Over the past 10 years, Surrogate’s Court judges across the state have made a series of decisions dealing with the discovery proceedings and “reverse” discovery proceedings under the Surrogate’s Court Procedure Act (SCPA) that provide valuable guidance on how the statutes are being interpreted and how attorneys should develop strategies on behalf of their clients.
On June 6, 2015, the LOFT LGBT Community Center of Lower Hudson Valley held its annual Pride celebration in White Plains at the Memorial United Methodist Church which was attended by hundreds of participants. Bashian P.C. was proud to support this event by hosting a booth to provide those in attendance with information regarding a broad range of legal issues including those specifically pertaining to the LGBT Community, including changes in the law pertaining to marriage and protections against discrimination.
On Veteran's Day, Paralegal Caitlin Baranowski, Legal Assistant Elizabeth Troyano and James L. Hyer, Esq., attended an event sponsored by Bashian P.C., at the VA Hospital in Montrose, NY. The event provided Bingo games, prizes, and refreshments to elderly veterans living in the senior center. The firm sponsored and assisted the Westchester County Bar Association with this event to thank the men and women who have served in our nation's armed forces.
The Fair & Affordable Housing Expo, attended by hundreds of people from throughout the Hudson Valley, this Expo aimed to educate the public regarding housing issues. Various workshops offered information on first-time home purchases, financing the purchase of a home, housing discrimination, and other relevant topics. Participants also had the opportunity to speak to professionals involved in different housing issues. Bashian P.C. hosted a booth at the event to discuss legal issues related to all aspects of home ownership, including real estate transfers, housing discrimination, and landlord-tenant matters. James L. Hyer, who is a member of the Board of Directors of Westchester Residential Opportunities, Inc., reported, "One of the essentials of being a professional is providing service to the community and I am proud that our firm could be part of this important event."
The New York State Bar Association, Westchester County Bar Association and Pace Law School collaboratively held the New York State 2015 High School Mock Trial Tournament last month. Students were provided with materials including rules of procedure, evidence and pleadings, pertaining to a fictitious case wherein they were assigned to represent one of the parties. Bashian P.C. was pleased to support the event by having James L. Hyer serve as a competition judge at the Westchester County Courthouse. Following the mock trial, Mr. Hyer noted that "It was remarkable to see how prepared the students were and they had worked to develop their advocacy skills. I can't wait to participate again next year."
By: Gary E. Bashian
By: Gary E. Bashian, Esq.
Elder abuse, including the financial exploitation of elderly individuals, especially by non family members, who have become mentally incapacitated is an unfortunate and growing problem in our society. The unique vulnerabilities of those abused, the easily overlooked evidence of such abuse, and the sometimes invisible nature of the abuse itself, make this a difficult issue to both recognize and address, even by those closest to its victims. This abuse, compounded by individuals seeking to profit from their abuse and seemingly statutory loopholes allowing them to do so beckoned judicial intervention.
American author Alfred A. Montapert once said that “nobody ever did, or ever will, escape the consequences of his choices.” That statement holds true in the field of trusts and estates, in particular when it comes to the execution of a waiver and consent in a probate proceeding. As this article will show, a party to a probate proceeding must exercise care in signing such a document, as it carries with it powerful consequences that cannot be easily undone.
The traditional protection from legal malpractice claims afforded Estate practitioners by the doctrine of Privity has been relaxed by a recent New York Court of Appeals decision.
On September 1, 2009, significant changes to the New York law of Durable Powers of Attorney will take effect.
By: James L. Hyer, Esq.
By: James L. Hyer, Esq.
By: James L. Hyer, Esq.
By: Gary E. Bashian, Esq.
“INITIALLY” IT SEEMED IMPORTANT: DUE EXECUTION OF WILL DEMONSTRATED EVEN WHEN “INITIALS” AND SIGNATURE DID NOT MATCH
As ever growing segments of the American population transition into senior citizenship, there has been an alarming rise in what is broadly known as Elderly abuse. Neglect, financial exploitation, physical and or mental abuse, are all forms of elder mistreatment that are adversely effecting increasing numbers of people in our community, and people throughout the country.
“My isolation leaves me weak,
Often when the issue of a discovery proceeding is raised in either a will contest, accounting contest or related litigated estate matter, the initial reaction by the attorney is to assume that reference is being made to the discovery and disclosure permitted by Article 31 of the Civil Practice Law and Rules. While the attorney would be correct in believing that the provisions of Article 31 of the CPLR and other laws relevant to practice and procedure apply in the Surrogate’s Court, a discovery proceeding in the Surrogate’s Court, as many attorneys have learned the hard way, is a beast of a different color.
In any wrongful death action, a successful outcome for your client will doubtlessly be hard won. However, whether recovery comes from an “action or by settlement without an action,”[i] counsel’s job is far from over once an award is procured in the Supreme Court as the final phase of wrongful death litigation involves Petitioning the Surrogate’s Court to direct the final distribution of the recovery from the Decedent’s Estate to the proper parties.
“Droll thing life is -- that mysterious arrangement of merciless logic for a futile purpose. The most you can hope from it is some knowledge of yourself -- that comes too late -- a crop of inextinguishable regrets.”
By: Gary E. Bashian*
By: Gary E. Bashian
Accelerated Judgments are a perfect tool to best help balance the rights of litigants who seek access to the Courts, and the practical demands of managing a ballooning docket. As a result, if the facts warrant it, and if the damage done to an Estate by a fiduciary is so egregious, Surrogate’s Courts have become more receptive to Trusts and Estates practitioners who move for Summary Judgment on behalf of an Objectant in a Contested Accounting proceeding.
Surrogate’s Summary Judgment Roundup – Very Interesting!
All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.
Over the past two years the New York Courts have taken increasingly nuanced positions in the interpretation, enforcement, and denial of In Terrorem clauses in a variety of contexts. A more expansive reading of Estates, Powers and Trusts Law (EPTL) § 3-3.5(b) advocated by the Court of Appeals in the 2009 case Matter of Singer[i], has lead to a broader discovery process, and arguably, a narrower interpretation of a testator’s intent. Alternatively, in 2010 the Appellate Division, First Department, declined to broaden the application of EPTL § 3-3.5(b), surprisingly yielding a more expansive interpretation of an In Terrorem clause in the Matter of Cohn[ii]. Each of these cases are instructive on how to better drat and use the In Terrorem clause when trying to preserve a client’s Estate plan, and offer insight into the Courts’ approach to determining a testator’s intent regarding its use.
Until quite recently, Estate practitioners were protected from Estate planning malpractice claims by Estate representatives by the often overlooked protections afforded by the doctrine of Privity. However, with their unanimous June 2010 decision in the Estate of Saul Schneider v Finmann[i], the New York Court of Appeals has relaxed this traditional safeguard and allowed for a new cause of action in the State against a negligent Estate planning attorney.
Our firm recently argued before the Appellate Division, Second Department and was affirmed on the conflicting burdens of proof on a fiduciary when a gift is made pursuant to a short form Power of Attorney, modified in accordance with 1997 amendments to the General Obligations Law. Such was the case in Matter of Salvation Army v. Ferrara, 2005 NY Slip Op 07531 (October 11, 2005). The Appellate Division, Second Department, affirmed the decision and order of the Rockland County Surrogate’s Court. Both courts held that a Power of Attorney, which was modified to allow the respondents to make gifts to themselves “without limitation,” was valid in accordance with General Obligations Law §5-1503. The Appellate Court then went one step further and held that “evidence was adduced at the hearing to support the respondents’ contention that the decedent specifically authorized the distribution of his funds to the respondent Dominick Ferrara.” The Court then dismissed the action which sought the return of the gifts to the Estate.
In the words of Elizabeth Barrett Browning, “How do I love thee? Let me count the ways.”
Long-recognized as a leader in Estate and Trust litigation as well as sophisticated estate and tax planning, Gary Bashian currently serves as a member of the Executive Committee of the Trusts and Estates Law Section of the New York State Bar Association, and he recently attended the 2015 Annual Meeting of the Section in New York City. At the meeting, Mr. Bashian discussed new developments within the laws pertaining to Surrogate’s Court advocacy and Federal and State tax changes. Mr. Bashian noted, "Taking part in these professional events is one of the efforts that our firm engages in to remain at the forefront of any new developments in the law so that we are better able to provide our clients with the best representation available."
Bashian P.C. is pleased to announce that Andrew Frisenda, a Senior Associate and Appellate practitioner, was a featured lecturer at the Westchester County Bar Association Appellate Practice Committee’s recent Continuing Legal Education seminar, "Appeals: What’s it all About?"
Marriage is the chief cause of divorce. – Groucho Marx
Bashian P.C. is pleased to announce that James L. Hyer, Esq., is now a partner of Bashian P.C., joining Gary E. Bashian, Esq., , Esq., who founded the firm.
At a time in which approximately half of all American marriages end in divorce, it is imperative that those interested in dissolving their marriage understand the key issues that must be addressed when seeking to obtain a Judgment of Divorce. Regardless of whether the spouses are interested in proceeding with litigation or a form of Alternative Dispute Resolution, such as mediation or collaborative law, each spouse should consider the following key issues prior to taking any action:
Bashian P.C., would like to wish all of our readers a happy and healthy 2015, and to thank you for considering our firm for all of your Trust & Estate litigation, administration and planning needs.
Our office has a particular respect and appreciation for the nature of modern police and firefighting work which exposes police and firefighters to risk of physical injury on a daily basis, thereby increasing their vulnerability to physical injury or death. Our firm's partner, Irving O. Farber, Esq., has a first-hand understanding of the dangers faced through his role as a Mount Kisco volunteer firefighter.
Many people go through life without much thought to how their property will be divided upon their death. People are typically either too busy to deal with the subject or they do not want to deal with it for emotional reasons. However, there are at least two reasons why you should not put off having an experienced estate lawyer complete your Estate Planning, which should include a Will describing how you would like your property divided upon your death.
Bashian P.C., is pleased to announce that 2014 marks the second annual Westchester County Bar Association ("WCBA") Hat, Scarf and Glove Drive, which was again organized by James L. Hyer, Esq., an attorney with Bashian P.C.. Collections boxes have been placed and will remain within Courts and town halls throughout Westchester as well as other locations, including our office, until late December. The items collected from this drive—including hats, scarves, gloves and winter coats—will benefit local veterans as all items will be presented to the FDR Veteran’s Hospital in Montrose, New York.
The New York State legislature has voted to amend New York Law and change the rules governing payment of interest on a delayed distribution of a cash legacy from an Estate.
Bashian P.C., is proud to announce that Jordan C. Conger, Esq., who has worked as a Law Clerk with the firm for over a year, was admitted to the practice of law before the Courts of the State of New York by the Supreme Court Appellate Division, Second Department, on November 12, 2014.
To fellow practitioners, past, and potential clients: Bashian P.C., is pleased to announce that as part of our continued efforts to offer the highest quality legal services in the greater Hudson Valley, we are enthusiastically expanding in the area of Appellate Practice. We are currently litigating several matters in the Appellate Division, Second Department; the Appellate Term, Second Department; and have recently applied for leave to appeal to the Court of Appeals, the highest Court in New York State.
The Westchester County Bar Association ("WCBA") is a professional organization including over two thousand attorneys as well as hundreds of other affiliate members involved in the legal community. A Strategic Plan Committee has been formed by the President of the Association to develop a blueprint for the future of the organization, including fundraising, membership, programs and services, as well as other key issues pertaining to the long-term goals of the organization. Bashian P.C., is happy to announce that its attorneys, Andrew Frisenda and James L. Hyer, have been appointed to this Strategic Plan Committee.
In New York State, two types of Supplemental Needs Trusts ("SNT") exist, both of which insulate assets of the trust Beneficiary while allowing that Beneficiary to access government assistance. Utilizing such an estate planning vehicle can be vital for many people, particularly those who have become disabled and parents of disabled children. A SNT can, for instance, provide parents with the ability to ensure their children will be financially secure after they pass away. In many cases, family members will create a SNT for a loved one as part of their estate planning as they are interested in leaving a portion of their estate to their relative while not preventing that relative from obtaining government assistance.
The Courts have long recognized that elder abuse is a systemic problem facing our senior population and have noted, "[E]lder abuse, including the financial exploitation of elderly individuals, is often a well hidden problem, in part because the perpetrator of such conduct is in many cases a member of the victim’s family." However, although elder abuse does occur, many allegations of abuse are unfounded and are utilized by family members who find themselves in a struggle over a relative’s estate prior to their relative’s death. Further, in Surrogate’s Court, which is often referred to as the "matrimonial court for siblings," we find heirs to an estate who assert claims of elder abuse following the death of their loved one in an unveiled effort to undo the testamentary wishes, gifts and intent of their deceased relative. Like so many issues we as attorneys are faced with, the allegation of elder abuse is often coupled with other legal matters and sadly many times have more to do with the family members of the elderly individual than the elderly individual themselves.
Jordan Conger, lawyer in waiting, sat as a Moot Court judge at the Louis V. Fasulo 1L Moot Court Competition, held on March 29 and March 30, 2014, at Pace University School of Law in White Plains, New York.
On May 21, the Westchester County Bar Association held its Annual Leadership Award’s Ceremony at the Westchester Hills Golf Club. One of the honorees was James L. Hyer, a Senior Associate at Bashian P.C..
Bashian P.C. is proud of its record in serving client interests in multiple areas of legal services. In addition to having attorneys who are experienced generally in the law, we also have attorneys who concentrate and are well-versed in sub-specialty areas of the law such as estates, divorces, litigation, trials, guardianships, elder abuse, defamation, personal injury, malpractice, and more.
On June 19 in White Plains, the Westchester County Bar Association hosted a CLE program titled, "Motions for Summary Judgment in Probate Proceedings." Senior Partner Gary E. Bashian was selected to speak as one of the three event Moderators. Mr. Bashian discussed Pre-Discovery, Motion for Summary Judgment, Discovery, depositions, document demands, interrogatories, non-party witnesses, and the use of experts. More information about this program can be found on: https://m360.wcbany.org/event.aspx?eventID=102230&instance=0
On June 4, 2014, New York State Supreme Court Judge Hon. Sharon A.M. Aarons entered a Decision on an Article 81 Proceeding commenced by Bashian P.C.., granting our client a complete victory. Our client, the son of an elderly man suffering from cognitive decline, was concerned that his father’s assets of over $1 million dollars were being improperly taken by his step-mother against the wishes of his father who had previously drafted estate planning documents with the intent of providing all of his assets for the care of his disabled daughter. The son was further concerned that his step-mother was not able to take care of his father’s personal or financial affairs and sought to have a Guardian appointed.