Appellate Practice

Landau, Davis, Nimetz & Borrelli - Appellate Attorneys in Westchester

The McCarthy Fingar Team

McCarthy Fingar’s lawyers are considered among the best appellate attorneys in Westchester and throughout the New York metro region. Our Appellate Practice group represents clients in civil appeals in many areas of the law, in both Federal and New York courts. Clients who have endured the difficulties of litigation may face the ultimate challenge when their cases go to the appellate courts. Those who have won their cases must defend their success. Those who have lost face the even greater challenge of reversing an unfavorable outcome. Successful appellate advocacy requires the highest level of legal experience and expertise. Many attorneys who are fully competent to represent their clients through trial recommend that their clients retain specialized counsel to handle appeals.

The Appeals Process

Civil appeals are among the greatest challenges attorneys face. McCarthy Fingar, a Westchester law firm rich in experience in handling appeals, takes pride in the strength of our Appellate Group. Before an appeal goes forward our lawyers carefully study the record in the lower court and analyze the strengths and weaknesses of the lower court decision. Based upon that review, our appellate lawyers, usually working with lawyers in one or more of our various specialty practice groups, counsel a client as to the probable merits of an appeal, whether a client is seeking to defend or reverse a lower court decision. If we agree to represent a client and seek a reversal of a lower court decision, we then proceed with the arduous task of developing the record on appeal, working only from the lower court record. If we are seeking a reversal, we proceed to the critical task of writing a concise appellate brief to explain to an appellate court the flaws in the lower court decision and why the appellate court should reverse. One of our experienced appellate lawyers will argue the case before the appellate court, if oral argument is required.

Contact Us

McCarthy Fingar’s Appellate Practice lawyers are dedicated to our clients’ success. If you think you may require our assistance or have any questions, please contact Robert H. Rosh by email (rrosh@mccarthyfingar.com) or phone (914-385-1025).

11/16/2023

Nimetz Speaks on Estate Planning for Senior Law Day Collaborative

Irma K. Nimetz

Irma K. Nimetz, a member of our Appellate PracticeCommercial LitigationSurrogate’s Court Litigation and Trusts & Estates groups, did a webinar, entitled: “Aging Adults & Estate Planning: How to Start The Conversation” for Senior Law Day Collaborative. In her presentation, Irma discussed how to start conversations with aging adults (parents, partners and/or friends) about estate planning and related issues; how, where and with whom you begin conversations about wills, trusts, powers of attorney, health care proxies and living wills, and/or financial assets; and what those conversations entail. The webinar discussed planning issues for today and ways to avoid estate litigation in the future. Senior Law Day Collaborative offers free legal and financial advice for Westchester County seniors and their families.

10/05/2023

Nimetz Speaks on Surrogate’s Court Litigation

Irma K. Nimetz

Irma K. Nimetz, a member of our Appellate PracticeCommercial LitigationSurrogate’s Court Litigation and Trusts & Estates groups, spoke on “Ethical Issues in Trusts and Estates Practice: A Surrogate’s Court Litigator’s Perspective for NY Attorneys” for myLawCLE. This webinar provided an overview of ethical issues arising in trusts and estates practice from the perspective of a Surrogate’s Court litigator and provided insights as to how attorneys can minimize their risk of becoming a “target” in Surrogate’s Court litigation.

05/31/2023

Nimetz Appointed to House of Delegates of New York State Bar Association

Irma K. Nimetz

Irma K. Nimetz, a member of our Appellate PracticeSurrogate’s Court Litigation and Trusts & Estates groups, was appointed to the House of Delegates of the New York State Bar Association on behalf of the Westchester County Bar Association. The House of Delegates is the governance and decision-making body of the New York State Bar Association and determines policies and develops positions on issues that affect the law and the legal profession.

09/21/2022

Nimetz Speaks on Discovery Proceedings in Surrogate’s Court

Irma K. Nimetz

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

05/12/2022

Nimetz & Streng Speak on “Ethical Issues: How to Avoid Becoming a Target in Will and Trust Contests”

Frank W. Streng Irma K. Nimetz

Irma K. Nimetz and Frank W. Streng, both members of our Appellate PracticeSurrogate’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”.

04/27/2022

Nimetz Speaks on Will Contests on Senior Law Day

Irma K. Nimetz

Irma K. Nimetz, a member of our Appellate PracticeCommercial LitigationSurrogate’s Court Litigation and Trusts & Estates groups, spoke on “How To Contest A Will Or Trust And How To Prevent Your Family From Contesting Yours” for Senior Law Day Collaborative. Senior Law Day Collaborative offers free legal and financial advice for Westchester County seniors and their families.

02/15/2022

Kutzin Wins Appeal on Guardianship Matter Involving Efforts to Reduce a Personal Needs Guardian’s Powers and to Reinstate a Health Care Proxy

Michael S. Kutzin

Lawyers at McCarthy Fingar are often sought out by courts or other attorneys to handle the most difficult guardianship cases. In Matter of AMH, 2022 N.Y. Slip Op. 00968 (1st Dep’t 2022), Michael S. Kutzin, a partner of the firm whose areas of concentration include guardianship and trusts & estates, was appointed as litigation counsel by the lower court to spearhead AMH’s efforts to reduce her Personal Needs Guardian’s powers and to reinstate the health care proxy that AMH had given in 2015 to her daughter (a physician). The disgruntled son of nonagenarian AMH, who had not seen his mother for more than 4 years, opposed the relief sought by Mr. Kutzin. After multiple motions and a four-day hearing, Mr. Kutzin and his co-counsel obtained the requested relief for AMH; and the lower court denied everything requested by the son. The son’s litigious efforts continued in the Appellate Division, First Department, where he filed three separate appeals and multiple motions, but to no avail. Mr. Kutzin, leading the efforts in the Appellate Division, persuaded the Appellate Division to uphold the lower court’s decision.

01/01/2022

Nimetz is a New McCarthy Fingar Partner

Irma K. Nimetz

We are pleased to announce that Irma K. Nimetz has been elected as a new partner of the firm. Irma, who has wide experience in litigation in trusts and estates and other matters, is a member of our Appellate PracticeCommercial LitigationSurrogate’s Court Litigation and Trusts & Estates groups.

07/18/2021

Kutzin Speaks on Remote Notarization and Witnessing

Michael S. Kutzin

Michael S. Kutzin, a member of various practice groups, including our Guardianship Practice, Taxation and Trusts & Estates groups, spoke on “Remote Notarization and Witnessing: Update on Legislation and Best Practices”, at a program sponsored by the Elder Law & Special Needs Section of the New York State Bar Association.

03/16/2021

Rosh and Bramson Win Appeal on Appointment of Successor Trustee

Howell Bramson Robert H. Rosh McCarthy Fingar’s Surrogate’s Court Litigation lawyers represent clients in all phases of litigation on trusts and estates matters, including proceedings seeking the appointment or replacement of trustees of living or testamentary trusts. In Matter of Burrows, Robert H. Rosh and Howell Bramson, representing the preliminary executors of the decedent’s estate, won on summary judgment a proceeding in which their clients sought the appointment of a successor co-trustee of a multi-million dollar, living (grantor) trust (the “Trust”). On appeal, the Appellate Division, Fourth Judicial Department, unanimously affirmed the Surrogate’s Court decision and order granting our clients’ summary judgment motion. On their summary judgment motion, Rosh and Bramson established that the trust instrument required that the Trust be administered by two (2) trustees, but that, through deposition testimony and documentary evidence, the sole surviving co-trustee of the Trust was unfit to administer the Trust without the assistance of a co-trustee. In finding that the surviving co-trustee was unfit, the Surrogate’s Court found that the surviving co-trustee had failed to comply with various terms of the trust instrument, and had improperly delegated his fiduciary duties thereunder to another individual for years after the resignation of the original co-trustee of the Trust. The Surrogate’s Court consequently concluded that “[g]iven [the surviving co-trustee’s] less than adequate interest/ability to solely administer the Trust[,] together with the nature and language of the Trust, . . . two trustees (co-trustees) [were] necessary.” In granting our motion, the Surrogate’s Court further pointed out, and found, that the surviving co-trustee’s counsel’s argument that the proceeding was barred under the doctrine of res judicata, was without merit.
01/01/2021

Kutzin is Co-Author of “New York Elder Law”

Michael S. Kutzin

As of the January 2021 edition, Michael S. Kutzin, a member of various groups, including our Guardianship Practice,  Taxation and Trusts & Estates groups, became a co-author, along with Tara Anne Pleat, Esq., of the LexisNexis treatise, New York Elder Law.  The publication, which is one of the premier publications in the field, contains comprehensive analysis and practice guidance for trusts & estates, elder law and special needs attorneys practicing in New York. Some topics that are discussed include: planning for incapacity (property management & health care decisions); Medicare and long-term care insurance; Medicaid; supplemental needs trusts; guardianships; estate planning and wills; health care coverage and resources; financial planning; income and estate tax; and elder abuse.

11/04/2020

McCarthy Fingar Wins Appeal Concerning Merestead, a Westchester County Park

Frank W. Streng

Representing the County of Westchester, an interdisciplinary team of litigators at McCarthy Fingar, which included James K. Landau, Edward P. Borrelli and Frank W. Streng, won an appeal in Matter of Merestead in the Appellate Division, Second Department.  In Merestead, the Second Department upheld a lower’s denial of an attempt by a neighboring landowner to intervene and dismiss a petition filed by the firm on behalf of its client, the County of Westchester. By the petition, the County seeks to modify or extinguish certain restrictions on the use of Merestead, 130 acres of property donated to the County so that Merestead can better carry out the original intentions of the family that donated the property for various uses, including as a park.

06/19/2020

Kutzin Named as Co-Chair of NYSBA Task Force on Remote Notarization and Witnessing of Estate Planning Documents

Michael S. Kutzin

During the COVID-19 health care crisis, McCarthy Fingar lawyers have remotely supervised the execution of many Wills, Trust Agreements and related documents. We are pleased to announce that Michael S. Kutzin, a member of various groups, including our Guardianship Practice, Trusts & Estates and Surrogate’s Court Litigation groups, has been named as a co-Chair of the NYSBA Joint Elder Law and Trusts & Estates Sections Task Force on Remote Notarization and Remote Witnessing of Estate Planning documents.

06/18/2020

Kutzin Wins Appeal on Guardianship Matter Involving Dispute Between Divorced Parents

Michael S. Kutzin

McCarthy Fingar lawyers represent clients in the most difficult guardianship cases. In Matter of A.A. v. A., 2020 NY Slip Op 03468 (1st Dep’t 2020)Michael S. Kutzin, a partner of the firm whose areas of concentration include guardianship and trusts & estates, represented, on a pro bono basis, the mother of an incapacitated child in an appeal to the Appellate Division, First Department, of a lower court decision in which, after a divorce, the mother had been named the guardian for her daughter, J.A. Michael succeeded in having the father’s appeal denied on the grounds that the lower court had properly exercised its discretion in naming the mother as guardian and that he had no independent right to have his adult child brought to a physician of his choice to prove his case.

02/01/2020

Michael S. Kutzin Joins Firm as Partner

Michael S. Kutzin

We are pleased to announce that Michael S. Kutzin has joined the firm as a partner and is a member of our Guardianship Practice, Trusts & EstatesSurrogate’s Court LitigationAppellate PracticeExempt OrganizationsTaxation and Charitable Gift Planning groups. Michael joins McCarthy Fingar from Goldfarb Abrandt Salzman & Kutzin LLP, where he had been a partner for 17 years. Michael has extensive experience with all forms of Surrogate’s Court and Guardianship proceedings, from the most routine to the most complex and contentious. He has appeared in Westchester matters for years, as well as Surrogate’s Court and Guardianship cases in New York City.

10/01/2019

McCarthy Fingar’s “Super Lawyers”

Frank W. Streng Gail M. Boggio

Six of our lawyers have been selected Super Lawyers in the New York Metropolitan area. Gail M. Boggio has again been selected in the fields of Estate & Trust Litigation/Estate Planning & Probate/Elder Law. Kathleen Donelli has again been selected in the field of Family Law. Dolores Gebhardt has again been selected in the field of Family Law. James K. Landau has again been selected in the fields of Commercial Litigation and Appellate, and has again been selected for the Top 25 in Westchester County for Super Lawyers. Frank W. Streng has again been selected in the fields of Estate & Trust Litigation and Estate Planning & Probate. Douglas S. Trokie has again been selected in the fields of Business/Corporate, Closely Held Business, Real Estate, Business and Civil Litigation. 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.

03/12/2018

Nimetz Joins Firm as Associate Attorney

Irma K. Nimetz

We are pleased to announce that Irma K. Nimetz has joined the firm as an associate attorney and is a member of our Appellate PracticeCommercial Litigation and Surrogate’s Court Litigation groups.  Prior to joining McCarthy Fingar, Irma was an attorney with the New York State Attorney General’s Office, where she received the Louis J. Lefkowitz Memorial Award for outstanding performance by an Assistant Attorney General. Irma has experience handling governmental investigations against individuals, businesses and not-for-profit organizations, as well as defending actions and Article 78 proceedings brought against the State of New York and its agencies.

11/01/2014

Pozin, Smith, Steinman & Georgiou Join Firm and Start up Municipal Law & Land Use Group

Clinton B. Smith Lester D. Steinman Daniel Pozin

We are pleased to advise that Daniel PozinClinton B. Smith and Lester D. Steinman have joined the firm as partners and Anna L. Georgiou has joined the firm as counsel. They are all members of the firm’s newly created Municipal Law & Land Use group.

10/01/2014

Boggio, Bramson, Brophy, Donelli, Gebhardt, Miller & Streng Selected as Super Lawyers

Frank W. Streng Gail M. Boggio Howell Bramson

Seven of our lawyers have been selected Super Lawyers in the New York Metropolitan area. Gail M. Boggio has again been selected in the fields of Estate & Trust Litigation/Estate Planning & Probate/Elder Law. Howell Bramson has again been selected in the fields of Estate Planning/Tax and Corporate Business. Joseph Brophy has again been selected in the fields of Personal Injury/Medical Malpractice, General, Estate & Trust Litigation. Kathleen Donelli has again been selected in the fields of Family Law/Collaborative Law/Appellate. Dolores Gebhardt has again been selected in the fields of Family Law/Collaborative Law/Appellate. Judge Sondra Miller has again been selected in the fields of Appellate/Family Law. Frank W. Streng has 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.

10/01/2013

Boggio, Bramson, Brophy, Donelli, Gebhardt & Miller Selected as Super Lawyers

Gail M. Boggio Howell Bramson

Six of our lawyers have been selected Super Lawyers in the New York Metropolitan area. Gail M. Boggio has been selected in the fields of Estate & Trust Litigation/Estate Planning & Probate/Elder Law. Howell Bramson has again been selected in the fields of Estate Planning/Tax and Corporate Business. Joseph Brophy has again been selected in the fields of Personal Injury/Medical Malpractice, General, Estate & Trust Litigation. Kathleen Donelli has again been selected in the fields of Family Law/Collaborative Law/Appellate. Dolores Gebhardt has again been selected in the fields of Family Law/Collaborative Law/Appellate. Judge Sondra Miller has again been selected in the fields of Appellate/Family Law. 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.

10/01/2012

Bramson, Brophy, Donelli, Gebhardt & Miller Selected as Super Lawyers

Howell Bramson

Five of our lawyers have been selected Super Lawyers in the New York Metropolitan area. Howell Bramson has been selected in the fields of Estate Planning/Tax and Corporate Business. Joseph Brophy has again been selected in the fields of Personal Injury/Medical Malpractice, General, Estate & Trust Litigation. Kathleen Donelli has again been selected in the fields of Family Law/Collaborative Law/Appellate. Dolores Gebhardt has been selected in the fields of Family Law/Collaborative Law/Appellate. Judge Sondra Miller has been selected in the fields of Appellate/Family Law. Joe Brophy has also been selected as one of Westchester’s top 25 lawyers. 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.

06/15/2011

Boggio, Donelli & Gebhardt Elected Directors of Women’s Bar Association of State of New York

Gail M. Boggio

Gail M. Boggio, Kathleen Donelli and Dolores Gebhardt were elected and then sworn in as directors of the Women’s Bar Association of the State of New York.

Matter of AMH, 2022 N.Y. Slip Op. 00968 (1st Dep’t 2022)

Michael S. Kutzin

Michael S. Kutzin

Guardianship Practice – Adult Guardianship – Court Appointed Counsel in Complex Ongoing Guardianship Matter

Lawyers at McCarthy Fingar are often sought out by courts or other attorneys to handle the most difficult guardianship cases. In Matter of AMH, the disgruntled son of nonagenarian AMH, who had not seen his mother for more than 4 years, created turmoil for many years for her and her guardians. At the request of AMH’s court appointed counsel, the lower court appointed McCarthy Fingar partner, Michael S. Kutzin, as litigation counsel to spearhead AMH’s efforts to reduce her Personal Needs Guardian’s powers reduced and to reinstate the health care proxy that AMH had given in 2015 to her daughter (a physician). The 2015 health care proxy had been voided by the lower court because the daughter and AMH’s health care proxy had not been able to work together, but by the time AMH’s application was filed, the daughter and the Personal Needs Guardian had worked well together for a number of years. The son was very litigious: he not only opposed this requested relief, but filed his own application to remove AMH’s longtime counsel, remove the Personal Needs Guardian and to have visitation restrictions (which had been imposed because of his misconduct) lifted. The son also sought to have the lower court compel AMH to testify, even though AMH suffered from health threatening stress when dealing with conflict. After multiple motions and a four-day hearing, Mr. Kutzin and his co-counsel obtained the requested relief for AMH; and the lower court denied everything requested by the son. The son’s litigious efforts continued in the Appellate Division, First Department, where he filed three separate appeals and multiple motions, but to no avail. Mr. Kutzin, leading the efforts in the Appellate Division, persuaded the Appellate Division to uphold the lower court’s decision.

[Read in full]

Matter of Burrows, 192 A.D.3d 1485 (4th Dep’t 2021)

Howell Bramson, Robert H. Rosh

Howell Bramson Robert H. Rosh

Appellate PracticeSurrogate’s Court Litigation –  Trusts and Estates – Petition to Appoint Successor Trustee

McCarthy Fingar’s Surrogate’s Court Litigation lawyers represent clients in all phases of litigation on trusts and estates matters, including proceedings seeking the appointment or replacement of trustees of living or testamentary trusts. In Matter of Burrows, Robert H. Rosh and Howell Bramson, representing the preliminary executors of the decedent’s estate, won on summary judgment a proceeding in which their clients sought the appointment of a successor co-trustee of a multi-million dollar, living (grantor) trust (the “Trust”). On appeal, the Appellate Division, Fourth Judicial Department, unanimously affirmed the Surrogate’s Court decision and order granting our clients’ summary judgment motion.

On their summary judgment motion, Rosh and Bramson established that the trust instrument required that the Trust be administered by two (2) trustees, but that, through deposition testimony and documentary evidence, the sole surviving co-trustee of the Trust was unfit to administer the Trust without the assistance of a co-trustee. In finding that the surviving co-trustee was unfit, the Surrogate’s Court found that the surviving co-trustee had failed to comply with various terms of the trust instrument, and had improperly delegated his fiduciary duties thereunder to another individual for years after the resignation of the original co-trustee of the Trust. The Surrogate’s Court consequently concluded that “[g]iven [the surviving co-trustee’s] less than adequate interest/ability to solely administer the Trust[,] together with the nature and language of the Trust, . . . two trustees (co-trustees) [were] necessary.” In granting our motion, the Surrogate’s Court further pointed out, and found, that the surviving co-trustee’s counsel’s argument that the proceeding was barred under the doctrine of res judicata, was without merit.

Matter of A.A. v. A., 184 A.D.3d 496 (1st Dep’t 2020)

Michael S. Kutzin

Michael S. Kutzin

Guardianship Practice – Guardianship of Adult Child – Dispute Between Divorced Parents

McCarthy Fingar lawyers represent clients in the most difficult guardianship cases, including disputes over a guardianship of an adult child. While most people understand issues involving the care and custody of children is often front-and-center in a divorce case, sometimes even adult children with disabilities become collateral damage of a divorce as parents battle over guardianship of an adult child. This can happen for myriad reasons, including where well-meaning but ill-advised parents have a different vision for what kind of care the disabled child should receive. In Matter of A.A. v. A., Michael S. Kutzin, a partner of the firm whose areas of concentration include guardianship and Trusts & Estates, represented, on a pro bono basis, the mother of an incapacitated child in the appeal to the Appellate Division, First Department, of a lower court decision in which, after a divorce, the mother had been named the guardian for her daughter, J.A. The father had fought to become his daughter’s guardian and appealed the lower court decision, arguing that the daughter’s incapacity was brought on by the anti-psychotic medication that she was taking. The father further argues that he should have the right to take his daughter to a physician of his own choice, in his effort to demonstrate that it was the medicines that caused her illness. The mother, who had already prevailed in Family Court against such allegations when she obtained custody while the child was a minor, was named guardian in the lower court proceeding. Michael succeeded in having the father’s appeal denied on the grounds that the lower court had properly exercised its discretion in naming the mother as guardian and that he had no independent right to have his adult child brought to a physician of his choice to prove his case. The First Department uphold the lower court decision, finding that the mother “had been diligently caring for [the daughter] for years and appropriately attended to her needs, and the absence of any evidence supporting plaintiff’s claims of improper medical treatment . . . “

[Read in full]

Matter of Merestead, 188 A.D.3d 690 (2d Dep’t 2020)

Frank W. Streng

Frank W. Streng

Appellate PracticeMunicipal Law & Land Use –  Trusts and Estates – Motion to Intervene

McCarthy Fingar represents a diverse collection of clients, including municipal and governmental entities. Here, McCarthy Fingar’s interdisciplinary team of litigators, which included James K. Landau, Edward P. Borrelli and Frank W. Streng, succeeded in defeating an attempt by a neighboring landowner to intervene and obtained a dismissal of a petition filed by the firm on behalf of its client, the County of Westchester. By the petition, the County seeks to modify or extinguish certain restrictions on the use of Merestead, 130 acres of property donated to the County so that Merestead can better carry out the original intentions of the family that donated the property for various uses, including as a park. The Supreme Court, Westchester County, denied the neighboring landowner’s motion, and the landowner appealed to the Appellate Division, Second Department. The Second Department unanimously affirmed the decision of the motion court, agreeing that the motion to intervene was fatally defective because the neighboring landowner did not submit a proposed pleading with their motion. The Second Department also agreed with the motion court’s decision denying the motion without leave to renew on proper papers “since the proposed intervenors failed to show a real and substantial interest in the outcome of the proceeding.” 

[Read in full]

Mitarotonda v. Mitarotonda, ___ A.D.3d ___ (2d Dep’t 2019)

Kristen Mackay Pennessi

Kristen Mackay Pennessi

Matrimonial & Family Law – Child Custody – Appellate Practice – Constructive Emancipation

Our matrimonial lawyers often represent clients on financial issues relating to child custody. Here, Kristen Pennessi & Kathleen Donelli won an appeal in the Appellate Division in which the lower court denied a post-divorce judgment motion, brought by the noncustodial parent (the “father”), to stop paying the custodial parent (our client, the “mother”) child support based on constructive emancipation. Under the doctrine of constructive emancipation, New York courts have held that child support payments may be suspended where the “custodial parent unjustifiably frustrates the noncustodial parent’s right of reasonable access.” Kristen and Kathleen successfully argued that our client, the custodial parent, did not deliberately frustrate or actively interfere with the father’s relationship with his children. Therefore, the court ordered that the father continue to pay child support even though his children refused to have meaningful contact with him.

[Read in full]

Mamaroneck Coastal Environmental Coalition v. Village of Mamaroneck Board of Appeals ___ A.D. 3d __ (2d Dep’t July 26, 2017).

Lester D. Steinman

Lester D. Steinman

Municipal Law & Land Use  – Appellate Practice – Defending Land Use Board Decision 

Developing a proper record and articulating detailed findings are the keys for our Municipal Law & Land Use lawyers to successfully defending local land use board decision making, both in the lower court and in the appellate court. Here, Petitioner brought an Article 78 proceeding challenging the ZBA’s determination to grant a special permit to the Hampshire Club to conduct nonmember events on its property as arbitrary, capricious and contrary to law. Representing the ZBA, Lester D. Steinman and Anna L. Georgiou successfully argued that the ZBA’s determination was rationally based and supported by substantial evidence in the record. The Supreme Court, Westchester County, (Jamieson, J.S.C.) agreed dismissing the Article 78 proceeding. On appeal, the Supreme Court’s determination was affirmed by the Appellate Division, Second Department.

[Read in full]

Village/Town Scarsdale v. Kreuter, 144 A.D.3d 1033 (2d Dep’t 2016)

Lester D. Steinman, Daniel Pozin

Lester D. Steinman Daniel Pozin

Municipal Law & Land Use – In Rem Tax Foreclosure – Appellate Practice

Our Municipal Law & Land Use lawyers know that attention to procedural details is critical for the exercise of municipal rights. Here, the Appellant challenged the Village of Scarsdale’s in rem tax foreclosure proceedings on the basis of, among other things, inadequate notice. Representing the village, Daniel Pozin and Lester D. Steinman, as special counsel to the village, persuaded the Appellate Division, Second Department, that the Appellant’s arguments were wrong, and the Second Department dismissing the appeal and the case.

[Read in full]

Sylvan Development Corp. v. Westchester Joint Water Works, 853 N.Y.S.2d 918 (2d Dep’t 2008).

Stephen Davis

Stephen Davis

Tax Certiorari & Condemnation – Appellate Practice – Prior Negative Declarations Support Long, Hard Look

As part of their work, Tax Certiorari and Condemnation lawyers must understand environmental issues and their impact on a property’s valuation. Representing Westchester Joint Water Works (WJWW), Stephen Davis successfully upheld WJWW’s condemnation against attack from an alleged failure of WJWW to undertake adequate environmental considerations. Exercising its original jurisdiction, the Appellate Division sustained the argument that WJWW properly relied upon three prior negative declarations for the affected subdivision in discharging WJWW’s obligation to take and consider the required long, hard look at the project’s effect upon the environment.

[Read in full]

Davis v. Willinger, 31 A.D.3d 429 (2d Dep’t 2006)

Stephen Davis

Stephen Davis

Surrogate’s Court Litigation – Appellate Practice – Post Nuptial Agreement Contest – Replacing Condo Unit Triggers Ademption

Our lawyers represent clients on dispute on prenuptial and post  nuptial agreements. Here, in a declaratory judgment action involving an esoteric point of law, Stephen Davis and Joel M. Aurnou achieved an abatement of a surviving spouse’s contract with her husband to bequeath the proceeds of sale of the couple’s Miami Beach oceanfront condominium residence to her late husband’s daughter. Applying the ademption concept, the trial court – unanimously affirmed by the appellate court – ruled that the promise to bequeath pertained only to the condominium owned by the couple at the time of the promise, notwithstanding that they replaced their original condominium with another in the very same Collins Avenue condominium building.

[Read in full]

Keiser v. Todd, 290 A.D.2d 492, 736 N.Y.S.2d 255 (2d Dep’t 2005)

Robert H. Rosh

Robert H. Rosh

Appellate Practice  – Commercial LitigationReal Estate Transactions – Option to Purchase Real Estate

If a dispute as to a real estate transaction cannot be settled, lawyers need skill and experience to win a case in court. In this matter, Robert H. Rosh successfully defended our client at both the lower court and appellate levels, in an action brought by a tenant to enforce a purported option to purchase our client’s real property. Rob moved for, and obtained, an order dismissing the tenant’s complaint. In support of its dismissal, the court held that the draft option agreement between the parties did not identify the property to be conveyed with sufficient particularity to satisfy New York’s Statute of Frauds, General Obligations Law §5-703(2), and was therefore unenforceable.

Following our client’s victory, the tenant refused to vacate the premises and Rob successfully pursued on our client’s behalf a proceeding that resulted in the eviction of the tenant from the premises.

[Read in full]

Frankel v. Ford Leasing Dev. Co., 7 A.D.3d 757, 776 N.Y.S.2d 905 (2d Dep’t 2004)

Robert H. Rosh

Robert H. Rosh

Commercial Litigation – Appellate Practice – Statute of  Frauds on Real Estate Transaction

Our lawyers defend clients on unwarranted lawsuits for enforcement of alleged contracts. Here, Robert H. Rosh successfully defended an action that was brought against his client for specific performance of a contract to sell real property. Rob moved for and was awarded summary judgment dismissing the action. On appeal, the lower court’s decision was affirmed, finding that the parties never had a meeting of the minds, and that the documents which had been relied upon by the plaintiff in support of his claim had omitted essential terms of a contract; and, thus, the claim was barred under the statute of frauds. The appellate court also found that the actions taken by the plaintiff were not unequivocally referable to a contract of sale so as to constitute part performance sufficient to defeat the statute of frauds, and were merely steps taken in contemplation of a future agreement.

[Read in full]

Papadopolous v. Goldstein, Goldstein & Rikon, P.C., 283 A.D.2d 649, 725 N.Y.S.2d 364 (2d Dep’t 2001), appeal denied, 97 N.Y.2d 677

Robert H. Rosh

Robert H. Rosh

Commercial Litigation – Appellate Practice – Attorney Fee Dispute

In this case, Robert H. Rosh and Robert M. Redis successfully represented two (2) individuals at both the lower court and appellate levels in a fee dispute with their former counsel involving a condemnation proceeding. The dispute arose after the individuals discharged their former counsel and negotiated a sale of their properties on their own. The court held that the individuals had the right to settle their case on their own, and that their former counsel were only entitled to recover in quantum meruit for the legal services rendered to the individuals in connection with the condemnation proceeding.

[Read in full]

Matter of Marsh, 265 A.D.2d 253 (1st Dep’t 1999), app. denied, 95 N.Y.2d 755 (2000), app. dismissed, 95 N.Y.2d 956 (2000), cert. denied, 532 U.S. 1038, 121 S. Ct. 1999, 149 L.Ed.2d 1002 (2001)

Frank W. Streng

Frank W. Streng

Surrogate’s Court LitigationAppellate Practice – Contested Accountings

Our lawyers often represent beneficiaries in contested accountings of executors and trustees. In one such case, Frank W. Streng and Robert M. Redis succeeded at the trial court level and obtained a surcharge against a former executor in excess of $1.6 million and an award of attorneys fees against that former fiduciary in the amount of $250,000. Bob and Frank then succeeded in upholding the Surrogate’s Court’s determinations on all appeals.

[Read in full]

Hudson Communities Coalition, Inc. v. New York State Office Parks, Recreation & Historic Preservation, 251 A.D.2d 504, 673 N.Y.S.2d 595 (2d Dep’t 1998)

Robert H. Rosh

Robert H. Rosh

Commercial Litigation – Appellate Practice – Article 78 Proceeding – Nursing Home

Our lawyers represent clients in disputes over different types of real estate matters. Here, Robert H. Rosh and Robert M. Redis intervened on behalf of St. John’s Riverside Hospital and successfully defended it in the lower court in an Article 78 proceeding, and on an appeal to the Appellate Division, Second Department. In this case, a coalition sought to overturn certain administrative determinations as to the siting and design of St. John’s proposed nursing home facility in Yonkers, New York.

[Read in full]

Matter of Marsh, 236 A.D.2d 404 (2d Dep’t 1997)

Frank W. Streng

Frank W. Streng

Surrogate’s Court Litigation – Appellate Practice – Will & Trust Contests

McCarthy Fingar often represents clients in Will & Trust Contests. Frank W. Streng, as counsel to the named executor, successfully defended against objections to the filing of a Codicil to the Decedent’s Will. At trial, a jury upheld the Codicil to the Decedent’s Will and threw out objections made to such Codicil by one family member. On appeal, we persuaded the Appellate Division, Second Depatment, to uphold the trial judge’s refusal to set aside the jury verdict.

[Read in full]

Lefkowitz v. The Bank of New York as Preliminary Executor of Estate of Irene B. Marsh et al., 996 F.2d 600 (2d Cir. 1993)

Howell Bramson

Howell Bramson

Surrogate’s Court Litigation – Appellate Practice – Taxation – Spousal Consent – Challenge of Beneficiary Designation on Qualified Plan

Our lawyers often represent clients in dealing with beneficiary designations on pension and qualified plans. In one such case, Howell Bramson, Robert M. Redis and other lawyers at the firm successfully represented a surviving spouse’s estate and persuaded the lower court to invalidate a beneficiary designation on a qualified plan for the Decedent’s child (to the exclusion of the decedent’s spouse) on the grounds that the beneficiary designation violated the spousal consent rules under ERISA. The trial court’s determination was upheld, on appeal, by the Second Circuit Court of Appeals. The appeal also deal with significant legal questions, such as the applicability of ERISA to controlled foreign corporations and whether these sufficiently implicated the Interstate Commerce Clause of the United States Constitution.

[Read in full]

Matter of Marsh, 173 A.D.2d 336 (1st Dep’t 1991), app. dismissed, 78 N.Y.2d 990, mot. for lv. to appeal denied, 79 N.Y.2d 751

Frank W. Streng

Frank W. Streng

Surrogate’s Court Litigation – Appellate Practice – Fiduciary Removal – Business Issues

Our lawyers often represent beneficiaries that suffer financial injury through improper actions of executors and trustees. Here, Frank W. Streng represented a beneficiary at a trial to obtain the removal of a preliminary executor who had acted improperly in the administration of the estate. The removed fiduciary appealed, and Frank and other McCarthy Fingar lawyers, Robert M. Redis and Deborah Yurchuck McCarthy, successfully persuaded the appellate court to affirm the trial court’s decision to remove the fiduciary.

[Read in full]

Matter of Hickok, 140 Misc. 2d 650 (Surr. Ct., Orange 1989), affirmed, 158 A.D.2d 690 (2d Dep’t 1990), mot. for lv. to appeal denied, 76 N.Y.2d 712

Frank W. Streng

Frank W. Streng

Surrogate’s Court Litigation – Appellate Practice –Contested Accountings – Interpretation of Decedent’s Will

Often, there are issues on the interpretation of a Decedent’s Will that can have large effect on the Decedent’s testamentary plan.  In this case, Frank W. Streng, and other lawyers at  the firm represented children of a Decedent’s first marriage in litigation against the Decedent’s surviving spouse where the surviving spouse sought (unsuccessfully) to obtain an interpretation of her husband’s Will which would have effectively excluded the Decedent’s children as beneficiaries under the Will. The other side appealed, and the appelate court affirmed the lower court ruling.

[Read in full]

Southern Westchester Associates v. Assessor of City of Yonkers, 122 A.D.2d 212 (2d Dep’t 1986)

Stephen Davis

Stephen Davis

Tax Certiorari & Condemnation – Appellate Practice – Cooperative Apartment Conversion Valued By Imputing Rental Value

Tax Certiorari and Condemnation cases almost always involve the use of experts to establish value. Here, Stephen Davis successfully used an expert to establish rental value for apartments in a cooperative apartment buildling conversion as part of the capitalization of income process. At the taxpayer’s behest, the court applied a remedial statute designed to avoid use of sales prices for each unit, the effect of which would make the sum of the parts worth more than the whole, i.e., worth more than a neighboring similar apartment building. Instead, the rental value, rather than the so-called conversion value, was considered to be the best measure of value. Then, Steve convinced the Appellate Division to affirm the lower court ruling.

[Read in full]

Matter of McKinney, 117 Misc. 2d 173 (Surr. Ct., Westchester 1982), affirmed, 101 A.D.2d 477 (2d Dep’t 1984), mot. for lv. to appeal denied, 63 N.Y.2d 607

Frank W. Streng

Frank W. Streng

Surrogate’s Court Litigation – Appellate Practice – Taxation – Interpretation of Decedent’s Will – Allocation of Estate Taxes

Sometimes, the tax apportionment clause – an often overlooked clause in a will – has a huge impact on the actual distributions under a will. In this case, Frank W. Streng and others at the firm successfully represented a major health care institution in a contested accouting proceeding in which we challenged the executors’ interpretation of the decedent’s tax apportionment clause in her Will. The charitable beneficiary would have been deprived of hundreds of thousands of dollars of its proper share of a multi-million dollar estate had the executors’ interpretation been adopted. The lower court opinion was affirmed by the appellate court.

[Read in full]

Sear, Roebuck & Co. v. Assessor of City of White Plains, 66 A.D.2d 777 (2d Dep’t 1978)

Stephen Davis

Stephen Davis

Tax Certiorari & Condemnation – Appellate Practice – User Owned Building Valued By Rental Value, Not Cost

The valuation technique used by Tax Certiorari & Condemnation lawyers is the key to success or failure of their cases. Here, Stephen Davis successfully obtained a tax assessment reduction for property owned by the user department store permitted by capitalizing rental value. He did so through the use of expert testimony on rental values, rather than employing a cumbersome reconstruction cost methodology that would have likely resulted in a higher valuation for the client’s property. Steve then won on the appeal.

[Read in full]

Almar Realty Corp. v. Sockolof Bros., 35 A.D.2d 986 (2d Dep’t 1970), aff’d, 29 N.Y.2d 735 (1971)

Stephen Davis

Stephen Davis

Commercial Litigation – Appellate Practice – Landlord/Tenant – Tax Base Mutual Ignorance Fails To Support Reformation

Stephen Davis and Joel M. Aurnou prevailed in a reformation action by distinguishing mutual ignorance from mutual mistake of fact.  The result was their client’s warehouse tenant paying a  real estate tax escalation rental over a base of a vacant land assessment and not against a base assessment of the completed warehouse building.

[Read in full]

Ercolani v. Sam & Al Realty Co., 17 N.Y.2d 299 (1966)

Stephen Davis

Stephen Davis

Commercial Litigation – Appellate Practice – Foreclosure – Surplus Monies for General Creditors

Representing a creditor, Stephen Davis successfully persuaded the Court of Appeals to reverse a decision of the Appellate Division, Second Department. Upon reversal, the lower court was compelled to recognize the right of general creditors to intervene in opposition to a referee’s report of sale, in order to restore what should have been surplus moneys from which the creditors’ claims could then be paid.

[Read in full]
Presenter Description Organization Date
Irma K. Nimetz
Irma K. Nimetz

Ethical Issues in Trusts and Estates Practice: A Surrogate’s Court Litigator’s Perspective for NY Attorneys

myLawCLE

10/05/2023
Frank W. Streng
Frank W. Streng
Irma K. Nimetz
Irma K. Nimetz

Ethics in Estate Planning

Elder Law and Disability Committee of The New York Women’s Bar Association.

04/19/2023
Irma K. Nimetz
Irma K. Nimetz

SCPA Article 21 Discovery & Turnover – A Practical Primer

White Plains Bar Association

09/21/2022
Frank W. Streng
Frank W. Streng
Irma K. Nimetz
Irma K. Nimetz

Ethical Issues: How to Avoid Becoming a Target in Will and Trust Contests

Spring Section Meeting for the Trusts & Estates Law Section of the New York State Bar Association

05/12/2022
Irma K. Nimetz
Irma K. Nimetz

How To Contest A Will Or Trust And How To Prevent Your Family From Contesting Yours

Senior Law Day Collaborative

04/27/2022
Michael S. Kutzin
Michael S. Kutzin

Remote Notarization and Witnessing: Update on Legislation and Best Practices

Elder Law & Special Needs Section of the New York State Bar Association

07/18/2021

2021/2022 Judicial Campaign Ethics Seminar

NYS Judicial Institute

07/13/2021

Burning Topics in Commercial Cannabis and CBD Litigation

Committee on Cannabis Law of the New York State Bar Association

04/27/2021

Recusal and Disqualification Issues

New York City Civil Court Judges Association

03/05/2021

Judicial Ethics Update

New York State Unified Court System, Office of Justice Court Support

01/15/2021

Unique Ethics Issues Arising From Your Status as the Courts Closest to the People

New York State Unified Court System, Office of Justice Court Support

01/11/2021

Introduction to Judicial Ethics

NYS Judicial Institute;  Unified Court System

01/06/2021

Taking the Bench

Unified Court System

12/19/2020

Winding Down Your Law Practice

NYS Judicial Institute

11/30/2020

Taking the Bench

 

Unified Court System

10/30/2020

Judicial Ethics

Association of Judges of the NYC Civil Court

09/17/2020

“Ethics” and “Diversity Training”

Yonkers Lawyers Association

02/25/2020

Judicial Ethics Update – 2020

New York State Association of Towns

02/17/2020

Judicial Ethics

NYS Judicial InstituteUnified Court System Certification Program for Newly-elected Town and Village Justices.

01/07/2020

Assuming the Bench – Judicial Ethics

Unified Court System Certification Program for Newly-elected Town and Village Justices

12/06/2019

How Judicial Ethics Issues impact your Law Practice

Pace Law School (Elisabeth Haub School of Law)

11/26/2019

Judicial Ethics

NYS Association of Supreme Court Justices

09/18/2019

Judicial Ethics Update – 2019

NYS Magistrates’ Association

09/17/2019

Dinner Speaker

Association of Supreme Court Justices of the City of New York

09/11/2019

2019 Judicial Campaign Ethics Online Training Video

NYS Judicial Institute

05/29/2019

Judicial Ethics

New York State Unified Court System

04/13/2018

“Judicial Ethics Updates” “Ethics: Civic Participation Limitations”

New York State Judicial Institute

02/19/2018