Reverse Turnover Proceeding Against Estate Fiduciary in Wrongful Possession of a Beneficiary’s Assets
Our Surrogate’s Court Litigation lawyers sometimes represent clients who seek to recover property from an estate fiduciary property that has been wrongfully withheld from the client by such fiduciary. In one such case, Dina M. Aversano represented a client, who was the surviving joint tenant on a bank account and the sole residuary beneficiary of the estate, petitioning the Surrogate’s Court under Surrogate’s Court Procedure Act § 2105 for relief against the estate fiduciary, in what has been considered a “reverse” Property Turnover Proceeding. Dina later on favorably settled the proceeding in the best interests of the client, thereby avoiding protracted litigation.
In contested will proceedings, objections to probate must be grounded in admissible evidence to avoid dismissal. Here, Frank Streng and Dina Aversano successfully defended our client in a will contest between the decedent’s niece and nephew and our client, the decedent’s long-time, but unmarried, partner of over 40 years, by moving for summary judgment to dismiss objections to probate. A motion for summary judgment is appropriate where, like in this case, there are no issues of material fact to warrant a trial by a fact-finder. What made the case particularly unusual is that the executor named in the Will did not move for summary judgment, forcing McCarthy Fingar and its client, representing a beneficiary, to seek to uphold the will through the successful summary judgment motion.
Federal Court Litigation - Spousal Consent Provisions - Dispute on IRA Accounts - ERISA Disputes
Our lawyers sometimes represent clients in disputes on who is entitled to assets in qualified plans or IRA accounts on the death of a plan participant. Here, Phil Landrigan, working with Dina Aversano, obtained summary judgment dismissing claims made to an IRA on the death of the account holder by his second wife. The wife claimed that the spousal consent requirement of ERISA was not complied with in rolling over the husband’s former Keogh account into the IRA. Phil and Dina pursued discovery concerning the wife’s involvement in opening the IRA to fulfill requirements of the parties’ prenuptial agreement and, ultimately, obtained the wife’s acknowledgement, contrary to her pleadings and her lawyer’s contentions, that she actually consented to the transfer of the Keogh account. The lack of credibility of the wife’s claims, among other things, convinced Judge Joseph F. Bianco, sitting in the Federal Court for the Eastern District of New York, that the husband’s retirement accounts were not subject to ERISA’s spousal consent provisions, because the husband was self employed and the Keogh “plan” had no other participants. Judge Bianco also ruled that the claims were barred by ERISA’s three-year limitations period and that the wife had no private right of action under the parallel spousal consent provisions of the Internal Revenue Code.
Business Litigation - Allegation of Criminal Activity - Forfeiture of Property - Forum Non Coveniens
Sometimes, in civil litigation there is an allegation by a governmental entity of potential wrongdoing that could prevent our clients from getting or keeping their property. Here, several of our lawyers, Phillip C. Landrigan, Dina M. Aversano and Joel M. Aurnou (working with Milton R. Gleit) represented the named owner of a brokerage account that was seized by the United States on the grounds that the property was traceable to criminal activity, e.g., money laundering and drug trafficking. In addition to our client, a Panamanian resident was under surveillance by federal agents when exchanging cash with a Peso converter in Panama; and another related business entity made claims for return of the funds formerly in the account. With this background, our lawyers moved to dismiss the government’s civil forfeiture complaint because there were insufficient allegations tracing funds deposited in the account to any criminal activity, and based on the applicable statute of limitations. In the face of our arguments, the US Attorney for the Southern District abandoned the civil forfeiture action initiated by the US Attorney's Eastern District office, thereby consenting to the dismissal of the government’s complaint. The competing claims for “return” of the seized property, however, remained before the court. We moved to dismiss those claims based on Artticle III of the Constitution and forum non conveniens and successfully argued that the Panamanian claimants were mere general creditors with no standing to assert a right for “return” of the seized property, and no party was a US citizen or doing business in the US. The Southern District, per Judge Victor Marrero, granted our motion to dismiss the remaining claims on the alternative forum non conveniens grounds, conditioned only on our client consenting to jurisdiction in Dubai, United Arab Emirates, where it conducts business in any event.
Settlement of Claims for Negligent Dispensing of Wrong Prescription Medication
Even with the advances of technology in modern medicine, there is still room for human error. Dina M. Aversano together with Joseph J. Brophy successfully represented a plaintiff who suffered an almost potentially severe injury from a prescription dispensing error. First through a claims resolution process, and secondarily, outside of court, they were able to work amicably with the defendant pharmacy in reaching a just and fair settlement for the client.
Business Litigation - Motion to Consolidate
Mechanic’s Lien Foreclosure Action Not Consolidated with Bank’s Foreclosure Action
Courts strive for efficiency in utilizing their resources so as to lead to a resolution. Knowing when to make a motion and when not to make a motion is an important decision in the course of all litigation. Dina M. Aversano together with Joel M. Aurnou successfully defended against a motion brought by their adversary who sought to consolidate two separate foreclosure actions in Westchester County Supreme Court. Here, a joint resolution of both actions would neither promote the efficient use of the court’s resources nor protect the interests of the party we represented.
Joseph J. Brophy, after a bench trial, successfully won a directed verdict in favor of the firm’s client, who owned and operated an auction gallery in Connecticut. The plaintiff sought recovery from the auction gallery on the grounds that it was liable for loss of her consigned goods on three different theories of recovery. In granting the directed verdict dismissing all three of plaintiff’s theories, the Supreme Court found the plaintiff presented no factual support of her claims at trial and a judgment dismissing her claims was warranted. Dina M. Aversano, together with Joseph J. Brophy, wrote the appellate brief that successfully opposed the plaintiff’s appeal from the direct verdict judgment to the Appellate Division, Second Department. The Second Department unanimously affirmed the direct verdict, and awarded costs associated with the appeal in favor of the auction gallery. Following denial at the Appellate level, the plaintiff sought leave of the Court of Appeals for a further appeal. Dina successfully opposed this motion, and leave was denied.
Some disputes simply cannot be resolved out of court. Paul S. Aufrichtig and Dina M. Aversano successfully were awarded injunctive relief for their client, the buyer of a cooperative apartment in New York City, by way of their motion brought by Order to Show Cause before the Supreme Court, New York County. The Court granted the buyer’s requested relief in the form of a court appointed receiver to facilitate the closing of a cooperative apartment that was consistently thwarted by the seller’s actions. In a decision published in the New York Law Journal, Judge Emily Jane Goodman appointed a receiver and empowered the receiver to take any actions that would effectuate transfer of the cooperative apartment.
Surrogate’s Court Litigation - Dispute on IRA Accounts
SCPA 2102 Information for Estate Beneficiaries & Injunctive Relief
One of the mostly commonly litigated matters in estate litigation is whether an estate or an individual will become the owner of of an insurance policy, qualified plan account or IRA account on the decedent's death. Representing a 50% beneficiary of the residuary estate, Dina M. Aversano and Frank W. Streng sought in the Surrogate's Court information from the estate’s co-executors as to information from the estate surrounding a substantial asset – two IRA accounts - of the decedent that was believed to be part of the estate. The Surrogate’s Court granted the beneficiary’s petition and enabled discovery, under SCPA 2102, to go forward as to the co-executors’ knowledge of this asset. The residuary beneficiary was further awarded injunctive relief in the form of a restraining order, preventing any transfers and disbursements to the beneficiaries of the IRA accounts during the pendency of litigation.
Contest over Finder’s Fee for Sale of Commercial Real Estate
Our lawyers sometimes represent clients in disputes over finder's and brokerage fees on real estate and business transactions. Here, Dina M. Aversano, together with Judge Sondra M. Miller and Dolores Gebhardt, wrote and prepared the appellate brief in the Appellate Division, Second Department, to seek to overturn the Supreme Court, Nassau County’s award, following a bench trial, of a $500,000 finder’s fee on a commercial real estate transaction. We argued that no such fee was warranted because of the lack of any causal relationship in the “finder’s” role in facilitating the eventual transaction. The Appellate Division Second Department awarded a downward modification of the fee.
Settlement of SCPA 2103 Turnover Claim Through Alternative Dispute Resolution Forum
Dina M. Aversano and Joseph J. Brophy represented the respondent under a SCPA 2103 Turnover proceeding as it concerned the claim brought by the Executor of an Estate for the return of two limited partnership ownership interests to the estate. Following successful motion practice in the Surrogate’s Court Westchester County, the Executor of the Estate and the respondent opted to engage in mediation, resulting in a beneficial outcome for each party.
Many Will contests are won or lost by summary judgment motions. Often, but not always, after pre-trial discovery is concluded, the petitioner - the "proponent" seeking to probate a Will - makes a motion for summary judgment to dismiss the objections to probate. Here, Frank Streng and Dina M. Aversano, representing a beneficiary under a Will, successfully moved to dismiss the objections to probate, despite allegations that the beneficiary had acted improperly in the management of the decedent's assets when the beneficiary had acted as a guardian for the decedent during the decedent's lifetime. Holding that such allegations were wholly unrelated to the otherwise unsubstantiated proof submitted to set aside the Will, the Surrogate's Court, Westchester County, granted the joint motion for summary judgment made by our firm and the attorney representing the nominated executor under the Will, and dismissed the objections to probate.