuffyDefendants’ Attorney: Paul Karp of WilsonElser Moskpwitz Edelman & DickerInsurer: Federation of Jewish Philanthropiesfor all Defendants

The only remaining defendant at the end ofthe trial was Edward Shlasko, M.D. Dr.Shlasko was employed by Maimonides Hos-pital, which was found vicariously liable.

The Plaintiff was born on October 23,1985 and began to suffer from intractableGERD by the mid 1990’s, which caused her todevelop aspiration pneumonias andbronchiectasis. In March of 1999, the remain-ing Defendant doctor performed a laparoscop-ic Nissen fundoplication, a surgical procedurein which the top of the fundus of the stomachis wrapped around the esophagus and which isdesigned to mechanically curtail the GERD.By December of 2000 the fundoplication hadcome undone and in that month that same De-fendant performed another fundoplication.

Following this procedure, the Plaintiffbegan to experience symptoms of, and was di-agnosed with, gastroparesis, a condition inwhich there is diminished stomach motility.

Plaintiff claimed that the Doctor departedfrom good and accepted medical practice inthe March 1999 surgery by using 3-0 suturesinstead of 2-0 and that he used absorbable su-tures which was also a departure from goodand accepted medical practice and that both ofthese departures were a substantial factor inthe fundoplication coming undone and requir-ing the procedure to be performed again.

The Defendants claimed that the Doctorused non-absorbable silk sutures and that it wasnot a departure to use 3-0 sutures. The Plaintiffalso claimed that the anterior vagus nerve wasinjured during the second fundoplication andthat Doctor failed to identify and preserve thatanterior vagus nerve during surgery and thatthis failure was a departure from good and ac-cepted practice and was causative of the injuryto the anterior vagus nerve and that the injuryto the vagus nerve resulted in the gastroparesis.Defendants maintained that the vagus nervewas not injured and that it was not a departurenot to identify and preserve the vagus nerve.

The Plaintiff underwent seven abdominalsurgeries as a result of the gastroparesis in-cluding the implantation of a gastric pace-

maker to try to stimulate stomach motility.Additionally, the Plaintiff alleged that the gas-troparesis was a substantial factor in allowinga continuation of her GERD, leading to fur-ther respiratory compromise with the resultthat, by the time of trial, she required contin-ually supplemental oxygen via nasal tubes.The Plaintiff has required numerous hospitaladmissions in addition to the surgeries.

On October 26, 2011, after an 18 day trial,the jury returned a verdict of $60,000,000.00;of which $40,000,000.00 was for past painand suffering and $20,000,000.00 was for fu-ture pain and suffering.

Jorcelyn R. William v. Noel C. Paul

Index No.: 7014/09Judges: Hon. Herbert Kramer, J.S.C. (liability)Hon. Wayne Saitta, J.S.C. (damages)Plaintiff’s Attorney: Stephen Z. Williamson, Esq.Defendants’ Attorney: Frank J. Occhiogrosso ofJames G. Bilello & AssociatesInsurer: GEICO, $300,000.00 liability limit.

The Plaintiff in this matter is an auto me-chanic in his early 40’s who had several yearsprior to the motor vehicle accident which wasthe subject of this case, sustained herniationsof his L4-5 and L5-S1 intervertebral discs.

Tests taken after the accident indicated thatthe Plaintiff suffered from radiculopathystemming from the area of the herniations.

The Plaintiff testified that the symptoms ofhis pre-existing condition had ended prior to theaccident, but that the accident aggravated themand the symptoms returned. The Plaintiff’streating neurosurgeon confirmed that the Plain-tiff’s pain was a result of an accident-inducedaggravation of his pre-existing herniations.

Post-accident, the Plaintiff underwent ap-proximately 5 months of physical therapyabout two to three times per week, but testi-fied that the physical therapy did not resolvehis pain. The Plaintiff then underwent surgerythat included diskectomies, which involvedthe excision of his herniated discs, andlaminectomies, which involved the partial ex-cision of vertebrae.

The Plaintiff testified that this surgery re-duced his pain about 60 percent, but that hestill experiences significant discomfort. Hefurther testified that he cannot easily exercise,play with his children or engage in marital in-timacy. The Plaintiff’s treating neurosurgeonopined that the Plaintiff must undergo addi-tional physical therapy and the administrationof painkilling nerve-block injections.

The Defendant argued that the Plaintiff didnot sustain a serious injury, as defined by theNo-fault law, and that the accident involved aminor collision that could not have caused thealleged injury. Judge Saitta invoked the“eggshell-plaintiff” rule, permitting the juryto find that the Plaintiff’s injuries could havebeen caused by this “minor” collision.

The Plaintiff sought recovery of his futuremedical expenses, at least $175,000.00 for hispast pain and suffering, and at least$700,000.00 for his future pain and suffering.

On October 4, 2011, after a 6 day trial, thejury returned a verdict of $2,253,490.00; ofwhich $500,000.00 was for past pain and suf-fering, $1,340,000.00 was for future pain andsuffering and $413,490 was for future medicalbills. Pursuant to a Hi/Lo agreement, recoverywas $275,000.00; the insurance policy limitwas $300,000.00.

SURVEY ofVERDICTS

and SETTLEMENTS

in KINGS SUPREME

By Hon. Donald Scott Kurtz, JSCand Michael Treybich, Esq.


tion recognized the following Honorees fortheir accomplishments and contributions tothe legal community: Hon. Plummer E. Lott,Associate Justice of the Appellate Division,Second Department and the Hon. DonaldScott Kurtz, Supreme Court Kings County.The presentation of the award to Justice Lottwas made by Brooklyn Bar Association Crim-inal Law Section Chair George Farkas and thepresentation of the award to Justice Kurtz was

made by the Hon. Theodore T. Jones, Jr., As-sociate Judge, Court of Appeals. Additionally,Brooklyn Bar Association President-ElectDomenick Napoletano recognized the retire-ment of the Hon. Gerard H. Rosenberg fromthe Supreme Court and thanked him for hismany years of distinguished service.

The National Anthem was beautifully sungby Thorance Scott, a Court Officer in theSupreme Court, Kings County and the movingwords of both the Invocation and the Benedic-tion were given by the Most Reverend Frank J.Caggiano and Rabbi Joseph Potasnik, respec-tively. Other luminaries joining the Honoreesand their presenters on the dais were the HonA. Gail Prudenti, Chief Administrative Judgeof the State of New York as well as the Super-vising, Presiding and Administrative Judges ofmany of the courts of New York State.

The dinner was a huge success, nettingover $100,000 to benefit the Brooklyn Bar As-sociation Foundation thanks to the generosityand record number of Patrons, EnhancedSponsors and Sponsors of this event. There isnot enough that can be said about the hardwork and dedication of the Dinner Committee,chaired by Association President-ElectDomenick Napoletano. And of course none ofthis would have happened without the dedica-tion of Brooklyn Bar Association PresidentEthan B. Gerber and Brooklyn Bar Associa-tion Executive Director, Avery Eli Okin, aswell as the Brooklyn Bar Association staff,who, as always, manage to make this eventlook effortless.


Continued from page 1

President Ethan B. Gerber, Hon. A. Gail Prudenti — Chief Administrative Judgeof the State of New York, Queens Bar Association President Richard M. Gutierrez

Hon. Judy Harris Kluger, Chief of Policy and Planning OCA and Hon. Fern A. Fish-er, Deputy Chief Administrative Judge of the State of New York

Hon. Paula Hepner, Supervising Judge,Family Court, Kings County

President Gerber, Retiree Hon. Gerard H. Rosenberg and Annual Dinner Commit-tee Chair Domenick Napoletano

President Ethan B. Gerber, Honoree Hon. Donald Scott Kurtz, Domenick Napoletano

President Ethan B. Gerber, Honoree Hon. Plummer E. Lott and Domenick Napoletano



Hon. William F. Mastro, Acting Presiding Justice, Ap-pellate Division, Second Department

Hon. Barry Kamins, Administrative Judge for Crim-inal Matters, Kings County introducing the digni-taries in attendance

Hon. Helene Weinstein, Chair of the NYS AssemblyJudiciary Committee

President Gerber and Past President Steven D. Cohn Presenter George Farkas and Honoree Hon. Plummer E. Lott

Presenter Hon. Theodore T. Jones, Jr. of the Court of Appeals presenting the An-nual Award to Hon. Donald Scott KurtzHon. Elizabeth Bonina, Immediate Past President Andrea E. Bonina and Ray Ferrier



law at the Judicial Institute at Pace LawSchool in White Plains.

Earlier this year, Justice Sweeney was des-ignated to the Supreme Court, Kings County,due to the retirement of several judges and theneed for additional judges. He now rotates in4-month terms (with Justices Kenneth Sher-man and Donald Kurtz) between (a) the JuryCoordinating Part (JCP); (b) the City trialreadiness part; and (c) a trial part. In his trialpart, he presides over various types of cases,including personal injury, medical malpracticeand contract matters — BUT no no-fault trials!

Justice Sweeney gives some suggested“tips” for lawyers appearing in front of him:(1) write a good, cogent legal brief; (2) be con-cise and to the point; and (3) make sure that thebrief is readable. By-and-large, JusticeSweeney has found the attorneys appearing infront of him to be very easy to deal with andcongenial. He has never held any attorney incontempt, although he was tempted once. Hav-ing once been a practitioner, Justice Sweeneyknows the difficulties of being a lawyer.

Justice Sweeney loves being a judge: “Ifyou have any kind of intelligence, curiosityand like solving puzzles, what better job isthere?!” He enjoys the intellectual aspect ofjudging, along with his daily interactions withthe attorneys who appear before him.

The ‘Guru’ of No-Fault LawContinued from page 1

SECURITIES LAWJohn E. Lawlor, Esq.

Securities

Arbitration / Litigation;

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Federal and State Securities Matters.

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129 Third Street Mineola, NY 11501

johnelawlor.com

Bert Verdirame, Past President Lawrence F. DiGiovanna, Charles Otey and Hon.Anthony J. Cutrona

NYSBA President Vincent E. Doyle, III, NYSBA President Elect Seymour Jamesand Dinner Chair Domenick Napoletano

President Ethan B. Gerber, Court of Appeals Associate Judge Theodore T. Jones, Jr.,Trevor Headley and Mrs. Theodore T. Jones, Jr.

Brooklyn Women’s Bar Association President Lisa Schreibersdorff, County Clerkand Commissioner of Jurors Hon. Nancy T. Sunshine, Brooklyn Bar AssociationVolunteer Lawyers Project Executive Director Jeannie Costello and SupervisoryJudge for Matrimonial Matters Hon. Jeffrey S. Sunshine

Abandoned Property � Assignment for Benefit of Creditors � Assumtion of Debts � Bankruptcy Notices � Bar Date � Bids � Procurement�RFP � Board of Standard and Appeals Notice � Bulk Sales � CitationClaims Notice � Conservatee Sale � Dissolution of Corporation � Diution of Marriage � Dissolution of Partnership � Dissolution of Reli

gious Corporation � Earnings Statement � Emergency Order to ShowCause � Foreclosure and Sale � Formation of LLC � Foundation NoticGrant of Land Under Water � Immigration Ad � Inquest �Late FilingOrder � Liquor License � Lost Stock Certificate � Notice of AccountinNotice of Intention by Receiver to File Settlement � Notice of Intento Foreclose � Notice of Intention to Issue Refunding Bonds �NoticeProposed Supplemental Indenture � Notice of Public Sale of CollateNotice of Seizure � Notice to Creditors � Notice to Establish a BrancOffice � Order Compelling Discharge of Mortgage/ Ancient MortgagOrder Serving Defendant by Publication and Voiding Marriage � OrdTerminating Receivership � Discharging Receiver � Order to Sho w C

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practice of law in New York, pursuant to 22NYCRR 691.4(l)(1)(i), effective immediatelyand pending further order of the Second Depart-ment, upon a finding that he neglected legal mat-ters entrusted to him and failed to cooperate withthe Grievance Committee’s lawful demands.

Joel A. Grossbarth, admitted as Joel Al-lann Grossbarth (November 2, 2011)

The respondent was suspended from thepractice of law, pursuant to 22 NYCRR691.4(l)(1)(i), (ii) and (iii), effective immediatelyand pending further order of the Second Depart-ment, upon a finding that he was guilty of mis-appropriating funds entrusted to him as a fiduci-

ary and upon his failure to cooperate with thelawful demands of the Grievance Committee.

Jacob C. Armon, a suspended attorney(November 9, 2011)

On March 22, 2010, the respondent plead-ed guilty and was sentenced in the DistrictCourt of Nassau County, to one count of at-tempted identity theft in the third degree, in vi-olation of Penal Law §110.00 and 190.78(1), aclass B misdemeanor. As a result of his con-viction of a serious crime, the respondent wassuspended from the practice of law, pursuantto Judiciary Law 90(4)(f), for a period of sixmonths, commencing December 2, 2011.

This edition of ROLL CALL was compiled byElena A. Popova, Esq, Kings County, Civil Court.

Roll CallContinued from page 3



Auxiliary Bishop of Brooklyn Most Reverend Frank J. Caggiano and Rabbi JosephPotasnik, Executive Vice President of the New York Board of Rabbis

United States District Court for the Eastern District of New York Judge DoraIrizarry, David Hernandez and Trustee David Chidekel

Trustee and newly elected Supreme Court Justice Carl Landicino and CatholicLawyers Guild President Sara Gozo Former Honoree Hon. Marsha Steinhardt with Jeff Feldman

Retired Justice Allen Hurkin Torres, Judge Jones and Past President John Lonuzzi

Trustee Pamela Elisofon with Barry Elisofon

Hon. Gerard H. Rosenberg,

Hon. David Vaughn,

Hon. Mark Partnow,

Hon. Lawrence Knipel,

City Council Member

Domenick M. Recchia

and Saul Edelstein


restitution is whether it is against equity andgood conscience to permit the defendant to re-tain what is sought to be recovered. The Courtacknowledged that unjust enrichment does notrequire a showing that the party enriched com-mitted a wrongful act, stating that innocentparties frequently may be unjustly enriched.Even accepting as true the allegations of thecomplaint that the decedent purchased the sub-ject property with her own funds and paid thecarrying charges on it, the Court found thatafter the decedent’s death, her estate was notentitled to recover one-half of those expensesfrom the surviving joint tenant. The Courtopined that a joint tenancy is an estate held bytwo or more persons jointly who have equalrights to share in its enjoyment during theirlives, and where each joint tenant has a right ofsurvivorship. The Court noted that the right ofsurvivorship has been defined as a right of au-tomatic inheritance where, upon the death ofone joint tenant, the property does not passthrough the rules of intestate succession, but isautomatically inherited by the remaining ten-ant. The Court pointed out that for one jointtenant to alienate his or her individual interestin the tenancy, the estate must first be severedand converted into a tenancy in common witheach tenant no longer possessing the entire es-tate, but instead, possessing an equal fraction-al share, with no right of automatic survivor-ship. The Court noted that joint tenancies maybe severed by the Court-ordered partition ofthe property that adjusts the rights of the par-ties and permits its sale if it appears that a par-tition cannot be made without great prejudiceto the owners, under RPAPL §901)(1). TheCourt stated that the equitable remedy of parti-tion may only be sought by a person holding orpossessing the real property as a joint tenant ortenant in common, and accordingly found thatthe decedent, while she was alive, was the onlyperson who could have affirmatively sought apartition of the property and an equitable ad-justment of the interests she and the survivingjoint tenant held in the property. The Courtnoted that the complaint did not allege, andthere was no evidence in the record, that thedecedent ever attempted to sever her joint ten-ancy with the surviving joint tenant. The Courtfound that when the decedent died, the surviv-ing joint tenant automatically inherited thesubject property as the surviving joint tenant,which the Court contrasted with what wouldhave occurred if the property had been held bythe parties as tenants in common, in whichevent the decedent’s share of the propertywould have passed under the rules of inheri-tance or by her will. The Court held that thedecedent, during her lifetime, was free to man-age her finances and spend her money as shesaw fit, even if, with the benefit of hindsight,her decision to purchase the subject propertyand hold title with the surviving joint tenant asa joint tenant, and to continue to pay its ongo-ing expenses after the surviving joint tenantmoved to another address, inured to the finan-cial benefit of the surviving joint tenant. Ac-cordingly, the Court ruled that the complaintfailed to state a cause of action to recover forunjust enrichment for reimbursement by theestate of the decedent’s pre-mortem expendi-tures because, at the time those expenditureswere made, they were not at the expense of theestate. The Court also rejected the estate’s ar-gument that RPAPL §1201 nevertheless creat-ed a cause of action by which an estate couldseek the equitable reimbursement of expensesfrom a joint tenant or tenant in common. TheCourt interpreted the provisions of RPAPL§1201 to the effect that a joint tenant or a ten-ant in common of real property, or his executoror administrator, may maintain an action to re-cover his just proportion against his co-tenantwho has received more than his own just pro-portion, or against his executor or administra-tor, as requiring either the recovery by one ten-ant of rents paid to a co-tenant or an account-ing of rents between co-tenants. The Courtfound that the statutory purpose of RPAPL§1201 is the codification of the principle that atenant is required to account to co-tenants forrents received from third parties, and deter-mined that there is no authority applying

RPAPL §1201 in a retroactive fashion to allowa decedent’s estate to reach back in time andundo the financial acts of a decedent with re-gard to the acquisition and management of realproperty which the decedent, during his or herlifetime, held jointly with another. Conse-quently, the Court declined to so interpretRPAPL §1201 in that fashion, ruling that thepurpose of RPAPL §1201, as expressed in thestatute, is to vest joint tenants and tenants incommon, or their estates, with the right to re-cover monies “received” by a co-tenant thatexceeded his or her proportionate share. In theCourt’s view, the statutory focus upon monies“received” by the co-tenant, rather than uponexpenses “paid” by the tenant, suggested thatthe right of recovery was limited to rents andincome generated by jointly held property, andfor related accounting thereof. The Court de-termined further that the absence of languagein RPAPL §1201 extending the right of recov-ery to expenses “paid” by a tenant beyond hisor her equitable share meant, under the doc-trine of expressio unius est exclusio alterius,that the legislature, by inference, intentionallyomitted or excluded joint tenant expendituresfrom the scope of the statute. Since the com-plaint did not seek recoupment of any moniesreceived by the surviving co-tenant during thedecedent’s lifetime relative to the jointly heldproperty, the Court held that the complaintfailed to state a cause of action under RPAPL§1201 for either the reimbursement of proper-ty expenses or the reimbursement of the$7,500 paid by The decedent’s estate after herdeath. The Court found however, that the com-plaint did state a separate viable cause of ac-tion to recover for unjust enrichment, for thereimbursement from the surviving joint tenantof the $7,500 the estate paid toward the prop-erty’s expenses after the decedent’s death. TheCourt stated that by the time these paymentswere made, ownership of the property alreadyhad passed to the surviving joint tenant by op-eration of law. The Court held that the estate’scomplaint, framed as one to recover damagesfor unjust enrichment, stated a cause of actionthat the estate enriched the surviving joint ten-ant by its $7,500 payment toward the carryingcosts of his property, at the estate’s expense,and ruled that it was against equity and goodconscience to permit the surviving joint tenantto retain the value of those payments. Whileacknowledging that as a result of its decision,the only remaining claim was for the reim-bursement of $7,500, the Court stated that theSupreme Court nevertheless had subject mat-ter jurisdiction to hear the action. Consequent-ly, the Supreme Court’s judgment was re-versed but only in so far as it had granted thedefendant’s motion to dismiss the estate’sclaim for reimbursement for its payment of thesum of $7,500 after the decedent’s death.Trotte v. Ollivier, N.Y.L.J. 11/25/11 (2d Dept.,2011)

Adoption Records Unsealed In Order ToAllow a Nominated Executor to Locate theDecedent’s Biological Daughter In Order ToServe Her with Process in a Probate Pro-ceeding — A probate petition was filed by theexecutor named in the decedent’s last will andtestament. As incidental relief in the probateproceeding, petitioner sought to unseal theadoption records of the decedent’s biologicaldaughter, who had been adopted by her stepfa-ther as a baby, after the decedent and her moth-er divorced. The decedent had consented to theadoption proceeding. In his will the decedentacknowledged his biological daughter, butspecifically omitted her as a legatee, statingthat they had had no contact after her adoption.The request to unseal the records was made bythe executor because he was required to locatedecedent’s daughter, as she was entitled to serv-ice of process in connection with his will.HOLDING — The Court granted the applica-tion to unseal the records, subject to certainsafeguards. The Court stated that it would ap-point a Guardian ad litem to examine the adop-tion records, and would authorize the Guardianad litem to utilize the information contained inthe records to locate and contact decedent’s bi-ological daughter, as well as to contact hermother and adoptive father, if they were alive.The Court also required the petitioner in her ca-

pacity as the nominated executor of decedent’sestate, to agree, in writing, that the estate wouldpay the reasonable fees and expenses of theGuardian ad litem. The Court noted that thesealing of adoption records in New York hadbeen mandated for more than 60 years, and thatCourts had had the discretionary power to sealsuch records prior to that. According to theCourt, the purpose of the sealing of the recordsis to protect and ensure confidentiality which isvital to the adoption process. In the Court’sview, the confidential nature of the adoptionprocess serves many purposes, to wit: to fostera stable and secure home for the adopted child;to ensure that the biological parents will be ableto start a new life without fear of the past in-truding on their ability to do so; to allow theadoptive parents to go on without fear that thebiological parents will intrude into their lives;and to shield the adopted child from possiblydisturbing facts regarding the birth or thechild’s background. While acknowledging thestrong policy in favor of confidentiality, theCourt pointed to the fact that Courts and thelegislature have recognized that, under certaincircumstances, records may need to be opened.The Court stated that New York State policy at-tempts to strike a balance between the conflict-ing interests of parties to the adoption who maywish to maintain anonymity, and of others whomay need access to the records when it be-comes necessary for medical or other com-pelling reasons. The Court opined that underDomestic Relations Law §114 (2) a petitionermay obtain access to adoption records on goodcause shown and on due notice to the adoptiveparents and to such additional persons as thecourt may direct, and that where good cause isfound to exist, the Court may require furthersteps to protect all of the parties to the adoption.The Court stated that whether good cause ex-ists, and the extent of disclosure that is appro-priate, must remain for the courts to decide onthe facts of each case. The Court noted that thecase at bar was highly unusual in that the per-son seeking access to the sealed records wasnot a party to the adoption, but rather, a dece-dent’s cousin, who was applying in her capaci-ty as the nominated executor of his will, inorder to obtain the information necessary toprovide the adoptee with notice of probate. TheCourt pointed out that generally a child who isadopted out of her family is no longer a distrib-utee pursuant to Article 4 of the EPTL and isnot entitled to notice of probate in connectionwith a biological parent’s will. However, theCourt stated that there are certain situations inwhich an adopted out child remains a distribu-tee of the biological family, and therefore is en-titled to notice in a probate proceeding. TheCourt pointed to EPTL §4-1.1 (d) which pro-vides that the right of an adopted child to take adistributive share continues as provided in thedomestic relations law, which in Domestic Re-lations Law §117 (1) states, inter alia, that ifthe decedent is a descendant of the adoptivechild’s natural grandparent, and if an adoptiveparent is married to the child’s natural parent,the rights of an adoptive child to inheritanceand succession from and through either naturalparent does not terminate upon the making ofthe order of adoption. Put another way by theCourt, under the Domestic Relation Law, achild surrendered for adoption by a biologicalparent in order to be adopted by a stepparentcontinues to be a distributee of the parent whosurrendered her for adoption. Accordingly, theCourt held that the decedent’s biologicaldaughter was a distributee, was a necessaryparty to the probate proceeding, and was re-quired to be served with process. The Courtstated that the petitioner could not provide suchnotice without knowing the identity of the per-son to whom notice must be given, but was sen-sitive to the fact that the decedent’s daughtermight not be aware of her adoption. Conse-quently, the Court found that there was a suffi-cient reason to unseal the records, subject to thesafeguards it outlined. The Court stated thatupon receipt of the Guardian ad litem’s confi-dential report, it would provide further direc-tion to the petitioner. Matter of KatherineK.K.M., N.Y.L.J., 11/14/11, p.17, c. 2 (Surr. Ct.,Nassau Co., Surr. McCarty)

Invalidity of A Purported Exercise of A

Right of Election under EPTL §5-1.1-A by APutative Spouse Whose Divorce from HisPrevious Spouse Had Not Been Dissolved Atthe Time He Had Married the Decedent —Petitioner, the executor and beneficiary of thedecedent’s estate, commenced a proceeding todetermine the validity and effect of an electionpursuant to EPTL §5-1.1-A, filed by the dece-dent’s purported “surviving” spouse. Afterelecting against the Will, the “spouse” post de-ceased, and jurisdiction in the proceeding wasobtained over his next of kin. After some dis-covery, petitioner moved for summary judg-ment pursuant to CPLR §3212, seeking a de-termination that the right of the putativespouse to take an elective share of the estatewas invalid and of no effect. Petitioner assert-ed that the “surviving” spouse was not legallydivorced from his prior spouse when he mar-ried decedent, that his marriage to her wasvoid, and that he had no legal basis to claim anelective share of this estate. Petitioner assertedthat after decedent’s first spouse died she be-came involved in a relationship with the re-spondent’s intestate. The decedent and the“spouse” applied for a marriage license, whichapplication required each of the applicants tocertify that the information contained thereinwas true and accurate. According to the infor-mation contained on that application, the“spouse” indicated that his previous marriageended in divorce three years before. After ob-taining the marriage license, decedent and therespondent’s intestate were married. However,in fact the “spouse’s” prior marriage had notyet been dissolved. According to Courtrecords, a stipulation settling their contestedmatrimonial action was not entered into untiltwo months later, and the Judgment of Divorcedissolving the marriage was not granted for an-other three months. The decedent and the re-spondent’s intestate filed federal income taxreturns during the period in question indicatingtheir filing status as single. Thus, petitionerconcluded that because the “spouse” still wasmarried on the date he exchanged vows withthe decedent, his marriage to decedent was anullity. Respondents argued in opposition thatthere were issues of fact precluding the grantof summary judgment and that discovery wasincomplete thereby rendering this applicationpremature. Although they conceded that the“Judgment of Divorce” between their intestateand his prior spouse was entered after his mar-riage ceremony with the decedent, respondentssuggested that there may have been a marriagebetween decedent and their intestate after thedivorce judgment date. With respect to the in-come tax returns, respondents argued that thesame were unsigned copies with no probativevalue. The respondents argued that as the mo-tion for summary judgment was made shortlyafter the proceeding was commenced, respon-dents had not had the opportunity to investi-gate the possibility that decedent and their in-testate may have married elsewhere, and thatthey had not had the opportunity to depose thepetitioner who may have been a witness to an-other marriage ceremony, especially since heindicated in his response to interrogatories thatdecedent and the “spouse” were married twoyears after the divorce judgment. Respondentsalso asserted that during a contested probateproceeding in the estate, both their intestateand the decedent’s daughter, who was the ob-jectant in the contested probate proceeding,testified that the “spouse” married the dece-dent shortly after the divorce judgment, thatthe decedent’s death certificate indicated thattheir intestate was the decedent’s survivingspouse, and that correspondence from the Vet-erans Administration and Social Security Ad-ministration recognized their intestate to be thesurviving spouse of decedent. Lastly, respon-dents assert several affirmative defenses, in-cluding statute of limitations, standing, andlaches. Respondents asserted that the proceed-ing was analogous to an action under Domes-tic Relations Law §140, which must be com-menced during the lifetime of the parties, andthat since petitioner had been aware of thefacts for several years, his delay in bring theproceeding had prejudiced them, barring himby laches. It was conceded by respondents that



THE STATE OF ESTATES


their intestate and his former spouse were em-broiled in a contested matrimonial proceedinguntil two months after the marriage ceremonywith the decedent. The affidavit of the ac-countant who prepared income tax returns fordecedent and the “spouse”, stated that he pre-pared returns for both individuals listing theirfiling status as “single,” as they did not quali-fy for filing in any other manner, and that bothdecedent and the “spouse” told him on numer-ous occasions that the two were not legallymarried. HOLDING — The petitioner’s mo-tion was granted, the Court ruling that thedecedent was not legally married to the “sur-viving” spouse at the time of her death andthat, as such, he had no legal right to an elec-tive share of the decedent’s estate. The Courtstated that pursuant to EPTL §5-1.1-A (a),where a decedent dies on or after Septemberfirst, nineteen hundred ninety-two and is sur-vived by a spouse, a personal right of electionis given to the surviving spouse to take a shareof the decedent’s estate. The Court added thatEPTL §5-1.2 provides in pertinent part that ahusband or wife is a surviving spouse withinthe meaning, and for the purposes of EPTL§§4-1.1, 5-1.1, 5-1.1-A, 5-1.3, 5-3.1 and 5-4.4, unless it is established satisfactorily to thecourt having jurisdiction of the action or pro-ceeding that the marriage was void as incestu-ous under section five of the domestic rela-tions law, bigamous under section six thereof,or a prohibited remarriage under section eightthereof. The Court noted that Domestic Rela-tions Law §6 provides, in pertinent part, that amarriage is absolutely void if contracted by aperson whose husband or wife by a formermarriage is living, unless either such formermarriage has been annulled or has been dis-solved for a cause other than the adultery ofsuch person. The Court opined that the burdenof proving the invalidity of a spousal right ofelection is upon the party opposing it, so thatpursuant to EPTL §5-1.2, a husband is thesurviving spouse unless and until it is provenotherwise. The Court pointed out additionallythat there is a strong presumption that where amarriage has been established by the facts ofrecord, such marriage is valid and continuing,and that where there are essentially two com-peting claims that a marriage was valid at agiven time, each supported by proof of theirrespective marriages, there is a presumptionthat the second marriage is valid and that theprior marriage was dissolved by death, di-vorce, or annulment. Nonetheless, the Courtpointed out that these presumptions are rebut-table upon a proper showing. The Court stat-ed that the marriage certificate signed by

decedent and the “surviving” spouse certifiedthat they were married on a date five monthsprior to the entry of a divorce judgment dis-solving the “spouse’s” prior marriage. TheCourt found of little import that the parties,their children or friends, some of whom werenot disinterested, might recall a different an-niversary date or a general time frame whenthe marriage may have occurred, holding thatthe only proof of record, documentary or oth-erwise, as to the date when the parties enteredinto the marriage was contained on the mar-riage certificate. The Court ruled that even ifentry of the divorce judgment were to be con-sidered a ministerial act, no proof of whichwas in the record, the stipulation settling thecontested divorce proceeding occurred threemonths after decedent and the “surviving”spouse exchanged vows. The Court held thatthe petitioner had rebutted the presumption af-forded respondents that a valid marriage be-tween decedent and the “surviving” spouseexisted at the time of her death, and that sincethe marriage between the “spouse” and hisprior spouse had not been dissolved at thetime of his union with decedent, their mar-riage was absolutely void and was not validat-ed or ratified by the subsequent divorce. TheCourt found that respondents had failed tocreate a genuine issue of material fact. TheCourt stated that faulty or vague recollectionsand self-serving statements were insufficientto create a genuine issue of material fact inlight of the uncontroverted documentary evi-dence of record. The Court therefore conclud-ed that the notice of election filed by the “sur-viving” spouse was invalid and his claim toshare in connection therewith was dismissed.Matter of Newman, N.Y.L.J. 11/1/11, p. 17, c.2 (Surr. Ct., Suffolk Co., Surr. Czygier)

Partition Action May Not be Brought inSurrogate’s Court and Fiduciary Must GetSurrogate’s Court Permission Prior toCommencement of Partition Action inSupreme Court — The administrator, thedecedent’s spouse, sought to commence a par-tition action in connection with a three-familyresidence owned by the decedent and anotherparty as tenants in common. HOLDING —The requested relief was denied. The Courtstated that although SCPA §1901 provides thatwhere a decedent is the owner of an estate incommon in real property, the fiduciary of theestate must obtain the approval of the surro-gate’s court to bring a partition action, gener-ally, after the surrogate approves the applica-tion, the partition action is to be commenced inthe Supreme Court. Accordingly, the Courtgranted the application to the limited extentthat it was deemed an application seeking

court approval of the commencement of a par-tition action in the Supreme Court. The Courtfurther directed that inasmuch as the petition-er’s letters were subject to the provisions ofSCPA 805(3) with regard to the disposition ofany real property, the fiduciary was prohibitedfrom collecting any proceeds obtained in suchpartition action without first obtaining an orderfrom the Surrogate’s Court with respect towhether she would be required to post a bondin order to collect such proceeds. Matter ofAmpratwum, 2011 N.Y. Slip Op. 51587 (Surr.Ct., Bronx Co., Surr. Holzman. 8/22/11)

Objections to Probate Dismissed for Re-spondent’s Delay in Seeking Discovery —Petitioners filed a petition for probate. Re-spondent, on behalf of himself and severalother nonresident potential distributees,sought to examine the attesting witnessesprior to filing objections to probate pursuantto SCPA §1404. Although he was granted a30-day extension to do so, respondent did notconduct the examinations. Nevertheless,seven months later, he served discovery de-mands upon petitioners in anticipation of theexaminations. Surrogate’s Court, troubled byrespondent’s prolonged delay in seeking dis-covery and the overbroad nature of the de-mands, directed him to post a $15,000 bondwithin 60 days prior to any discovery. Re-spondent did not post the bond and insteadfiled objections to probate. Surrogate’s Courtrejected the objections and issued letters testa-mentary. The respondent appealed. HOLD-ING — Despite the fact that the Appellate Di-

vision assumed, without deciding, that re-spondent was correct that the Surrogate’sCourt improperly directed him to post a bond,the Court nevertheless affirmed the Surrogate.The Appellate Division stated that if preobjec-tion examinations made pursuant to SCPA§1404 occur, objections to probate must befiled within 10 days after the completion ofsuch examinations, or within such other timeas is fixed by stipulation of the parties or bythe court. The Appellate Division noted thatrespondent never conducted the requested ex-aminations, despite being permitted a substan-tial period of time in which to do so, and thatrespondent did not dispute that no other ex-tensions to file were granted by Surrogate’sCourt or stipulated to by the parties. The Ap-pellate Division therefore ruled that the objec-tions, filed more than six months after the ex-aminations were to be completed, were un-timely. The Appellate Division also held thatgiven respondent’s prolonged delay in con-ducting the SCPA §1404 examinations and hisultimate failure to do so, as well as the con-clusory nature of his objections, it could notsay that that Surrogate’s Court abused its dis-cretion in rejecting them. Matter of Scianni,87 A.D.3d 783 (3d Dept., 2011).

Compiled by Hon. Bruce M. Balter, Jus-tice of the Supreme Court, State of New York,and Chair, Brooklyn Bar Association, Surro-gate’s Court Committee, and Paul S. Forster,Esq., Chair, Brooklyn Bar Association, Dece-dent’s Estates Section.

THE STATE OF ESTATESContinued from page 10

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The ‘Guru’ of No-Fault Law asked to teach new judges all ... · ©2012 Brooklyn Bar Association JANUARY 2012 VOL. 64 NO. 4 “A smart person knows that a tomato is a fruit; a