LAWYERS AND DEFAMATION

By Irving O. Farber, Esq.

In Lynn & Cahill v Witkin, 130 AD3d 484 [1^st Dept 2015], the Appellate Division 1^st Department recently reversed a Lower Court’s significant award of damages in a defamation matter, a ruling that should make attorneys throughout the State take notice.

Lynn & Cahill involved a former client who, in an internet post, viciously maligned and impugned the Lawyer’s reputation by referring to him as “a confidence man”, and accusing him of being “unethical”, “sleazy”, “dangerous”, “a rotten egg”, and a “greedy, crazed and irrational nut job.”

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Post Appeal Motion to Renew in the Supreme Court

By: Gary E. Bashian, Esq.*

 

It ain’t over till it’s over

–Yogi Berra

 

Consider the following scenario:

1. A Defendant’s Pre-Answer Motion to Dismiss is partially granted by a Court of original Jurisdiction, striking several of Plaintiff’s Causes of Action as pled;
2. Both parties appeal to the Appellate Division, where the Lower Court’s Order is affirmed in its entirety;
3. During the Discovery process, months, or maybe even years subsequent to the Order striking Plaintiff’s originally pled Causes of Action, new facts and evidence come to light during the Discovery process which clearly establish that Dismissal of one or more of Plaintiff’s originally pled Causes of Action was in error.

Question: What do you do?

Summary Judgement Motion in a Will Contest: An Updated Proponent’s Perspective

By: Gary E. Bashian, Esq.

A motion for summary judgment, pursuant to CPLR § 3212 or § 3211, is a powerful procedural tool that can end litigation immediately.

Summary judgment can deliver a swift and decisive victory on the outcome of a matter. It can limit the issues, or award the broadest types of relief by ending all claims. When granted, it can avoid years of potential litigation and expense.

But for all of its versatility, drafting a motion for summary judgment can be a daunting and complex undertaking. The facts (hopefully none in question), and the applicable law in every matter can make it difficult to identify issues with no triable issue of fact. Communicating them clearly to the Court so as to show that summary judgment should be granted is the challenge.

Court of Appeals Rules there is Privity between the Estate Planner and the Client’s Personal Estate Representative: But no Privity to Beneficiaries of the Estate

The traditional protection from legal malpractice claims afforded Estate practitioners by the doctrine of Privity has been relaxed by a recent New York Court of Appeals decision.

In the Estate of Saul Schneider v Finmann[i], a unanimous Court of Appeals has ruled that a personal Estate representative “stands in the shoes of the decedent,” and therefore has “the capacity to maintain a malpractice claim on the Estate’s behalf[ii].”

Court of Appeals Overturns Itself in Hyde and Approves Allocating Estate’s Attorney Fees against Objecting Beneficiaries if Litigation against Estate is Vexatious

By: Gary E. Bashian, Esq.

The New York Court of Appeals, on June 29, 2010, resurrected what it has deemed was the original intent of SCPA § 2110, which governs the fixing and determining of attorney’s fees for services rendered to a fiduciary, devisee, legatee, or ­­­­­interested party, for legal services rendered to a fiduciary by an attorney in Estate matters. In the Matter of Hyde,[i] the Court considered if a fiduciary’s legal fees, which the Estate is obligated to pay, could be allocated to a particular beneficiary who filed objections in an accounting proceeding, or if such fees must be paid by the Estate as a whole, and thus all beneficiaries share in the cost equally.

Discovery Under the Surrogate’s Court Procedure Act: a Primer

Often when the issue of a discovery proceeding is raised in either a will contest, accounting contest or related litigated estate matter, the initial reaction by the attorney is to assume that reference is being made to the discovery and disclosure permitted by Article 31 of the Civil Practice Law and Rules. While the attorney would be correct in believing that the provisions of Article 31 of the CPLR and other laws relevant to practice and procedure apply in the Surrogate’s Court, a discovery proceeding in the Surrogate’s Court, as many attorneys have learned the hard way, is a beast of a different color.

The purpose of this article is to acclimate the general practitioner with some of the intricacies of Sections 2103 and 2104 of the Surrogate’s Court Procedure Act (SCPA) relevant to a discovery proceeding and to briefly touch upon what is commonly referred to as a reverse discovery proceeding permitted by Section 2105 of the SCPA.

Estate Litigation Tidbits Spring/Summer 2011

By: Gary E. Bashian

PROBATE DECREE MUST BE VACATED BEFORE 1404 DISCOVERY CAN PROCEED.

 

In 2008, Petitioner submitted for probate the Last Will and Testament of Decedent, which was executed in 1994. Oddly, the affidavit of attesting witnesses was not executed until 1997. Petitioner was named executor, and the sole beneficiary. At the time of probate, Respondent, Decedent’s brother in law, made no objection. In 2009 Respondent attempted to transfer real property located in Lake Placid, NY, the primary asset of the Estate. While conducting discovery related to that transfer, Respondent uncovered evidence that credibly questioned the due execution of the Will.

Thereafter, Respondent moved by Order to Show Cause to have the Petitioner’s authority as executor suspended, and the Probate Decree vacated. Petitioner cross moved in opposition, and for an order of protection regarding further discovery regarding both the Estate and the real property action.

Singer Contra Cohn, New York’s Evolving Approach to In Terrorem Clauses

Over the past two years the New York Courts have taken increasingly nuanced positions in the interpretation, enforcement, and denial of In Terrorem clauses in a variety of contexts. A more expansive reading of Estates, Powers and Trusts Law (EPTL) § 3-3.5(b) advocated by the Court of Appeals in the 2009 case Matter of Singer[i], has lead to a broader discovery process, and arguably, a narrower interpretation of a testator’s intent. Alternatively, in 2010 the Appellate Division, First Department, declined to broaden the application of EPTL § 3-3.5(b), surprisingly yielding a more expansive interpretation of an In Terrorem clause in the Matter of Cohn[ii]. Each of these cases are instructive on how to better drat and use the In Terrorem clause when trying to preserve a client’s Estate plan, and offer insight into the Courts’ approach to determining a testator’s intent regarding its use.

“Attorney Client Privity is Alive and Well Now, Even when You’re Dead”

Until quite recently, Estate practitioners were protected from Estate planning malpractice claims by Estate representatives by the often overlooked protections afforded by the doctrine of Privity. However, with their unanimous June 2010 decision in the Estate of Saul Schneider v Finmann[i], the New York Court of Appeals has relaxed this traditional safeguard and allowed for a new cause of action in the State against a negligent Estate planning attorney.

Although the Schneider decision represents a marked change from the prior bar on suits by personal representatives against a negligent Estate planning attorney, its rationale is far from revolutionary, and its rather narrow ruling endeavors to balance the interests of both Estate representatives and their legal counsel.

Article 15: Short Form Power of Attorney- A Valuable Tool

Our firm recently argued before the Appellate Division, Second Department and was affirmed on the conflicting burdens of proof on a fiduciary when a gift is made pursuant to a short form Power of Attorney, modified in accordance with 1997 amendments to the General Obligations Law. Such was the case in Matter of Salvation Army v. Ferrara, 2005 NY Slip Op 07531 (October 11, 2005). The Appellate Division, Second Department, affirmed the decision and order of the Rockland County Surrogate’s Court. Both courts held that a Power of Attorney, which was modified to allow the respondents to make gifts to themselves “without limitation,” was valid in accordance with General Obligations Law §5-1503. The Appellate Court then went one step further and held that “evidence was adduced at the hearing to support the respondents’ contention that the decedent specifically authorized the distribution of his funds to the respondent Dominick Ferrara.” The Court then dismissed the action which sought the return of the gifts to the Estate.