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McCarthy Fingar’s Matrimonial lawyers prepare prenuptial agreements and our Surrogate’s Court lawyers litigate the validity of such agreements. Clients make prenuptial agreements when a client is getting married for the second time and desires for his or her prospective spouse to waive rights to elect against the client’s Will. In Matter of Fischer, two of our Trusts and Estates litigators, Frank W. Streng and Ryan J. McLeod, representing the executor of the estate, in which the decedent’s surviving spouse challenged the validity of the prenuptial agreement that she signed in the 1970s. Following pre-hearing discovery, including depositions, Frank and Ryan moved for summary judgment in Surrogate’s Court, Rockland County, in successfully dismissing the surviving spouse’s elective share notice filed under EPTL 5-1.1. In rejecting the surviving spouse’s elective share claim, the Court mentioned that the surviving spouse, relying upon the prenuptial agreement, availed herself of the prenuptial agreement by making a trust agreement in which, like the decedent, she gave her assets to children of her first marriage. The Court upheld the basic legal principal that, In the absence of proof of fraud, a prenuptial agreement will be upheld; and the Court noted that the surviving spouse did not prove either fraud or overreaching.

Two of our Trusts and Estates litigators, Irma K. Nimetz and Frank W. Streng, made and won a motion to compel discovery in a case in which two individuals allegedly used their iphones to change the beneficiary on a decedent’s 401K plan on a financial services company’s web site. In Ellis v. Byrne, a case involving digital discovery, the Supreme Court, Westchester County, found spoliation, holding as follows: “Defendants ‘turned in’ their iPhones, and obtained replacement devices, while already aware that Plaintiff had accused them of using a computer device to unlawfully change the beneficiary designation.” The Court directed a turnover to McCarthy Fingar’s lawyers of the defendants’ iphones for forensic examination.

McCarthy Fingar’s lawyers sometimes represent clients in cases, in which, prior to death, there are questions on whether a valid gift was made by a decedent. Such cases bring on the need to commence a property turnover proceeding in the Surrogate’s Court under section 2103 of the Surrogate’s Court Procedure Act. In Matter of Elias Schwartz, two of our Surrogate’s Court litigators, Frank W. Streng and Irma K. Nimetz, representing the decedent’s daughter, successfully persuaded the Westchester Surrogate’s Court to nullify a gift allegedly made by the decedent of his house.

Four of McCarthy Fingar’s lawyers have been selected Super Lawyers in the New York Metropolitan area. Susan Taxin Baer has again been selected in the fields of Estate Planning & Probate. Gail M. Boggio has again been selected in the fields of Estate & Trust Litigation/Estate Planning & Probate/Elder Law. Michael S. Kutzin has again been selected in the fields of Estate Planning & Probate, Estate & Trust Litigation and Elder Law. Frank W. Streng has again been selected in the fields of Estate & Trust Litigation and Estate Planning & Probate. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have been recognized by their colleagues as having the highest degree of peer recognition and professional achievement.

Irma K. Nimetz, a member of our Appellate Practice, Commercial Litigation, Surrogate’s Court Litigation and Trusts & Estates groups, spoke speak on “SCPA Article 21 Discovery & Turnover – A Practical Primer” before the White Plains Bar Association.

It is with deep sadness that we announce that our esteemed colleague, Edward P. Borrelli, has died. His obituary is set forth below:

Judge Edward P. Borrelli died peacefully on July 12, 2022 at the age of 70. He is survived by the love of his life and teenage sweetheart, his wife Cheryl Lynn (nee Malcolm) Borrelli, his beloved children, son Edward Malcolm Borrelli, daughter in law Elaina Borrelli, daughter Christen Michelle Moschetta, son in law Michael Moschetta, and the joys of his life, granddaughter Liliana Grace Moschetta, newborn grandson Michael Pasquale Moschetta and newborn grandson Enrico Luther Borrelli. He is also survived by his sister, Marie O’Leary, brother in law Timothy O’Leary and four nieces and their families.

Judge Edward P. Borrelli was born to Pasquale “Patsy” Borrelli of Casalduni, Italy and Susan (nee Santo) Borrelli of Yonkers, New York on August 25, 1951.

Judge Borrelli graduated from Manhattan Prep, in 1969, a member of one of the last classes to graduate from the Prep. He received his BA from Manhattan College (1973) and his Juris Doctor Degree from New York Law School (1976). He was admitted to practice in New York, the District of Columbia and the Supreme Court of the United States.

His first employment as a lawyer was as an Aide with the Education and Training Office of the New York State Office of Court Administration. He eventually rose through the ranks to ultimately serve as Acting Deputy Director of Human Resources for Education and Training for the New York State Unified Court System. While there he was responsible for the training of the Judiciary in New York State. He also served as national Secretary for the National Association of State Judicial Educators, guest lectured at the National Judicial College and for the National Judges’ Association, the American Bar Association, the New York State Bar Association, several local Bar Associations, New York Law School, Fordham Law School and Pace University Law School and other law schools and universities and for CJE and CLE programs for other states’ judiciaries. He was a frequent faculty member at the New York State Judicial Institute. Judge Borrelli was also named an honorary Texas Citizen for service to the Texas judiciary.

Judge Borrelli also served for several decades in various counsel positions and as a voting member on the New York State Advisory Committee on Judicial Ethics and was Chair of the statewide Judicial Campaign Ethics subcommittee of the ACJE.
Judge Borrelli’s dream of becoming a judge came true in January of 2000 when he was appointed to his first judgeship, Yonkers City Judge, by Mayor John Spencer. He was also appointed to serve as a trial Judicial Hearing Officer and Special Referee in Supreme Court Westchester County, Supreme Court and Family Court Orange County and Family Court, Putman County. Judge Borrelli’s greatest professional joy was presiding over trials in the Supreme Court.

Judge Borrelli retired from the court system in 2017 after 41 years of service and joined the law firm of McCarthy, Fingar, LLP where he practiced until his death.

Judge Borrelli was a classic car aficionado and he enjoyed the first car he ever owned, a 1968 Chevrolet Camaro convertible through most of his life. A member of the RocknRods Classic Car Club and Cadillac DeLaSalle Club, he and Cheryl enjoyed many wonderful times with cherished friends.

He also was highly decorated adult leader in the Boy Scouts of America, for several decades. He earned numerous awards including Wood Badge and the Silver Beaver, the highest award that can be granted an adult leader at the Council level. During his later years with the Boy Scouts he taught adult leaders creative outdoor cooking skills and how to produce upscale meals on open ground campfires.

Judge Borrelli was a member of the Order of the Sons of Italy, Calandra Lodge, and the Police Columbia Association of Westchester, where he served as legal counsel.

Judge Borrelli’s greatest personal joy was being together with his whole family around a dining table, whether a holiday feast in Yonkers, a summer barbeque at the cottage at Peach Lake or during one of the several family vacations to Europe that he and Cheryl hosted for the family to maintain family bonds and nurture ties with our cousins in Italy.

Our lawyers know that some cases need to go to trial in order to obtain a good outcome for a client. Stephen Davis, who chairs our Tax Certiorari & Condemnation group, settled a tax certiorari valuation claim in the middle of a trial. Through the settlement, Steve obtained a $1.5 million property assessment reduction, from $4.45 million to $2.95 million. Steve accomplished this result irrespective of an initial asking price on the property of $13 million! Notably, the property consisted of a 1951 Frank Lloyd Wright designed 5,500 sq. ft. house, constructed in 2008 upon a 10.3 ac. island within Lake Mahopac. Many consider this house an architectural rival to Mr. Wright’s renowned Falling Water at Mill Run, Pa.

McCarthy Fingar is pleased to announce that Westchester Magazine has named Gail M. Boggio, Howell Bramson and Michael S. Kutzin to its list of Top Lawyers in Westchester. Each year Westchester Magazine publishes its list of Westchester’s Leading Lawyers, excerpted from BL Rankings LLC list of Best Lawyers in America, the preeminent referral guide to the legal profession in the United States.

We are pleased to announce that Ryan J. McLeod has joined McCarthy Fingar and is a member of our Trusts and Estates, Guardianship Practice, Surrogate’s Court Litigation, Taxation and Municipal Law & Land Use groups. Ryan joins McCarthy Fingar following a career in public service and in private law practice. Most recently, Ryan was the Supervisor of Legislative Assistance and Services in the New York State Senate, in which, among other things, he worked to ensure that all bills were properly filed and all Senate office requests were filled. Prior to that, he was a Senior Counsel responsible for advising elected officials on the ramifications of legislation before the Insurance, Energy and Telecommunications, and Commerce, Economic Development and Small Business committees. Prior to his work for the New York State Senate, Ryan was a Deputy Regional Director for Empire State Development, where his duties included counseling for-profit, not-for-profit and municipal corporations on how to obtain state and federal financial incentives for their economic development or workforce development projects. He also managed relationships with municipal officials and local economic development partners throughout the lower Hudson Valley. During this entire period of time, Ryan was also a lawyer in private practice where he handled real estate litigation, as well as trusts and estates issues.

Irma K. Nimetz and Frank W. Streng, both members of our Appellate Practice, Surrogate’s Court Litigation and Trusts & Estates groups, spoke at the Spring Section Meeting for the Trusts & Estates Law Section of the New York State Bar Association on “Ethical Issues: How to Avoid Becoming a Target in Will and Trust Contests”.