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Latest Representative Cases and Matters

Frank W. Streng, White Plains Estate Litigation LawyerDina M. Aversano, White Plains Litigation Lawyer

Surrogate's Court Litigation - Trusts & Estates - Will & Trust Contests - Summary Judgment Motions

Matter of Tedesco, Surr. Ct., Westchester (File No. 2012-781/B) (8-13-2014)

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.

Gail M Boggio, White Plains Surrogate's Court & Trusts & Estates LawyerMichele L. Santoro, White Plains Commercial Finance & Real Estate Lawyer

Surrogate’s Court Litigation - Property Turnover - Alleged Gift by the Decedent

Matter of Goldstein, Rockland County Surrogate’s Court (September 16, 2013, File No.: 2010-481/E)

Often, controversies in families arise as to gifts allegedly made by a decedent during his or her lifetime. Such controversies frequently result in a property turnover proceeding in the Surrogate's Court to deal with such alleged gifts. Here, McCarthy Fingar lawyers, Gail M. Boggio and Michelle L. Santoro, successfully opposed a summary judgment motion that sought dismissal of a property turnover proceeding brought by our client as Temporary Administrator of the decedent’s Estate and Co-Trustee of the decedent’s irrevocable trust. The turnover proceeding demanded that the Estate's Executor/Co-Trustee, who was also an estate and trust beneficiary, turn over property belonging to the estate and trust. In addition to summary judgment, the Executor/Co-Trustee also sought to have our client’s interest in the decedent’s trust forfeited due to a claimed violation of its “no contest” clause, and to have our client personally pay the executor’s legal fees. The court denied the motion in its entirety because the Executor/Co-Trustee failed to meet her burden that she was entitled to summary judgment as a matter of law and that issues of fact exist that would preclude summary judgment. In a related matter, the court similarly denied the movant’s (the Executor/Co-Trustee) request to vacate a temporary restraining order whereby the movant is precluded from utilizing funds and encumbering property whose sources are from the purported gift, requesting that our client post an undertaking and sought to surcharge our client.

Joel Martin Aurnou, White Plains Trial & Appeals LawyerDina M. Aversano, White Plains Litigation LawyerMilton R Gleit, White Plains Corporate & Business LawyerPhillip C. Landrigan, White Plains Litigation Lawyer

Business Litigation - Allegation of Criminal Activity - Forfeiture of Property - Forum Non Coveniens

United States of America v. Approximately $2,718,665.70 Former on Deposit in Pershing, LLC, Account Number 009585 Held in the Name of Krishna Enterprises Ltd.

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. LandriganDina 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.

Dina M. Aversano, White Plains Litigation LawyerPhillip C. Landrigan, White Plains Litigation Lawyer

Surrogate’s Court Litigation - Spousal Consent Provisions - Dispute on IRA Accounts - ERISA Disputes - Federal Court Litigation

Hildegard Perlman v. Fidelity Brokerage Services, LLC et al., USDC 11-cv-0326

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.