July 2015 Archives

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 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, Esq.

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.

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: Gary E. Bashian, Esq.

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.

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.

“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

Surrogate’s Summary Judgment Roundup – Very Interesting!

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.

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.

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."

[caption id="attachment_102" align="aligncenter" width="268"] (above: Association’s Past Presidents Peter Zeltner, Gary Bashian, and John Marwell)[/caption]

[caption id="attachment_85" align="aligncenter" width="300"] (pictured above) Bashian P.C.’s James L. Hyer, Esq., and Paralegal Caitlin Baranowski, Mary Ellen McCourt of the Westchester County Bar Association and Yvette Rodriguez-Cacho,
Montrose VA Hospital Volunteer Services Chief.[/caption]

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:

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.

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.

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.

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.

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.

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.