Representative Matters

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

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.

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Tax Certiorari – Settlements Made During Trial

Stephen Davis

Stephen Davis

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.

Matter of Elias Schwartz (Sur. Ct., Westchester Co. 10-25-2022 – File No. 2020-3053/E)

Frank W. Streng, Irma K. Nimetz

Frank W. Streng Irma K. Nimetz

Surrogate’s Court Litigation – Gifting through a Power of Attorney of Form – Property Turnover Proceeding

McCarthy Fingar’s lawyers sometimes represent clients in cases, in which, prior to death, there are questions as to whether a valid gift was made by a decedent/decedent’s agent pursuant to an alleged power of attorney prior to decedent’s death. Here, two of our Surrogate’s Court litigators, Frank W. Streng and Irma K. Nimetz, won partial summary judgment and persuaded the Westchester Surrogate’s Court to nullify a gift allegedly made by the decedent’s agent of the decedent’s house pursuant to an invalid power of attorney. In Schwartz, our client’s brother asserted that a trust, in which he was an alleged beneficiary, owned the decedent’s house, and that he was entitled to keep the proceeds of sale of the house that he sold during his father’s lifetime. However, the father did not sign the deed in which the house was transferred to the trust, and the brother had transferred the house through a durable power of attorney form. But, as Frank and Irma pointed out to the Surrogate’s Court, the power of attorney form was flawed: the portion of the form setting forth powers of the agent was not initialed and there was no statutory gift rider, the portion of the form necessary to allow a gift by an agent. As a result, the Surrogate’s Court held that there was no valid gift, and directed that the brother transfer the sum of $685,698.41 to our client as limited administrator of her father’s estate.

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Ellis v. Byrne et al. (Sup. Ct., Westchester Co.; 11/21/2022; Index No. 64659/2021)

Irma K. Nimetz, Frank W. Streng

Irma K. Nimetz Frank W. Streng

Surrogate’s Court Litigation – Change of Beneficiary Designation – Digital Discovery

McCarthy Fingar’s lawyers know that, to win a case, getting facts and documents through pretrial discovery is essential. Here, 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 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. Defendants do not argue otherwise. Thus, Plaintiff has met its burden to establish spoliation.” The Court then directed a turnover to McCarthy Fingar’s lawyers of the defendants’ iphones for forensic examination “along with any information necessary to access all of the images, data, and information in the iPhones.” The Court also directed defendants to answer interrogatories as to their iphones.

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Matter of Fischer (Sur. Ct., Rockland Co., 12-5-2022; File No. 2020-587/C)

Frank W. Streng, Ryan J. McLeod

Frank W. Streng Ryan J. McLeod

Surrogate’s Court Litigation – Prenuptial Agreements – Spousal Rights

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 or Trust Agreement. The idea is that client wants to give assets to his or her children from a first marriage. Here, two of our Trusts and Estates litigators, Frank W. Streng and Ryan J. McLeod, represented the executor of an 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 of the surviving spouse, 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 principle that, In the absence of proof of fraud, a prenuptial agreement will be upheld. The Court noted that the surviving spouse did not prove either fraud or overreaching.

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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 . . . “

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Matter of Burrows, File No. 2014-171 (Surr. Ct., Herkimer County) (5-28-2020)

Robert H. Rosh, Howell Bramson

Robert H. Rosh Howell Bramson

Surrogate’s Court Litigation – Trusts & Estates – Will and Trust Contests – Summary Judgment Motions

McCarthy Fingar’s Surrogate’s Court Litigation lawyers represent clients in Will and Trust Contests. In Matter of Burrows, Robert H. Rosh and Howell Bramson represented the decedent’s surviving spouse and the decedent’s financial advisor, as preliminary executors of the decedent’s estate and trustees of a revocable trust, in a will contest and a parallel proceeding that was brought by the decedent’s minor children from a prior marriage (through the children’s court appointed guardian ad litem and natural guardian), to set aside a revocable trust. The decedent’s children, through their guardians, argued that the decedent’s surviving spouse exerted undue influence upon decedent in connection with the making and execution of the decedent’s will and revocable trust, and that the decedent lacked the capacity to execute the disputed instruments. Through their guardians, the children moved for summary judgment, and Robert, on behalf of the proponents of the decedent’s will and trustees of the trust, cross-moved for summary judgment. On that cross-motion, Robert demonstrated, through voluminous documentary and testimonial evidence, that the decedent was cognitively alert, oriented, and otherwise fit and able to execute the disputed instruments, and that the instruments were not the product of undue influence or duress. The evidence included the following: deposition testimony of: (a) the decedent’s financial advisor; (b), the decedent’s personal chef; (c) the decedent’s lawyer; (d) the decedent’s accountant; and (e) the decedent’s heath care providers, including the decedent’s treating physician and nurse, Robert also showed that the decedent’s Will was consistent with the decedent’s testamentary plan (as shown by multiple prior wills that had been made by the decedent), and that the objectant-children had no basis to complain, having been made beneficiaries under a prior trust that had been established by the decedent, having a value of approximately $30,000,000. The decedent’s will was consequently admitted to probate, and the revocable trust was found to be valid and enforceable in all respects.

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

James K. Landau, Frank W. Streng

James K. Landau 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.” 

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AAA Carting and Rubbish Removal, Inc. v. Village of Pelham, ___ Misc. 3d ___ (Sup. Ct., Westchester 2020)

Clinton B. Smith, James K. Landau, Lester D. Steinman

Clinton B. Smith James K. Landau Lester D. Steinman

Municipal Law & Land Use – Article 78 Proceedings – Unsuccessful Bidders

McCarthy Fingar’s municipal attorneys often defend their municipal clients against Article 78 proceedings brought by private individuals and companies. Article 78 of the Civil Practice Law and Rules is frequently used to challenge decisions made by municipalities when a private party feels aggrieved by a decision made by a governmental entity. Here, James K. Landau, Clinton Smith and Lester Steinman obtained the dismissal of just such a proceeding against the Village of Pelham, commenced by an unsuccessful bidder for a garbage hauling contract who was found by the Village not to be a responsible bidder under the General Municipal Law. In dismissing the petition, the Supreme Court, Westchester County, determined that the Village had demonstrated 7 different ways that it rationally determined the unsuccessful bidder to not be responsible.

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