The People contend that the court abused its discretion in granting defendant youthful offender status and that, as a result, the sentence imposed is invalid as a matter of law. We conclude that the appeal must be dismissed. "CPL 450.30 (2) authorizes the People to appeal from a sentence that is invalid as a matter of law" (People v Cosme, 80 NY2d 790, 792), but that statute does not authorize the People to appeal from a youthful offender finding (see generally People v Calderon, 79 NY2d 61, 63-64, 67). Indeed, upon finding that an individual is a youthful offender, "the court must direct that the conviction be deemed vacated and replaced by a youthful offender finding[,] and the court must sentence the defendant pursuant to section 60.02 of the penal law" (CPL 720.20 [3] [emphasis added]). "[T]he youthful offender finding and the youthful offender sentence imposed thereupon constitute a youthful offender adjudication' " (Calderon, 79 NY2d at 65). Here, the People do not allege that the sentence of incarceration of 1 to 4 years is illegal. Rather, "in the guise of challenging the sentence imposed, the People are in essence attacking the validity of the defendant's underlying [youthful offender finding,] . . . [which CPL 450.30 (2)] does not permit them to do" (Cosme, 80 NY2d at 792).
Thứ Sáu, 29 tháng 4, 2011
Prosecutors Generally Cannot Appeal The Granting of Youthful Offender Status
In People v Jason L. (2011 NY Slip Op 03440 [4th Dept 4/29/11]) the Court rejected an attempt by a prosecutor to appeal a youthful offender adjudication holding that there is no statutory authorization for such an appeal: )
Changes to NYS Humane Education Law effective July 1, 2011
Here is the press release from NYSBA:
CHANGE TO HUMANE EDUCATION LAW EFFECTIVE JULY 1
ALBANY—School districts must notify students that they don’t have to dissect a frog in biology class under a new law effective July 1, 2011.
The mandatory notice law requires that students and parents be informed that students have the options of performing alternative projects to dissection.
The New York State Bar Association Committee on Animals and the Law has long supported and advocated for this change to the state’s Humane Education Law.
“We are pleased that there now is a clear uniform policy to alert students and parents to this choice. Interactive films and 3-D computer software have proven to be as effective as the dissection itself with no harm to animals,” said Committee Chair James F. Gesualdi of Islip.
Former Governor David Paterson signed this amendment to the Humane Education Law into law on August 13, 2010.
The Humane Education Law (Education Law §809) currently mandates that any student who expresses “a moral or religious objection to the performance or witnessing of the dissection of an animal . . . shall be provided the opportunity to undertake and complete an alternative project that shall be approved by such student's teacher” and the student shall not be penalized for performing the alternative project.
Since 2002, the Committee on Animals and the Law has served as a legal resource for humane-related issues pertaining to animals (www.nysba.org/animals). For further information and a list of resources on dissections, visit: www.nysba.org/humaneeducation.
The New York State Bar Association with 77,000 members is the largest voluntary state bar association in the nation. It was founded in 1876
Thứ Tư, 27 tháng 4, 2011
Important New Decisions - April 25, 2011
Plaintiff's Self-serving Declaration Is All That Required for the Dissolution on Irretrievably Broken Ground
In AC v DR, --- N.Y.S.2d ----, 2011 WL 1137739 (N.Y.Sup.) on a prior motion to the court, in which the husband sought full consolidation of Action 1 and Action 2, the wife sought joinder of the actions for trial, without consolidation, so that she could pursue the benefits of the newly enacted matrimonial legislation available to all actions commenced after October 12, 2010. By decision and order dated January 18, 2011, the court directed that Action 1 and Action 2 be joined for trial and discovery. In Action 2, the wife moved to partake in the benefits of the new matrimonial legislation and sought pendente lite maintenance and counsel fees as well as partial summary judgment on grounds (DRL 170[7] ) under the new law. The Court observed that the newly enacted matrimonial legislation, effective October 12, 2010, provides a new no-fault ground for divorce, DRL 170(7), as follows: (7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath ... Citing a Massachusetts case the Supreme Court concluded that the decision that a marriage is irretrievably broken need not be based on any objectifiable fact. It is sufficient that one or both of the parties subjectively decide that their marriage is over and there is no hope for reconciliation (Citing Caffyn v. Caffyn 441 Mass. 487, 806 N.E.2d 415 [2004] ). It concluded that a plaintiff's self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on grounds that it is irretrievably broken. It asserted that the conclusion, that it is sufficient that a party subjectively decide that their marriage is over, finds support in the reasoning of other courts. (citing In re Marriage of Walton, 28 Cal.App.3d 108, 117 [1972]; Joy v. Joy, 178 Conn. 254, 255 [1979]; Mattson v. Mattson, 375 A.2d 473, 475 [Me. 1977]; Matter of the Marriage of Dunn, 13 Or.App. 497, 501-502, n. 1 [1973] Caffyn v. Caffyn, supra, n. 17 ). In the court's view, the Legislature did not intend nor is there a defense to DRL 170(7). Nevertheless, while the court would ordinarily grant partial summary judgment to movant, where there are no defenses and no triable issues of fact, the court pointed out that the new legislation directs that "no judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts; fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce". (DRL 170 [7] ). It noted that it had been the practice of the Part, when deemed appropriate, to hold bifurcated trials with respect to grounds for the purpose of disposing of fault issues so, if a divorce was granted, the court could concentrate its resources on equitable distribution. If a divorce was not granted, issues of support and custody, as well as related issues, always remained before the court. This was in aid of judicial economy. Yet, even in those cases where a divorce was granted, the court always held entry of judgment in abeyance pending determination of all other issues, as now set forth in detail in the new legislation. Since the new legislation directs that a judgment of divorce may not be "granted " when the cause of action is predicated on the no-fault ground until all the financial issues are complete, the court concluded that a motion for partial summary judgment cannot be granted nor can a bifurcated trial be held with respect to DRL 170(7). To continue this practice would allow fault trials on one party's claim to advance in time against the other party's no-fault claim. Moreover, since there is no defense to the no-fault ground, no judicial economy would be served by having a bifurcated trial on fault grounds, the only purpose of which was to determine whether a divorce would be granted in the first instance, and a divorce would be granted in this case provided the matter proceeds to its expected conclusion. Therefore, the wife's motion for partial summary judgment was denied, and that portion of the court's previous order, dated January 18, 2011, that directed a bifurcated trial on fault grounds was sua sponte recalled and vacated.
Anglo-American Custom to Give Child the Father's Name Is Not an Objection to Hyphenated Name
In Matter of Eberhardt, --- N.Y.S.2d ----, 2011 WL 1206136 (N.Y.A.D. 2 Dept.), 2011 the mother petitioned the Supreme Court for permission to change the child's surname by hyphenating the father's surname with the mother's surname. The impetus for the change was the mother's use of both parties' surnames on the child's application for a passport. The father, before signing the application, redacted the mother's surname. The mother reinserted her surname and filed the application, leading the father, once he saw the child's passport, to contact federal officials and ask that the passport reflect her legal name. The Appellate Division observed that to the extent the father's objection was based on traditional values, meaning that it is Anglo-American custom to give a child the father's name, the objection was not reasonable, because neither parent has a superior right to determine the surname of the child (citing Swank v. Petkovsek, 216 A.D.2d 920; Matter of Bell v. Bell, 116 A.D.2d 97, 99; Matter of Cohan v. Cunningham, 104 A.D.2d 716; Rio v. Rio, 132 Misc.2d at 319).
Family Court May Prohibit Mother from Telling Child That Any Man Other than the Father Is Child's Biological Father
In Matter of Buxenbaum v Fulmer, --- N.Y.S.2d ----, 2011 WL 1206140 (N.Y.A.D. 2 Dept.) the Appellate Division held that the Family Court's determination that there had been a change in circumstances since the issuance of the prior order of custody and visitation dated January 28, 2008, and that it was in the child's best interests to award sole custody to the father, was supported by a sound and substantial basis in the record. It held that Family Court properly took judicial notice of the order of filiation entered on consent. The Family Court's determination that the mother could not testify, in rebuttal to the admission of the order of filiation, that she had lacked the capacity to consent to the order of filiation, was not an improvident exercise of discretion (see Matter of Lane v. Lane, 68 AD3d 995, 997). The Family Court providently exercised its discretion in prohibiting the mother from telling the child that any man other than the father is the child's biological father (citing Matter of Powell v. Blumenthal, 35 AD3d 615, 617).
Error For Supreme Court to Disregard Parties Stipulation
In Aloi v Simoni, 918 N.Y.S.2d 506 (2 Dept 2011) the Appellate Division observed that where the determination as to equitable distribution has been made after a nonjury trial, the trial court's assessment of the credibility of witnesses is afforded great weight on appeal. It held that Supreme Court erred in disregarding the parties' stipulation that the appreciation in the value of the plaintiff's retirement account during the course of the marriage was the sum of $25,189. The plaintiff was entitled to 50% of the sum of the appreciation of the parties' respective retirement accounts (50% of $450,115 + $25,189 = $237,652). In calculating the amount to be paid to the plaintiff, the defendant was entitled to a credit of the appreciation remaining in the plaintiff's account ($25,189). Accordingly, the amended judgment had to be modified to direct the defendant to pay the plaintiff the sum of $212,463. The Supreme Court also erred in failing to award interest on the plaintiff's distributive award from the date of the decision until the entry of the judgment, and from the entry of the judgment to the date of payment. In exercising its discretionary power to award an attorney's fee, the court may consider, among other things, "whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation" Here, there was a significant economic disparity between the defendant and the plaintiff, and the complexity of the defendant's business endeavors, as well as the defendant's uncooperativeness with discovery and with sorting out his financial affairs, greatly contributed to the high cost of the litigation. Under these circumstances, it was appropriate to award the plaintiff one half of her total counsel fees, which, after crediting the defendant for his payment of interim counsel fees, amounted to $81,103.
Needs of a Child must Take Precedence over the Terms of the Agreement Where Needs Not Met
In Duggan v Duggan, --- N.Y.S.2d ----, 2011 WL 1331920 (N.Y.A.D. 2 Dept.), the father, and the mother entered into stipulation of settlement on February 26, 2009, to end their marriage. They had four children. The stipulation noted that the father's annual gross income was $475,000, whereas the mother had no income. It further noted that, according to the child support percentage calculation provided in the Child Support Standards Act the father's monthly child support obligation would be $11,929.54. The parties, however, agreed to deviate from this calculation, and set the father's monthly child support obligation at $8,000. The mother filed a petition seeking child support arrears. At the ensuing hearing, the husband stated that his yearly income had dropped from $475,000 to $466,757, and he argued that, pursuant to the language in the stipulation, this decrease in income entitled him to an 80 percent decrease in his child support payments, to $1,600 per month. In a fact-finding order dated April 21, 2010, the Family Court denied the father's motion to dismiss the petition, holding that his interpretation of the stipulation was "not plausible." The same court issued an order on the same day, in which it directed the father to pay the mother child support arrears in the sum of $19,200. The father filed objections, and the Family Court denied the objections in an order dated June 14, 2010. The Family Court held that the language of the stipulation, as interpreted by the father, would violate the CSSA, and was against the best interests of the children. The Appellate Divison held that Family Court was without jurisdiction to modify the terms of a separation agreement absent a showing of an unanticipated and unreasonable change in circumstances, which the father had not alleged here (citing Kleila v. Kleila, 50 N.Y.2d 277). But the Family Court does have the authority to interpret and enforce the provisions of a separation agreement.. It pointed out that "When interpreting a contract, such as a separation agreement, the court should arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized" (Matter of Schiano v. Hirsch, 22 AD3d at 502). But "the needs of a child must take precedence over the terms of the agreement when it appears that the best interests of the child are not being met" (Matter of Gravlin, 98 N.Y.2d 1, 5). Thus, the Family Court had the authority to find that a provision in a stipulation of settlement violates the CSSA. The stipulation here provided that, according to the child support percentage calculation provided in the CSSA, the father's monthly child support obligation would be $11,929.54 per month. But the parties agreed to deviate from this calculation, on the grounds that it was in the best interests of the children and that the children's needs would be met, and set the father's monthly child support obligation at the sum of $8,000 per month. The father now sought to use the provision at issue to lower his child support obligation--for four children--to $1,600 per month, or 13% of the presumptive support level based on the CSSA. He sought to do this because his income dropped by 1.7%--from $475,000 per year to $466,757 per year. The Appellate Division concluded that Family Court properly found that this was against the best interests of the children.
Not Reversible Error to Deny Party’s Right to Make Opening Statement
In Matter of Sagese v Steinmetz, --- N.Y.S.2d ----, 2011 WL 1306419 (N.Y.A.D. 3 Dept.) Petitioner (father) and respondent (mother) were the parents of a daughter (born in 2004). The mother also had another child. In 2006, the parties consented to an order which granted them joint legal and physical custody of the child. In April 2009, based on allegations that there was a drug overdose in the residence where the mother resided, the father commenced a modification proceeding seeking sole custody of the child. In response, the mother filed a family offense petition and criminal complaint against the father alleging that the father struck her on the mouth during an argument. The father was subsequently arrested for assault, at which time he was found to be in possession of marihuana. The assault charge was later adjourned in contemplation of dismissal and the father paid a fine for the marihuana violation. In August 2009, Family Court issued a temporary order of custody providing that the parties share joint legal custody of the children, that the children reside with the paternal grandfather and, based on the father's marihuana conviction, that he submit to a chemical dependency evaluation. The resulting evaluation, based in part on a positive drug screen, diagnosed the father with cannabis abuse and recommended treatment. After a fact-finding hearing, Family Court awarded the parties joint legal custody of the children. Family Court further ordered that the father successfully complete chemical dependency treatment. The Appellate Divison rejected the father’ argument that Family Court committed reversible error by denying the father the right to present an opening statement. While a party to a civil proceeding has the right to make an opening statement (see CPLR 4016 [a]; De Vito v. Katsch, 157 A.D.2d 413, 415 [1990] ), it found that Family Court's error did not require reversal since the court was fully familiar with the facts of the case, the parties and their respective arguments through the numerous court appearances during the year prior to trial (citing Lohmiller v. Lohmiller, 140 A.D.2d 497, 497 [1988] ). The court held that Family Court did not err in ordering the father to attend substance abuse treatment. So long as a party's right to access to his or her child is not conditioned on participation in, or completion of, counseling, Family Court may, as part of its visitation or custody order, direct a party to obtain substance abuse treatment or counseling if such treatment or counseling will serve the children's best interests. In this regard, evidence of a party's continuous use of an illegal drug is certainly relevant to a determination of whether substance abuse treatment for the parent is in the children's best interests. Here, the father had already been convicted of the violation of unlawful possession of marihuana and, at the fact-finding hearing, he admitted to smoking marihuana "no more than once or twice per week" and during the pendency of his custody proceeding. While Family Court found the father to be a good parent, it did not find his testimony--that he did not purchase the drug, keep it in his home or use it in the presence of the children--to be credible. Family Court was also unpersuaded that the father's routine use of marihuana--which the record reflected could affect a person's judgment, memory and problem-solving ability--posed no risk to the children. Finally, to the extent that the father argued that treatment would create a financial burden, the record reflected that costs are based on ability to pay and the father was eligible to apply for Medicaid benefits, which would completely cover the costs of treatment.
Not Error to Suspend Child Support Payment Where Child Not of Employable Age
In Dobies v Brefka, --- N.Y.S.2d ----, 2011 WL 1307284 (N.Y.A.D. 3 Dept.) Petitioner (father) and respondent (mother) were the unmarried parents of two children, Jaclyn (born in 1993) and Nikolas (born in 1995). In October 2008, the father commenced violation proceedings. Family Court, inter alia, granted the father sole physical and legal custody of Nikolas, terminated the father's child support obligations for Jaclyn, and suspended the father's child support obligations for Nikolas..The father claimed that a sufficient change in circumstance had occurred since entry of these prior orders based on, among other things, the mother's deliberate attempts to influence and disrupt the father's parenting time with the children. At the hearing of this matter, the father testified that he had not had any visitation with Jaclyn since March 2007 and has had no weekend parenting time with Nikolas between August 2008 and March 2009. The father recounted multiple examples of alienating behavior engaged in by the mother, including in the spring of 2007 when the mother refused to let Nikolas participate in visitation with the father because of inclement weather--despite the fact that both parties had already driven to the custody exchange point. The father also testified that, in 2007, the mother told Jaclyn that she did not have to participate in the spring break visit with the father. The father further testified that on two occasions--in April 2007 and at the commencement of Father's Day weekend in June 2007--when Jaclyn refused to participate in visitation with the father, the mother indicated that there was nothing she could do about it and that Jaclyn had a mind of her own. The father also testified that during an attempted exchange occurring in the summer of 2007 at a restaurant parking lot--an exchange that never occurred--the mother refused to transfer Nikolas' suitcase to the father's car and then laughed at the father and took a photograph of him with her cell phone while she walked inside the restaurant with the children. Family Court found the mother's explanations for her conduct insufficient and her "credibility to be seriously impaired and her testimony contradictory throughout the trial, particularly when she denied actively discouraging the children from having a relationship with their father." Thus, there was sufficient evidence in the record supporting the court's conclusion that the mother interfered in the father's relationship with the children, such that the father established the requisite change in circumstances. While a determination of the children's best interests must be based on a totality of the circumstances "[e]vidence that the custodial parent intentionally interfered with the noncustodial parent's relationship with the [children] is so inconsistent with the best interests of the [children] as to, per se, raise a strong probability that [the offending party] is unfit to act as custodial parent". The Appellate Divison held that Family Court did not err in terminating the father's child support obligation for Jaclyn and suspending the father's child support obligation for Nikolas. Child support payments may be suspended " '[w]here it can be established by the noncustodial parent that the custodial parent has unjustifiably frustrated the noncustodial parent's right of reasonable access' " (Usack v. Usack, 17 AD3d 736, 737-738 [2005] ). In addition, child support payments may be deemed forfeited when "a child of employable age ... actively abandons the noncustodial parent by refusing all contact and visitation, without cause, ... a concept sometimes referred to as the doctrine of self-emancipation" (Labanowski v. Labanowski, 49 AD3d 1051, 1053 [2008] ). However, abandonment by a child who is not "of employable age" cannot be deemed to constitute constructive emancipation (Foster v. Daigle, 25 AD3d at 1004) Family Court's determination that the mother deliberately frustrated the father's relationship with Nikolas had a sound and substantial basis in the record. While it agreed with the mother that Jaclyn, who was only 16 years of age at the time of the court's order, was unable to abandon the father so as to forfeit his support obligation and, thus, Family Court erred in terminating the father's child support obligation as to her the facts clearly supported a finding that the father's support obligation should also be suspended with respect to Jaclyn based on the mother's conduct in deliberately frustrating his relationship with Jaclyn . Accordingly, the father's support obligations with respect to Jaclyn were suspended pending further court order upon a showing that the mother has made good faith efforts to actively encourage and restore the father's relationship with the children.
Husbands Claim of Extreme Hardship Rejected Where No Appreciable Change in Lifestyle.
In Taylor v Taylor, --- N.Y.S.2d ----, 2011 WL 1440992 (N.Y.A.D. 2 Dept.) the parties 2005 stipulation of settlement, which was incorporated but not merged into their divorce judgment, provided that the plaintiff would have custody of the children, and that the defendant would pay maintenance and child support in an agreed-upon amount. The stipulation also provided that the defendant waived his right to seek any downward modification of his maintenance obligation until August 1, 2012, "excluding an unforeseen, unanticipated catastrophic event, that so negatively impacts the Husband's health or earning capacity as to result in 'extreme hardship' to him as that term is set forth in [Domestic Relations Law] 236(B)(9)(b)." After the defendant lost his job at Bear Stearns in 2008 and was hired by Natixis, a French bank, the defendant moved for a downward modification of his maintenance and child support obligations. After a hearing, Supreme Court denied defendant's motion for a downward modification of his maintenance obligation. The Appellate Division observed that the evidence at the hearing showed that, although the economic downturn resulted in the defendant losing his job at Bear Stearns and earning a substantially smaller bonus in 2009 than he had received in previous years at Bear Stearns, the defendant's base salary and compensation plan at Natixis were similar to his base salary and compensation plan at Bear Stearns. Moreover, the evidence at the hearing showed that the economic downturn did not result in any appreciable change in the defendant's lifestyle. Accordingly, the defendant failed to demonstrate that continued enforcement of his obligation to pay maintenance under the parties' stipulation of settlement would create an "extreme hardship" .
In AC v DR, --- N.Y.S.2d ----, 2011 WL 1137739 (N.Y.Sup.) on a prior motion to the court, in which the husband sought full consolidation of Action 1 and Action 2, the wife sought joinder of the actions for trial, without consolidation, so that she could pursue the benefits of the newly enacted matrimonial legislation available to all actions commenced after October 12, 2010. By decision and order dated January 18, 2011, the court directed that Action 1 and Action 2 be joined for trial and discovery. In Action 2, the wife moved to partake in the benefits of the new matrimonial legislation and sought pendente lite maintenance and counsel fees as well as partial summary judgment on grounds (DRL 170[7] ) under the new law. The Court observed that the newly enacted matrimonial legislation, effective October 12, 2010, provides a new no-fault ground for divorce, DRL 170(7), as follows: (7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath ... Citing a Massachusetts case the Supreme Court concluded that the decision that a marriage is irretrievably broken need not be based on any objectifiable fact. It is sufficient that one or both of the parties subjectively decide that their marriage is over and there is no hope for reconciliation (Citing Caffyn v. Caffyn 441 Mass. 487, 806 N.E.2d 415 [2004] ). It concluded that a plaintiff's self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on grounds that it is irretrievably broken. It asserted that the conclusion, that it is sufficient that a party subjectively decide that their marriage is over, finds support in the reasoning of other courts. (citing In re Marriage of Walton, 28 Cal.App.3d 108, 117 [1972]; Joy v. Joy, 178 Conn. 254, 255 [1979]; Mattson v. Mattson, 375 A.2d 473, 475 [Me. 1977]; Matter of the Marriage of Dunn, 13 Or.App. 497, 501-502, n. 1 [1973] Caffyn v. Caffyn, supra, n. 17 ). In the court's view, the Legislature did not intend nor is there a defense to DRL 170(7). Nevertheless, while the court would ordinarily grant partial summary judgment to movant, where there are no defenses and no triable issues of fact, the court pointed out that the new legislation directs that "no judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts; fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce". (DRL 170 [7] ). It noted that it had been the practice of the Part, when deemed appropriate, to hold bifurcated trials with respect to grounds for the purpose of disposing of fault issues so, if a divorce was granted, the court could concentrate its resources on equitable distribution. If a divorce was not granted, issues of support and custody, as well as related issues, always remained before the court. This was in aid of judicial economy. Yet, even in those cases where a divorce was granted, the court always held entry of judgment in abeyance pending determination of all other issues, as now set forth in detail in the new legislation. Since the new legislation directs that a judgment of divorce may not be "granted " when the cause of action is predicated on the no-fault ground until all the financial issues are complete, the court concluded that a motion for partial summary judgment cannot be granted nor can a bifurcated trial be held with respect to DRL 170(7). To continue this practice would allow fault trials on one party's claim to advance in time against the other party's no-fault claim. Moreover, since there is no defense to the no-fault ground, no judicial economy would be served by having a bifurcated trial on fault grounds, the only purpose of which was to determine whether a divorce would be granted in the first instance, and a divorce would be granted in this case provided the matter proceeds to its expected conclusion. Therefore, the wife's motion for partial summary judgment was denied, and that portion of the court's previous order, dated January 18, 2011, that directed a bifurcated trial on fault grounds was sua sponte recalled and vacated.
Anglo-American Custom to Give Child the Father's Name Is Not an Objection to Hyphenated Name
In Matter of Eberhardt, --- N.Y.S.2d ----, 2011 WL 1206136 (N.Y.A.D. 2 Dept.), 2011 the mother petitioned the Supreme Court for permission to change the child's surname by hyphenating the father's surname with the mother's surname. The impetus for the change was the mother's use of both parties' surnames on the child's application for a passport. The father, before signing the application, redacted the mother's surname. The mother reinserted her surname and filed the application, leading the father, once he saw the child's passport, to contact federal officials and ask that the passport reflect her legal name. The Appellate Division observed that to the extent the father's objection was based on traditional values, meaning that it is Anglo-American custom to give a child the father's name, the objection was not reasonable, because neither parent has a superior right to determine the surname of the child (citing Swank v. Petkovsek, 216 A.D.2d 920; Matter of Bell v. Bell, 116 A.D.2d 97, 99; Matter of Cohan v. Cunningham, 104 A.D.2d 716; Rio v. Rio, 132 Misc.2d at 319).
Family Court May Prohibit Mother from Telling Child That Any Man Other than the Father Is Child's Biological Father
In Matter of Buxenbaum v Fulmer, --- N.Y.S.2d ----, 2011 WL 1206140 (N.Y.A.D. 2 Dept.) the Appellate Division held that the Family Court's determination that there had been a change in circumstances since the issuance of the prior order of custody and visitation dated January 28, 2008, and that it was in the child's best interests to award sole custody to the father, was supported by a sound and substantial basis in the record. It held that Family Court properly took judicial notice of the order of filiation entered on consent. The Family Court's determination that the mother could not testify, in rebuttal to the admission of the order of filiation, that she had lacked the capacity to consent to the order of filiation, was not an improvident exercise of discretion (see Matter of Lane v. Lane, 68 AD3d 995, 997). The Family Court providently exercised its discretion in prohibiting the mother from telling the child that any man other than the father is the child's biological father (citing Matter of Powell v. Blumenthal, 35 AD3d 615, 617).
Error For Supreme Court to Disregard Parties Stipulation
In Aloi v Simoni, 918 N.Y.S.2d 506 (2 Dept 2011) the Appellate Division observed that where the determination as to equitable distribution has been made after a nonjury trial, the trial court's assessment of the credibility of witnesses is afforded great weight on appeal. It held that Supreme Court erred in disregarding the parties' stipulation that the appreciation in the value of the plaintiff's retirement account during the course of the marriage was the sum of $25,189. The plaintiff was entitled to 50% of the sum of the appreciation of the parties' respective retirement accounts (50% of $450,115 + $25,189 = $237,652). In calculating the amount to be paid to the plaintiff, the defendant was entitled to a credit of the appreciation remaining in the plaintiff's account ($25,189). Accordingly, the amended judgment had to be modified to direct the defendant to pay the plaintiff the sum of $212,463. The Supreme Court also erred in failing to award interest on the plaintiff's distributive award from the date of the decision until the entry of the judgment, and from the entry of the judgment to the date of payment. In exercising its discretionary power to award an attorney's fee, the court may consider, among other things, "whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation" Here, there was a significant economic disparity between the defendant and the plaintiff, and the complexity of the defendant's business endeavors, as well as the defendant's uncooperativeness with discovery and with sorting out his financial affairs, greatly contributed to the high cost of the litigation. Under these circumstances, it was appropriate to award the plaintiff one half of her total counsel fees, which, after crediting the defendant for his payment of interim counsel fees, amounted to $81,103.
Needs of a Child must Take Precedence over the Terms of the Agreement Where Needs Not Met
In Duggan v Duggan, --- N.Y.S.2d ----, 2011 WL 1331920 (N.Y.A.D. 2 Dept.), the father, and the mother entered into stipulation of settlement on February 26, 2009, to end their marriage. They had four children. The stipulation noted that the father's annual gross income was $475,000, whereas the mother had no income. It further noted that, according to the child support percentage calculation provided in the Child Support Standards Act the father's monthly child support obligation would be $11,929.54. The parties, however, agreed to deviate from this calculation, and set the father's monthly child support obligation at $8,000. The mother filed a petition seeking child support arrears. At the ensuing hearing, the husband stated that his yearly income had dropped from $475,000 to $466,757, and he argued that, pursuant to the language in the stipulation, this decrease in income entitled him to an 80 percent decrease in his child support payments, to $1,600 per month. In a fact-finding order dated April 21, 2010, the Family Court denied the father's motion to dismiss the petition, holding that his interpretation of the stipulation was "not plausible." The same court issued an order on the same day, in which it directed the father to pay the mother child support arrears in the sum of $19,200. The father filed objections, and the Family Court denied the objections in an order dated June 14, 2010. The Family Court held that the language of the stipulation, as interpreted by the father, would violate the CSSA, and was against the best interests of the children. The Appellate Divison held that Family Court was without jurisdiction to modify the terms of a separation agreement absent a showing of an unanticipated and unreasonable change in circumstances, which the father had not alleged here (citing Kleila v. Kleila, 50 N.Y.2d 277). But the Family Court does have the authority to interpret and enforce the provisions of a separation agreement.. It pointed out that "When interpreting a contract, such as a separation agreement, the court should arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized" (Matter of Schiano v. Hirsch, 22 AD3d at 502). But "the needs of a child must take precedence over the terms of the agreement when it appears that the best interests of the child are not being met" (Matter of Gravlin, 98 N.Y.2d 1, 5). Thus, the Family Court had the authority to find that a provision in a stipulation of settlement violates the CSSA. The stipulation here provided that, according to the child support percentage calculation provided in the CSSA, the father's monthly child support obligation would be $11,929.54 per month. But the parties agreed to deviate from this calculation, on the grounds that it was in the best interests of the children and that the children's needs would be met, and set the father's monthly child support obligation at the sum of $8,000 per month. The father now sought to use the provision at issue to lower his child support obligation--for four children--to $1,600 per month, or 13% of the presumptive support level based on the CSSA. He sought to do this because his income dropped by 1.7%--from $475,000 per year to $466,757 per year. The Appellate Division concluded that Family Court properly found that this was against the best interests of the children.
Not Reversible Error to Deny Party’s Right to Make Opening Statement
In Matter of Sagese v Steinmetz, --- N.Y.S.2d ----, 2011 WL 1306419 (N.Y.A.D. 3 Dept.) Petitioner (father) and respondent (mother) were the parents of a daughter (born in 2004). The mother also had another child. In 2006, the parties consented to an order which granted them joint legal and physical custody of the child. In April 2009, based on allegations that there was a drug overdose in the residence where the mother resided, the father commenced a modification proceeding seeking sole custody of the child. In response, the mother filed a family offense petition and criminal complaint against the father alleging that the father struck her on the mouth during an argument. The father was subsequently arrested for assault, at which time he was found to be in possession of marihuana. The assault charge was later adjourned in contemplation of dismissal and the father paid a fine for the marihuana violation. In August 2009, Family Court issued a temporary order of custody providing that the parties share joint legal custody of the children, that the children reside with the paternal grandfather and, based on the father's marihuana conviction, that he submit to a chemical dependency evaluation. The resulting evaluation, based in part on a positive drug screen, diagnosed the father with cannabis abuse and recommended treatment. After a fact-finding hearing, Family Court awarded the parties joint legal custody of the children. Family Court further ordered that the father successfully complete chemical dependency treatment. The Appellate Divison rejected the father’ argument that Family Court committed reversible error by denying the father the right to present an opening statement. While a party to a civil proceeding has the right to make an opening statement (see CPLR 4016 [a]; De Vito v. Katsch, 157 A.D.2d 413, 415 [1990] ), it found that Family Court's error did not require reversal since the court was fully familiar with the facts of the case, the parties and their respective arguments through the numerous court appearances during the year prior to trial (citing Lohmiller v. Lohmiller, 140 A.D.2d 497, 497 [1988] ). The court held that Family Court did not err in ordering the father to attend substance abuse treatment. So long as a party's right to access to his or her child is not conditioned on participation in, or completion of, counseling, Family Court may, as part of its visitation or custody order, direct a party to obtain substance abuse treatment or counseling if such treatment or counseling will serve the children's best interests. In this regard, evidence of a party's continuous use of an illegal drug is certainly relevant to a determination of whether substance abuse treatment for the parent is in the children's best interests. Here, the father had already been convicted of the violation of unlawful possession of marihuana and, at the fact-finding hearing, he admitted to smoking marihuana "no more than once or twice per week" and during the pendency of his custody proceeding. While Family Court found the father to be a good parent, it did not find his testimony--that he did not purchase the drug, keep it in his home or use it in the presence of the children--to be credible. Family Court was also unpersuaded that the father's routine use of marihuana--which the record reflected could affect a person's judgment, memory and problem-solving ability--posed no risk to the children. Finally, to the extent that the father argued that treatment would create a financial burden, the record reflected that costs are based on ability to pay and the father was eligible to apply for Medicaid benefits, which would completely cover the costs of treatment.
Not Error to Suspend Child Support Payment Where Child Not of Employable Age
In Dobies v Brefka, --- N.Y.S.2d ----, 2011 WL 1307284 (N.Y.A.D. 3 Dept.) Petitioner (father) and respondent (mother) were the unmarried parents of two children, Jaclyn (born in 1993) and Nikolas (born in 1995). In October 2008, the father commenced violation proceedings. Family Court, inter alia, granted the father sole physical and legal custody of Nikolas, terminated the father's child support obligations for Jaclyn, and suspended the father's child support obligations for Nikolas..The father claimed that a sufficient change in circumstance had occurred since entry of these prior orders based on, among other things, the mother's deliberate attempts to influence and disrupt the father's parenting time with the children. At the hearing of this matter, the father testified that he had not had any visitation with Jaclyn since March 2007 and has had no weekend parenting time with Nikolas between August 2008 and March 2009. The father recounted multiple examples of alienating behavior engaged in by the mother, including in the spring of 2007 when the mother refused to let Nikolas participate in visitation with the father because of inclement weather--despite the fact that both parties had already driven to the custody exchange point. The father also testified that, in 2007, the mother told Jaclyn that she did not have to participate in the spring break visit with the father. The father further testified that on two occasions--in April 2007 and at the commencement of Father's Day weekend in June 2007--when Jaclyn refused to participate in visitation with the father, the mother indicated that there was nothing she could do about it and that Jaclyn had a mind of her own. The father also testified that during an attempted exchange occurring in the summer of 2007 at a restaurant parking lot--an exchange that never occurred--the mother refused to transfer Nikolas' suitcase to the father's car and then laughed at the father and took a photograph of him with her cell phone while she walked inside the restaurant with the children. Family Court found the mother's explanations for her conduct insufficient and her "credibility to be seriously impaired and her testimony contradictory throughout the trial, particularly when she denied actively discouraging the children from having a relationship with their father." Thus, there was sufficient evidence in the record supporting the court's conclusion that the mother interfered in the father's relationship with the children, such that the father established the requisite change in circumstances. While a determination of the children's best interests must be based on a totality of the circumstances "[e]vidence that the custodial parent intentionally interfered with the noncustodial parent's relationship with the [children] is so inconsistent with the best interests of the [children] as to, per se, raise a strong probability that [the offending party] is unfit to act as custodial parent". The Appellate Divison held that Family Court did not err in terminating the father's child support obligation for Jaclyn and suspending the father's child support obligation for Nikolas. Child support payments may be suspended " '[w]here it can be established by the noncustodial parent that the custodial parent has unjustifiably frustrated the noncustodial parent's right of reasonable access' " (Usack v. Usack, 17 AD3d 736, 737-738 [2005] ). In addition, child support payments may be deemed forfeited when "a child of employable age ... actively abandons the noncustodial parent by refusing all contact and visitation, without cause, ... a concept sometimes referred to as the doctrine of self-emancipation" (Labanowski v. Labanowski, 49 AD3d 1051, 1053 [2008] ). However, abandonment by a child who is not "of employable age" cannot be deemed to constitute constructive emancipation (Foster v. Daigle, 25 AD3d at 1004) Family Court's determination that the mother deliberately frustrated the father's relationship with Nikolas had a sound and substantial basis in the record. While it agreed with the mother that Jaclyn, who was only 16 years of age at the time of the court's order, was unable to abandon the father so as to forfeit his support obligation and, thus, Family Court erred in terminating the father's child support obligation as to her the facts clearly supported a finding that the father's support obligation should also be suspended with respect to Jaclyn based on the mother's conduct in deliberately frustrating his relationship with Jaclyn . Accordingly, the father's support obligations with respect to Jaclyn were suspended pending further court order upon a showing that the mother has made good faith efforts to actively encourage and restore the father's relationship with the children.
Husbands Claim of Extreme Hardship Rejected Where No Appreciable Change in Lifestyle.
In Taylor v Taylor, --- N.Y.S.2d ----, 2011 WL 1440992 (N.Y.A.D. 2 Dept.) the parties 2005 stipulation of settlement, which was incorporated but not merged into their divorce judgment, provided that the plaintiff would have custody of the children, and that the defendant would pay maintenance and child support in an agreed-upon amount. The stipulation also provided that the defendant waived his right to seek any downward modification of his maintenance obligation until August 1, 2012, "excluding an unforeseen, unanticipated catastrophic event, that so negatively impacts the Husband's health or earning capacity as to result in 'extreme hardship' to him as that term is set forth in [Domestic Relations Law] 236(B)(9)(b)." After the defendant lost his job at Bear Stearns in 2008 and was hired by Natixis, a French bank, the defendant moved for a downward modification of his maintenance and child support obligations. After a hearing, Supreme Court denied defendant's motion for a downward modification of his maintenance obligation. The Appellate Division observed that the evidence at the hearing showed that, although the economic downturn resulted in the defendant losing his job at Bear Stearns and earning a substantially smaller bonus in 2009 than he had received in previous years at Bear Stearns, the defendant's base salary and compensation plan at Natixis were similar to his base salary and compensation plan at Bear Stearns. Moreover, the evidence at the hearing showed that the economic downturn did not result in any appreciable change in the defendant's lifestyle. Accordingly, the defendant failed to demonstrate that continued enforcement of his obligation to pay maintenance under the parties' stipulation of settlement would create an "extreme hardship" .
Ithaca Cortland DWI Lawyer: Leandra's Law (Ignition Interlock) Problems
As a DWI defense lawyer practicing in Ithaca and the surrounding counties I see a great many clients who eventually require an ignition interlock installed in their cars. Leandra's Law is not a maybe with a New York DWI, it is a must have.
What you (or your lawyer) don't know can hurt you.
IID BASICS or the Most Common FAQs
1. Is an IID a Must or a Should have?
The IID is not discretionary for NYS DWIs, it is Mandatory since August, 2010.
The Judges and the District Attorneys have no leeway or power here, if is a DWI (VTL 1192 (2), VTL 1192 (3), or ADWI (VTL 1192 (a) (a) then a device MUST be installed within 10 days of sentencing.
Bottom Line: There is NO plea bargaining concerning IIDs.
2. What If you don't have a car? Rented a car with your DWI or borrowed a car with your DWI.
You still must install this device on a car for a minimum of six months. Sometime and somewhere this requirement must be met. It will remain on your driving record until it is met.
I have had people have to borrow cars, buy cars, and lease cars to meet this requirement.
3. What if I live in another state?
It does not matter if you live in NYS or someplace else, you will have to get it installed. So if you live in PA, TX, or CA expect to hunt down an IID provider location, and then they will report back to the county monitor in NYS every 30 days. many of these IID providers have National Support. If you plan on moving (relocating) then plan on continuing monitoring as well. As long as the County Monitor is kept informed and updated it should not be a problem. The device must be downloaded at a physical location every 30 days.
4. Can I just wait out the time period without driving?
NO, sometime and somewhere this requirement must be met for you to be released by New York State.
Lawrence (Larry) Newman, D.C., J.D.
504 North Aurora Street
Ithaca, NY 14850
607-229-5184
http://www.ithacadwi.com
Thứ Sáu, 22 tháng 4, 2011
NY seeks to make homeless shelter dogs the official state dog
According to AP reports, Assembly Members Micah Kellner and Linda Rosenthal were promoting the proposal Thursday.Krellner's press release in support of the bill reads as follows:
The “New York State Rescue Dog” bill (A.6681) will serve as an important educational tool by generating awareness about the value of adopting rescued animals along with other important information for prospective pet owners like spaying and neutering pets, providing them with microchip identification implants, and providing responsible pet care. While New York State has an official bird, tree and flower, it currently doesn’t have an official dog. Other states, such as Massachusetts with their Boston terrier and Kentucky with their dachshund, have chosen specific breeds, but New York would be the first to designate a whole class of dogs.
“Unfortunately, some people perceive rescue animals as damaged. Nothing could be further from the truth. Most of these dogs are healthy, well-behaved, and just in need of a loving home.” continued Assembly Member Kellner. “When my rescue dog bill becomes law, New York State will have to change its motto to: every dog has its day.”
According to a survey done in 2009 by the Humane Society of the United States, approximately 17 million Americans consider getting a pet every year. If only 20% of these people adopt a rescued pet, we could essentially end the killing of healthy and treatable animals in shelters. This could save tens of thousands of animals in New York alone.
“Naming the rescue dog as the official dog of New York State is an inspirational act,” said Assembly Member Linda B. Rosenthal. “It truly puts the spotlight on the noble, patient and worthy dog who waits for the right person to come along and adopt him. Far too many dogs are euthanized in this city and state and I hope that drawing attention to the plight of the rescue dog will make that practice a thing of the past.”
“Animal Haven is pleased to support a bill that recognizes that rescued dogs can make the best pets,” said Jennifer Bristol, Director of Operations for Animal Haven – a nonprofit organization founded in 1967 that finds homes for abandoned cats and dogs throughout the Tri-State area.
“We think Assembly Member Kellner’s Rescue Dog bill is a wonderful opportunity to bring the many wonderful dogs waiting for forever for homes in shelters and with rescue groups to the attention of people and families looking for a new four footed canine family member,” said Jane Hoffman of the Mayor’s Alliance for NYC’s Animals — a non-profit, public-private partnership of over 160 animal rescue groups and shelters working with the City of New York to end the killing of animals merely because they do not have homes.
“Best Friends Animal Society commends Assemblyman Kellner for bringing it to the attention of fellow New Yorkers that they don’t need to buy their four-legged family members in a pet store or online,” said Jamie Lyn Rubin of Best Friends. “This innovative bill highlights the amazing companion dogs in New York shelters who are just waiting to be adopted. Compassionate efforts such as Assemblyman Kellner’s bill will help bring us closer to the day when there are No More Homeless Pets.”
“I want to commend Assemblyman Kellner on behalf of all our rescue dogs for introducing legislation to make rescue dogs the official state dog of New York. Our rescue dogs have made a tremendous impact in our own lives and improved the lives of many in our community through their work as therapy dogs and humane educators” added Thaddeus Stringer, owner of Sarge Wolf-Stringer a 16 year old dog who was rescued at age 14 from an animal abuser and now advocates on behalf of rescue groups. “As proud New Yorkers we celebrate the diversity and opportunity our state provides. Our shelter dogs reflect that diversity and we thank Assemblyman Kellner for giving them the opportunities they deserve.”
“I want to commend Assemblyman Kellner on behalf of all our rescue dogs for introducing legislation to make rescue dogs the official state dog of New York. Our rescue dogs have made a tremendous impact in our own lives and improved the lives of many in our community through their work as therapy dogs and humane educators” added Thaddeus Stringer, owner of Sarge Wolf-Stringer a 16 year old dog who was rescued at age 14 from an animal abuser and now advocates on behalf of rescue groups. “As proud New Yorkers we celebrate the diversity and opportunity our state provides. Our shelter dogs reflect that diversity and we thank Assemblyman Kellner for giving them the opportunities they deserve.”
If passed, the legislation will go into effect immediately. The bill will not cost the State any money, but through its message, could potentially end up saving localities money in the long run by reducing shelter and animal control costs, as more people turn to shelters for animals.
The bill is sponsored in the State Senate by Senator Joseph E. Robach (R-Rochester).
Thứ Năm, 21 tháng 4, 2011
Thứ Hai, 18 tháng 4, 2011
Important New Decisions - April 18, 2011
Party Must Prevail on All Issues to Be Awarded Counsel Fee Pursuant to Agreement Provision
In Matter of Bederman v Bederman, --- N.Y.S.2d ----, 2011 WL 749719 (N.Y.A.D. 2 Dept.) the parties' stipulation of settlement which was incorporated but not merged into their judgment of divorce entered September 24, 2004, provided that in the event the parties agreed, or a court determined, that the parties' child should attend private preschool, elementary, or secondary school, the parties would proportionately share any educational expenses. The mother commenced a proceeding seeking reimbursement from the father for private school tuition and to direct the father to pay his proportionate share of religious education expenses. The Appellate Division fount that the record supported the Support Magistrate's findings that the father was not required to pay certain private school tuition payments for previous years which were gifts from the maternal grandmother, and that the father was not required to pay for religious education expenses under the terms of the parties' stipulation of settlement. The Support Magistrate also properly denied the mother's request to direct the father to pay his monthly child support through the Nassau County Support Collection Unit pursuant to Family Court Act 440(2). The stipulation of settlement provided for an alternate arrangement for the payment of child support in the form of direct payment to the mother unless the father defaulted in his child support payments and the record established that the father was not in arrears on his child support obligations. It also held that the mother was not entitled to an award of an attorney's fee, as she did not prevail on all issues (citing D'Amico v. D'Amico, 251 A.D.2d 616).
Court Cannot Issue a QDRO More Expansive or Encompassing Rights Not Provided in Underlying Stipulation
In Coulon v Coulon, --- N.Y.S.2d ----, 2011 WL 924351 (N.Y.A.D. 2 Dept.) the defendant appealed from so much of a Qualified Domestic Relations Order of the Supreme Court as designated the plaintiff as a surviving spouse under the pre-retirement and post-retirement survivor annuity provisions of his pension plan, and directed that she receive a share of such benefits in the event of his death. On the Court's own motion, the appellant's notice of appeal was treated as an application for leave to appeal, and leave to appeal was granted (see CPLR 5701[c] ). The Qualified Domestic Relations Order was reversed on the law and the matter was remitted to the Supreme Court for the entry of an amended Qualified Domestic Relations Order in accordance. The Appellate Division observed that a Qualified Domestic Relations Order entered pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment. Thus, a court cannot issue a QDRO more expansive or encompassing rights not provided in the underlying stipulation. Here, the parties' 1992 stipulation of settlement, which was incorporated but not merged in their judgment of divorce, provided for the plaintiff to receive a share of the defendant's pension in accordance with Majauskas v. Majauskas (61 N.Y.2d 481). However, "pension benefits and death benefits are two distinct matters" ( Kazel v. Kazel, 3 NY3d 331, 334), and a stipulation which is silent as to death benefits cannot be read to include an intent to include such benefits (McCoy v. Feinman, 99 N.Y.2d at 303). Since the parties' stipulation contained no provision entitling the plaintiff to be designated as a surviving spouse under the pre-retirement and post-retirement survivor annuity provisions of the defendant's pension plan and to receive a share of such benefits in the event of his death, it was error for the Supreme Court to include such a provision in the QDRO.
Decision Denying Mothers Request to Relocate with Children Reversed Where Family Court Did Not Give Appropriate Weight to Domestic Violence.
In Matter of Clarke v Boertlein, --- N.Y.S.2d ----, 2011 WL 924280 (N.Y.A.D. 2 Dept.), Family Court awarded the mother custody of the parties' three children, but denied her motion for permission to relocate with the parties' three children to Pennsylvania. The Appellate Divison reversed the order and granted her permission to relocate. The parties were the parents of three children, ages 10, 6, and 4. In August 2008 the mother removed the children from their home in Yaphank, New York, and moved to Bellefonte, Pennsylvania, where one of her sisters resided, allegedly to escape the father's domestic violence. The mother obtained an order of protection and temporary custody from a court in Pennsylvania. In November 2008 the mother reconciled with the father and returned with the children to New York, only to leave with the children again to Pennsylvania in April 2009. The father then commenced this proceeding in the Supreme Court (IDV Part), seeking custody of the children. The mother moved for an award of custody and permission to relocate with the children to Pennsylvania. After a hearing, the Supreme Court awarded the mother custody, but denied her request for permission to relocate with the children to Pennsylvania. The Appellate Divison pointed out that the disposition of a petition for permission to relocate with minor children rests upon a determination of the best interests of the children. Moreover, "[d]espite the multitude of factors that may properly be considered in the context of a relocation petition, the impact of the move on the relationship between the child[ren] and the noncustodial parent will remain a central concern" (Matter of Tropea v. Tropea, 87 N.Y.2d at 739). Upon its review of the record, it found that Supreme Court's determination to deny the mother permission to relocate with the children to Pennsylvania lacked a sound and substantial basis in the record. The record demonstrated that the mother had at all times served as the primary caregiver to the children and had displayed a continued commitment to their needs, whereas the father showed little involvement with the children when the parties lived together. The Supreme Court failed to give enough weight to the mother's allegations of domestic violence, often in the presence of the children, which permeated the parties' relationship and caused the mother to remove herself and the children from the parties' home. While the father denied that there was any domestic violence in the home, the Supreme Court noted that the father exhibited his temper during the course of the hearing when he left the witness stand while yelling at the mother's attorney. The father also admitted that he engaged in harassing and intimidating behavior after the mother left, such as calling the mother's cell phone numerous times each day, questioning the oldest child as to the mother's whereabouts, and placing a tracking device on the mother's car. Contrary to the Supreme Court's finding, the mother's move to Pennsylvania did not appear to have been motivated by bad faith but, rather, was an opportunity to escape domestic violence in the home, to reside in close proximity to supportive family members, and to secure affordable housing. The mother testified as to her unsuccessful attempts to obtain affordable housing on Long Island, and compared those attempts to her ability to secure a suitable rental home in Pennsylvania near where her sister resides with her family and the maternal grandmother. Testimony also revealed that the children were adapting well to their new surroundings, and were living with their half-brother in close proximity to their aunt and maternal grandmother, and that the two oldest children were attending school and receiving educational services. In contrast, the record suggested that the father opposed the relocation in order to harass the mother and in order to keep the mother in close proximity to facilitate his efforts to reconcile with her.
Divorce Based upon Cruelty Affirmed Where Husband Threatened to Kill Wife
In Siu Nam Wong Pun v Che Kwok Pun, --- N.Y.S.2d ----, 2011 WL 1046040 (N.Y.A.D. 1 Dept.) the Appellate Division affirmed an order which granted plaintiff a divorce on the grounds of cruelty. Plaintiff testified that during the marriage, defendant regularly lost his temper and yelled at her, verbally abused and demeaned her, and made disparaging remarks in response to her cancer diagnosis. She further testified that several years before she commenced this action, defendant choked her. In addition, she testified that he frequently yelled at her insisting that the family had to listen to him because he was the master of the household. Plaintiff recounted defendant's threat to kill her if she sought a divorce, and explained that she ultimately moved out because she feared defendant and was concerned for her safety. This testimony, portions of which were corroborated by the testimony of the parties' adult son, was sufficient to support the finding of cruel and inhuman treatment. Although plaintiff periodically returned to the marital residence after she moved out, she credibly explained that she did so to cook and clean the residence for her sons, who resided there. The lower court was not persuaded by defendant's claim that this behavior undermined plaintiff's contention that it was unsafe and improper for her to cohabit with defendant, and the Appellate Division agreed with that determination. Moreover, plaintiff testified that when she did return on occasion, defendant scolded and berated her.
Appellate Division Affirms Order Denying Counsel Fee to Attorney Who Agreed to Accept Litigation Assignment with No Guarantee of Compensation
In Moccia v Moccia, --- N.Y.S.2d ----, 2011 WL 1088033 (N.Y.A.D. 2 Dept.) the defendant wife in this divorce action was unable to afford counsel. The Supreme Court assigned the nonparty-appellant, Eric Ole Thorson (appellant), to represent the wife without compensation from her, "without prejudice to [a] motion by counsel for compensation pursuant to CPLR 1102(d), DRL Section 237, Judiciary Law Section 35 or as otherwise provided by law." The parties engaged in discovery, prepared for trial, and successfully negotiated a settlement agreement. The Supreme Court denied the appellant's motion for an award of an attorney's fee to be paid by the plaintiff husband. The Appellate Division affirmed. It pointed out that a court may award an attorney's fee in a divorce action to a spouse to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties (Domestic Relations Law s 237[a]). While the husband's income from the Yonkers Parking Authority was greater than the wife's income, his earnings were nevertheless modest and they were expended, in large part, on the wife and their children, as he paid, among other things, the mortgage and home equity loan, plus utilities on the marital home. In this regard, the Supreme Court properly considered the terms of the parties' settlement agreement and statements of net worth, which reflected the husband's income and expenses, limited assets, outstanding mortgage, the absence of savings, and debt to his own counsel, in determining that the parties' financial circumstances were "not that disparate so as to warrant an award of counsel fees." The Appellate Division commended any attorney who, as here, agrees to accept a litigation assignment with no guarantee of compensation, but held that the denial of an award of an attorney's fee in this case was not an improvident exercise of the Supreme Court's discretion. Judges Austin and Belen dissented.
Supreme Court Lacked Jurisdiction to Impose Obligations in the Amended Judgment upon the Nonparty-appellant Insurance Company
In Flangos v Flangos, --- N.Y.S.2d ----, 2011 WL 1088123 (N.Y.A.D. 2 Dept.) the Appellate Division held that Supreme Court lacked jurisdiction to impose obligations in the amended judgment upon the nonparty-appellant insurance company. A court has no power to grant relief against an entity not named as a party and not properly summoned before the court (Riverside Capital Advisors, Inc. v. First Secured Capital Corp., 28 AD3d 457, 460). Accordingly, the Supreme Court should have granted that branch of the nonparty-appellant's motion which was to vacate so much of the amended judgment as directed it to make certain payments. Similarly, the Supreme Court erred to the extent that it, sua sponte, in effect, amended a provision in the amended judgment directing the nonparty-appellant to give notice of stated proposed changes in the payments. Contrary to the plaintiff's contention, the amended judgment itself was not a proper income execution order under CPLR 5241, nor is it a proper income deduction order under CPLR 5242.
Supreme Court Erred in Directing Husband to Transfer to Wife Title to Property Owned by a Corporation over Which the Supreme Court Lacked Jurisdiction.
In Manning v Manning, --- N.Y.S.2d ----, 2011 WL 1088041 (N.Y.A.D. 2 Dept.) the Appellate Divison observed that in order to sustain a finding of civil contempt under Judiciary Law 753 based on a violation of a court order, it is necessary to establish by clear and convincing evidence that a lawful court order clearly expressing an unequivocal mandate was in effect, that the person alleged to have violated the order had actual knowledge of its terms, and that the violation has defeated, impaired, impeded, or prejudiced the rights of a party . Here, the evidence was sufficient to establish that the defendant knowingly disobeyed the Supreme Court's order directing him to pay an expert to ascertain the value of his business and also failed to comply with the pendente lite support order. Consequently, the Supreme Court properly adjudicated the defendant in contempt of court. It noted that a court is not required to rely upon a party's account of his or her finances in determining that party's income. It agreed with the defendant that the Supreme Court erred in directing him to transfer title to certain commercial real property to the plaintiff. The commercial property at issue was owned by a corporation over which the Supreme Court lacked jurisdiction.
In Matter of Bederman v Bederman, --- N.Y.S.2d ----, 2011 WL 749719 (N.Y.A.D. 2 Dept.) the parties' stipulation of settlement which was incorporated but not merged into their judgment of divorce entered September 24, 2004, provided that in the event the parties agreed, or a court determined, that the parties' child should attend private preschool, elementary, or secondary school, the parties would proportionately share any educational expenses. The mother commenced a proceeding seeking reimbursement from the father for private school tuition and to direct the father to pay his proportionate share of religious education expenses. The Appellate Division fount that the record supported the Support Magistrate's findings that the father was not required to pay certain private school tuition payments for previous years which were gifts from the maternal grandmother, and that the father was not required to pay for religious education expenses under the terms of the parties' stipulation of settlement. The Support Magistrate also properly denied the mother's request to direct the father to pay his monthly child support through the Nassau County Support Collection Unit pursuant to Family Court Act 440(2). The stipulation of settlement provided for an alternate arrangement for the payment of child support in the form of direct payment to the mother unless the father defaulted in his child support payments and the record established that the father was not in arrears on his child support obligations. It also held that the mother was not entitled to an award of an attorney's fee, as she did not prevail on all issues (citing D'Amico v. D'Amico, 251 A.D.2d 616).
Court Cannot Issue a QDRO More Expansive or Encompassing Rights Not Provided in Underlying Stipulation
In Coulon v Coulon, --- N.Y.S.2d ----, 2011 WL 924351 (N.Y.A.D. 2 Dept.) the defendant appealed from so much of a Qualified Domestic Relations Order of the Supreme Court as designated the plaintiff as a surviving spouse under the pre-retirement and post-retirement survivor annuity provisions of his pension plan, and directed that she receive a share of such benefits in the event of his death. On the Court's own motion, the appellant's notice of appeal was treated as an application for leave to appeal, and leave to appeal was granted (see CPLR 5701[c] ). The Qualified Domestic Relations Order was reversed on the law and the matter was remitted to the Supreme Court for the entry of an amended Qualified Domestic Relations Order in accordance. The Appellate Division observed that a Qualified Domestic Relations Order entered pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment. Thus, a court cannot issue a QDRO more expansive or encompassing rights not provided in the underlying stipulation. Here, the parties' 1992 stipulation of settlement, which was incorporated but not merged in their judgment of divorce, provided for the plaintiff to receive a share of the defendant's pension in accordance with Majauskas v. Majauskas (61 N.Y.2d 481). However, "pension benefits and death benefits are two distinct matters" ( Kazel v. Kazel, 3 NY3d 331, 334), and a stipulation which is silent as to death benefits cannot be read to include an intent to include such benefits (McCoy v. Feinman, 99 N.Y.2d at 303). Since the parties' stipulation contained no provision entitling the plaintiff to be designated as a surviving spouse under the pre-retirement and post-retirement survivor annuity provisions of the defendant's pension plan and to receive a share of such benefits in the event of his death, it was error for the Supreme Court to include such a provision in the QDRO.
Decision Denying Mothers Request to Relocate with Children Reversed Where Family Court Did Not Give Appropriate Weight to Domestic Violence.
In Matter of Clarke v Boertlein, --- N.Y.S.2d ----, 2011 WL 924280 (N.Y.A.D. 2 Dept.), Family Court awarded the mother custody of the parties' three children, but denied her motion for permission to relocate with the parties' three children to Pennsylvania. The Appellate Divison reversed the order and granted her permission to relocate. The parties were the parents of three children, ages 10, 6, and 4. In August 2008 the mother removed the children from their home in Yaphank, New York, and moved to Bellefonte, Pennsylvania, where one of her sisters resided, allegedly to escape the father's domestic violence. The mother obtained an order of protection and temporary custody from a court in Pennsylvania. In November 2008 the mother reconciled with the father and returned with the children to New York, only to leave with the children again to Pennsylvania in April 2009. The father then commenced this proceeding in the Supreme Court (IDV Part), seeking custody of the children. The mother moved for an award of custody and permission to relocate with the children to Pennsylvania. After a hearing, the Supreme Court awarded the mother custody, but denied her request for permission to relocate with the children to Pennsylvania. The Appellate Divison pointed out that the disposition of a petition for permission to relocate with minor children rests upon a determination of the best interests of the children. Moreover, "[d]espite the multitude of factors that may properly be considered in the context of a relocation petition, the impact of the move on the relationship between the child[ren] and the noncustodial parent will remain a central concern" (Matter of Tropea v. Tropea, 87 N.Y.2d at 739). Upon its review of the record, it found that Supreme Court's determination to deny the mother permission to relocate with the children to Pennsylvania lacked a sound and substantial basis in the record. The record demonstrated that the mother had at all times served as the primary caregiver to the children and had displayed a continued commitment to their needs, whereas the father showed little involvement with the children when the parties lived together. The Supreme Court failed to give enough weight to the mother's allegations of domestic violence, often in the presence of the children, which permeated the parties' relationship and caused the mother to remove herself and the children from the parties' home. While the father denied that there was any domestic violence in the home, the Supreme Court noted that the father exhibited his temper during the course of the hearing when he left the witness stand while yelling at the mother's attorney. The father also admitted that he engaged in harassing and intimidating behavior after the mother left, such as calling the mother's cell phone numerous times each day, questioning the oldest child as to the mother's whereabouts, and placing a tracking device on the mother's car. Contrary to the Supreme Court's finding, the mother's move to Pennsylvania did not appear to have been motivated by bad faith but, rather, was an opportunity to escape domestic violence in the home, to reside in close proximity to supportive family members, and to secure affordable housing. The mother testified as to her unsuccessful attempts to obtain affordable housing on Long Island, and compared those attempts to her ability to secure a suitable rental home in Pennsylvania near where her sister resides with her family and the maternal grandmother. Testimony also revealed that the children were adapting well to their new surroundings, and were living with their half-brother in close proximity to their aunt and maternal grandmother, and that the two oldest children were attending school and receiving educational services. In contrast, the record suggested that the father opposed the relocation in order to harass the mother and in order to keep the mother in close proximity to facilitate his efforts to reconcile with her.
Divorce Based upon Cruelty Affirmed Where Husband Threatened to Kill Wife
In Siu Nam Wong Pun v Che Kwok Pun, --- N.Y.S.2d ----, 2011 WL 1046040 (N.Y.A.D. 1 Dept.) the Appellate Division affirmed an order which granted plaintiff a divorce on the grounds of cruelty. Plaintiff testified that during the marriage, defendant regularly lost his temper and yelled at her, verbally abused and demeaned her, and made disparaging remarks in response to her cancer diagnosis. She further testified that several years before she commenced this action, defendant choked her. In addition, she testified that he frequently yelled at her insisting that the family had to listen to him because he was the master of the household. Plaintiff recounted defendant's threat to kill her if she sought a divorce, and explained that she ultimately moved out because she feared defendant and was concerned for her safety. This testimony, portions of which were corroborated by the testimony of the parties' adult son, was sufficient to support the finding of cruel and inhuman treatment. Although plaintiff periodically returned to the marital residence after she moved out, she credibly explained that she did so to cook and clean the residence for her sons, who resided there. The lower court was not persuaded by defendant's claim that this behavior undermined plaintiff's contention that it was unsafe and improper for her to cohabit with defendant, and the Appellate Division agreed with that determination. Moreover, plaintiff testified that when she did return on occasion, defendant scolded and berated her.
Appellate Division Affirms Order Denying Counsel Fee to Attorney Who Agreed to Accept Litigation Assignment with No Guarantee of Compensation
In Moccia v Moccia, --- N.Y.S.2d ----, 2011 WL 1088033 (N.Y.A.D. 2 Dept.) the defendant wife in this divorce action was unable to afford counsel. The Supreme Court assigned the nonparty-appellant, Eric Ole Thorson (appellant), to represent the wife without compensation from her, "without prejudice to [a] motion by counsel for compensation pursuant to CPLR 1102(d), DRL Section 237, Judiciary Law Section 35 or as otherwise provided by law." The parties engaged in discovery, prepared for trial, and successfully negotiated a settlement agreement. The Supreme Court denied the appellant's motion for an award of an attorney's fee to be paid by the plaintiff husband. The Appellate Division affirmed. It pointed out that a court may award an attorney's fee in a divorce action to a spouse to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties (Domestic Relations Law s 237[a]). While the husband's income from the Yonkers Parking Authority was greater than the wife's income, his earnings were nevertheless modest and they were expended, in large part, on the wife and their children, as he paid, among other things, the mortgage and home equity loan, plus utilities on the marital home. In this regard, the Supreme Court properly considered the terms of the parties' settlement agreement and statements of net worth, which reflected the husband's income and expenses, limited assets, outstanding mortgage, the absence of savings, and debt to his own counsel, in determining that the parties' financial circumstances were "not that disparate so as to warrant an award of counsel fees." The Appellate Division commended any attorney who, as here, agrees to accept a litigation assignment with no guarantee of compensation, but held that the denial of an award of an attorney's fee in this case was not an improvident exercise of the Supreme Court's discretion. Judges Austin and Belen dissented.
Supreme Court Lacked Jurisdiction to Impose Obligations in the Amended Judgment upon the Nonparty-appellant Insurance Company
In Flangos v Flangos, --- N.Y.S.2d ----, 2011 WL 1088123 (N.Y.A.D. 2 Dept.) the Appellate Division held that Supreme Court lacked jurisdiction to impose obligations in the amended judgment upon the nonparty-appellant insurance company. A court has no power to grant relief against an entity not named as a party and not properly summoned before the court (Riverside Capital Advisors, Inc. v. First Secured Capital Corp., 28 AD3d 457, 460). Accordingly, the Supreme Court should have granted that branch of the nonparty-appellant's motion which was to vacate so much of the amended judgment as directed it to make certain payments. Similarly, the Supreme Court erred to the extent that it, sua sponte, in effect, amended a provision in the amended judgment directing the nonparty-appellant to give notice of stated proposed changes in the payments. Contrary to the plaintiff's contention, the amended judgment itself was not a proper income execution order under CPLR 5241, nor is it a proper income deduction order under CPLR 5242.
Supreme Court Erred in Directing Husband to Transfer to Wife Title to Property Owned by a Corporation over Which the Supreme Court Lacked Jurisdiction.
In Manning v Manning, --- N.Y.S.2d ----, 2011 WL 1088041 (N.Y.A.D. 2 Dept.) the Appellate Divison observed that in order to sustain a finding of civil contempt under Judiciary Law 753 based on a violation of a court order, it is necessary to establish by clear and convincing evidence that a lawful court order clearly expressing an unequivocal mandate was in effect, that the person alleged to have violated the order had actual knowledge of its terms, and that the violation has defeated, impaired, impeded, or prejudiced the rights of a party . Here, the evidence was sufficient to establish that the defendant knowingly disobeyed the Supreme Court's order directing him to pay an expert to ascertain the value of his business and also failed to comply with the pendente lite support order. Consequently, the Supreme Court properly adjudicated the defendant in contempt of court. It noted that a court is not required to rely upon a party's account of his or her finances in determining that party's income. It agreed with the defendant that the Supreme Court erred in directing him to transfer title to certain commercial real property to the plaintiff. The commercial property at issue was owned by a corporation over which the Supreme Court lacked jurisdiction.
Chủ Nhật, 17 tháng 4, 2011
Ithaca DWI Lawyering, and the Art of Being Creative: Affidavit of NO CAR
I believe that people have different types of intelligence. Some are great academically while others can see issues from unique angles or perspectives. I have seen this play out with my clients, many who are highly educated. I have also seen these areas of development within my own four children, who each have their strengths and weaknesses.
So what does this have to do with criminal law and/or dwi defense? I'm glad you asked. Lawyering, much like doctoring, or architecting ( I make up stuff all the time), all have art and science. Artfulness to me means being able to go laterally, to think outside the proverbial box. I can do this because I love to play with words and ideas. Occasionally I get a great idea or two.
Recently I made up a form for Court, yes made up, much like I make up the use or more like the abuse of words. I called it the "AFFIDAVIT OF NO CAR." The Ithaca Judge was a little startled or surprised by this new form. Someone someplace has to make up stuff. As in I (under oath I swear) do not own and/or operate a car. If you do not own and/or operate a car then the Court/the DMV can not compel you to buy a car or get a car to place an Ignition Interlock device on. In simple terms NO CAR = NO DEVICE which btw also means NO DRIVING for six months.
So what does this have to do with criminal law and/or dwi defense? I'm glad you asked. Lawyering, much like doctoring, or architecting ( I make up stuff all the time), all have art and science. Artfulness to me means being able to go laterally, to think outside the proverbial box. I can do this because I love to play with words and ideas. Occasionally I get a great idea or two.
Recently I made up a form for Court, yes made up, much like I make up the use or more like the abuse of words. I called it the "AFFIDAVIT OF NO CAR." The Ithaca Judge was a little startled or surprised by this new form. Someone someplace has to make up stuff. As in I (under oath I swear) do not own and/or operate a car. If you do not own and/or operate a car then the Court/the DMV can not compel you to buy a car or get a car to place an Ignition Interlock device on. In simple terms NO CAR = NO DEVICE which btw also means NO DRIVING for six months.
Thứ Sáu, 15 tháng 4, 2011
Surrogate Diana Johnson Decides the Matter of Ralph Besdansky; The Surrogate Court/Public Administrator RICO?
From the Editor Betsy Combier:
While you read the article below, remember that many people believe that there is a RICO going on in the close ties of Surrogate Courts and Public Administrators. As, in my case.
Also, I added the 2009 article by Barbara Ross published in the NY Daily News about the corrupt courts in Brooklyn. Her husband is Robert Tembeckjian, Administrator of the New York State Commission on Judicial Conduct
Further reading:
Surrogate Finds Evidence Home Officials Influenced Resident's Will
Daniel Wise, New York Law Journal, 04-15-2011
There is ample evidence that two former administrators of a Brooklyn home for the aged "inserted" themselves into the drafting of an 89-year-old resident's will that named them as his sole beneficiaries, Brooklyn Surrogate Diana A. Johnson has found.
Surrogate Johnson on Tuesday denied a motion to admit to probate the disputed will of Ralph Besdansky, under which the former administrator and former director of patient care at the Palm Beach Home for Adults in Sheepshead Bay stand to receive bequests of approximately $250,000 each.
That bequest was in addition to large gifts Mr. Besdansky already had made to the administrators.
Surrogate Johnson also questioned whether the lawyer who drafted the will had been too compliant in allowing David J. Blatt, the adult home's administrator, and Tzila Goldberg, its patient-care director, to become too deeply embedded in the process.
The surrogate noted that the lawyer, Alan B. Hertz of Midwood, stated in a deposition that he thought it was important for his client to have a psychiatric examination before going through with the bequests.
"Curiously," Surrogate Johnson wrote in Estate of Ralph Besdansky, 520/2007, Mr. Hertz "permitted and acquiesced in his client being brought by the very individuals who stood to gain by the will to a psychiatrist of their choosing."
Mr. Hertz declined to comment.
Paul F. Millus, who represents the two former Palm Beach officials, said "there was no overreaching whatsoever."
Mr. Besdansky, who had no relatives, "felt a kinship with these folks" and "gladly and willingly decided to help these lovely people out," said Mr. Millus, a partner at Snitow, Kanfer, Holtzer & Millus.
The Brooklyn Public Administrator's Office challenged the will, arguing that it was the product of undue influence on the part of the two home officials. It also claimed that Mr. Besdansky lacked testamentary capacity.
The two officials, whom Mr. Besdansky had named as executors of his will, then moved, after the completion of discovery, for summary judgment requiring the will to be admitted to probate.
Surrogate Johnson denied the motion, finding disputed issues of fact remained concerning both undue influence and testamentary capacity.
Mr. Besdansky, then 89, was admitted to the Palm Beach home in 2003 after he had been discovered sleeping on the front steps of the building where he lived in an apartment alone.
About three weeks later, he called Mr. Hertz seeking advice about financial matters, Surrogate Johnson related.
She also noted that before Mr. Besdansky called the lawyer to set up an appointment, Mr. Hertz had never provided legal services to him and did not know how Mr. Besdansky had gotten his phone number.
Several days later, Ms. Goldberg and the wife of Mr. Blatt took Mr. Besdansky for a psychiatric evaluation and remained with him during the 37-minute exam. Surrogate Johnson wrote that Mr. Hertz had "no problem" that the exam was conducted in their presence.
Surrogate Johnson observed that the report of Saed M. Hashemi, who examined Mr. Besdansky, indicated that the appointment had been arranged by Palm Beach staff rather than Mr. Hertz.
Dr. Hashemi concluded that Mr. Besdansky was capable of "making decisions and managing his money." Mr. Hertz then drafted the will, which was signed on April 26, 2004.
However, the public administrator submitted a report by psychiatrist Robert L. Goldstein, who determined that Mr. Besdansky was suffering from dementia and other disorders, and lacked the capacity "to make, understand, or appreciate the consequences of executing the will" and did not know the nature or extent of the property being disposed of.
During his career as a metal polisher, Mr. Besdansky, who died on Dec. 5, 2006, had managed to salt away approximately $2 million.
Within two months of moving into the home, he gave Mr. Blatt and Ms. Goldberg gifts of $250,000 each. Also, he had added their names to a trust containing $890,000 that the administrators were to share on his death.
That left $500,000 subject to the will.
Only the will bequests were before Surrogate Johnson. In concluding that there was enough evidence to require a trial, she noted that "an inference of undue influence" arises when a person, who is a beneficiary is "involved in drafting the will."
The sole predicate for that finding—that the beneficiary have a confidential relationship with the testator—was "clear" in Mr. Besdansky's situation, she wrote, since there was a "substantial disparity in power" between him and the two officials.
Also, she found that Mr. Besdansky had lived "a very solitary life" and that his $500,000 in gifts to the administrators soon after his arrival at the home constituted a drastic change in a lifetime of frugal habits.
Similarly, she found, there were issues of fact to be resolved regarding Mr. Besdansky's testamentary capacity.
If Surrogate Johnson refuses to admit the will, the funds will go to the state unless relatives appear to claim them. So far no relatives have come forward.
The Brooklyn Public Administrator's Office was represented by Charles G. Fiore of Lewis & Fiore.
Daniel Wise can be contacted at dwise@alm.com.
Estate of Ralph Besdansky, Deceased, 520/2007
Surrogate's Court, Kings County
Trusts and Estates
new york law journal, 04-15-2011
Estate of Ralph Besdansky, Deceased, 520/2007
Surrogate's Court, Kings County
Trusts and Estates
New York law journal, 04-15-2011
Cite as: Estate of Ralph Besdansky, 520/2007, NYLJ 1202489936506, at *1 (Surr., KI, Decided April 12, 2011)
Surrogate Diana A. Johnson
Decided: April 12, 2011
ATTORNEYS
For the Petitioner (movants): Paul F. Millus, Esq., Snitow Kanfer Holtzer & Millus, LLP, New York, N.Y.
For the Objectant: Charles Fiore, Esq., Lewis & Fiore, Esqs. New York, N.Y.
The following papers were considered in deciding this motion for summary judgment:
Papers Numbered
Notice of Motion and Affirmation 1, 2
Affirmation in Opposition 3
Reply Affirmation 4
Exhibits 5
PROBATE PROCEEDING
DECISION AND ORDER
David J. Blatt and Tzila Goldberg ("Petitioners") move for an order granting summary judgment to them dismissing the objections filed by the Public Administrator, and admitting the purported will of Ralph Besdansky ("Decedent") dated April 26, 2004 to probate.
Decedent died on December 5, 2006 at the age of ninety-two. Decedent had been a resident of Palm Beach Home for Adults ("Palm Beach"), an assisted living facility, from September 8, 2003 until his death. Petitioner David J. Blatt is the Administrator of Palm Beach. Petitioner Tzila Goldberg at the time was the Director of Community Relations and Resident Care at Palm Beach. Petitioners are the co-executors of the purported will which bequeaths Decedent's entire estate alleged to be approximately $500,000.00 to them.
On February 26, 2007, Petitioners filed their probate petition. The Public Administrator, who had been cited as a necessary party pursuant to SCPA 1123 2(i)(2), filed his objections on June 11, 2008. The objections are that at the time the purported will was executed Decedent lacked testamentary capacity, and/or that the purported will was the product of undue influence practiced upon Decedent by Petitioners. Preliminary letters testamentary were issued to Petitioners on March 5, 2009. These letters, however, were revoked on November 19, 2009, based on Petitioners' failure to comply with this Court's Order of October 23, 2009, requiring them to file a bond in the sum of $550,000.00. Since that time the Public Administrator has assumed the temporary administration of this Estate.
The motion before the Court was made following extensive discovery. Petitioners' motion is supported by their attorney's affirmation, their affidavits and numerous exhibits which include deposition testimony. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Summary judgment in a contested probate proceeding may be granted where the proponent sufficiently establishes a prima facie case for probate, and the contestant fails to raise any genuine issues of fact (Matter of Colverd, 52 AD3d 971 [3d Dept 2008]). The burden of proof on the issue of testamentary capacity rests with the proponent of the will, while the objectant bears the burden on the issue of undue influence.
In September 2003, Decedent, a retired metal polisher, was admitted to Maimonides Medical Center in Brooklyn, New York. Decedent was eighty-nine years of age and had been found sleeping by a neighbor on the front steps of the apartment building wherein he resided alone. During his three-day hospitalization, a social worker at the hospital had called Petitioners to refer Decedent to them. After speaking to Decedent, Petitioners determined he could benefit from and was able to afford a private room at their facility. Upon his discharge from Maimonides Medical Center on or about September 8, 2003, Decedent was admitted to Palm Beach.
Alan B. Hertz, Esq., ("Hertz"), the attorney draftsman of the purported will alleges Decedent contacted him by telephone in late September 2003, wanting to speak to an attorney regarding his financial matters. Hertz does not recall whether anyone else participated in that telephone conservation. He had never provided legal services to the Decedent prior to that time, and did not know how Decedent obtained his phone number. He surmises that Decedent found out about him through "word of mouth", as he had previously been to Palm Beach relating to residents' inquiries concerning living wills, health care proxies and other questions. When he met with Decedent at Palm Beach that September, Hertz claims that, among other things, Decedent wanted to talk about making a will. Hertz had not previously prepared a will for any resident of Palm Beach. In fact he indicated that he has prepared less than ten wills over the past five years. At their initial meeting Hertz advised Decedent to undergo a psychiatric examination. He felt it important because Decedent, "wanted to give all his assets, 50/50 to Tzila Goldberg and David Blatt." (Hertz deposition at 52).
On October 2, 2003, twenty-four days after his admission to Palm Beach, Decedent was taken by Goldberg and Rivkay Blatt, (Blatt's spouse) to the office of Dr. Saed M. Hashemi for a psychiatric examination. The thirty-seven minute examination was conducted in the presence of Goldberg and Rivkay Blatt, who remained throughout the entire psychiatric examination.1 Dr. Hashemi's report dated October 2, 2003, states,"[t]he evaluation was requested by the staff at the Palm Beach regarding clinical decisions involving mental competency." (Petitioners exhibit A). Dr. Hashemi found that, although there was some decline in memory and concentration, there was no noticeable degree of dementia. He concluded that, "[c]linically, the patient [Decedent] is deemed competent of making decisions and managing his funds."
On April 26, 2004, Hertz took his employees Racha Markowitz, Yosef Krauss and Sandra Louman to Palm Beach to serve as witnesses to the purported will. Decedent also signed a typewritten letter notarized that day authorizing several financial institutions to add Petitioners' names to all of his bank accounts, bonds, safety deposit vaults, and other assets giving each a 50 percent ownership interest at the time of his death. On May 2, 2oo4, Decedent executed a Durable Power of Attorney for HSBC Bank USA Transactions in favor of Hertz.
The burden of proving that a decedent possessed testamentary capacity rests on the proponent of the will (Matter of Walker, 80 AD3d 865 [3d Dept 2011]). The proponent must establish, (1) that the decedent understood the nature and consequences of executing a will, (2) that the decedent knew the nature and extent of the property that he or she was disposing of, and (3) that the decedent knew the natural objects of his or her bounty, and his relations with them (Matter of Kumstar, 66 NY2d 691 [1985]). This notwithstanding, until the contrary is established a testator is presumed to be sane and have sufficient mental capacity to make a valid will (Matter of Betz, 63 AD2d 769 [3d Dept 1978]; Matter of Beneway, 272 AD 463 [3d Dept 1947]). This presumption coupled with Dr. Hashemi's report finding Decedent competent to make decisions and manage his funds, constitutes a prima facie showing of Decedent's mental capacity to make a valid will. The burden therefore shifts to objectant to demonstrate a triable issue of fact in this regard.
The Public Administrator offers the report of Dr. Robert L. Goldstein, a board-certified psychiatrist. Dr. Goldstein based upon, inter alia, his viewing of Dr. Hashemi's examination and his review of Dr. Hashemi's report concludes that Decedent suffered from dementia (either of the Alzheimer's Type, or Vascular Dementia), and a severe mood disorder (most likely Major Depressive Disorder). It is his expert medical opinion that Decedent's "mental weakness, significant cognitive deficits, and defective judgment had critically compromised his psychological functioning", and Decedent neither had the mental capacity to make, understand or appreciate the consequences of executing the will, nor did he know or appreciate the nature and extent of the property being disposed of.
The findings of Dr. Goldstein contradict Dr. Hashemi's findings that Decedent did not show evidence of dementia, and was competent to make decisions and manage his funds. The conflicting expert medical opinions regarding Decedent's mental capacity creates a triable issue of fact concerning Decedent's testamentary capacity (Matter of Raskas, 213 AD2d 718 [2d Dept 1995]).
Undue influence is defined as influence that amounts to a moral coercion, which restrains independent action and destroys free agency, or which by insistence cannot be resisted, constraining the individual to do that which is against his/her free will and desire, but which he/she is unable to refuse or too weak to resist (Matter of Caruso, 70 AD3d 937 [2d Dept 2010], citing Matter of Walther, 6 NY2d 49 [1959]).
Undue influence, "can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such person" (Matter of Bach, 133 AD2d 455 [2d Dept 1987]).
In the probate petition Petitioners concede that they were in a confidential relationship with Decedent. However, even without this admission it is clear that a confidential relationship existed between Petitioners and Decedent, as Blatt was the Administrator, and Goldberg the Director of Community Relations and Resident Care at the facility where Decedent resided. Where, as here, there is substantial disparity in power between the parties involved in a transaction, the law may impute the existence of a confidential relationship (Ten Eyck v. Whitbeck, 156 NY 341 [1898]).
Both Petitioners indicate in their depositions that Decedent had revealed the extent of his assets to them. This is not unusual as, "[i]t is inevitable that the aged and infirm, under such circumstances, will become very dependent upon those who tend to their wants, and a high degree of confidentiality will develop under which the aged will reveal to them their closest thoughts and the state of their financial affairs" ( Matter of Burke, 82 AD2d 260 [2d Dept 1981]). As such transactions between them are be scrutinized with extreme vigilance, and clear evidence is required that the transaction was understood, and that there was no fraud, mistake or undue influence (see Matter of Gordon v. Bialystoker Ctr. & Bikur Cholim, 45 NY2d 692 [1978]). While the vast majority of those who care for the aged are honest and dedicated professionals, the relationship is one which unfortunately, "the greedy and the corrupt may find considerable gain" (Matter of Burke, 82 AD2d 260, supra).
It is undisputed that Petitioners each received a "gift" of $250,000.00 from Decedent within several months of his taking up residency at Palm Beach. In fact Decedent had been taken to HSBC bank by Goldberg and Rivkay Blatt to effect the wire transfers and establish the accounts. It is also undisputed that Petitioners received on Decedent's death an additional $447,747.36 each in Totton Trust payments as Decedent had added their names to all of his bank accounts, bonds, safety deposit vaults, and other assets.
Yet by all indications Decedent had been a man of frugal habits, who by being so had amassed assets of approximately two million dollars. Blatt indicates in his affidavit that Decedent had lived a very solitary life for many years before coming to Palm Beach. During Dr. Hashemi's examination, Decedent indicated that his life basically consisted of watching TV and listening to the radio. He stated he was a bachelor because he didn't make enough money. He complained of the cost of his hospital stay at Maimonides Medical Center just the prior month declaring, "they charge a lot of money, I won't go there anymore". Then suddenly a month or so later he gives away $500,000.00 ($250,000.00 each) to two individuals who admittedly never invited him to their home or participated in any other social engagement with him other than speaking to him or doing that which was part of their regular duties at Palm Beach. This drastic change "in decedent's dedication to these lifelong penurious practices" (see Matter of Brandon, 79 AD2d 246 [2d Dept 1981]), clearly constitutes sufficient circumstantial evidence of undue influence to raise a triable issue of fact as to whether Petitioners exerted undue influence over Decedent (see Matter of Katz, 63 AD3d 836 [2d Dept 2009]).
Additionally there is ample evidence of Petitioners' involvement in the drafting of Decedent's will. Hertz claims he wanted Decedent to undergo a psychiatric examination before going forward with any testamentary instruments due to Decedent wanting to give all his assets to Petitioners. But then curiously Hertz permitted and acquiesced in his client being brought by the very individuals who stood to gain by the will to a psychiatrist of their choosing. Dr. Hasemi's report indicates that it was conducted at the request of the staff at Palm Beach, and not that of Hertz. Further, Hertz apparently had no problem with the fact that the examination was conducted in the presence of Goldberg and Rivkay Blatt. Yet it was the finding that Decedent was mentally competent from this psychiatric examination which caused Hertz to go forward and draft the will. By their actions Petitioners inserted and involved themselves in the prerequisite to and basis for Hertz's drafting of the will which bequeathed all of Decedent's assets to them. In so doing it is clear Petitioners have involved themselves in the drafting of Decedent's will. It is well settled that where a beneficiary under a will is in a confidential or fiduciary relationship with the testator, and is involved in the drafting of the will, an inference of undue influence arises placing the burden on the beneficiary to explain the circumstances of the bequest, the adequacy of which is a question for the trier of fact ( Matter of Neenan, 35 AD3d 475 [2d Dept 2006]; Matter of Bertel, NYLJ, April 7, 1994, at 26, col 6 [Sur Ct, New York County]).
Accordingly, as there are clearly issues of fact raised, Petitioners' motion for summary judgment dismissing the objections of the Public Administrator based on mental capacity and undue influence is denied.
This constitutes the decision and order of the Court.
1. The Court's viewing of the examination on the DVD provided to the court shows that one of the women present provided answers to several of Dr. Hashemi's questions directed to Decedent.
Audit reveals shady shenanigans in Brooklyn courts
BY BARBARA ROSS, DAILY NEWS STAFF WRITER, Monday, July 06, 2009
LINK
Brooklyn's scandal-plagued court system gets a new black eye in a scathing audit that found the borough's public administrator's office riddled with "mismanagement and laziness."
The city controller's office uncovered shoddy recordkeeping, suspicious real estate deals and auctions run by a shadowy company that vanished when auditors started asking questions.
"From the time my auditors began this audit, there seemed to be one startling revelation after another with regard to the lack of detail paid to the process of distributing and accounting for the estates of the deceased," Controller William Thompson said.
Surrogate judges in each borough appoint a public administrator to oversee the estates of people who die without wills.
Thompson's auditors found a "culture of mismanagement and laziness" in Brooklyn's public administrator office.
Things were such a mess that Thompson urged all Brooklyn residents to "make out a will as soon as possible" - avoiding the risk of being bilked by the office.
While you read the article below, remember that many people believe that there is a RICO going on in the close ties of Surrogate Courts and Public Administrators. As, in my case.
Also, I added the 2009 article by Barbara Ross published in the NY Daily News about the corrupt courts in Brooklyn. Her husband is Robert Tembeckjian, Administrator of the New York State Commission on Judicial Conduct
Further reading:
Judge who bribed party boss retires
How Judges Hide From JusticeSurrogate Finds Evidence Home Officials Influenced Resident's Will
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| Surrogate Diana Johnson |
There is ample evidence that two former administrators of a Brooklyn home for the aged "inserted" themselves into the drafting of an 89-year-old resident's will that named them as his sole beneficiaries, Brooklyn Surrogate Diana A. Johnson has found.
Surrogate Johnson on Tuesday denied a motion to admit to probate the disputed will of Ralph Besdansky, under which the former administrator and former director of patient care at the Palm Beach Home for Adults in Sheepshead Bay stand to receive bequests of approximately $250,000 each.
That bequest was in addition to large gifts Mr. Besdansky already had made to the administrators.
Surrogate Johnson also questioned whether the lawyer who drafted the will had been too compliant in allowing David J. Blatt, the adult home's administrator, and Tzila Goldberg, its patient-care director, to become too deeply embedded in the process.
The surrogate noted that the lawyer, Alan B. Hertz of Midwood, stated in a deposition that he thought it was important for his client to have a psychiatric examination before going through with the bequests.
"Curiously," Surrogate Johnson wrote in Estate of Ralph Besdansky, 520/2007, Mr. Hertz "permitted and acquiesced in his client being brought by the very individuals who stood to gain by the will to a psychiatrist of their choosing."
Mr. Hertz declined to comment.
Paul F. Millus, who represents the two former Palm Beach officials, said "there was no overreaching whatsoever."
Mr. Besdansky, who had no relatives, "felt a kinship with these folks" and "gladly and willingly decided to help these lovely people out," said Mr. Millus, a partner at Snitow, Kanfer, Holtzer & Millus.
The Brooklyn Public Administrator's Office challenged the will, arguing that it was the product of undue influence on the part of the two home officials. It also claimed that Mr. Besdansky lacked testamentary capacity.
The two officials, whom Mr. Besdansky had named as executors of his will, then moved, after the completion of discovery, for summary judgment requiring the will to be admitted to probate.
Surrogate Johnson denied the motion, finding disputed issues of fact remained concerning both undue influence and testamentary capacity.
Mr. Besdansky, then 89, was admitted to the Palm Beach home in 2003 after he had been discovered sleeping on the front steps of the building where he lived in an apartment alone.
About three weeks later, he called Mr. Hertz seeking advice about financial matters, Surrogate Johnson related.
She also noted that before Mr. Besdansky called the lawyer to set up an appointment, Mr. Hertz had never provided legal services to him and did not know how Mr. Besdansky had gotten his phone number.
Several days later, Ms. Goldberg and the wife of Mr. Blatt took Mr. Besdansky for a psychiatric evaluation and remained with him during the 37-minute exam. Surrogate Johnson wrote that Mr. Hertz had "no problem" that the exam was conducted in their presence.
Surrogate Johnson observed that the report of Saed M. Hashemi, who examined Mr. Besdansky, indicated that the appointment had been arranged by Palm Beach staff rather than Mr. Hertz.
Dr. Hashemi concluded that Mr. Besdansky was capable of "making decisions and managing his money." Mr. Hertz then drafted the will, which was signed on April 26, 2004.
However, the public administrator submitted a report by psychiatrist Robert L. Goldstein, who determined that Mr. Besdansky was suffering from dementia and other disorders, and lacked the capacity "to make, understand, or appreciate the consequences of executing the will" and did not know the nature or extent of the property being disposed of.
During his career as a metal polisher, Mr. Besdansky, who died on Dec. 5, 2006, had managed to salt away approximately $2 million.
Within two months of moving into the home, he gave Mr. Blatt and Ms. Goldberg gifts of $250,000 each. Also, he had added their names to a trust containing $890,000 that the administrators were to share on his death.
That left $500,000 subject to the will.
Only the will bequests were before Surrogate Johnson. In concluding that there was enough evidence to require a trial, she noted that "an inference of undue influence" arises when a person, who is a beneficiary is "involved in drafting the will."
The sole predicate for that finding—that the beneficiary have a confidential relationship with the testator—was "clear" in Mr. Besdansky's situation, she wrote, since there was a "substantial disparity in power" between him and the two officials.
Also, she found that Mr. Besdansky had lived "a very solitary life" and that his $500,000 in gifts to the administrators soon after his arrival at the home constituted a drastic change in a lifetime of frugal habits.
Similarly, she found, there were issues of fact to be resolved regarding Mr. Besdansky's testamentary capacity.
If Surrogate Johnson refuses to admit the will, the funds will go to the state unless relatives appear to claim them. So far no relatives have come forward.
The Brooklyn Public Administrator's Office was represented by Charles G. Fiore of Lewis & Fiore.
Daniel Wise can be contacted at dwise@alm.com.
Estate of Ralph Besdansky, Deceased, 520/2007
Surrogate's Court, Kings County
Trusts and Estates
new york law journal, 04-15-2011
Estate of Ralph Besdansky, Deceased, 520/2007
Surrogate's Court, Kings County
Trusts and Estates
New York law journal, 04-15-2011
Cite as: Estate of Ralph Besdansky, 520/2007, NYLJ 1202489936506, at *1 (Surr., KI, Decided April 12, 2011)
Surrogate Diana A. Johnson
Decided: April 12, 2011
ATTORNEYS
For the Petitioner (movants): Paul F. Millus, Esq., Snitow Kanfer Holtzer & Millus, LLP, New York, N.Y.
For the Objectant: Charles Fiore, Esq., Lewis & Fiore, Esqs. New York, N.Y.
The following papers were considered in deciding this motion for summary judgment:
Papers Numbered
Notice of Motion and Affirmation 1, 2
Affirmation in Opposition 3
Reply Affirmation 4
Exhibits 5
PROBATE PROCEEDING
DECISION AND ORDER
David J. Blatt and Tzila Goldberg ("Petitioners") move for an order granting summary judgment to them dismissing the objections filed by the Public Administrator, and admitting the purported will of Ralph Besdansky ("Decedent") dated April 26, 2004 to probate.
Decedent died on December 5, 2006 at the age of ninety-two. Decedent had been a resident of Palm Beach Home for Adults ("Palm Beach"), an assisted living facility, from September 8, 2003 until his death. Petitioner David J. Blatt is the Administrator of Palm Beach. Petitioner Tzila Goldberg at the time was the Director of Community Relations and Resident Care at Palm Beach. Petitioners are the co-executors of the purported will which bequeaths Decedent's entire estate alleged to be approximately $500,000.00 to them.
On February 26, 2007, Petitioners filed their probate petition. The Public Administrator, who had been cited as a necessary party pursuant to SCPA 1123 2(i)(2), filed his objections on June 11, 2008. The objections are that at the time the purported will was executed Decedent lacked testamentary capacity, and/or that the purported will was the product of undue influence practiced upon Decedent by Petitioners. Preliminary letters testamentary were issued to Petitioners on March 5, 2009. These letters, however, were revoked on November 19, 2009, based on Petitioners' failure to comply with this Court's Order of October 23, 2009, requiring them to file a bond in the sum of $550,000.00. Since that time the Public Administrator has assumed the temporary administration of this Estate.
The motion before the Court was made following extensive discovery. Petitioners' motion is supported by their attorney's affirmation, their affidavits and numerous exhibits which include deposition testimony. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Summary judgment in a contested probate proceeding may be granted where the proponent sufficiently establishes a prima facie case for probate, and the contestant fails to raise any genuine issues of fact (Matter of Colverd, 52 AD3d 971 [3d Dept 2008]). The burden of proof on the issue of testamentary capacity rests with the proponent of the will, while the objectant bears the burden on the issue of undue influence.
In September 2003, Decedent, a retired metal polisher, was admitted to Maimonides Medical Center in Brooklyn, New York. Decedent was eighty-nine years of age and had been found sleeping by a neighbor on the front steps of the apartment building wherein he resided alone. During his three-day hospitalization, a social worker at the hospital had called Petitioners to refer Decedent to them. After speaking to Decedent, Petitioners determined he could benefit from and was able to afford a private room at their facility. Upon his discharge from Maimonides Medical Center on or about September 8, 2003, Decedent was admitted to Palm Beach.
Alan B. Hertz, Esq., ("Hertz"), the attorney draftsman of the purported will alleges Decedent contacted him by telephone in late September 2003, wanting to speak to an attorney regarding his financial matters. Hertz does not recall whether anyone else participated in that telephone conservation. He had never provided legal services to the Decedent prior to that time, and did not know how Decedent obtained his phone number. He surmises that Decedent found out about him through "word of mouth", as he had previously been to Palm Beach relating to residents' inquiries concerning living wills, health care proxies and other questions. When he met with Decedent at Palm Beach that September, Hertz claims that, among other things, Decedent wanted to talk about making a will. Hertz had not previously prepared a will for any resident of Palm Beach. In fact he indicated that he has prepared less than ten wills over the past five years. At their initial meeting Hertz advised Decedent to undergo a psychiatric examination. He felt it important because Decedent, "wanted to give all his assets, 50/50 to Tzila Goldberg and David Blatt." (Hertz deposition at 52).
On October 2, 2003, twenty-four days after his admission to Palm Beach, Decedent was taken by Goldberg and Rivkay Blatt, (Blatt's spouse) to the office of Dr. Saed M. Hashemi for a psychiatric examination. The thirty-seven minute examination was conducted in the presence of Goldberg and Rivkay Blatt, who remained throughout the entire psychiatric examination.1 Dr. Hashemi's report dated October 2, 2003, states,"[t]he evaluation was requested by the staff at the Palm Beach regarding clinical decisions involving mental competency." (Petitioners exhibit A). Dr. Hashemi found that, although there was some decline in memory and concentration, there was no noticeable degree of dementia. He concluded that, "[c]linically, the patient [Decedent] is deemed competent of making decisions and managing his funds."
On April 26, 2004, Hertz took his employees Racha Markowitz, Yosef Krauss and Sandra Louman to Palm Beach to serve as witnesses to the purported will. Decedent also signed a typewritten letter notarized that day authorizing several financial institutions to add Petitioners' names to all of his bank accounts, bonds, safety deposit vaults, and other assets giving each a 50 percent ownership interest at the time of his death. On May 2, 2oo4, Decedent executed a Durable Power of Attorney for HSBC Bank USA Transactions in favor of Hertz.
The burden of proving that a decedent possessed testamentary capacity rests on the proponent of the will (Matter of Walker, 80 AD3d 865 [3d Dept 2011]). The proponent must establish, (1) that the decedent understood the nature and consequences of executing a will, (2) that the decedent knew the nature and extent of the property that he or she was disposing of, and (3) that the decedent knew the natural objects of his or her bounty, and his relations with them (Matter of Kumstar, 66 NY2d 691 [1985]). This notwithstanding, until the contrary is established a testator is presumed to be sane and have sufficient mental capacity to make a valid will (Matter of Betz, 63 AD2d 769 [3d Dept 1978]; Matter of Beneway, 272 AD 463 [3d Dept 1947]). This presumption coupled with Dr. Hashemi's report finding Decedent competent to make decisions and manage his funds, constitutes a prima facie showing of Decedent's mental capacity to make a valid will. The burden therefore shifts to objectant to demonstrate a triable issue of fact in this regard.
The Public Administrator offers the report of Dr. Robert L. Goldstein, a board-certified psychiatrist. Dr. Goldstein based upon, inter alia, his viewing of Dr. Hashemi's examination and his review of Dr. Hashemi's report concludes that Decedent suffered from dementia (either of the Alzheimer's Type, or Vascular Dementia), and a severe mood disorder (most likely Major Depressive Disorder). It is his expert medical opinion that Decedent's "mental weakness, significant cognitive deficits, and defective judgment had critically compromised his psychological functioning", and Decedent neither had the mental capacity to make, understand or appreciate the consequences of executing the will, nor did he know or appreciate the nature and extent of the property being disposed of.
The findings of Dr. Goldstein contradict Dr. Hashemi's findings that Decedent did not show evidence of dementia, and was competent to make decisions and manage his funds. The conflicting expert medical opinions regarding Decedent's mental capacity creates a triable issue of fact concerning Decedent's testamentary capacity (Matter of Raskas, 213 AD2d 718 [2d Dept 1995]).
Undue influence is defined as influence that amounts to a moral coercion, which restrains independent action and destroys free agency, or which by insistence cannot be resisted, constraining the individual to do that which is against his/her free will and desire, but which he/she is unable to refuse or too weak to resist (Matter of Caruso, 70 AD3d 937 [2d Dept 2010], citing Matter of Walther, 6 NY2d 49 [1959]).
Undue influence, "can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such person" (Matter of Bach, 133 AD2d 455 [2d Dept 1987]).
In the probate petition Petitioners concede that they were in a confidential relationship with Decedent. However, even without this admission it is clear that a confidential relationship existed between Petitioners and Decedent, as Blatt was the Administrator, and Goldberg the Director of Community Relations and Resident Care at the facility where Decedent resided. Where, as here, there is substantial disparity in power between the parties involved in a transaction, the law may impute the existence of a confidential relationship (Ten Eyck v. Whitbeck, 156 NY 341 [1898]).
Both Petitioners indicate in their depositions that Decedent had revealed the extent of his assets to them. This is not unusual as, "[i]t is inevitable that the aged and infirm, under such circumstances, will become very dependent upon those who tend to their wants, and a high degree of confidentiality will develop under which the aged will reveal to them their closest thoughts and the state of their financial affairs" ( Matter of Burke, 82 AD2d 260 [2d Dept 1981]). As such transactions between them are be scrutinized with extreme vigilance, and clear evidence is required that the transaction was understood, and that there was no fraud, mistake or undue influence (see Matter of Gordon v. Bialystoker Ctr. & Bikur Cholim, 45 NY2d 692 [1978]). While the vast majority of those who care for the aged are honest and dedicated professionals, the relationship is one which unfortunately, "the greedy and the corrupt may find considerable gain" (Matter of Burke, 82 AD2d 260, supra).
It is undisputed that Petitioners each received a "gift" of $250,000.00 from Decedent within several months of his taking up residency at Palm Beach. In fact Decedent had been taken to HSBC bank by Goldberg and Rivkay Blatt to effect the wire transfers and establish the accounts. It is also undisputed that Petitioners received on Decedent's death an additional $447,747.36 each in Totton Trust payments as Decedent had added their names to all of his bank accounts, bonds, safety deposit vaults, and other assets.
Yet by all indications Decedent had been a man of frugal habits, who by being so had amassed assets of approximately two million dollars. Blatt indicates in his affidavit that Decedent had lived a very solitary life for many years before coming to Palm Beach. During Dr. Hashemi's examination, Decedent indicated that his life basically consisted of watching TV and listening to the radio. He stated he was a bachelor because he didn't make enough money. He complained of the cost of his hospital stay at Maimonides Medical Center just the prior month declaring, "they charge a lot of money, I won't go there anymore". Then suddenly a month or so later he gives away $500,000.00 ($250,000.00 each) to two individuals who admittedly never invited him to their home or participated in any other social engagement with him other than speaking to him or doing that which was part of their regular duties at Palm Beach. This drastic change "in decedent's dedication to these lifelong penurious practices" (see Matter of Brandon, 79 AD2d 246 [2d Dept 1981]), clearly constitutes sufficient circumstantial evidence of undue influence to raise a triable issue of fact as to whether Petitioners exerted undue influence over Decedent (see Matter of Katz, 63 AD3d 836 [2d Dept 2009]).
Additionally there is ample evidence of Petitioners' involvement in the drafting of Decedent's will. Hertz claims he wanted Decedent to undergo a psychiatric examination before going forward with any testamentary instruments due to Decedent wanting to give all his assets to Petitioners. But then curiously Hertz permitted and acquiesced in his client being brought by the very individuals who stood to gain by the will to a psychiatrist of their choosing. Dr. Hasemi's report indicates that it was conducted at the request of the staff at Palm Beach, and not that of Hertz. Further, Hertz apparently had no problem with the fact that the examination was conducted in the presence of Goldberg and Rivkay Blatt. Yet it was the finding that Decedent was mentally competent from this psychiatric examination which caused Hertz to go forward and draft the will. By their actions Petitioners inserted and involved themselves in the prerequisite to and basis for Hertz's drafting of the will which bequeathed all of Decedent's assets to them. In so doing it is clear Petitioners have involved themselves in the drafting of Decedent's will. It is well settled that where a beneficiary under a will is in a confidential or fiduciary relationship with the testator, and is involved in the drafting of the will, an inference of undue influence arises placing the burden on the beneficiary to explain the circumstances of the bequest, the adequacy of which is a question for the trier of fact ( Matter of Neenan, 35 AD3d 475 [2d Dept 2006]; Matter of Bertel, NYLJ, April 7, 1994, at 26, col 6 [Sur Ct, New York County]).
Accordingly, as there are clearly issues of fact raised, Petitioners' motion for summary judgment dismissing the objections of the Public Administrator based on mental capacity and undue influence is denied.
This constitutes the decision and order of the Court.
1. The Court's viewing of the examination on the DVD provided to the court shows that one of the women present provided answers to several of Dr. Hashemi's questions directed to Decedent.
Audit reveals shady shenanigans in Brooklyn courts
BY BARBARA ROSS, DAILY NEWS STAFF WRITER, Monday, July 06, 2009
LINK
Brooklyn's scandal-plagued court system gets a new black eye in a scathing audit that found the borough's public administrator's office riddled with "mismanagement and laziness."
The city controller's office uncovered shoddy recordkeeping, suspicious real estate deals and auctions run by a shadowy company that vanished when auditors started asking questions.
"From the time my auditors began this audit, there seemed to be one startling revelation after another with regard to the lack of detail paid to the process of distributing and accounting for the estates of the deceased," Controller William Thompson said.
Surrogate judges in each borough appoint a public administrator to oversee the estates of people who die without wills.
Thompson's auditors found a "culture of mismanagement and laziness" in Brooklyn's public administrator office.
Things were such a mess that Thompson urged all Brooklyn residents to "make out a will as soon as possible" - avoiding the risk of being bilked by the office.
Thứ Năm, 14 tháng 4, 2011
Thứ Ba, 12 tháng 4, 2011
Prosecutorial Misconduct
by
Jill Paperno, Second Assistant Monroe County Public Defender
In a number of recent cases, courts have addressed examples of prosecutorial misconduct. Set forth below is some of the conduct which has been condemned. Remember - if you don't object, the misconduct is not going to be preserved for appellate review. Even during summation. (You might want to prep your jury for the fact you'll be objecting, even during summation, and ask them if they will they hold that against your client..)
Jackson v. Conway, 2011 WL 657422 (WDNY)
1. Belated disclosure of a jailhouse informant causing a change of counsel, despite the fact that the prosecutor knew of the informant for months before the disclosure. The Court: "Clearly, by hiding the 'Arnold card', she was attempting to secure a tactical advantage over the defense. This type of sharp practice is not only unseemly and not befitting a representative of the People of the State of new York, but was, in the words of Justice Sutherland, a foul blow striking at the heart of Petitioner's Sixth Amendment right to have effective counsel at his side. The prosecutor's deplorable scheme had the desired effect of blind-siding the defense and requiring a last-minute substitution of counsel."
2. Opening - "During her opening statement to the jury, the prosecutor informed the jurors that they would 'have an entirely different picture of defendant than the superficial presentation of him that [they] have now.' At the end of the case, the prosecutor claimed, Jackson would be 'exposed as a twisted, sadistic man who delighted in controlling the members of his very own family to the point that he abused them constantly.' Id. ...The law is well established that it is improper for a prosecutor to attempt to focus the jurors' attention on a defendant's moral character instead of the evidence, and try to inflame their passions and prejudices based upon the egregious nature of the acts alleged to have been committed. (cites omitted)....There is no doubt that the prosecutor's statement was designed to inflame the jurors' passions and attempt to bias them against Petitioner and engender sympathy for the victim."
3. Trying to elicit improper testimony from an "expert" witness - "Furthermore, the prosecutor made a patently frivolous argument when she persisted in urging that Dr. Lenane, although she had not examined any of the victims, should be permitted to read the findings and conclusions of the (uncalled) treating physicians into evidence. The Court does not believe that an attorney of her experience could truly be so ignorant of one of the most basic principles of the rules against hearsay."
4. Violation of the terms of the "Prior Bad Act" evidentiary ruling: The DA improperly elicited prior bad acts outside the time period the trial court had delineated as permissible for the prior bad act testimony.
5. Testifying as an unsworn witness, vouching for witness credibility, personally expressing her won belief in petitioner's guilt:
"The prosecutor improperly testified as an unsworn witness when she told the jury that the 'heinous, horrific acts' related by witnesses 'really happened' and that (defendant had) committed them. The prosecutor improperly bolstered her witnesses credibility and invaded the jury's province of assessing the witnesses' demeanor when she said, '[E]ven the best actor or actress could not tremble with fear as continuously as some of these witnesses did.' The prosecutor asserted that each witness testified consistently with all the others, and therefore that proved to the jury that their testimony was not part of a 'diabolical plan to frame (defendant)....The prosecutor told the jury that defendant was 'guilty of everything' and had 'consistently abused his family for years, basically beat them into submission.'...The prosecutor, over defense objection, commented, 'That man sitting over there, looking like he is pondering every word that is being said, is guilty.' The prosecutor stated that the only explanation for the testimony was that he was, in fact, guilty." The Court noted that a prosecutor's expression of his or her opinions threatens the fairness and integrity of the fact finding process in two ways, citing U.S. V. Young 470 US 1 - that the comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and thus jeopardizes the defendant's right to be tried solely on the evidence presented at trial, and that the prosecutor's opinion carries with it "the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence."
6. Misstating and Mischaracterizing evidence - During summation the prosecutor repeatedly mischaracterized the statement made by the defendant to a CPS caseworker.
People v. Presha, 2011 WL 1219258, 2011 NY Slip Op. 02563 (Fourth Dept.) (Monroe County case)
1.. "The prosecutor improperly questioned defendant on cross-examination regarding, e.g., the fact that he impregnated three women within a short amount of time and his failure to pay child support (cites omitted)...Defendants 'may be cross-examined with respect to prior conduct that affects their credibility (cites omitted) but 'persistent questioning of a defendant on collateral matters which tends to impugn his [or her] character without being probative of the crime charged constitutes improper and prejudicial cross-examination' (cites omitted). "
2. "The prosecutor also improperly attempted to refresh the recollection of defendant during cross-examination when in fact she was attempting to place the contents of a certain document in evidence that otherwise was inadmissible (cites omitted)."
3. The prosecutor "remarked during summation that the victim was 'so cute' and the 'most conscientious, respectful kid [she had] ever seen.' Such remarks improperly appealed to the sympathy of the jury (cites omitted and improperly vouched for the credibility of the victim (cites omitted). We thus take this opportunity to admonish the prosecutor that her 'mission is not so much to convict as it is to achieve a just result' (cites omitted)."
People v. Currier 2011 WL 1205723 (Fourth Dept.), 2011 N.Y. Slip Op. 02573 -
The prosecutor improperly circumvented the Sandoval ruling by "cross-examining defendant's girlfriend concerning his arrest record." Unfortunately for Mr. Currier, the incidents of prosecutorial misconduct were not preserved and the Fourth Department declined to review in the interest of justice.
In a recent case I handled, the prosecutor has argued to the jury that a medical witness testified that children are likely to delay reporting, etc. when she never testified to that (and the judge thought I'd elicited that testimony when I had not, and overruled my objection), and that the defendant "ass-raped" the complainant. The prosecutor referred to the jurors as the child's "friends". In an older case involving a complainant named Sparkle, the prosecutor argued that there was no "Sparkle" left.
So, to sum, consider whether the prosecutor's arguments and conduct are:
Bolstering
Vouching
Injecting his/her opinion
Unfairly using strategic delay to disadvantage the defense
Crossing on matters outside the Sandoval
Arguing about defendant's character
Inflaming passion
Inflaming prejudice
Seeking to stir sympathy of the jury
Attempting to offer evidence through improper refreshing
Mischaracterizing/misstating the evidence
Testifying as an unsworn witness
Usurping the province of the jury
Jill Paperno, Second Assistant Monroe County Public Defender
In a number of recent cases, courts have addressed examples of prosecutorial misconduct. Set forth below is some of the conduct which has been condemned. Remember - if you don't object, the misconduct is not going to be preserved for appellate review. Even during summation. (You might want to prep your jury for the fact you'll be objecting, even during summation, and ask them if they will they hold that against your client..)
Jackson v. Conway, 2011 WL 657422 (WDNY)
1. Belated disclosure of a jailhouse informant causing a change of counsel, despite the fact that the prosecutor knew of the informant for months before the disclosure. The Court: "Clearly, by hiding the 'Arnold card', she was attempting to secure a tactical advantage over the defense. This type of sharp practice is not only unseemly and not befitting a representative of the People of the State of new York, but was, in the words of Justice Sutherland, a foul blow striking at the heart of Petitioner's Sixth Amendment right to have effective counsel at his side. The prosecutor's deplorable scheme had the desired effect of blind-siding the defense and requiring a last-minute substitution of counsel."
2. Opening - "During her opening statement to the jury, the prosecutor informed the jurors that they would 'have an entirely different picture of defendant than the superficial presentation of him that [they] have now.' At the end of the case, the prosecutor claimed, Jackson would be 'exposed as a twisted, sadistic man who delighted in controlling the members of his very own family to the point that he abused them constantly.' Id. ...The law is well established that it is improper for a prosecutor to attempt to focus the jurors' attention on a defendant's moral character instead of the evidence, and try to inflame their passions and prejudices based upon the egregious nature of the acts alleged to have been committed. (cites omitted)....There is no doubt that the prosecutor's statement was designed to inflame the jurors' passions and attempt to bias them against Petitioner and engender sympathy for the victim."
3. Trying to elicit improper testimony from an "expert" witness - "Furthermore, the prosecutor made a patently frivolous argument when she persisted in urging that Dr. Lenane, although she had not examined any of the victims, should be permitted to read the findings and conclusions of the (uncalled) treating physicians into evidence. The Court does not believe that an attorney of her experience could truly be so ignorant of one of the most basic principles of the rules against hearsay."
4. Violation of the terms of the "Prior Bad Act" evidentiary ruling: The DA improperly elicited prior bad acts outside the time period the trial court had delineated as permissible for the prior bad act testimony.
5. Testifying as an unsworn witness, vouching for witness credibility, personally expressing her won belief in petitioner's guilt:
"The prosecutor improperly testified as an unsworn witness when she told the jury that the 'heinous, horrific acts' related by witnesses 'really happened' and that (defendant had) committed them. The prosecutor improperly bolstered her witnesses credibility and invaded the jury's province of assessing the witnesses' demeanor when she said, '[E]ven the best actor or actress could not tremble with fear as continuously as some of these witnesses did.' The prosecutor asserted that each witness testified consistently with all the others, and therefore that proved to the jury that their testimony was not part of a 'diabolical plan to frame (defendant)....The prosecutor told the jury that defendant was 'guilty of everything' and had 'consistently abused his family for years, basically beat them into submission.'...The prosecutor, over defense objection, commented, 'That man sitting over there, looking like he is pondering every word that is being said, is guilty.' The prosecutor stated that the only explanation for the testimony was that he was, in fact, guilty." The Court noted that a prosecutor's expression of his or her opinions threatens the fairness and integrity of the fact finding process in two ways, citing U.S. V. Young 470 US 1 - that the comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and thus jeopardizes the defendant's right to be tried solely on the evidence presented at trial, and that the prosecutor's opinion carries with it "the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence."
6. Misstating and Mischaracterizing evidence - During summation the prosecutor repeatedly mischaracterized the statement made by the defendant to a CPS caseworker.
People v. Presha, 2011 WL 1219258, 2011 NY Slip Op. 02563 (Fourth Dept.) (Monroe County case)
1.. "The prosecutor improperly questioned defendant on cross-examination regarding, e.g., the fact that he impregnated three women within a short amount of time and his failure to pay child support (cites omitted)...Defendants 'may be cross-examined with respect to prior conduct that affects their credibility (cites omitted) but 'persistent questioning of a defendant on collateral matters which tends to impugn his [or her] character without being probative of the crime charged constitutes improper and prejudicial cross-examination' (cites omitted). "
2. "The prosecutor also improperly attempted to refresh the recollection of defendant during cross-examination when in fact she was attempting to place the contents of a certain document in evidence that otherwise was inadmissible (cites omitted)."
3. The prosecutor "remarked during summation that the victim was 'so cute' and the 'most conscientious, respectful kid [she had] ever seen.' Such remarks improperly appealed to the sympathy of the jury (cites omitted and improperly vouched for the credibility of the victim (cites omitted). We thus take this opportunity to admonish the prosecutor that her 'mission is not so much to convict as it is to achieve a just result' (cites omitted)."
People v. Currier 2011 WL 1205723 (Fourth Dept.), 2011 N.Y. Slip Op. 02573 -
The prosecutor improperly circumvented the Sandoval ruling by "cross-examining defendant's girlfriend concerning his arrest record." Unfortunately for Mr. Currier, the incidents of prosecutorial misconduct were not preserved and the Fourth Department declined to review in the interest of justice.
In a recent case I handled, the prosecutor has argued to the jury that a medical witness testified that children are likely to delay reporting, etc. when she never testified to that (and the judge thought I'd elicited that testimony when I had not, and overruled my objection), and that the defendant "ass-raped" the complainant. The prosecutor referred to the jurors as the child's "friends". In an older case involving a complainant named Sparkle, the prosecutor argued that there was no "Sparkle" left.
So, to sum, consider whether the prosecutor's arguments and conduct are:
Bolstering
Vouching
Injecting his/her opinion
Unfairly using strategic delay to disadvantage the defense
Crossing on matters outside the Sandoval
Arguing about defendant's character
Inflaming passion
Inflaming prejudice
Seeking to stir sympathy of the jury
Attempting to offer evidence through improper refreshing
Mischaracterizing/misstating the evidence
Testifying as an unsworn witness
Usurping the province of the jury
Nancy Pelosi And The Student Lending Scam
"It's not often that House Minority Leader Nancy Pelosi camps under the GOP tent, but that's just what happened recently when she broke ranks with Bay Area Democrats and the Obama administration and voted to keep billions of dollars in federal student aid flowing into the coffers of for-profit colleges.
She had her reasons. Some of the biggest recipients of the $32 billion in federal student loans and Pell Grants each year paid to for-profits are in her district - including major Democratic donor John Sperling, founder of the online University of Phoenix, the nation's largest for-profit college.
The issue arose after Education Secretary Arne Duncan proposed a rule that would stiffen federal aid requirements for for-profits, making them provide stats showing that their students actually are getting the jobs they trained for."
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/04/10/BAHT1IT646.DTL
Thứ Sáu, 8 tháng 4, 2011
Ithaca Lawyer The Coming of Spring and Lou on The Commons
One of the things I love about downtown Ithaca besides the restaurants are the fairs, festivals, and the street vendors. The one constant I see every spring is the arrival of "Lou" back to the Commons. Lou is out there regularly, not just for special occasions. He stations his hotdog/sausage/chicken kabob cart right across from Bank of America. Lou's food is fresh, fast, and good. You can get grilled peppers with your choice of meat, and a nice roll to boot for a few bucks. His personality comes across in everything he serves.
To me Lou is Ithaca, and Ithaca is Lou. He is an Ithaca fixture. He aims to please his customers. It is nice to be able to grab a bite to eat in between court hearings whether at the City of Ithaca, Town of Ithaca, or Tompkins County Courthouse (all are within a few blocks of Lou).
Spring and Summer are soon coming, and I am excited to welcome back "our local hot dog guy."
Closeup and Beautiful Pictures of Lou's food here:
credit to an excellent photographer, Mark H. Anbinder
Spring and Summer are soon coming, and I am excited to welcome back "our local hot dog guy."
Thứ Năm, 7 tháng 4, 2011
Ithaca Lawyer "Strategies For Defending DWI Cases In New York"
Last year I was approached by Thomson/West (a legal publisher) to write a chapter in their 2011 edition of their "Inside The Minds" series of books on DWI defense.
Honestly, at first I thought that their e-mail (out of the blue) was a joke or a scam. Apparently they had read my blogs, my articles, and checked me out before asking me. I was honored to be asked, and then realized I had to write to fellow lawyers about law and legal strategies. With that pressure in my mind, I wrote, then I revised, edited, rewrote, and was almost happy becoming increasingly neurotic about getting it "right."
Well my chapter, and my appendices (they asked if I would share) my Client Agreement, my client handouts on PSIs (pre-sentence investigations), and drug/alcohol evaluations all came out great. I dedicated the writing to my father on account that he taught me many years ago never to do anything half way.
My hope is that this book can help my fellow New York lawyers do a better job of defending, and representing their DWI clients.
Honestly, at first I thought that their e-mail (out of the blue) was a joke or a scam. Apparently they had read my blogs, my articles, and checked me out before asking me. I was honored to be asked, and then realized I had to write to fellow lawyers about law and legal strategies. With that pressure in my mind, I wrote, then I revised, edited, rewrote, and was almost happy becoming increasingly neurotic about getting it "right."
Well my chapter, and my appendices (they asked if I would share) my Client Agreement, my client handouts on PSIs (pre-sentence investigations), and drug/alcohol evaluations all came out great. I dedicated the writing to my father on account that he taught me many years ago never to do anything half way.
My hope is that this book can help my fellow New York lawyers do a better job of defending, and representing their DWI clients.
Thứ Tư, 6 tháng 4, 2011
Learning the Latest "Criminal Defense Tactics and Techniques" at RIT
Some go to seminars to satisfy their mandatory credit hours, also called CLEs (Continuing Legal Education), others go to network with other attorneys, and the last faction go to conferences to learn. I am in this last sub-group because I believe if you are not enjoying what you are doing you are in fact doing a disservice for your clients. Who wants to be represented by an uninspired attorney? Who wants to be treated by an uninspired doctor?
I seek out people and organizations who are "into" what they are doing. I want cooks to be excited about their cooking. I want people who sell me flowers to be knowledgeable in helping me select the right ones. They bring their passion to the subject and their performance. Law is art and science. It takes knowledge but also diligent application. Thats why I love seminars. I get to keep up on the latest law, and build on my skills.
There was a NYS Defenders Association Seminar in Rochester, NY this past Saturday. Rochester Institute of Technology hosted 125 plus lawyers from around the state who listened to some of New York's best defense attorneys.
Subjects ranged from:
Recent Developments in NYS criminal law, Issues with Social Networking on Facebook and Twitter, Cross Examining Cops at Trial, and Creative Plea Negotiation Strategies. All in all I came away with some new ideas, perspectives, and things I could immediately implement in my practice.
Practice for me is about growth as much as anything else. If I'm not better next year than this one, something is terribly wrong.
So thoughts for today:
1. Do Not post anything online that you don't want the whole world to see. Nothing online is private or really yours (btw whatever site you are posting to owns it, not you, read the fine print).
2. Any online statements, pictures, etc. can and will be used against you both civilly and criminally.
3. Our constitutional rights are being rapidly eroded by the high courts. Do not expect privacy in your car. Do not transport illegal things in your car or do illegal things in your car. You are asking for trouble.
4. Do not make any statements to the Police. Learn the four word phrase, "I WANT A LAWYER."
say nothing else!
I seek out people and organizations who are "into" what they are doing. I want cooks to be excited about their cooking. I want people who sell me flowers to be knowledgeable in helping me select the right ones. They bring their passion to the subject and their performance. Law is art and science. It takes knowledge but also diligent application. Thats why I love seminars. I get to keep up on the latest law, and build on my skills.
There was a NYS Defenders Association Seminar in Rochester, NY this past Saturday. Rochester Institute of Technology hosted 125 plus lawyers from around the state who listened to some of New York's best defense attorneys.
Subjects ranged from:
Recent Developments in NYS criminal law, Issues with Social Networking on Facebook and Twitter, Cross Examining Cops at Trial, and Creative Plea Negotiation Strategies. All in all I came away with some new ideas, perspectives, and things I could immediately implement in my practice.
Practice for me is about growth as much as anything else. If I'm not better next year than this one, something is terribly wrong.
So thoughts for today:
1. Do Not post anything online that you don't want the whole world to see. Nothing online is private or really yours (btw whatever site you are posting to owns it, not you, read the fine print).
2. Any online statements, pictures, etc. can and will be used against you both civilly and criminally.
3. Our constitutional rights are being rapidly eroded by the high courts. Do not expect privacy in your car. Do not transport illegal things in your car or do illegal things in your car. You are asking for trouble.
4. Do not make any statements to the Police. Learn the four word phrase, "I WANT A LAWYER."
say nothing else!
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