APRIL 2012©2012 Brooklyn Bar Association VOL. 64 NO. 7

What’s InsideThe Docket

By Louise Feldman. . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2New Members February, 2012. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 2Legal Briefs

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

By Ethan B. Gerber, Esq. . . . . . . . . . . . . . . . . . . . . . . Page 3Elder Law Medicaid Part I

By Mark Diamond, Esq. . . . . . . . . . . . . . . . . . . . . . . . Page 3The State of Estates

By Hon. Bruce M. Balter and Paul S. Forster, Esq. . . . . . . . . . . . . . . . . . . . . . . . Page 4

By Reason of DarknessBy Robert Ehrenfeld, Esq. . . . . . . . . . . . . . . . . . . . . . . Page 5

Judge Jones Meet and Greet with MBBA & BBABy Michael Hernandez, Esq. . . . . . . . . . . . . . . . . . . . . Page 5

Roll CallBy Elena A. Popova, Esq. . . . . . . . . . . . . . . . . . . . . . Page 11

Justice Sylvia G. Ash was born in Trinidadand Tobago in the Caribbean but moved toEngland at a very young age. She was raisedin England until she moved to the UnitedStates at the age of 17. When she moved here,she lived in the Bedford-Stuyvesant sectionof Brooklyn with her parents, Patricia andRudolph. Patricia was a cashier at Long Is-land University in Brooklyn and Rudolph wasan electrician at the Abraham & Strauss de-partment store on Fulton Street. Justice Ashvividly recalls the excitement of her father’sjob at Christmas time, when he installed theChristmas decorations around the store.

Justice Ash recalled that her first job as ateenager, soon after arriving in Brooklyn, wasworking at Downstate Medical Center. Herjob was to shred and stuff newspaper into ca-davers in the morgue in order to shape thebodies after an autopsy. She found it morbidwhen some staff would keep their lunches inthe drawers intended for cadavers.

Justice Ash attended SUNY Stony Brookfor her undergraduate studies and then went

to Long Island University for one year in anMBA program. She decided to leave theMBA program to pursue a course of study inlaw and attended Howard University inWashington, DC.

After graduating from law school, JusticeAsh’s first job was a judicial clerkship withthe Hon. Dennis J. Brathwaite, who was thefirst African-American judge of the New Jer-sey Superior Court in Atlantic County (andJustice Ash was the first African-Americanlaw clerk in Atlantic County as well).

At the conclusion of her clerkship, JusticeAsh was informed by her friend and mentor,the Hon. Sylvia Hinds-Radix, about the open-ing of a position for staff attorney at the Dis-trict Council 37’s (DC-37) legal departmentin Manhattan. At the time, Justice Hinds-Radix was a senior staff attorney at DC-37. Inthe beginning, Justice Ash worked in the fam-ily law unit and then shifted over to the realestate unit. She later returned to the familylaw unit as the senior staff attorney. Later,Justice Ash became the chief counsel of theimmigration unit and supervising attorney ofthe family law unit.

Justice Ash lives in Ditmas Park with herson, Qassim Ashton Ghaffaar (“Ashton”).Ashton is now attending the University ofSan Diego on a football scholarship. Ashtonpreviously attended the Poly Prep CountryDay School in Brooklyn. Justice Ash and herson share their passion for football and speakfrequently during games, even while he isaway in California. They are both huge Gi-ants’ fans and were very excited about theirSuper Bowl win!

Justice Ash has several other hobbies andinterests, including being an avid reader ofmurder-mystery novels, being involved as aBoard member of the Brooklyn Women’s BarAssociation and travelling to various parts ofthe world. She just returned from a recent tripto India and finds travelling and seeing dif-ferent cultures to be fascinating.

In 2005, Justice Ash, after working at DC-37 for twenty years, decided to run for a CivilCourt seat. Justice Ash felt the desire to con-tinue helping people and making a differencein people’s lives, and thought that becoming ajudge was a natural extension of her being apracticing lawyer. Running for a county-wideseat, Justice Ash dedicated herself to the elec-tion campaign, enlisting the help of her fami-ly and friends. She still fondly recalls thesummer campaign season as being one of themost exciting summer of her life!

Once she got to the Civil Court, Justice Ashreceived all sorts of casesfor trial, but the majorityof the cases were for no-

fault insurance coverage. She enjoyed han-dling the different calendars of the Civil Court.

In 2010, Justice Ash ran for and won elec-

JUDICIAL PROFILE:Hon. Sylvia G. Ash

Report of the 2012 Nominating CommitteeDomenick Napoletano, Chair of the 2012 Nominating Committee,

has announced, pursuant to the bylaws, the following slate of officersand trustees for 2012-2013.

Pursuant to the bylaws, the elections will take place on WednesdayMay 9, 2012 from 3:30 PM – 5:30 PM in the Association Meeting Hall.

— Arthur L. AidalaSecretary

By Richard A. Klass, Esq.

Justice Sylvia G. Ash

Please turn to page 9

OFFICERSDomenick Napoletano

PRESIDENT

Andrew M. FallekPRESIDENT-ELECT

Rebecca WoodlandFIRST VICE PRESIDENT

Arthur L. AidalaSECOND VICE PRESIDENT

Hon. Frank R. SeddioSECRETARY

Aimee L. RichterTREASURER

TRUSTEES CLASS OF 2015Frank V. CaroneFidel F. Del Valle

Lara GenovesiRichard S. Goldberg

Jaime LathropAnthony W. Vaughn, Jr.

Glenn Verchick

TRUSTEES CLASS OF 2013Richard Klass

TRUSTEES CLASS OF 2014Joseph R. Costello

BROOKLYN BARRISTERFICTION CONTEST WINNER

ROBERT EHRENFELD, ESQ.for: By Reason of Darkness

(See page 5)HONORABLE MENTION

ENID LANGBERT, ESQ.for: When Wonder Was White Bread

(To be published in May)

Page 2, BROOKLYN BARRISTER APRIL 2012

THE DOCKETTHE DOCKET

Included below are events which have been scheduled for the period April 16, 2012 through May 28, 2012

Compiled by Louise Feldman

April 16, 2012 Monday CLE Personal Injury LitigationAuditorium6:00 P.M.

April 17, 2012 Tuesday BWBA Board MeetingBoard of Trustees Room5:00 P.M.

BWBA Annual Meeting & CLEAuditorium6:00 P.M.

April 18, 2012 Wednesday BBA Board & Foundation MeetingBoard of Trustees Room5:15 P.M.

April 19, 2012 Thursday 18B Family Court CommitteeCenter Conference Room1:15 P.M.

Ethics CLEAuditorium6:00 P.M.

April 23, 2012 Monday VLP Fundraiser Whiskey TastingAuditorium6:00 P.M.

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

April 25, 2012 Wednesday CLE Intellectual PropertyAuditorium6:00 P.M.

April 26, 2012 Thursday KCCBA Board MeetingBoard of Trustees Room5:00 P.M.KCCBA Meeting/CLEAuditorium6:00 P.M.

April 30, 2012 Monday CLE ProgramAuditorium6:00 P.M.

May 2, 2012 Wednesday CLE Employment Law Auditorium6:00 P.M.

May 3, 2012 Thursday CLE MarketingAuditorium6:00 P.M.

May 7, 2012 Monday Foundation Public Education ProgramBoard of Trustees Room6:00 P.M.

May 8, 2012 Tuesday CLE Screening:Hot Coffee — The MovieAuditorium6:00 P.M.

May 9, 2012 Wednesday BBA Board of Trustees &Foundation MeetingBoard of Trustees Room5:15 P.M.

BBA Annual MeetingAuditorium6:00 P.M.

May 10, 2012 Thursday VLP CLEAuditorium6:00 P.M.

May 14, 2012 Monday CLE — Preparing an EstateTax ReturnAuditorium6:00 P.M.

May 15, 2012 Tuesday BWBA Board MeetingBoard of Trustees 5:00 P.M.

BWBA CLE ProgramAuditorium6:00 P.M.

May 17, 2012 Thursday Elder Law Committee Study GroupRear Conference Room1:00 P.M.

May 22, 2012 Tuesday American Inns of CourtAuditorium5:00 P.M.

May 28, 2012 Monday In observance of Memorial Day the BBA Building, including the Lawyer Referral Service, the Volunteer Lawyer Project and the Library will be closed.

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

123 REMSEN STREET, BROOKLYN, NEW YORK 11201. FAX NO.: 718-797-1713 • E-mail: lfeldman@brooklynbar.org

BROOKLYN BAR ASSOCIATION2011-2012

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

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

Avery Eli Okin, Esq., CAEExecutive Director

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

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

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

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

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

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

TRUSTEES COUNCIL (Past Presidents)

TRUSTEES

LEGAL BRIEFSJudicial Recognition

Congratulations to BBA member Hon.William Mastro, Acting Presiding Justice ofthe Second Department who has been select-ed to receive the Judiciary Award at theCatholic Lawyers Guild, Diocese of BrooklynAnnual Dinner on Thursday May 17 atGargiulo’s Restaurant.

Other Brooklyn Bar Association membersbeing honored at that event include Hon.Sylvia O. Hinds-Radix, Administrative Judgefor Civil Matters, Kings County who will bepresented with the President’s Award and Hon.William Miller, the Supervisory Judge of theCriminal Court, Kings County is scheduled toreceive the Ecumenical Award. Brooklyn BarAssociation Past President Gregory X. Hester-berg will be the recipient of the Bellard Award.

Congratulations to Brooklyn Bar Associa-tion member Hon. Jo Ann Ferdinand, Justiceof the Supreme Court Kings County — Brook-lyn Treatment Court — who will be honored atAnnual Dinner Dance of the Kings CountyCriminal Bar Association which will be heldon Saturday, May 19 at Russo’s on the Bay inHoward Beach. Also being honored thatevening will be former Brooklyn Bar Associa-tion trustee Jon L. Besunder, Executive As-sistant District Attorney, Homicide Bureau.

Kudos and Professional RecognitionBrooklyn Bar Association President

Ethan B. Gerber participated in the KingsCounty Courts Black History Month ClosingCeremony on Wednesday February 29, 2012in the lobby of the Supreme Court building.Other participants in the program includedAppellate Division Justice Hon. L. PriscillaHall, Administrative Judge for Civil MattersHon. Sylvia O. Hinds-Radix and Dr. KhalilGibran Muhammad, Director of the Schom-burg Center for Research in Black Culture.

Congratulation to the Chair of the Brook-lyn Bar Association Intellectual PropertyCommittee Chair Bruno Codispoti who wasthe recipient of the Distinguished Italian-American Award presented by the Federationof Italian-American Organizations of Brook-lyn Ltd at the annual gala held on March 25,2012 at the El Caribe County Club.

Pacheco & Lugo, the first Hispanicwoman owned law firm in New York cele-brated its 20th year anniversary in practice onJanuary 27, 2012. Betty Lugo, a principal inthe firm is the Co-Chair of the New York StateBar Association Committee on Diversity andInclusion.

NEW MEMBERSFOR MARCH 2012

Thomas BucaroLouis T. Cornacchia

Adina HermanEileen KaplanJoshua KatzGlen Kendall

Richard KernerWilliam LizarragaLaurice Pearson

Irina SaksAllegra SelvaggioElizabeth Shura

Stavros S. SkenderisHarper Smith

Eric SubinAnthony M. VassalloKathleen Waterman

STUDENT MEMBERSOri Blum

Megan CucciaBrian Doyle

Gabriel GoldenbergSophia Solovyova

Please turn to page 9

Diana J. Szochet

APRIL 2012 BROOKLYN BARRISTER, Page 3

Brooklyn Barrister is published by Everything Brooklyn Media, LLC, under the auspices of the Brooklyn Bar Association. For advertising information call (718) 422-7410. Mailing address 16 Court Street, Suite 1208, Brooklyn, New York 11241.Vol. 64 No. 7 April 2012. The Brooklyn Barrister (ISSN 007-232 USPS 066880) is published monthly except in August and December by the Brooklyn Bar Association. Office of publication is: Brooklyn Bar Association, 123 Remsen Street, Brooklyn,New York 11201-4212. Telephone No. (718) 624-0675. Periodical postage is paid in Brooklyn, New York and at additional mailing offices. Subscription price is $11.00 per year. POSTMASTER: Send address changes to the Brooklyn Barrister, 123 Rem-sen Street, Brooklyn, NY 11201-4212.

BROOKLYN BARRISTER EDITORIAL BOARDGlenn VerchickEditor-in-Chief

Diana J. SzochetManaging Editor

Hon. Barry KaminsAssociate Editor

Aimee L. RichterArticles Editor

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

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

Gregory MesserHemalee J. PatelElena PopovaRobert P. SantoriellaMichael TreybichShelly Werbel

Getting old is not for sissies. As if gettingold were not enough to give you grey hair, thecost of long-term health care can become a bigproblem if you are unlucky enough to not diequickly.

In the next few months, we will be explor-ing a variety of elder law issues, includingpowers of attorney, healthcare proxies, livingwills, social security, guardianship, Medicare,and Medicaid. Medicaid will be the subject ofthe first articles.

It is no secret that people are living longer.In the old days, people died quickly fromheart attacks and that is still true, of course.But longer life spans and better medical treat-ment mean that more and more people needlong-term healthcare services, including nurs-ing homes, long-term home care, and assistedliving facilities.

In general, there are four ways to pay forlong-term care. You can pay for it yourself.You can get someone else to pay for it, such asa guilty child or wealthy attorney spouse. Youcan buy a long-term healthcare insurance pol-icy, which may not be easy to get, especiallywhen you need it most, and are becoming in-creasingly costly. Or, you can go on Medicaid.

Medicaid has become the primary providerof nursing home care in New York State. Acommon misperception is that Medicare paysfor long-term healthcare. That is false.Medicare will pay up to 100 days of custodialcare, but often stops paying long before that.There is no duration on the length of timeMedicaid will pay for long-term healthcare.

Medicaid began in 1964 as part of the So-cial Security Act. It is a means-tested programoriginally meant to provide wide-rangingmedical care for the poor. It is funded by the

federal and state governments, although eachstate runs its own Medicaid program. Whenenacted, it was never meant to become thelargest provider of nursing home care in thecountry.

Each state enacts its own income and re-source eligibility standards for Medicaid, sub-ject to federal minimum guidelines. The fed-eral reimbursement to any state is based on theper capita income of each state. New York re-ceives fifty percent of the money it spends onMedicaid from the federal government; foreach dollar New York spends on Medicaid, itreceives one dollar from the feds.

Any state that participates in Medicaidmust provide acute hospital care and all othermedical services with the exception of in-home long term healthcare, but it can addfrom a pecking order of optional services,such as in-home long-term healthcare. (NewYork does.)

A Medicaid recipient can choose anyhealth care provider that accepts Medicaid.Almost all hospitals and nursing homes inNew York take Medicaid. However gettingservice from other medical care providers canbe problematic, with fewer and fewer doctorsaccepting Medicaid patients. That is whyMedicaid will pay a managed care provider,such as an HMO, if a Medicaid recipientchooses to enter such a program. In return, therecipient gives up his right to choose his ownproviders and is limited to those who partici-pate in a particular managed care program.There is a growing movement to require Med-icaid recipients to participate in managed careprograms, which are seen to be cost effective.

New York entered the Medicaid programin 1965 with the passage of Article 5 of theSocial Services Law. It embraced virtuallyevery one of over two dozen optional medical

services permitted under the federal enablingstatute, which includes prescription medica-tion, dental services, laboratory services, andhome healthcare services, making it one of themost comprehensive Medicaid programs inAmerica. It is supervised by the New YorkState Department of Health, which does suchthings as administer the program, superviseprofessional medical standards, and establishthe fees that are paid for each medical serviceavailable under Medicaid.

To be eligible for Medicaid in New YorkState, one must be a legal resident of the Unit-ed States (with several exceptions that allownon-legal residents to receive Medicaid) aswell as a New York resident, which is definedas having one’s permanent home here. Thismay be a problem for a person who resides inanother state, such as Florida, and moves toNew York in order to receive medical treat-ment or long-term care. While, strictly speak-ing, there is no time requirement for residencyfor Medicaid purposes, there are a variety ofindicia of residency, such as voting location,home ownership, leaseholds, and the placewhere social security payments are received.Once a person qualifies for Medicaid, he canreceive services in any county of the state.However, eligibility in New York will be lostif the recipient moves to another state and viceversa; he will have to reapply for benefits inthe state to which he moves.

In order to receive Medicaid, the applicantalso must be under age 21 or over age 65, dis-abled, blind, eligible for public assistance, ora recipient of Supplemental Security Income(SSI). The intended recipient must have in-come and assets below certain cutoff levels,which can include income and assets receivedand owned by a legally responsible relative,such as a spouse or parent of a child who isunder age 21. This can become a thorny issuefor a spouse, for example, whose wife or hus-band is receiving Medicaid. More about this

later. In New York, by the way, same-sex cou-ples who are legally married are subject to allthe benefits and rules of Medicaid, althoughthe courts have yet to deal with issues of re-covery from a moneyed same-sex spouse forhealthcare payments Medicaid has made forthe same-sex recipient spouse.

Parents will not be considered an availableresource to Medicaid if their child who isunder age 21 is “expected” to be in a medicalinstitution for thirty days or more. This excep-tion lasts for the duration of the child’s insti-tutionalization. Once the child returns home,the exception is lost and the moneyed parentswill have to pay the child’s healthcare costs.

So far in New York, a child has no legal re-sponsibility to pay the medical costs incurredby a parent or a child who is over age 21, al-though in some other states this is not true.Many years ago, Mayor Ed Koch pushed for abill that would make children responsible fora parent’s health care costs, but it wentnowhere. This issue may crop up again.

Long-term healthcare is expensive. Theaverage cost of staying in a nursing home inNew York is about $8000 a month, and about$4100 a month for 24-hour in-home health-care. These costs are always going up. That iswhy more and more middleclass people, inparticular, are looking for ways to qualify forMedicaid, such as by transferring assets out-right or to trusts, or by spending down theirassets. Since there are also income qualifica-tions in order to receive Medicaid, intendedrecipients may look for ways to transfer in-come-producing assets as well. The goal maybe, for example, to gift away stocks, transfer ahouse to a trust, and have social security as thesole source of income.

“We can implement an asset preservationplan for long term-care needs,” explains An-thony Lamberti, chairman of the BrooklynBar Association Elder Law Committee. “With

Last week I had the distinct honor of rep-resenting the Brooklyn Bar Association whenI testified before the Veterans Committee ofthe New York City Counsel. The committeewas reviewing the Veterans Court — a specialprogram which exists in some of the countiesto assist armed serves veterans who havefound themselves charged with crimes. Thesecourts provide structured counseling servicesthat aim to rehabilitate troubled veterans andsteer them into civilian life. The vets enterpleas and know that if they do not completetheir treatment incarceration will result. Thesuccess rate has been remarkable.

I first learned of this program when I at-tended the New York State Bar AssociationHouse of Delegates meeting in Buffalo thispast March. At the meeting we were given apresentation of the Veterans Court, which orig-inated in Buffalo in 2008. I was touched andimpressed by the difference the Veterans Courthas made in the lives of those men and womenwho have had difficulty adjusting to civilianlife after bravely serving their country. I was

particularly impressed by a combat veteran ofboth the Iraq and Afghanistan theaters who gotinto major trouble in DC following his honor-able discharge. This airborne paratrooper toldus that he had extreme anger issues — he re-lated that simple traffic frustration would esca-late beyond reason; that there was no middleground of anger for him: when he was cut offin traffic he became as enraged as when he sawhis best friend shot in the face near Baghdad.

Fortunately this vet’s case was transferredfrom DC to the Buffalo Veterens Court. He wasmentored by another combat vet, given treatmentfor his psychological problems and substanceabuse and with the help of the court, enrolled inS.U.N.Y Buffalo where he now has a 4.0 GPA.

I often see bumper stickers that proclaim“support our troops.” I sometimes wonder ifthe person who displays it sincerely wishes tosupport, in the true sense of the word, the ac-tual troops or is merely displaying patrioticzeal or even jingoistic support for the wars thetroops are fighting.

If we are sincere than we must recognizethat the sacrifice our troops make deservesspecial consideration and effort.

Consider this:

There are approximately 23,440,000 veter-ans in the United States(source: U.S. Depart-ment of Veterans Affairs); 2.2 million veteransof Iraq and Afghanistan(source: Iraq andAfghanistan Veterans of America)

1 in 5 reports symptoms of mental disor-der(source: RAND Ctr. For Military and Poli-cy Research);1 in 4 Veterans ages 18-25 metcriteria for substance abuse disorder in2006(source: Substance Abuse and MentalHealth Services Administration).

These numbers are expected to increasedramatically as vets return from Iraq andAfghanistan.

Special sacrifice deserves special consider-ation. Combat vets wereseparated from all as-pects of civilian life and thrust into a hostilezone where death could happen at any time. Itis no wonder that so many have difficulty rein-tegrating.Brooklyn established the secondVeteran’s court in the State; it is part of the ex-tensivetreatment courts system that was pio-neered here under our incredibly able admin-istrative judges and District Attorney CharlesJ. Hynes. D.A. Hynes and his First AssistantDistrict Attorney, Ann Swern also testified atthe Counsel hearing.

These courts are cash strapped and surviveon grants — they deserve better. The BrooklynBar Association applauds the efforts of D.A.

Hynes and our Judges — especially the ChiefAdministrative Judge of the Criminal Term ofthe Kings County Supreme Court, Chief Ad-ministrative Judge of the Criminal Courts ofNew York City and Past President of the Brook-lyn Bar Association, Barry Kamins. We pledgeto support these courts to help those who werewilling to answer the call of their country.

By Ethan B. Gerber, EsqPresident

BROOKLYN BAR ASSOCIATION PRESIDENT

RESPECTFULLY SUBMITTEDVeterans Court

President Ethan B. Gerber

Elder Law: Medicaid (Part I)By Mark Diamond, Esq.

Please turn to page 9

Page 4, BROOKLYN BARRISTER APRIL 2012

We have observed that the frigid arctic airmass that blanketed Europe this winter is try-ing to make its way around the globe to us thisspring to serve as counterpoint to the luxuri-ously warm and dry winter we just experi-enced. If we do encounter a wet, cool spring,we have for your indoor enjoyment some in-teresting cases involving the requirements forestablishing the entitlement to an attorney’sfee pursuant to Uniform Rule 207.45(a); a willknown to be in decedent’s possession but notfound after death nonetheless being admittedto probate; a deviation from the ‘Kaiser’ for-mula in the distribution of wrongful death pro-ceeds; the extent to which in accepting ap-pointment a distant fiduciary may have to ab-sorb travel expenses out of commissions; anattorney-in-fact not having the authority afterthe decedent’s death to discontinue a pendingaction, and the requirement that there be asubstitution of an estate fiduciary before theCourt has jurisdiction after death; the substitu-tion of an executor as plaintiff being allowedin a medical malpractice case despite a 33-month delay after death because time alone isnot enough to show prejudice; restrictions onthe invasion of ‘totten trust’ accounts by Arti-cle 81 Guardians; dismissal of action againstcemetery for having mistakenly placed thedecedent’s remains in wrong crypt and thenwithout consent moving the remains to theproper resting place; and a three-day delay byhospital in releasing body for burial makingout a cause of action for violation of the rightof sepulcher.

Requirements for Establishing the Enti-tlement to an Attorney’s Fee Pursuant toUniform Rule 207.45(A)-

The decedent’s will appointed her niece asthe executor and the executor’s brother as al-ternate executor. Under the will the niece andher brother each received a parcel of realproperty, and the residuary estate in equalshares. The inventory of estate assets showedan estate of $360,930.94. The executor en-gaged a law firm to represent her in connec-tion with her administration of the estateunder a retainer agreement which provided forthe payment of an attorney’s fee by variouspercentages of the gross taxable estate. Theexecutor subsequently discharged the attor-neys and retained another law firm. The dis-charged attorneys brought a proceeding tohave their fees fixed and requested a fee in thesum of $15,000 for services rendered over thecourse of 2 3/4 years. The Surrogate awardeda fee of only $3,000 and disallowed reim-bursement of disbursements for an heirshipsearch and for a title search. HOLDING- TheAppellate Division allowed a fee to the attor-neys of $12,500 and directed reimbursementof the disallowed disbursements. The Appel-late Division stated that in evaluating whatconstitutes a reasonable attorney’s fee, factorsto be considered include the time and laborexpended, the difficulty of the questions in-volved and the required skill to handle theproblems presented, the attorney’s experience,ability, and reputation, the amount involved,the customary fee charged for such services,and the results obtained. The Appellate Divi-sion held that the affidavit in support of its re-quest for attorney’s fees having properly iden-tified the attorney who rendered the servicesand having provided a contemporaneous item-ization of the time spent, the date on whichservices were rendered, and a brief descriptionof the services, along with a narrative descrip-tion of the services, satisfied the requirementsfor establishing the entitlement to an attor-ney’s fee pursuant to the Uniform Rules forSurrogate’s Court (22 NYCRR) § 207.45 (a).The Appellate Division agreed with the Surro-gate that certain services which the attorneysprovided were not related to the administra-tion of the estate or involved the individual in-terests of the two legatees, which were notcompensable out of the estate. However, theAppellate Division’s review of the record ledthe Court to conclude that the attorneys were

entitled to an award for providing 70 hours ofservices at its hourly rate of $175, for a totalaward in the sum of $12,250. The AppellateDivision also held that the attorneys were en-titled to reimbursement for the disbursementsexpended for an heirship search, which wererequired to obtain the probate of the dece-dent’s will and did not constitute attorneyoverhead, and for the cost of a title search con-ducted with respect to the real property be-queathed to the executor, which it required theexecutor to pay individually. Matter ofBarich, 91 A.D.3d 769 (2nd Dept., 2012)

A Will Known to Be in Decedent’s Pos-session but Not Found after DeathNonetheless Admitted to Probate- The dece-dent was survived by eight children. Dece-dent’s daughter Traycee sought Letters of Ad-ministration. Decedent’s step-son, Markthereafter filed objections and sought probateof a copy of a testamentary instrument. It wasalleged by Mark that the original will was inthe possession of, or had been destroyed byTraycee. Mark also sought pursuant to SCPA§1401 to compel Traycee to produce the orig-inal instrument. The will in dispute left all ofdecedent’s property in equal shares to his son,Peter, and to Mark, and named Mark as ex-ecutor. A hearing pursuant to SCPA §1401 andSCPA §1407 was held. Mark, Traycee, andanother daughter, Mary testified. Althoughdecedent’s sons James and Leslie had been is-sued subpoenas, and were both seen by Courtsecurity in the courtroom prior to the start ofthe hearing, they did not testify. Court securi-ty reported that the parties had been involvedin an altercation in the lobby of the court-house, and James and Leslie had then left thecourthouse. Thereafter, the Court receivedcorrespondence from Michelle, anotherdaughter of the decedent, indicating that shehad been encouraged by Traycee not to attendthe hearing. Based on this information, theCourt reopened the hearing for the testimonyof Michelle. Leslie, who at that time was in-carcerated, requested that the Court issue abody order allowing him to testify at the re-opened hearing. The Court denied the requestinasmuch as Leslie had given no explanationfor his failure to appear at the initial hearing.The undisputed testimony adduced at thehearing revealed that the will in dispute wasdrafted after the decedent’s spouse had died,and changed both the beneficiaries and the ex-ecutor. Mark testified that important familydocuments were always kept in a square metalcontainer, and that he had seen the new will inthat container after it was executed. He statedthat he had been traveling in the days prior tothe decedent’s death, and that when he re-turned he found Traycee, James, and Leslie inthe decedent’s house, going through the docu-ments in the container. Traycee admitted thatthe three were in the house at that time, andthat she had done some searching for the will,but denied destroying any of the decedent’spapers. In his final days the decedent requiredassistance even to bathe, and Traycee admit-ted that she frequently stayed with the dece-dent to assist him during that period. Accord-ing to the testimony of his children, the dece-dent was a careful and organized man. He hadhad his son Peter transport him to an attor-ney’s office to have his will redrawn after hiswife’s death, and informed a number of hischildren that he was doing so. Mark testifiedthat he saw the original will among the dece-dent’s papers. Mary and Michelle both testi-fied that they were suspicious of Traycee’smotives in seeking letters of administration sopromptly after the decedent’s death and thatthey both were surprised to learn there was nowill found. HOLDING- The Court deemedthe original of the propounded instrument tobe ‘lost’ and admitted it to probate. The Courtopined that SCPA §1407 permits a lost or de-stroyed will to be admitted to probate only if:(1) it is established that the will has not beenrevoked; (2) execution of the will is proved inthe manner required for the probate of an ex-isting will; and (3) all of the provisions of thewill are clearly and distinctly proved by eachof at least two credible witnesses or by a copyor draft of the will proved to be true and com-

plete. The Court found that the validity of ex-ecution of the propounded will was not in dis-pute, and noted that there were no objectionsto probate filed. The Court acknowledged thateven in the absence of objections, it was theduty of the Surrogate to be satisfied that alllegal requirements have been met before apropounded paper was admitted to probate asa will. The Court stated that where the originalwill is last known to be in the possession of adecedent there is a statutory presumption thedecedent destroyed the will animo revocandi(with the intention to revoke). The Courtfound however that there was credible evi-dence that the will was not truly in the posses-sion of the decedent at the time of his death,and ruled that if the decedent did not have cus-tody of his will, the presumption of revocationdid not arise. The Court pointed out that a willthat is lost or destroyed while the decedentdoes not have possession of it is presumed de-stroyed without the decedent’s knowledge orconsent, and the result is the same as if thewill was in existence at the time of the dece-dent’s death. The Court noted that three of thedisinherited children, Traycee, James, andLeslie were alone in the decedent’s houseprior to his death, and the Court inferred fromthe failure of James and Leslie to testify thattheir testimony would be adverse to their in-terests. The Court found Traycee’s denial ofhaving searched through the decedent’s papersinconsistent and not credible. The Court alsonoted that Traycee had encouraged a poten-tially adverse witness, her sister Michelle, notto appear, and that the decedent’s daughtersMary and Michelle both testified against theirown interest of their surprise that no will wasfound. Accordingly, the propounded instru-ment was deemed a lost or destroyed will andwas admitted to probate, and the applicationof Traycee for letters of administration wasdismissed. Matter of Barkley, 2012 N.Y. SlipOp. 50026 (Surr. Ct., Monroe Co., Surr. Cal-varuso, 1/12/12)

A Deviation from the ‘Kaiser’ FormulaAllowed In the Distribution of WrongfulDeath Proceeds- The executor sought judicialsettlement of his account and the allocationand distribution of the settlement proceeds re-sulting from a wrongful death action. SeparateGuardians ad litem were appointed for thedecedent’s children (A) and (M). The petition-er requested, and the Guardians ad litemagreed that the $1.5 million settlement pro-ceeds be allocated entirely to the wrongfuldeath cause of action, with no portion allocat-ed to the conscious pain and suffering cause ofaction. Both the petitioner and the Guardianad litem for (M) advocated for a minor devia-tion from the ‘Kaiser’ formula whereby thepetitioner, as surviving spouse, would receive55.71 percent of the net proceeds, with thebalance being split equally between his twochildren so that each would receive 22.15 per-cent of the net proceeds. As proposed in thepetition the older sibling (M), who was nineon the date of the decedent’s death, would re-ceive 1.71 percent more than he would underthe ‘Kaiser’ formula while the younger sibling(A), who was seven on the date of the dece-dent’s death, would receive 1.7 percent lessthan under ‘Kaiser’. The petitioner took theposition that his wife would have wanted theirchildren to have been treated equally despitethe difference in their ages. As might be ex-pected, the Guardian ad litem for (A) recom-mended that the Court follow the ‘Kaiser’ for-mula and allocate the net settlement proceedsbetween the petitioner and his two children inaccordance therewith, which would result inthe petitioner, as surviving spouse, receiving55.71 percent of the net proceeds, (A) receiv-ing 23.85 percent, and (M) receiving 20.44percent. HOLDING- The Surrogate ruled thatthere should be a deviation from strict appli-cation of the ‘Kaiser’ formula, but instead ofhaving one child sacrifice for the sake of theother, the Surrogate ruled that the father’sshare of the proceeds should be reducedslightly so that the children’s shares could beequal. The Court opined that EPTL §5-4.4(a)provides that wrongful death proceeds shall bedistributed to the persons entitled thereto in

proportion to the pecuniary injuries sufferedby them. The Court noted that the so-called‘Kaiser’ formula is not mandatory, but ratheris just a starting point for the Court, whichmust consider the totality of the circum-stances, and exercise its broad discretion andequitable powers in determining the properdistribution of wrongful death proceeds. TheCourt approved the allocation of the net pro-ceeds entirely to the wrongful death cause ofaction, but concluded that there were circum-stances in the case such that a more equitableresult would be reached by deviating from astrict ‘Kaiser’ calculation. The Court notedthat under the decedent’s will, her entire ‘tes-tamentary’ estate was left to the petitioner, herspouse. The Court stated that according to theInventory of Assets filed by the petitioner, the‘testamentary’ estate totaled approximately$4,000, with another approximately $650,000passing to petitioner as surviving spouse byoperation of law as surviving joint tenant. TheCourt found that the petitioner had already re-ceived the majority of the decedent’s assetswhich had a significant total value and, tosome extent, served to lessen the pecuniaryloss suffered by the petitioner. The Courtnoted that the decedent’s minor childrenwould only receive a portion of the proceedsfrom the wrongful death compromise to com-pensate them for the pecuniary loss sufferedby them. Consequently, the Court found thatthere was an equitable basis to slightly deviatefrom the ‘Kaiser’ rule. However, the Court re-jected the ‘Kaiser’ deviation proposed by thePetitioner, stating that there was no justifica-tion for reducing the one minor child’s‘Kaiser’ share just for the sake of equalizingthe children’s shares. Accordingly, after bal-ancing all of the facts and circumstances relat-ing to the compromise, and in consideration ofthe total value of the decedent’s estate and itssubsequent distribution, the fact that the Peti-tioner would be charged with the care andwelfare of his two children until they wereemancipated, and consistent with the wishesof the petitioner that his children be treatedequally, the Court decided that petitionershould receive 52.30 percent of the net pro-ceeds as and for his pecuniary loss, and thatthe difference (3.41 percent) between thatamount and what the petitioner would have re-ceived under a strict application of ‘Kaiser’,(55.71 percent), would be added to (M)’sshare, thus equalizing his share with that ofhis brother (A), so that each would receive23.85 percent of the net settlement. Matter ofCapovani, N.Y.L.J. 2/27/12, p.17, c.1 (Surr.Ct., Schenectady Co., Surr. Versaci)

In Accepting Appointment Distant Fidu-ciary May Have to Absorb Travel Expensesout of Commissions-

The decedent was survived by four chil-dren, David, Harold, Sharon, and Darlene.After Sharon, whom decedent had appointedas her executor, died and Darlene, whomdecedent had nominated as her alternate ex-ecutor, declined to so serve, David, a residentof Alabama, was appointed as the administra-tor c.t.a. of the estate. Sharon died shortlyafter decedent, and Darlene died approximate-ly two years later. Respondent, the administra-tor of Sharon’s estate compelled David to ac-count. Respondent filed various objectionsthereto contesting, among other things, certaintravel expenses and commission fees. Davidpurportedly incurred $14,460.13 in travel ex-penses for which he reimbursed himself fromthe assets of decedent’s estate. The Surro-gate’s Court reduced the travel expensesclaimed by petitioner to $8,460.13. David alsomade a $3,193.49 disbursement from estateassets to Schramm, a resident of Virginia, fortravel expenses that Schramm allegedly in-curred traveling to New York to assist peti-tioner with the disposal of decedent’s person-al property, which amount the Surrogate’sCourt disallowed. The Surrogate’s Court alsodirected David to reimburse the estate $3,625,allegedly representing a cash payment ofcounsel fees, as well as $3,311.25 in excessstatutory commissions. In all the Surrogate’sCourt directed David to reimburse the estate

THE STATE OF ESTATESBy Hon. Bruce M. Balter and Paul S. Forster, Esq.

Please turn to page 10

APRIL 2012 BROOKLYN BARRISTER, Page 5

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BY REASON OF DARKNESSBy Robert Ehrenfeld, Esq.

On the evening of May 10, 1941, five hundred fifteen Luftwaffe bombers dropped twothousand tons of incendiaries and high explosives on London. Three thousand Londoners died orwere severely injured that terrible night, and extensive material damage was done. The East Endwas particularly hard hit and many streets and buildings in Battersea, Marylebone and Paddingtonwere savaged. Baker Street and its bordering houses received a mauling. One cordite-filled two hun-dred fifty kilogram shell with a defective fuse struck the cornice of 216 Baker, bounded in an arcthree quarters of the way across the street, and detonated in the air. The resulting concussion toreopen part of the wall fronting the attic of 221B, causing a shower of masonry and dislodging froma shelf a long forgotten Huntley and Palmer biscuit tin, which tumbled into a crater in the street.

After rescue of the injured and retrieval of the dead, the paramount concern was streetreconstruction. Impassable streets meant that emergency lorries could not move freely. Conse-quently, little regard was given to recovery of items fallen from abutting structures. The tin laidburied where it had fallen for the next forty-one years.

1982 found me pursing an advanced degree in history at Cambridge. My regime included athree months assignment to the British Museum, under the tutelage of kindly old Parmenter, the Mu-seum’s chief document curator. Late one summer afternoon, the foreman of a British Gas crew arrivedat the Museum and reported that in laying pipe in Baker Street something of possible interest had beenfound. It was not an uncommon event. London is two thousand years old, and utility and constructionworkers are asked to report artifacts. Parmenter asked me to investigate, and, somewhat annoyed — Ihad been reading love letters written by the Sixth Earl of Albermarle to his paramour, Lady Susan Trot-ter — I received the tin although I considered it unimportant, thanked the foreman, took it still closedto my reading room, put it aside and resumed my prior work.

Shortly after five, and ready to leave for the day,I decided I had might as well open it. Inside I found a fold-ed deerstalker cap, a briarwood root smoking pipe with acurved stem, and a rolled manuscript of twelve pages, thelast five illegibly moldy, with the exception of a fragmenton the final page. After gingerly unrolling the papers Ibegan to read. In a moment I knew it for what it was. I feltfaint but kept reading. When I finished, I exploded from my chair, knocking to the floor the let-ters I had been reading, and ran down the hall to Parmenter’s office, praying he hadn’t left. I burstthrough his door without knocking. Sitting at his desk behind a rampart of documents, Parmenterstared open-mouthed at me, startled by my crazed appearance.

“Sir, please, you must seeyou must read it now.” I thrust the manuscript at him.He read it, put it down a moment, then picked it up and slowly read it again beginning

to end. Then he placed the pages face down and looked up at me.“Promise me you will never tell anyone about this.”I was aghast. I could not speak. Parmenter did.“Are we not entitled to our heroes?”I knew his meaning perfectly. I stammered that his judgment might be ill-considered.

The deference the young give those in authority allowed for no more, but he was unmoved. Re-luctantly I gave my word and left the manuscript with him.

But I was not content. I feared Parmenter would destroy it, or that time would render iteven less legible. Hoping some day to be released from my promise, I decided to make a copy formyself. The opportunity came several weeks later when Parmenter phoned that he was ill andwould remain at home for the day. I simply walked into his office, found the manuscript face upon his desk — I imagine he had read it repeatedly — took it to the bursar’s office, which then hadthe only copying machine in the Museum, made the copy I have retained these many years andreturned the original as I had found it.

There are those who carry a secret easily; however for me, the decades of silence haveweighed heavily, and that weight has become more than I can bear. I now find that I must with-draw my oath to Parmenter. The time is long past that the world ought to have learned DoctorJohn H. Watson’s true account of certain events occurring in the autumn of 1887; of their effecton a trial then taking place and on the lives of the persons written about; and of the illusions whichimpelled those persons to act as they did.

As the summer drew to a close, Holmes grew increasingly withdrawn. The man forwhom no challenge had been too great, no riddle insoluble, was now consumed by melancholyreveries of his wretched youth and bitter denunciations of the man he called his Nemesis. At-tempts at revival of his spirits were fruitless; clients were turned away; and the only relief he af-forded himself was the oblivion of morphine, which he had long used but to which he now re-sorted with alarming frequency.

Then one day in early September the landlady’s maid announced the arrival of a Mr.Charles Marlow. Holmes, lounging on the sofa in his purple dressing gown surrounded by crum-pled morning papers, sat bolt upright. This was the name of a man who figured prominently inthe trial of Stebbins. Holmes asked that he be sent in. His appearance was that of a man burdenedby a great weight. He explained that he was indeed the same Marlow who, in an upriver trip tothe African interior, had, despite daunting obstacles, located the renowned Kurtz.

Kurtz. How shall he be described? Kurtz the bold; Kurtz the trading company agent;Kurtz the man who had forayed into territory unknown; Kurtz the emissary of light and truth;Kurtz the saintly, who had brought the gift of civilization to the benighted natives of that immensevoid; Kurtz the national legend, celebrated for his courage, his selflessness, his goodness; andKurtz the martyred, laid low by disease and ceaseless toil. The newspapers had learned of himand their stories had so captured the public that he had been raised to near apotheosis.

And then Marlow told the truth about the man he had risked his life to find.“He was a monster, Mr. Holmes. The diary that Stebbins is now on trial for publishing

is genuine. Kurtz’ reputation is the invention of a press hungry for heroes. The man was rapaciousbeyond description. The followers he recruited were ravening wolves who plundered and mur-dered at his bidding. He is responsible for deaths beyond counting. When I found him he wasmercifully near death from fever. He gave me his diary in a delirium, muttering with a triumphantleer ‘See, see what I have done. Tell them all that I have done.’ When I returned, sickened myselfand still not fully recovered, I told the press I had his diary, but I declined to release it. I saw hisbetrothed, and when I saw that she worshipped his memory, I lied to her to give her comfort. Thenone day I returned to my lodgings, found my room broken into and the diary stolen. The next dayMiss Franklyn came to my boarding house terribly distraught and presented me with this.”

Marlow took from his pocket a sheet and handed it to Holmes, who examined it.

I have the diary. You will deliver £5,000 in a carpet bag to ColonelMoran at the Bagatelle Club on the evening of the 24th. If you fail to do so Iwill destroy the name of your precious Kurtz .

Moriarty

“Miss Franklyn’s family is very wealthy. The lady explained that she had received this

by post with no sender’s address. She asked, weeping as she spoke, what it could mean and I liedto her again, assuring her that the diary was still in my possession and that it only confirmedKurtz’ goodness. How do you think it came into Stebbins’ possession, Mr. Holmes?”

Stebbins. The vilest creature in the jungle of London’s tabloids. His Prattler was aweekly devoted to scandal. After Emma Franklyn rejected Moriarty’s demand, Stebbins began se-rializing the diary. Although the great majority of the public venerated Kurtz, still there werethose who were titillated by the notion that the hero was a fraud — or even worse, downright evil.

“Moriarty has used Stebbins before to conduct extortion. Usually just the threat of hisname will make a victim pay. He undoubtedly directed Stebbins to serialize the diary to showMiss Franklyn he would make good his threat, inducing her to pay to halt further publication.”

Marlow now lost all composure, begging Holmes to accept employment. Holmes’protest that Stebbins, on trial for the criminal libel of Kurtz, had been stopped, did not avail.

The two then came to terms and Holmes bade Marlow goodbye. Holmes then steppedto his writing desk, took pen to inkwell and wrote quickly on a single sheet which he placed inan envelope.

“Take this to Henshaw, Watson. Direct him to deliver it to the chambers of Sir AdrianBroadcastle at Lincoln’s Inn.”

I went down to Henshaw’s on Bryanston Street. He was perched owl-like on a stool athis tiny roll-top desk, a line of boys standing at his side. I paid him the four pence he required andtold him where the delivery was to be made; he took the envelope and repeated twice to the near-est boy “Lincoln’s Inn, Sir Adrian Broadcastle.”

No one had been more outraged by publication of the diary than that lion of the bar,Queen’s Counsel Sir Adrian Broadcastle. A church verger, knighted for his tireless efforts atbringing the lawless to justice, he believed Stebbins had calumnied a saintly and heroic man, andtherefore the nation itself. However, this agent of Stebbins’ undoing had had to reach far for anengine of his destruction, and in so doing, had turned to the blackest page of the common law.The Court of Star Chamber originated four hundred years earlier, tasked to protect the Crown.

This it did with confessions extracted on the rack and withwhite-hot irons, and it created a body of law defining trea-son, and in turn the concept of the criminal libel. Prosecu-tion for words written against the Crown became prosecu-tion for false words written against persons associated withthe Crown, and eventually against private persons, particu-larly those deceased and thus unable to respond. So was

borne the theory of the criminal libel, warranting sanction in instances of the most extreme andhateful lies directed against those unable to answer. Armed with the weapon he needed, Broad-castle brought a bill of indictment against Stebbins and began the most passionate prosecution ofhis career.

The day after the delivery to Henshaw, the landlady’s maid announced a messenger.Holmes took the envelope and immediately opened it.

“Broadcastle wishes to see me at five this afternoon. I expect he now takes Moriarty seriously.”Holmes was hopeful as he entered Lincoln’s Inn at the Chancery Road entrance. He

proceeded to the third floor and was admitted to Broadcastle’s chambers by his secretary who ledhim through a narrow hallway to a single large room lined floor to ceiling with books. A womansat in one of the two chairs at Broadcastle’s desk.

“Ah, good Holmes”, he said, gesturing Holmes to sit next to the woman.“When I received your letter, I decided a personal explanation was in order. For the bet-

ter part of three years you have been urging me to use every resource of the Crown to apprehendJames Moriarty. In that time you have accused him of more mischief than Satan himself is capa-ble. I confirm he has committed criminal acts, but nothing approaching the magnitude of whichyou believe.”

Then Broadcastle proceeded to tell Holmes that he knew Moriarty had attempted extor-tion, and having failed, turned to Stebbins who, Broadcastle believed, had authored a bogus diary.

“I tell you this because of my regard for you, Holmes. You are right this time — in part.But I cannot find Moriarty, and I regard Stebbins as the greater villain by far. And I tell you, youare wrong that Moriarty possesses the coldest of hearts and most relentless of wills, for he actu-ally sought out Miss Franklyn, who now sits next to you, after publication of the diary began, andadmitted to her it was fabricated. Indeed, he expressed regret at having caused her suffering. Withyour permission, Madam, kindly inform Mr. Holmes of the event.”

Her placidity had been a mistaken impression. As she turned and spoke, Holmes sawher grief. It had been nearly a year since Kurtz’ death. Her mourning would never end.

“Some weeks after I received the extortion note, and after I had been reassured by Mr.Marlow, but after Mr. Stebbins began publication, I received this by mail.” She handed Holmesa sheet on which was written the following:

I have deeply injured you and I have done so telling a falsehood.May I explain in person. Kindly meet me at the Nelson Column in TrafalgarSquare tomorrow at five.

Moriarty

“I did as he asked. At precisely five the next day, a tall man with a haggard look ap-proached me from out of the crowd, introducing himself as Professor James Moriarty. He told mehe had written the extortion letter and that when I did not pay, he directed Mr. Stebbins to print

BROOKLYN BARRISTERFICTION CONTEST WINNER

Please turn to page 8

Page 6, BROOKLYN BARRISTER APRIL 2012

On Monday, March 5, 2012, the BrooklynBar Association (BBA) & the MetropolitanBlack Bar Association (MBBA) hosted a Meetand Greet with Court of Appeals AssociateJustice Honorable Theodore T. Jones. Theevent started at 6:30 p.m and lasted until8:30pm. There were a number of speechesduring the event, but the purpose of the eventwas not to listen to speeches but to meet andgreet members of the bar, including attorneys,judges, court personnel and contractors.

The event was the brain child of JudgeTheodore T. Jones as a way to bring the mem-bers of the MBBA and BBA together, to pro-vide a forum for attorneys to learn about thetwo organizations and to have some fun.Judge Jones is on the Board of Director’s ofthe Metropolitan Black Bar Association andChair of the Membership Committee of theBrooklyn Bar Association as well as the Vice-Chair of the Outreach Committee of BBA.Being in a leadership roles in both organiza-tions allowed him to easily coordinate be-tween the two organizations.

“The presidents of both bar associations tookthe lead on organizing the event,” said the Hon-orable Judge Theodore T. Jones, Associate Jus-tice on the New York Court of Appeals andChairman of Diversity for the New York Courtof Appeals. “We wanted to gain more of an in-teraction between the two organizations and pro-vide a opportunity to mingle, meet and greet.”

Ethan B. Gerber, President of the BrooklynBar Association, gave the opening remarks. Mr.Gerber told the crowd that Judge Jones was a

personal hero and thanked all of the judges thatwere in attendance, including Hon. Sylvia O.Hinds-Radix (Admin. J Sup Ct 2nd Jud DistCivil), Hon. Lisa S. Ottley (Acting Supv J CivilCt of NYC Kings Cty), Hon. Patricia M. Di-Mango (Justice Sup Ct. 2nd Jud Dist.), Hon.Jeffrey Sunshine (Supv J Sup Ct 2nd Jud DistMatrimonial), Hon. Nancy T. Sunshine (KingsCty Clerk), Hon. Ingrid Joseph (Acting Sup CtJ Kings), Hon. Judge Gary F. Marton (j. CivilCt of NYC Housing) and Hon. Charles Small.Then Mr. Gerber introduced the President ofthe MBBA, Joseph M. Drayton.

“Tonight’s Meet and Greet with JudgeJones is an affirmation of the friendship whichexists between our two bar associations,” saidJoseph M. Drayton, President of the MBBA.“In light of some recent political attacks onthe judiciary, diversity is a strength.”

Mr. Drayton went on to speak about how barassociations are the training grounds for theirmembers, that jointly the bar associations teachtheir members how to be successful and toexcel. “It’s the training grounds for the profes-sion,” said Mr. Drayton. “Its important to be amember of both bar associations.” Mr. Draytonspoke about his hope for future collaborationsbetween the organizations by the presidents-elect R. Nadine Fontaine of the MBBA and Do-minic Napalitiano of the BBA. Mr Drayton thentold the crowd of the history of the MBBA.

The Metropolitan Black Bar Association(MBBA), according to its website http://www.mbbanyc.org, is a unified citywide asso-ciation of African-American and other minor-ity lawyers, whose purpose is to advance eq-uity and excellence in the pursuit of justice,

aid the progress of Blacks and other minoritiesin the profession, address legal issues affect-ing the citywide community, and foster thestudy of law by encouraging the personal andprofessional development of young lawyersand law students.

The MBBA was founded on July 5, 1984,and was created through the merger of theHarlem Lawyers Association, founded in 1921and the Bedford Stuyvessant Lawyers Associ-ation founded in 1933. As one of the largest or-ganizations of Black attorneys in New YorkState, the MBBA continues the rich legacy ofits two predecessor organizations by providinga voice for Black legal professionals.

Today, the MBBA is comprised of mostlyminority attorneys in large and small lawfirms, solo practitioners, all levels of govern-ment, academia, corporations, financial insti-tutions, not-for-profit organizations and thejudiciary.

The Honorable Judge Ingrid Joseph, KingsCounty Acting Supreme Court judge, a blackfemale judge, attended the event. “I am heretonight because I am so proud of JudgeJones,” said Judge Joseph, “His position onthe Court of Appeals does not define him, heremembers where he is from, he alwayscomes back to Brooklyn to swear in newjudges, he is like family.” Judge Joseph, amember of both the BBA and MBBA, has hada long history with Judge Jones and remem-bered Judge Jones when he was the PresidingAdministrative Judge of the Kings CountySupreme Court. “Judge Jones always madetime to listen to you and to help solve any is-sues the court was having,” said Judge Joseph.

“He had an open door, he always made time tolisten to you, a great problem solver.”

The Honorable Theodore T. Jones, Associ-ate Judge of the New York Court of Appeals,assumed office in 2007 when he was appoint-ed by Governor Elliot Spitzer for a 14-yearterm. On January 15, 2007, the New YorkTimes reported that Judge Jones was Gov.Eliot Spitzer’s first appointment to the state’shighest court. “Mr. Spitzer said he believedthat the government should reflect ‘the diver-sity of our society,’ but added that ‘race, gen-der did not play a role in my selection process’and that he only considered ‘who would be thebest jurist.’” At his appointment Judge Jonesstated, “I am profoundly aware of the impor-tance of this nomination. I cherish the positionin which I find myself.”

According to Wikipedia, Judge Jones wasBrooklyn-born in 1944, graduated fromHampton University, a historically black col-lege in Virginia, in 1965 with a Bachelor de-gree in History and Political Science. Heserved on active duty with the United StatesArmy from 1967-1969 in the Republic ofVietnam. Judge Jones attained the rank ofCaptain and subsequently graduated from St.Johns University School of Law in 1972.Judge Jones was admitted to practice law inNew York State in 1973. He was a criminaldefense lawyer at the Legal Aid Society and alaw secretary for Judge Howard A. Jones ofthe State Court of Claims. He also worked inprivate practice.

Judge Jones was elected to the New YorkSupreme Court with a term beginning in 1990

Judge Jones Meet and Greet With MBBA and BBA

Please turn to page 7

Judge Theodore T. Jones, Jr., Ethan Gerber Domenick Napoletano, Judge Theodore T. Jones, Jr.

Justice Carl J. Landicino, Domenick Napoletano

Diana Szochet , Judge Theodore T. Jones, Jr.

Hemalee J.Patel,Helen Z.Galette,Andrea E.Bonina

David M. Chidakel,Hon. Larry D. Martin,Charles A. Small

Joseph Drayton

By Michael Hernandez, Esq.

APRIL 2012 BROOKLYN BARRISTER, Page 7

Judge Jones Meet and Greet With MBBA and BBA

until his appointment to the Court of Appeals in2007. He handled criminal and civil cases andbecame a public figure as the judge assigned tohandle the legal matters surrounding the three-day New York City transit strike in 2005.

“Defying an injunction issued by JusticeJones, Local 100 of the Transport WorkersUnion shut down the city’s subways and busesfor 60 hours,” the New York Times reported.“[Judge Jones] fined the union $ 2.5 millionfor violating the Taylor Law, which prohibitspublic employees from striking, and sen-tenced its president, Roger Toussaint, to 10days in jail for contempt of court.”

Some of the attendees at the event had ap-peared before Judge Jones in court. StephenZeitlin, admitted to the New York Bar in1970, has appeared before Judge Jones. “He isa very even-handed judge and a bright jurist”said Mr. Zeitlin. “Judge Jones is liked and re-spected by the attorneys on both sides of thecase, which is rare.” Like most of the atten-dees at the event, Mr. Zeitlin came because ofhis respect and fondness for Judge Jones.

Honorable Judge Jeffrey Sunshine hasknown Judge Jones for over 30 years. JudgeJones interviewed Judge Sunshine in 1980 forthe Character and Fitness Committee and theysubsequently worked together at the BBA on amembership initiative in 1995. “Judge Jones isa dear old friend,” said Judge Sunshine.“Judge Jones swore me as a Supreme CourtJustice in December of 2010, I could not bemore proud.” Judge Sunshine also was verysupportive of the purpose of the event, “whenlawyers meet lawyers and know lawyers, ithelps the profession to grow,” said Judge Sun-

shine. “This is an absolutely wonderful event.”Some of the attendees came to the event to

meet Judge Jones for the first time. YasminDwedar, a female attorney of Egyptian/Fil-ipino background, a 2011 City University ofNew York School of Law graduate, admittedin New Jersey, attended the event. Sitting witha group of younger looking minority attorneysshe mingled and shared her legal experiences.“You never know who you will meet,” saidDwedar, “its really fun to meet a person in thiscasual environment, where everyone is jokingand relaxing, only to find out that you havebeen speaking with a judge.”

“It is so important that different bar asso-ciations work together to create events,” saidDavid J. Hernandez, Chairman of the Diversi-ty Committee of the General Practice Sectionof the New York State Bar Association andPast-President of the Puerto Rican Bar Asso-ciation. “By joining together for mutual goalswe are able to create a stronger bar and ahealthier community.”

New attorney Ayanna Watson, admitted onJanuary 18, 2012, who graduated from DrakeUniversity Law School, and practices crimi-nal law, said “As a black female attorney, Ithought it was a great event, I met three judgesand Judge Jones mentioned the possibility ofme participating on a panel of criminal law at-torneys that he was organizing.” The eventprovided attendees the opportunity to meetmembers of the both bar associations and tonetwork with influential members of the bar.“This is the first time I have gone to this typeof event, I plan on joining the Brooklyn BarAssociation & the Metropolitan Black Bar As-sociation and go to their future events.”

Continued from page 6

Neal B.

Forman,

Judge

Theodore T.

Jones, Jr.,

Sara Gozo,

Judge

Theodore T.

Jones, Jr.

Ethan Gerber, Steven Cohen, Justice Anthony J. Cutrona

Joseph Rosato, Justice Sylvia O. Hinds-Radix, Justice David B. Vaughan, JusticeMark I. Partnow.

Justice Anthony J. Cutrona, Justice David B. Vaughan, Justice Donald Scott Kurtz,Steve Bormundo

Page 8, BROOKLYN BARRISTER APRIL 2012

falsehoods. He now deeply regretted causing me pain. And there was one thing more he said be-fore he vanished back into the throng.”

“Yes?”“He said it had taken some time for him to recall, but that many years before he had

known Mr. Kurtz.”Puzzled, Holmes asked: “Why did you believe him?”“Because as he spoke there were tears in his eyes.”Holmes left Lincoln’s Inn filled with anger and disappointment. Every remonstrance

had failed to convince Broadcastle of the danger posed by Moriarty. Miss Franklyn had utterlysuccumbed to Moriarty’s charade and could not be convinced that such a volte-face was impos-sible for that fiend. It was now clear that he could expect no help from the law and that he wouldhave to act alone. And so he paced the streets for hours, considering a plan.

Holmes arrived at the Bagatelle Club at ten that evening, advising the door-keep, a largered faced man with an inquisitor’s scowl, to confirm with Mr. Ronald Adair, a member Holmeshad lately assisted in a matter involving a young lady — and whom he knew played cards thereevery evening — that he should be allowed to enter. Presently the keep returned beckoningHolmes to come in. He stepped into a large brightly lit room, its windows hung with heavy bro-cade curtains. A dozen or more tables were covered in green baize, and at each sat men playingcards. He searched the room and chanced upon Adair, who nodded his recognition, but it was notAdair he was there to see. Seated at the same table, his back partially turned to Holmes, was aman with a large, unmistakably grizzled moustache. Holmes approached, casting a shadow on thethirteen-card hand of whist he held. Annoyed, Moran turned. His first expression was of surprise,then of irritation. It was not the first time the two had encountered each other.

Colonel Sebastian Moran was Moriarty’s chief lieutenant. Notwithstanding, he movedin the best circles, pursuing the sporting life.

“Tell your master to meet me at midnight tomorrow in Portman Square, opposite Home House.”“I am not your manservant, Holmes. If you wish to send a message, find the recipient

yourself.” As he spoke he touched a cane at the side of his chair. Holmes knew this for the threatit was, but was undaunted.

“Tell him I have a message from Charles Marlow”, and without pause, Holmes turnedto Adair, who had been listening intently.

“He cheats at cards. Be careful.” Then he walked away, leaving Moran muttering.Holmes was quite cool the next day as he asked me to accompany him.“Carry the Bulldog, Watson. He will be there with Moran. If Moran points his cane at

you or me, do not hesitate to shoot.”The Georgian façade of the Home House mansion at 20 Portman Square reflected con-

siderable light from nearby gaslights, while across from the structure the elms of the Portman pri-vate park cast deep shadows. Holmes had chosen carefully. From the dark an ample view was af-forded in each direction.

We arrived at quarter of twelve and took position. There was no sound save the occa-sional hansom traversing the cobblestones carrying late night revelers. The only pedestrian to beseen was a distant solitary woman, at that hour undoubtedly of the most dubious sort.

A brougham stopped in the distance. Two men alighted and walked to number 20.Holmes stepped out of the shadows and crossed the street. Moran stood several feet behind Mo-riarty, as did I behind Holmes, my right hand in my trouser pocket gripping the revolver.

The two faced each other, staring with cold malevolence. “You have something to say to me, Holmes?”“As your man has told you, I know how the diary came into Stebbins’ possession. I have

been employed to secure its return and stop further publication.”“It is now out of my hands. I could not return it if I wanted to.”“Ah, but I know you do want to.”Moriarty started.“The reason I wished to see you has to do with what you said to Miss Franklyn. Yes,

Moriarty, I know you told her the most extraordinary tale, one in which you claimed remorse fora criminal act. That is, shall we say, unlike you.”

“You have a point to make? There is a reason other than curiosity that caused this meeting?”“Oh quite beyond mere curiosity.” Now Holmes’voice dropped and became filled with rancor.“Make no mistake about it, I will destroy you no matter the effort or the time, but this

I must know: Why did you tell her you regretted the theft and the sale to Stebbins, and why didyou tell her he fabricated a new diary? Why did you tell her lies about Kurtz? If ever men walkedthis earth who have known the face of evil they are you and he. Why did you tell her these things?Why? I must know why!”

“Inquisitive, aren’t you Holmes? I will give you your answer now for the pleasure ofknowing it is beyond your capacity for deduction and because these are the last questions you willever ask. Kurtz. You don’t remember him? You don’t remember the little red haired boy at An-dover Workhouse, the one who cried out for his mother in his sleep, the one who was always beat-en the most severely by the masterand by us?”

Now it was Holmes’ turn to gape. Yes, he remembered. But, on seeing the shock ofrecognition in Holmes, Moriarty raised his right hand and as he did so I saw Moran raise his caneand point it at Holmes.

He was not fast enough. I pulled the .450 caliber Bulldog from my pocket and fired. Theshot struck him in the shoulder and drew a gout of blood as he dropped the cane and groaned.

At that moment, Holmes lunged at Moriarty and the two grappled, falling to the pave-ment, Moriarty reaching for the stick.

“The cane Watson, the cane, snatch it before either one of them can seize it.”I rushed forward and grabbed it in my left hand, the right still pointing the revolver at

Moran, now cowering.As the two rolled and struggled Moriarty saw that I held the stick and shouted to Moran

“Away, quickly.” With a hard blow, he stunned Holmes, stood, and began running, Moran fol-lowing, bent and holding his shoulder.

“Shall we give chase?”“No, Watson. The cane is sufficient tonight.”I examined the object. I was surprised at its considerable weight. I turned it to view its

tip and saw that it was comprised of a delicate wood casing fitted perfectly over a steel tube,which had a spiral grooved channel running its length. Puzzled, I looked at Holmes, now gettingup from the ground, and handed it to him.

“Yes, Watson. It is no walking stick. It is a rifle. With it I now possess the means to de-stroy Moriarty.”

This event marked the conclusion of all collaboration with Holmes, for beginning thenext day his disposition turned the blackest I had yet seen. Despite my inquiries, he declined tostate his plan. He did, however, explain the nature of the device we had taken.

“It was built by a German gunsmith named von Herder, who called it an air rifle. It isutterly silent when fired, and the projectile is of a heavy caliber. The perfect assassination device.Both Moritary and Moran have used it in what I believe were twelve murders for hire.”

He offered this but nothing more, instead devoting considerable time to holding andmoving the weapon, as though practicing aiming, as well as carefully examining his disguisewardrobe. Long skilled in the art of disguise, Holmes maintained considerable clothing and ex-tensive cosmetic materials for this purpose, including various wigs and facial hair accoutrements.

What I have to tell about the incident at the Old Bailey I recount from inference, not first-hand knowledge, as I did not see him for hours before or after the event, and of course, he admit-ted nothing. There are, however, instances in which inference becomes necessary conclusion.

The trial of Stebbins had continued daily. Two days following the confrontation at Port-man Square, Charles Marlow was called to the witness box by Broadcastle as the Queen’s finalwitness and the man who would conclusively establish Kurtz as a noble figure. I am told he wastrembling as he took oath to testify truly, doubtless torn by his desire to lie for the sake of MissFranklyn. Stebbins stared at him from the dock. The spectators in the packed gallery were hushed.

“Tell us, Mr. Marlow, when did you.”Broadcastle’s question was interrupted by a loud groan. It was Stebbins, whose upper

torso had dropped upon the rail of the dock, a great gush of blood spurting from his neck.The crowd gasped. Bailiffs galloped to Stebbins while his own barrister sat transfixed.

Stebbins was dead. The courtroom was ordered cleared. Among the spectators ushered out was agrizzle-moustachioed man with a cane.

For weeks, the tabloids screamed MURDER AT THE BAILEY. Scotland Yard placed everyavailable detective on the matter, but to no avail. Broadcastle announced that the investigation wasbeing relentlessly pursued. But weeks passed and no progress was made finding the murderer. Holmeshad by now become entirely reclusive, never venturing from our lodgings, receiving no one, barely ut-tering a word except to direct me to post letter after letter. After a month of this, he came to me onenight in a morphine-induced stupor and with no prefatory remark muttered, “I am a great mana verygreat man.” I could think only of Kurtz, dying of fever, pleading with Marlow as he gave him the diary.

Time passed. Shriveled November leaves blew across London’s streets and squares;gray skies promised winter and people traversed the streets with greatcoat collars turned againstthe wind. Weeks had become months, but time gave me no respite. The knowledge I carried hadbecome too great to bear.

I sat in the chambers of Adrian Broadcastle. I had told him everything and I was nowdrained of strength and emotion. Broadcastle had listened, his face impassive. When I finished thetwo of us gazed silently at each other for what seemed an eternity.

He stood and walked to the window, looking down as the lamplighters ignited thegaslights on Chancery Lane with their long wicks. He spoke without looking at me.

“I have been Queen’s Counsel a long time, Doctor. I have prosecuted many killers. Mur-der is always irrational, the product of rampant emotion and twisted thought. Why would a manwith Holmes’ clarity of mind kill? And why kill Stebbins, who had not directly harmed him?

I answered as best I could.“Holmes is blinded by darkness. After he killed Stebbins he planted stories with the

tabloids through reporters he knows — stories you have read — claiming Stebbins and Moriartyhad quarreled about money and that Moriarty had Moran commit the murder. That is quite im-possible. The wound I gave Moran at Portman Square made it impossible for him to lift and aimthe air rifle in just two days. And by killing Stebbins, Holmes thought he would fulfill his obli-gation to Marlow. Now, with Moriarty still at large, he has withdrawn utterly into himself. Hisdays are filled with idleness and recrimination; his nights are surrendered to morphine.”

Broadcastle returned to his desk, sighed, and looked at me.“What you don’t know is that Holmes has written letter after letter to me urging Mori-

arty’s arrest, claiming he, through Moran, is the killer. I will admit he had convinced me, but bothMoriarty and Moran have vanished. Now you have told me that I put an innocent man in the dock,that the diary is genuine, that Kurtz was a monster, and that all this drove Holmes to murder.”

Again, there was a long pause.“What will you do now”, I asked.He stared past me out the window into the gathering dark.“I don’t know, I don’t know. All I know is that if I do anything the nation will lose two

of its heroes.” And then he said something that I will never forget.“Are we not entitled to our heroes?”

The legible portion of the manuscript — except a few lines of the final paragraph on thelast page — ends here. It is therefore not possible, except by examining what is known of the livesof the participants, to know the effect of these events.

Holmes and Moriarty destroyed each other in a well-chronicled duel lasting severalmore years.

Emma Franklyn never married, devoted to the memory of Kurtz to the end. A niece at-tending her in her final illness reported her last words as “I loved him so.”

Sir Adrian Broadcastle remained Queen’s Counsel for several more years, never dis-closing the events Watson recorded. Observers noted a diminished fire in his courtroom manner.His years of service to the Crown were rewarded with an appointment to the bench, and he is re-membered for a number of decisions in which he urged both bar and bench to scrutinize theircases with the utmost dispassion.

Charles Marlow returned to the sea. In time he met a Polish gentleman with a surpass-ing gift for English prose, and the story of his harrowing upriver journey and encounter with Kurtzwas published and gained a degree of notoriety. There is, however, no mention in it of the eventsrecorded by Watson. I surmise that Marlow was able only to a point to divulge the terrible thingshe knew, and that beyond lay matters entirely far too dark to be told even to so profound an ob-server of the human heart as Joseph Conrad.

Doctor John H. Watson remained with Holmes a short time only, married, and openeda medical practice, breaking all contact with his long time acquaintance. When interviewed short-ly before his death about his years with Holmes, Watson said the following:

It was not admiration but fascination, a kind of awe that I felt for the man, rather likewhat one senses standing at the precipice of a great dark abyss into which one cannot see. But thetime came when I knew I must leave, for if I had not I too might have taken a step over the brink.

Holmes, Moriarty and Kurtz: May we call them kindred spirits? They had been boundtogether by privation in their youth, a privation that whispered things to them, things they listenedto. Each found his own nightmare, and each remained loyal to it. I have often wondered whatcould be learned about them from the illegible pages of the manuscript, but that is pointless spec-ulation, although it is certain that Watson — by what means we can only conjecture — came intopossession of the diary. That is made clear from the barely legible portion on the last page. In itWatson writes that the final entry made by Kurtz recites an Old Testament passage; and I will askthe reader to decide whether it was written by Kurtz, and in turn by Watson, as a humble entreatyor as a bitter condemnation, or perhaps as both:

Teach us what we shall say unto him; for our speech is not ordered,by reason of darkness.

Robert Ehrenfeld, Esq., is a partner in the Brooklyn firm of Cohen Hurkin EhrenfeldPomerantz & Tenenbaum, LLP

BY REASON OF DARKNESSContinued from page 5

APRIL 2012 BROOKLYN BARRISTER, Page 9

Kudos and Professional Recognition(continued)

Congratulations to Brooklyn Bar Associa-tion Lawyer Referral Service DirectorRoseann Hiebert who has been invited by theAmerican Bar Association Standing Commit-tee on Lawyer Referral and Information Ser-vice to participate in a national LRIS Leader-ship Forum at the ABA Headquarters inChicago in June.

Court NotesBrooklyn Bar Association Past President

Hon. Jeffrey S. Sunshine, Supervisory Judgefor Matrimonial Matters has announced that“in accordance with provisions of DRL 240and FCA 413 (through the mechanism enunci-ated in Social Service Law 111(1)(2)(b) thecap has increased for child support to$136,000 and temporary maintenance to$524,000. This increase is reflective of the in-crease in the CPI. In accordance with thestatute the cap changes every two years.”

Word has reached the Brooklyn Bar Asso-ciation that attorneys licensed to practice inNew Jersey are required to pay the 2012 an-nual registration fee and file a registrationstatement in April. A late fee is assessed after

April 27. Registration and online paymentmay be accomplished through the “AttorneyOnline Registration and Payment Center” atwww.njcourts.com/attyreg. For further infor-mation contact 609-292-8079 or CPF.Mailbox@judiciary.state.nj.us.

BereavementsThe Brooklyn Bar Association extends its

deepest sympathy to Mark J. Caruso andAndrea J. Caruso on the passing of motherand grandmother Dolores Caruso on March23, 2012.

The Brooklyn Bar Association extends itsdeepest sympathy to Hon. Dawn Jimenez-Salta on the passing of her stepmother KarenKearney Jimenez.

The Brooklyn Bar Association extends itsdeepest sympathy to Rhonda Rosenstock andfamily on the passing of Louis J. Rosenstockon April 17, 2012.

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 aokin@brooklynbar.org, faxed to 718-797-1713 or mailed to123 Remsen Street, Brooklyn, NY 11201-4212.

LEGAL BRIEFSContinued from page 2

tion for a Supreme Court seat. She began herterm as a Supreme Court justice in January2011. Since becoming a Supreme Court jus-tice, she has been sitting in one of the twoCity Parts (the other assigned judge to theCity Part being Justice Carl Landicino). TheCity Part handles matters where the City ofNew York is a defendant, including motions,conferences and hearings. Usually, thenewest judges are assigned to the City Partfor a two-year term.

Justice Ash enjoys sitting in the City Part,as it has allowed her to meet many of mem-bers of the Bar. She has found the attorneyswho appear before her (both the City’s corpo-ration counsel attorneys and adversary coun-sel) to be well-prepared and helpful in makingher job run smoothly. Her advice to lawyersappearing before her is that, when a case ismarked “final” in her Part, it means “final!”

Some of Justice Ash’s notable cases are:• Smith v. A World of Pups Inc.1: In a case

over damages relating to a dog, aside fromcovering the dry UCC Article 2 reasons whythe plaintiff was entitled to damages, JudgeAsh discussed the love some people have fortheir dogs (“There are pet owners who will

argue that owning a pet is tantamount tobeing a parent to a young child.”)

• Andreani v. Romeo Photographers &Video Productions2: In awarding breach-of-contract damages against a wedding photog-rapher, she stated, “The preparation and pro-duction of the wedding album is crucial sincethere are no second chances to capture a oncein a lifetime moment.”

• Kaloyeva v. Apple Vacations3: Delvinginto the crosshairs of the internet and person-al jurisdiction, she held that a website of anon-domicilary offering vacations to NewYork State residents could not escape juris-diction here.

• Pigott v. City of New York4: In a recentcase, Justice Ash was faced with the lawsuitby the spouse of a police officer who“tasered” someone and later committed sui-cide.

1 27 Misc.3d 1236(A), 910 NYS2d 765(N.Y.City Civ.Ct. 2010)

2 17 Misc.3d 1124(A), 851 NYS2d 67(N.Y.City Civ.Ct. 2007)

3 21 Misc.3d 840, 866 NYS 2d 488(N.Y.City Civ.Ct. 2008)

4 32 Misc.3d 1208(A) (Sup. Kings 2011)

Justice Sylvia G. Ashall the changes in this realm, between TheDeficit Reduction Act and revisions to theNew York State estate recovery rules, there isno cookie cutter approach. The bulk of myclients used to be in the category of real-estaterich, liquid-asset not so rich. The person’shouse could be worth half a million dollarsbut he might have only $100,000 in cash.

“The way we used to deal with this type ofsituation was to deed the house to others, suchchildren, with the parent retaining a life estateso he had the use and control of the housewhile alive. This limited the assets of the in-tended recipient to exposure to Medicaid liensfor months only. That was a very prevalentplan for middleclass folks in Brooklyn. Butthis is not the best way to proceed anymoresince, by retaining a life estate, the asset isnow attachable by Medicaid under the newstate rules. Testamentary substitutes can nowbe recouped by Medicaid. In the past, theywere not.”

Along these lines, an important concept tokeep in mind is the difference between Med-icaid eligibility and Medicaid attachment. Aperson may own a home up to a certainamount and still be eligible to receive forMedicaid. However, Medicaid may be able togo after you’re the proceeds from the sale ofyour home once you die and your survivingspouse dies or sells your home.

What, then, is the benefit of going on Med-icaid if they can attach your assets and in-come? Healthcare providers charge people onMedicaid less than private payers.

Is the care afforded Medicaid patients dif-ferent than that afforded private payers? “InNew York State,” says Lamberti, “they(healthcare providers) are required to give thesame treatment to Medicaid people as privatepayers. Other states have separate facilities,but that is not the way it works in New York.”In other words, you will be sitting in the samechair and staring out the same window all dayin a nursing home whether you are on Medic-aid or paying privately.

This whole business of attachment of in-come and assets by Medicaid can affect aspouse or parent. For even if the recipientspouse or child has no assets and little in-come, the rules in New York may allow Med-icaid to seek repayment from a spouse or theparent of a child under age 21. New York al-lows spouses and parents to refuse to pay fora recipient spouse’s or child’s healthcare inwriting. This is called “spousal refusal” or“parental refusal.”

If a moneyed non-recipient spouse or par-ent signs a statement in which he refuses topay the healthcare costs of the recipientspouse or child, then the Medicaid eligibilityof the recipient spouse or child must be deter-mined without considering the non-recipientspouse’s or parent’s income and assets.

Spousal refusal is a not-uncommon eventand currently applies to Medicaid eligibilityfor all purposes, including nursing homesand homecare. Again, however, there havebeen moves to repeal New York’s refusalrule. This would have the effect of making amoneyed spouse’s or parent’s income and as-sets available for Medicaid purposes for a re-cipients’ homecare, although, interestingly,not for his nursing home care. The reason?Federal law specifically allows spousal andparental refusal for nursing home purposesbut not for homecare purposes. Spousal andparental refusal for home healthcare purpos-es is currently allowed by New York State,not federal law.

In New York, the refusing spouse must stillprovide income and asset information to Med-icaid. Refusal to do so will make the applyingspouse or child ineligible for Medicaid, al-though there is an exception for spouses whoare living separately from one another. Aspousal refusal should be provided as soon aspossible, which means concurrently with sub-mission of the Medicaid application.

Here is the hitch. While spousal refusalmay allow a non-moneyed intended recipientspouse or child to be eligible to receive Med-icaid, the state can still go after the refusingspouse or parent to recoup the money Medic-aid has paid on behalf of the recipient. In other

words, while spousal and parental refusal mayallow a spouse or child to receive Medicaid, itdoes not relieve the refusing party of liabilityto pay back the costs of healthcare that havebeen paid for the recipient by Medicaid.

In the past, even though it had the right todo so, Medicaid would not go after a refus-ing spouse or parent. Today things are dif-ferent. Local Medicaid offices are seekingrecoupment of costs from refusing spousesand parents, subject to certain setoffs knownas the Community Spouse Resource Al-lowance, which is currently between about$75,000 and $110,000, depending on thespouse’s residence. And, they can seek re-coupment at any time, although they usuallywait to claim contribution from the moneyedspouse or parent until the recipient is offMedicaid, because it will not know the totalamount it has paid for the recipient’s health-care until that time.

New York City, however, has instituted aprogram to go after moneyed spouses as soonas a Medicaid application is submitted. LocalMedicaid offices seeking recoupment oftenagree to take a percentage of the amount towhich they believe they are entitled as settle-ment in lieu of bringing a court action, oftentwenty-five cents on the dollar. Who knowshow long this will last.

Elder law attorneys may advise theirclients to place their assets into trust, so thatthey are unavailable to Medicaid for eligibili-ty and attachment purposes. While this is stilla useful tool, it is getting harder to do. For ex-ample, in the past, non-probate assets werenot attachable by Medicaid to satisfy health-care costs that it paid for on behalf of the re-cipient. The goal, then, was to get assets out ofthe recipient’s estate (and maybe that of aspouse or parent) so that when the recipientdied, Medicaid could not go after those assets.In April, the state passed new rules that allowsMedicaid to go after not only probate assetsbut non-probate assets as well, includingtrusts and outright transfers, subject to a five-year look-back period for nursing home careand a one-month look-back period for home-care.

Now a word about home healthcare. Med-icaid in New York is authorized to pay for arecipient’s home healthcare, includingskilled and unskilled personal care aidesunder the supervision of a nurse (althoughauthorization for skilled homecare is rela-tively uncommon). Unskilled services in-clude bathing, toileting, grooming, feeding,and dressing but not giving medication,which must be done by the nurse or a re-sponsible party, such as a child.

Increasingly, New York has been seekingways to reduce payments for home healthcare,which is pushing more and more people whomight otherwise be able to stay at home intonursing homes, especially people who qualifyfor 24-hour care. Many people believe that isbecause nursing homes and unions havestronger lobbying than home healthcareproviders. An alternate argument is that Med-icaid has the ability to recover more moneyfrom recipients who are in nursing homes,their spouses, parents, and estates than fromrecipients who are in home healthcare, be-cause of the longer look-back period applica-ble to those in nursing homes as compared tothose receiving home healthcare — five yearsas opposed to one month.

As a result, Medicaid seems to be author-izing home healthcare for fewer hours than inthe past, requiring families who want their rel-atives to stay at home to pick up the tab for thedifference. It behooves intended recipientsand their families to have an elder law attor-ney on board who can intelligently help com-plete the home healthcare application in orderto receive the highest amount of hours neededand deserved. (And not just the home health-care application. A good elder law attorneycan be worth his weight in gold when apply-ing for nursing home care, too.) Once Medic-aid approves a certain number of hours it isharder for Medicaid to reduce those hours, as-suming the recipient’s situation remains thesame, than it is to simply approve fewer hoursfrom the get-go.

Despite cutbacks, there are still several

Elder Law: Medicaid (Part I)Continued from page 1

Continued from page 3

Medicaid Waiver Programs designed tomaintain people in community care in-stead of nursing homes and hospitals, in-cluding those for mentally retarded andbrain injured people. One waiver programof particular interest is the Lombardi Pro-gram, where the authorized home health-care provider makes the initial determina-tion of an applicant’s acceptability into the

program rather than a local Medicaid of-fice.

That’s it for this article. In next month’s in-stallment, we will explore Medicaid incomerules and the transfer of assets, and will bespeaking again with Anthony Lamberti, chair-man of the Brooklyn Bar Association ElderLaw committee, as well as Fern Finkel, vice-chair of the committee.

Advertise twice a weekin the Brooklyn Eagle’s

Legal Services Directory.Contact: Charisma L. Miller, Esq.

barrister@brooklyneagle.net

Page 10, BROOKLYN BARRISTER APRIL 2012

in the amount of $16,129.74, and he appealed.HOLDING- The Appellate Division af-firmed. The Court stated that the long estab-lished view is that a fiduciary voluntarily ac-cepts an appointment with an awareness of thegeneral obligations to be performed, and thedirect and indirect costs of performing tasks tofulfill such obligations are covered by thestatutory commission. In the Court’s view, afiduciary normally should not agree to servewhere the distance between his residence andthe jurisdiction is so great that he cannot prop-erly discharge his fiduciary responsibilitywithout incurring expenses for travel that arein a greater sum than he wishes to absorb as acharge against his statutory commissions.However the Court recognized that the ex-penses incurred by a fiduciary as an incidentof necessary travel in the discharge of his fi-duciary duties may be paid from the estate tothe extent they are reasonable and necessary.

The Appellate Division agreed with theSurrogate that inasmuch as Sharon’s death andDarlene’s unwillingness to serve as executorin accordance with decedent’s wishes necessi-tated David’s appointment, his travel expens-es were both necessary for the orderly admin-istration of decedent’s estate and anticipatedby the other beneficiaries thereof. The Appel-late Division also agreed with the Surrogate,however, that the sum claimed by David,which represented more than 14% of the totalestate assets, was not reasonable under the cir-cumstances—particularly in view of the factthat petitioner accepted his statutory commis-sion. The Court ruled that the Surrogate’sCourt properly reduced the travel expensesclaimed by petitioner to $8,460.13 and or-dered him to reimburse the estate for the dif-ference. The Appellate Division reached asimilar conclusion regarding the $3,193.49disbursement that David made from estate as-sets to Schramm. Even assuming that reim-bursing a non fiduciary for travel expenseswere permissible, the Appellate Division ruledthat Surrogate’s Court did not err in disallow-ing the reimbursement. In light of the fact thatit did not appear that the decedent’s personalproperty had any value, while Schramm’s as-sistance might have personally benefittedDavid by expediting the process of sorting anddisposing of decedent’s personal effects, theAppellate Division stated that it could not seehow Schramm’s contribution substantiallybenefitted decedent’s estate. The AppellateDivision also rejected David’s contention thatthe Surrogate’s Court erred in directing him toreimburse the estate $3,625—allegedly repre-senting a cash payment of counsel fees—aswell as $3,311.25 in excess statutory commis-sions, the latter of which David asserted he al-ready had repaid. The Court stated that as ad-ministrator, it was incumbent upon petitionerto maintain clear and accurate records, absentwhich all presumptions and all doubts were tobe resolved adversely to him. The AppellateDivision ruled that in light of David’s failureto appropriately document the transactions,the Surrogate’s Court did not err in orderingDavid to reimburse the estate accordingly.Matter of Mink, 91 A.D.3d 1061 (3rd Dept.,2012)

An Attorney-In-Fact Does Not Have theAuthority after the Decedent’s Death toDiscontinue a Pending Medical Malprac-tice Action; Court Does not Have Jurisdic-tion Until There is a Substitution of EstateFiduciary- In a medical malpractice action amotion was made on behalf of the estate for anOrder pursuant to CPLR §1015 substitutingthe administrator of the estate as plaintiff; va-cating plaintiff’s default in appearing for aPreliminary and/or Final Conference, andrestoring the case to the calendar, among otherthings. Defendant opposed the motion. The-case sounded in medical malpractice and forlack of informed consent, and claimed viola-tions of the Public Health Law arising from al-leged nursing home negligence upon the dece-dent. The decedent had executed a generalpower of attorney in favor of her son. The sonconsulted with and retained an attorney to rep-resent the interests of his mother against thedefendant nursing home. Shortly thereafter

the decedent passed away. The attorney, nothearing from his client for two years, orknowing that she had died, filed a summonsand complaint which was served on defen-dant. The attorney learned that the decedenthad died when his firm was served with thedefendant’s motion to dismiss for lack of ca-pacity. The attorney then met with the sonwho confirmed that his mother had died andadvised that he did not want to continue theaction. The son signed a Stipulation of Dis-continuance With Prejudice which the attor-ney forwarded to defendant. The defendantwithdrew its motion and the Stipulation ofDiscontinuance was filed. Unbeknownst tothe attorney, the son began consulting with at-torneys at another firm about the same claimsthat formed the subject of the action. At thetime the Stipulation of Discontinuance wasexecuted, the original attorney did not knowthat Letters of Administration already hadbeen obtained on behalf of the son by the newfirm. Defendant argued that the action wasdiscontinued with prejudice by virtue of theStipulation of Discontinuance that was signedvoluntarily by the son and his then attorney.Plaintiff argued that the fact that Letters ofAdministration were issued after the lawsuitwas commenced demonstrated that the sonlacked capacity to bring the action when itwas filed. Despite the filing of the Stipulation,thereafter a preliminary conference wasscheduled by the Court. It appears that theCourt was advised of the discontinuance, butnonetheless discovery conferences continuedto be calendared. As a result of the continuednon-appearance of the parties, the case ulti-mately was marked disposed. The estatesought to have the Stipulation of Discontinu-ance deemed a nullity and to have the defaultwith regard to the Court-scheduled confer-ences vacated, as well as to have the son, asadministrator, substituted as plaintiff. HOLD-ING- The motion was granted. The Court stat-ed that an attorney in fact is merely a specialkind of agent and ordinarily the power of at-torney is revoked by the death of the principal.The Court noted that upon the death of thedecedent, the proceedings were stayed untilthe appointment of a personal representativefor the estate. The Court pointed out that thedeath of a party divests the court of jurisdic-tion to conduct proceedings in an action, theaction is stayed pending substitution of a legalrepresentative, and any determination ren-dered without such a substitution is generallydeemed a nullity. The Court added that even aso-Ordered stipulation which, in effect, directsthe dismissal of a complaint is a nullity andwithout any force or effect if it is made with-out a substitution. The Court stated that a mo-tion for substitution pursuant to CPLR §1021is the method by which the Court acquires ju-risdiction over a deceased party’s personalrepresentative, and such a motion is not amere technicality. The Court said that thedecedent’s death revoked the power of attor-ney conferred upon her son, and that he had noauthority to discontinue the action. Addition-ally, the Court asserted, the original attorneycould not act on behalf of the plaintiff nor dis-continue the action without a substitution, justas the Court had no jurisdiction to accept suchan instrument. The Court explained that anyaction taken by counsel on behalf of a de-ceased party is of no force or effect, and that,thus, the Stipulation of Discontinuance withPrejudice, was a nullity. The Court ruled thatthe case was stayed due to the plaintiff’s deathand that all proceedings, including the sched-uled conferences, were to have been markedstayed pending substitution. The Court notedthat although all proceedings were renderednull without a substitution, the same did nothold true as to the action itself. The Court stat-ed that although the plaintiff lacked the capac-ity to sue at the time that the action was filed,the action nonetheless was commenced andcould not be considered a nullity. The Courtruled that the plaintiff cured the defect in ca-pacity to sue by his receipt of letters of Ad-ministration and the motion for substitution.The Court opined that CPLR §1015(a) statesthat if a party dies and the claim for or againsthim is not thereby extinguished the Court

shall order substitution of the proper parties,and that CPLR §1021 requires a motion forsubstitution to be made within a reasonabletime. The Court stated that the determinationof reasonableness required consideration ofseveral factors, including the diligence of theparty seeking substitution, prejudice to theother parties, and whether the party to be sub-stituted had shown that the action or the de-fense has merit. The Court was satisfied withan affirmation as to the merits of the actionfrom a doctor Board Certified in InternalMedicine and Geriatric Medicine. The Courtnoted that any delay in moving for substitu-tions was not attributable to the respective lawoffices, that the attorneys for the parties werenot apprised of the totality of circumstances,and that vital information was not provided tothe attorney originally retained in this matter.The Court also found that there was no preju-dice to the defendant as they had had notice ofthe facts underlying the action, and the defectswith regards to plaintiff’s capacity had beenremedied expeditiously. In light of the circum-stances, the Court allowed for the requestedsubstitution, amended the caption, and re-stored the action to the calendar. McIntosh v.Crown Nursing and Rehabilitation Center,N.Y.L.J. 12/5/11, p.17, c.3 (Sup. Ct., KingsCo., Justice Steinhardt)

Substitution of an Executor as PlaintiffBeing Allowed in a Medical MalpracticeCase Despite a 33-Month Delay AfterDeath, in That Time Alone is not Enough toShow Prejudice- A medical malpractice casewas brought involving events that occurredbetween 2002 and 2006. The action was com-menced by the filing of a summons with no-tice, an amended summons with notice and averified complaint were filed on or aboutMarch 26, 2007. Issue was joined and the par-ties appeared for a number of conferences be-tween May 2008 and April 2009. The plaintiffwas deposed in 2008. Prior to commencingdefendants’ depositions, the plaintiff died onApril 16, 2009, and as a result, the case wasstayed pending the appointment of a represen-tative of the estate and substitution pursuant toCPLR §1015. Letters Testamentary were is-sued on July 20, 2009. Shortly thereafter,counsel for plaintiff circulated a stipulationproposing to substitute the executor as theplaintiff and amend the caption. While coun-sel for a number of the other co-defendantsdid sign the stipulation, counsel for one de-fendant did not sign the stipulation. Counselfor plaintiff did not move to effect the substi-tution. As of March 29, 2011, when the partiesappeared for a court conference to assess thestatus of this case, a substitution still had notbeen effected. Nine months later, counsel forplaintiff filed a motion for substitution, andcounsel for the holdout defendant filed a mo-tion to dismiss for failure to substitute. In theinitial application, plaintiff’s counsel failed toshow that the case had merit or to provide anyexcuse for the thirty-three-month delay be-tween the decedent’s death and the substitu-tion motion. The doctor argued that the delayin resuming prosecution of the case had prej-udiced his ability to defend the case because itmight be difficult to locate and secure inter-views with witnesses. In response, plaintiff of-fered no excuse for the delay, but asserted thatthere was no prejudice to defendants in thedelay and provided an affirmation from aphysician in which the physician opined, to areasonable degree of medical certainty, thatthe defendants deviated from accepted stan-dard of care in treating the decedent, and thatsuch deviations were substantial factors incausing injury to the decedent. The defendantsmaintained that the physician’s affirmationwas conclusory and failed to show merit.HOLDING- The motion to substitute the ex-ecutor was granted. The Court stated that pur-suant to CPLR §1021, substitution of an estatemust be made within a reasonable time afterthe death of the party, and that the determina-tion of whether a delay in substitution is rea-sonable is within the discretion of the Court.The Court noted that factors that the Courtmay consider are the length of time betweenthe death of the party and the motion to sub-stitute; whether any party would be subjected

to undue prejudice by the delay; the movant’sexcuse for the delay; whether there had been ademonstration of merit; and the strong publicpolicy favoring disposal on the merits. TheCourt ruled that though the delay in substitu-tion was lengthy and unexplained, the affir-mation of merit was sufficient and there waslittle prejudice to defendants other than themere passage of time, which alone was not abasis for finding prejudice. The Court heldthat considering New York’s strong preferencefor a resolution of matters on their merits,plaintiff’s application to substitute the estatewas granted, and the doctor’s motion to dis-miss was denied. Cantor v. Goldstone,N.Y.L.J. 3/1/12, p.21, c.1, (Sup. Ct., New YorkCo., Justice Lobis)

Article 81 Guardians Restricted In theInvasion of ‘Totten Trust’ Accounts- In thefinal accounting in a Mental Hygiene Article81 Guardianship arising by reason of the inca-pacitated person’s death, a person identifyinghimself as having a “binding legal relationshipwith” the incapacitated person, a RomanCatholic Priest, filed verified objections to theaccounting. The objectant asserted that he hadstatus to be a party to the accounting proceed-ing and to file objections to the accounting byreason of being the son of the deceased inca-pacitated person, and by reason of havingbeen named as the beneficiary on several ‘tot-ten trust’ accounts. HOLDING- After numer-ous hearings, the Court determined that theobjectant had failed to satisfy the require-ments of EPTL 4-1.2(a)(2)(C) and had not es-tablished his status as the son of the deceasedincapacitated person. However, the Courtruled that the objectant, as the beneficiary onat least one ‘totten trust’ account which hadbeen depleted over the course of the guardian-ship, was a proper party to the accounting andwas entitled to file objections. The Courtopined that with respect to this kind of ac-count, wherein a beneficiary is designated bythe creator/depositor, the rule is that the open-ing of such an account effects the erection ofa tentative trust, which is subject to revocationby the depositor at any time prior to his death,and that a fixed trust is constituted only in re-spect to the funds which remain in the accountat the death of the depositor unless some pre-vious act of fixation has been accomplishedby him. The Court stated that when ‘totten’ ac-counts are involved in guardianships,guardians are required to maintain

them uninvaded, until the exhaustion of allother assets and until the Court specificallyauthorizes their use. The Court pointed outthat the ability of the guardian to alter the sta-tus, or the relationship of the decedent, or anyother person, to any particular property of theincompetent is limited to the necessities of thecase and the requirements of the incompetentand his dependents, and it is beyond theguardians power, where the use of the pro-ceeds of the tentative trust account is not re-quired by the needs of the incapacitated per-son, to alter the relation of various interestedparties which existed at the time of the ap-pointment, in respect thereto. The Court rec-ognized that had the use of any portion of thefunds been necessary for the welfare of the in-capacitated person, an entirely different situa-tion would follow. Accordingly, the Court al-lowed the objectant to submit general objec-tions to the accounting, as well as specific ob-jections directed to whether the account creat-ed in trust for him was invaded before allother assets and accounts were exhausted,whether any of those assets and accounts wereexhausted due to mismanagement by theguardian, and whether the guardian’s failureto obtain Court authorization prior to invadingthe ‘totten’ account was sanctionable was notreached. The Court stated that if any of suchobjections were founded, the objectant mighthave standing to request a surcharge proceed-ing. Matter of Flynn, N.Y.L.J. 2/28/12, p.1,c.3 (Sup. Ct., Kings Co., Justice Pesce)

Action against Cemetery for HavingMistakenly Placed the Decedent’s Remainsin Wrong Crypt and then Without ConsentMoving the Remains to the Proper RestingPlace Dismissed- The plaintiff contracted

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THE STATE OF ESTATES

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APRIL 2012 BROOKLYN BARRISTER, Page 11

with the defendant cemetery to inter her de-ceased husband’s remains in a mausoleumcrypt. Months after the initial interment, thecemetery discovered that it had mistakenlyplaced the decedent’s remains in a crypt pur-chased by another person and, without notify-ing the family or obtaining its consent, disin-terred the remains and moved them to theproper crypt. Approximately six months afterthe decedent’s remains were moved, the plain-tiff and the decedent’s nine surviving adultchildren learned of the disinterment and com-menced an action alleging, inter alia, breachof contract and violations of Public HealthLaw §§4216 and 4218, and Not-for-ProfitCorporation Law §1510(e). The SupremeCourt, among other things, granted thosebranches of the defendants’ motion whichwere for summary judgment dismissing thecauses of action alleging breach of contractand violations of Public Health Law §§4216and 4218, and N-PCL 1510(e). The plaintiffappealed. HOLDING- The Appellate Divi-sion ruled that the defendants had establishedtheir prima facie entitlement to judgment as amatter of law dismissing the causes of actionalleging violations of Public Health Law§§4216 and 4218 by submitting evidencedemonstrating that the cemetery’s actions inopening the crypt and removing the dece-dent’s remains did not arise from malice orwantonness, and that in opposition, the plain-tiff had failed to raise a triable issue of fact asto malicious or wanton conduct by the ceme-tery. The Appellate Division noted that thecontract between the plaintiff and the ceme-tery unambiguously provided that any negli-gence on the part of the cemetery in perform-ing its contractual obligations did not give riseto a claim for emotional damages. Conse-quently, the Appellate Division held that sincethe plaintiff only sought to recover emotionaldamages in connection with the causes of ac-tion alleging breach of contract, the SupremeCourt properly awarded summary judgmentdismissing those causes of action. The Appel-late Division opined that pursuant to N-PCL1510(e), the consent of the cemetery corpora-tion, the owners of the lot, and a decedent’ssurviving spouse, adult children, and parentsis required before a body may be disinterred.The Appellate Division stated that in the ab-sence of consent, a court may grant permis-sion to disinter upon a showing of good andsubstantial reasons. The Appellate Divisionnoted that the paramount factor a Court mustconsider in granting permission to disinter isthe known desires of the decedent, and thatamong other factors, a Court also must con-sider the desires of the decedent’s next of kin.The Appellate Division found that in supportof their motion for summary judgment, thedefendants had failed to make a prima facieshowing that the cemetery was owned and op-erated by a religious corporation such that themandates of the Not-for-Profit CorporationLaw would not apply. Additionally, the Ap-pellate Division disagreed with the SupremeCourt’s determination, that the disintermentcould be retroactively sanctioned. The Appel-late Division ruled however that under theparticular circumstances of the case, the de-fendants had established their entitlement tojudgment as a matter of law dismissing thecauses of action alleging that their violation ofN-PCL 1510(e) caused the plaintiffs to sufferemotional distress. The Appellate Divisionfound that the defendants had demonstratedthat the decedent’s body, which always re-mained in the casket, was not mishandled orin any way desecrated during the process ofremoval from one crypt to the other, and de-termined that the case did not present any spe-cial circumstances that might reasonably becharacterized as an act of desecration to oth-erwise give rise to an especial likelihood of

genuine and serious mental distress. The Ap-pellate Division held that in opposition, theplaintiffs had failed to raise a triable issue offact, and that accordingly, the Supreme Courthad properly awarded the defendants summa-ry judgment dismissing the causes of actionalleging a violation of N-PCL 1510(e). Bran-denburg v. St. Michael’s Cemetery, N.Y.L.J.2/15/12, p. 1, c.1, (2nd Dept., 2012)

Three-day Delay by Hospital in Releas-ing Body for Burial Makes Out a Cause ofAction for Violation of Right of Sepulcher-The plaintiffs were the children of the dece-dent who died at the defendant hospital. Thecomplaint alleged, inter alia, that the defen-dant failed to release the decedent’s body tothe funeral home the plaintiffs chose untilthree days later, despite their inquiries and ef-forts to obtain an earlier release. The defendantmoved, among other things, to dismiss thecomplaint for failure to state a cause of action,and the Supreme Court granted the motionwithout explanation. The plaintiffs appealedfrom so much of the Order as granted thatbranch of the defendant’s motion which was todismiss the cause of action alleging a violationof the plaintiffs’ right of sepulcher. HOLD-ING- The Appellate Division reversed. TheAppellate Division stated that New York’s ju-risprudence has long recognized the interest ofa decedent’s next of kin in the remains of theirdecedent, and infringement upon that interestrepeatedly has been acknowledged to be ac-tionable. The Appellate Division opined thatthe common-law right of sepulcher gives thenext of kin the absolute right to the immediatepossession of a decedent’s body for preserva-tion and burial, and damages will be awardedagainst any person who unlawfully interfereswith that right or improperly deals with thedecedent’s body. The Appellate Division notedthat the right of sepulcher is deeply rooted inmany religious traditions and that a claimbased on a violation of the right is designed tocompensate the next of kin for the emotionalsuffering and mental anguish which they expe-rience from the interference with their abilityto properly bury their decedent. The AppellateDivision asserted that in determining a motionto dismiss a complaint pursuant to CPLR§3211(a)(7), the Court must accept the facts asalleged in the complaint as true, accord plain-tiffs the benefit of every possible favorable in-ference, and determine only whether the factsas alleged fit within any cognizable legal theo-ry, as well as afford the pleading a liberal con-struction. The Appellate Division ruled that thesubject complaint stated a cause of action al-leging a violation of the plaintiffs’ right of sep-ulcher, since the facts stated therein allegedthat the defendant interfered with the plain-tiffs’ absolute right to the immediate posses-sion of a decedent’s body for preservation andburial. The Appellate Division acknowledgedthat although the delay in releasing the dece-dent’s body was not inordinate and ultimatelymight be determined to have been reasonableand proper under all of the circumstances, theAppellate Division stated whether the plaintiffcould ultimately establish his allegations is notpart of the calculus in determining a motion todismiss made pursuant to CPLR §3211(a)(7).Accordingly, the Appellate Division held thatthe Supreme Court should have denied thatbranch of the defendant’s motion which waspursuant to CPLR §3211(a)(7) to dismiss thecause of action alleging a violation of theplaintiffs’ right of sepulcher. Henderson v.Kingsbrook Jewish Medical Center, 91 A.D.3d 720 (2nd Dept., 2012).

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,Decedent’s Estates Section.

THE STATE OF ESTATESContinued from page 10

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

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

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

Eric Michael Manganelli (February 7,2012)

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

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

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

Anthony Okechukwu Onua (February14, 2012)

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

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

On March 20, 2009 the respondent plead-ed guilty in the United States District Courtfor the Eastern District of New York to Con-spiracy to Commit Wire Fraud and BankFraud, a class B felony in violation of 18 USC§1349. He was sentenced to a term of impris-onment of six months plus three years of postrelease supervision, and was directed to payrestitution in the amount of $5,166,900 joint-ly and severally with all codefendants at therate of $100 per month, beginning one yearafter his release from prison. Following a dis-ciplinary hearing, the respondent was dis-barred.

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

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

The respondent was reciprocally suspend-ed in New York for a period of six (6) months,effective immediately and pending furtherorder of the Appellate Division, as a result ofan order of the Superior Court – Judicial Dis-trict of Hartford (Connecticut), dated Septem-ber 4, 2001, which administratively suspend-ed him from the practice of law in Connecti-cut for failing to pay the annual client securi-ty fee due June 15, 2000, and subsequent ad-

ministrative suspensions for nonpayment ofthe client security fee for calendar years 2006through 2010.

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

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

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

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

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

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

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

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

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

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

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

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

Roll Call

Advertise twice a week in the Brooklyn Eagle’s Legal Services Directory.Contact: Charisma L. Miller, Esq. barrister@brooklyneagle.net

Page 12, BROOKLYN BARRISTER APRIL 2012