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.

The acquisition of a US-based company by a foreign company requires skills in multiple practice areas.  Here, one of our Corporate and Tax lawyers Robert J. Kiggins performed legal due diligence for a South African financial institution on its acquisition of a control position in a US export lending company. As part of his work, Bob prepared a report thereon for submission to the client and the South African Reserve Bank (“SARB”). The report included an extensive generic and transactional legal analysis of the acquisition candidate company’s export lending transactions involving the US Export Import Bank insurance or guarantees and PEFCO financing on loans ranging from USD 460,000 to USD 301,000,000. The report also analyzed taxation issues, organizational issues, operational issues, litigation, employee matters and insurance issues.

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. 

Our matrimonial lawyers represent clients on contested Pendente Lite applications. Where the husband dissolved his business and voluntarily stopped working and the wife earned $45,000 per year, Kristen Mackay Pennessi & Kathleen Donelli successfully argued that the Court should impute $150,000 of income to the husband in calculating pendente lite support obligations. Here, the husband had not been paying child support, spousal support or any of the household expenses. The Court ordered the husband to pay pendente lite support in the amount of $5,310 per month, and to make direct monthly payments of  the mortgage, HELOC, real estate taxes and homeowners insurance.

When applying for marks for their clients, Intellectual Property lawyers sometimes need to nullify the registration of a competing mark. Here, Milena S. Mishev filed a petition with the U.S. Patent and Trademark Office for the cancellation of a registered mark cited by the Trademark Office's examining attorney against Milena's client’s applied-for mark. Prior to filing the petition, a sophisticated investigation conducted by Milena revealed that the CEO of the registrant-company had terminated the entity, and that the mark had practically not been in use for over three years, which in itself is a prima facie evidence of abandonment. The U.S. Trademark Act provides for the cancellation of a registration if the registered mark has been abandoned. Under Section 45 of the Trademark Act, 15 U.S.C. § 1127, a mark is considered abandoned when "its use has been discontinued with intent not to resume such use." However, because registrations are presumed valid under the law, the party seeking to cancel a registration on the ground of abandonment bears the burden of proof to establish the case by a preponderance of the evidence. If petitioner makes a prima facie case of abandonment, the burden of production (i.e., going forward) then shifts to the registration owner to rebut the prima facie showing with evidence. As a result of Milena's work, the Trademark Office granted Milena's petition for cancellation, thereby requiring approval of Milena's client's application for the mark.

Sometimes, litigation in the Surrogate's Court involves actions taken in another estate or trust that harm our clients. Stephen Davis, representing the executors of a surviving spouse's estate, settled a dispute with the trustees of the estate of the first spouse to die, resulting from the requirement under the Internal Revenue Code (IRC) for inclusion in the taxable estate of a surviving spouse the testamentary trust created by her pre-deceased husband for her lifetime benefit (QTIP Trust). Although the IRC specifically apportions the increase in taxes solely to the QTIP Trust, the IRC nonetheless creates conflict between next generation beneficiaries when executors are called upon to make a tax election unfavorable to them personally, but resulting in a greater tax benefit to the QTIP Trust.  Reaching back to past estate litigation experience, Steve, now chair of the firm’s Tax Certiorari & Condemnation group, in collaboration with Frank W. Streng, chair of the firm’s Surrogate's Court Litigation group, asserted at Surrogate’s Court and to the Trustee of the QTIP Trust, ancient and esoteric rules of fairness to achieve recoupment of the Estate’s $44,000 tax advantage (compared to a date of death valuation). In this instance, equitable adjustment, a form of implied contract, manifested itself as the duty of the QTIP Trust to make whole the beneficiaries of the surviving spouse's estate from a loss imposed to achieve the Trust’s greater $345,000 tax benefit. Although equitable adjustment had been applied to other types of tax elections made by fiduciaries, e.g., a Warms Adjustment (1041 deduction vs. 706 deduction), there exists no reported case in New York applying the concept to a surviving spouse's estate's conflict with a QTIP Trust.

Our commercial finance lawyers sometimes represent banks in transactions involving multiple parcels in multiple states. In one such transaction, Joe Harrington and Michelle Santoro represented one of the firm’s private lending clients on a multi-loan transaction, totaling $18.8 million, secured by four parcels in 3 states.

Pendente lite applications are an important part of the work of our matrimonial lawyers. Where the husband earned approximately $150,000 and the wife earned approximately $75,000, Kristen Mackay Pennessi argued that the husband pay pendente lite support. The Court ordered the husband to pay $988 per month in pendente lite maintenance and $3,293 per month in pendente lite child support. Kristen was also successful in arguing that the husband, as the monied spouse, be responsible for paying the wife’s counsel fees. The Court awarded the wife $10,000 in counsel fees.

After a divorce has been finalized, our Matrimonial lawyers sometimes represent clients on other matters. Here, where the client wanted to legally change her name, Kristen Mackay Pennessi prepared and filed all the required forms and documents necessary to finalize the client's request for a legal name change.

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.

During the pendency of a divorce action, the court often issues pendente lite orders directing the payment of the family’s living and other expenses so that the financial status quo can be maintained while the issues are litigated. Seeking compliance with such orders is an important part of the work of Matrimonial & Family Law lawyers. Here, after Dolores Gebhardt had obtained a court order for the benefit of her client, Dolores successfully obtained another order holding the husband in contempt of court and ordering the defendant jailed until he complies with the prior orders. The pendente lite order required the husband to pay temporary support to our client, the plaintiff wife, and for payments for a neutral forensic evaluator and camp for the parties’ child. A subsequent order required the defendant to pay counsel fees to McCarthy Fingar. A third order directed defendant to pay for a neutral forensic accountant to value defendant’s business. At a hearing on Dolores' motion to hold the husband in contempt for willful violation of these orders, Dolores introduced evidence showing that the husband paid support to the wife not from his income but from an overdraft protection line on the parties’ joint bank account. The court gave him no credit for these payments because the wife was jointly responsible for the overdraft debt. The husband also claimed he could not afford to comply with the orders, even though the evidence showed that he was living a luxurious lifestyle at his father’s home and had the use of his father’s cars and country club. The husband testified that his business was about to fold, but presented no evidence to support this claim, although he testified that he was working on two new business ventures. He also testified that, except for the marital residence and the wife’s car, he had no assets in his own name.  With these facts, the court found that the husband's failure to comply with the court's order was willful, and sentenced defendant to jail for a period of three months for violating the court orders. The court also decided that jail time would be commuted if the husband makes a variety of payments, including a fine.

Our Surrogate's Court Litigation lawyers often represent clients in controversies involving joint bank and brokerage accounts. Here, two of our lawyers, Phillip C. Landrigan and Dina M. Aversano, represented an attorney named as joint tenant with rights of survivorship on a brokerage account established and funded by his longtime client/personal friend shortly before the friend’s death. The wife and executrix of the friend’s estate filed a law suit in the Supreme Court, New York County (Ramos), seeking to have the account turned over to the estate on the grounds that the attorney violated ethical rules against soliciting a “gift” from a client, as well as undue influence and constructive fraud. After successfully having the case transferred to the Surrogate’s Court, which more regularly addresses such lifetime transfers and capacity issues, Phi and Dina persuaded the Surrogate that there was no per se right to return of the account, and that the attorney had not engaged in conduct rising to either undue influence or fraud. The Surrogate (Glenn) granted summary judgment dismissing all of the estate’s claims, thereby giving ownership of the $1.2 million account to our client.

Our matrimonial lawyers often represent clients on contested Pendente Lite applications. Where the husband claimed to earn only $10,000 per year working as the CEO in his family’s company, Kristen Mackay Pennessi & Kathleen Donelli successfully argued that the Court should impute $100,000 in income to the husband for purposes of calculating pendente lite child support.  Specifically, the Court held that, where the family business was paying for most of the husband’s expenses (he was residing at the marital residence in Scarsdale and his statement of net worth showed expenses of more than $10,000 a month), the husband’s account of his own finances was not credible. Thus, the Court found that imputing income in the amount of $100,000 per year for pendente lite child support purposes was reasonable and appropriate. 

Often, controversies in families arise from a decedent's alleged decisions on gifts; and then a property turnover proceeding take place in the Surrogate's Court to deal with property that is the subject of a gift. Here, McCarthy Fingar lawyers, Katherine Sohr Jedlicka, Elizaveta S. Korotkova, and Joseph J. Brophy, successfully opposed a summary judgment motion by opposing counsel seeking dismissal of a "reverse" property turnover proceeding brought on by our client. The reverse turnover proceeding demanded that the Estate fiduciary turn over property belonging to McCarthy Fingar’s client under a family agreement made out of court regarding distribution of the assets of the Decedent’s Estate. The court denied the motion, refusing to rule that the family agreement was unenforceable as a matter of law and determining that issues of fact exist as to its validity. The court similarly denied the movant’s request for alternative relief of dismissing the reverse turnover proceeding as to the Administrator’s siblings (also distributees) as unnecessary parties, finding that the court’s determination as to how the Estate will be distributed affects all distributees’ rights; and, therefore, all distributees were interested parties in the proceeding.   

One of the most satisfying things our Matrimonial & Family Law lawyers do is to help our clients succeed on child custody issues. Here, Joel M. Aurnou convinced the Appellate Division, Second Department, to unanimously affirm the lower court's decision granting Joel's client permission to relocate to Texas with four small children during a pending matrimonial. Citing "a sound and substantial basis in the record" and relying upon Matter of Tropea v. Tropea (argued by Kathleen Donelli of this firm), the Court unhesitatingly approved these elements of proof: (1) the husband did not make regular support payments, (2) the plaintiff demonstrated she could not meet expenses in New York for that reason, and (3) she would receive financial and child care assistance from, and residence rent-free with, her parents. The Court quoted Tropea as follows: "[E]conomic necessity . . . may present a particularly persuasive ground [for] permitting the proposed move", and so held in affirming in this case.