Representative Matters

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

In the Matter of the Application of AVC Properties LLC v. The Village of Mamaroneck Zoning Board of Appeals, et al. (Sup. Ct. Westchester, Index Nos. 59146 and 62808/2018)

James K. Landau, Lori Lee Dickson

James K. Landau Lori Lee Dickson

Municipal Law & Land Use – Article 78 Proceedings – Zoning Board of Appeals

McCarthy Fingar’s Municipal Law & Land Use lawyers are often defending decisions made by our municipal clients.  Here, James K. Landau and Lori Lee Dickson successfully obtained the dismissal of two Article 78 petitions brought by AVC Properties, a landowner and developer who sought to appeal from resolutions issued by against firm client Village of Mamaroneck Zoning Board of Appeals (the “ZBA”). The Court agreed with ZBA’s argument that challenges to its resolutions were not ripe for judicial review because the resolutions were not final and any claimed harm by the landowner may be prevented, ameliorated or rendered moot by further steps available to petitioner and further administrative action.

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Matter of Argondizza, 168 A.D.3d 426 (1st Dep’t 2019)

Michael S. Kutzin

Michael S. Kutzin

Surrogate’s Court Litigation – Property Turnover Proceedings – Transfer of Co-op Apartment – Power of Attorney

Transfers of assets using a power of attorney often lead to conflict. The question is whether the transfer by the agent under the power of attorney was in the best interests of the principal. In Matter of Argondizza, 168 A.D.3d 426 (1st Dep’t 2019), Michael S. Kutzin succeeded in having the Appellate Division uphold the Surrogate’s Court in dismissing the claim brought by two children in a property turnover proceeding against their stepfather. Here, the Surrogate’s Court rejected the argument that the stepfather breached his fiduciary duties when, as an agent under a power of attorney, he transferred a co-op he co-owned with his wife into his own name. In this case, the decedent had told her treating physician that it was her desire that the co-op be transferred into her husband’s name, the transfer was being done in order to obtain eligibility for Medicaid coverage of long term care, and the children were aware of and took part in the transfers.

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Matter of Francine Wechsler, Surr. Ct., Rockland (File No. 2013-225/G/H) (2-1-2019)

Irma K. Nimetz, Frank W. Streng

Irma K. Nimetz Frank W. Streng

Surrogate’s Court Litigation – Trusts & Estates – Will Contest – Construction Proceeding

McCarthy Fingar’s Surrogate’s Court litigators sometimes represent clients in will construction proceedings, sometimes involving the issue of ademption. In Matter of Wechsler, Frank W. Streng and Irma K. Nimetz represented a sister and brother in a will construction proceeding in Surrogate’s Court, Rockland County, against three of their siblings concerning a provision in their mother’s will with respect to two New York City taxi medallions, which their mother distributed unequally amongst her 13 surviving children and 40 grandchildren. Despite the inclusion of the taxi medallions in her will, the mother sold both taxi medallions during her lifetime. The net proceeds of the sale of the taxi medallions were held in a joint bank account in the name of the mother and one of her daughters. Frank and Irma successfully argued that the lifetime sale of the taxi medallions caused an ademption of the mother’s specific bequest of the taxi medallions. Ademption occurs when a specific bequest, here, the taxi medallions, does not exist at the time of the testator’s death because it was sold, lost or destroyed. Because the mother’s will did not address the possibility of a sale of the taxi medallions before she died, Frank and Irma argued that the bequest of the taxi medallions adeemed, and the proceeds of the sale should be distributed in equal shares to the mother’s children under the residuary clause of her will. The Surrogate’s Court ruled that Frank and Irma, on  behalf of their clients, established that the law of ademption applied, and granted summary judgment in favor of the firm’s clients ruling that the bequest of the taxi medallions adeemed. The court also rejected the argument that one of McCarthy Fingar’s clients exercised undue influence to cause the sale of the medallions prior to the decedent’s death.

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Probate Proceeding, Will of Francesca Morris, Surr. Ct., Dutchess (File No. 2019-240) (10-28-19)

Irma K. Nimetz, Frank W. Streng

Irma K. Nimetz Frank W. Streng

Surrogate’s Court Litigation – Trusts & Estates – Will Contest – Will Not Signed at End

McCarthy Fingar’s lawyers represent clients in all types of will contests, including cases in which a will not signed at the end was offered for probate. In Matter of Francesca Morris, two of our Surrogate’s Court litigators, Frank W. Streng and Irma K. Nimetz, represented a deceased father’s three adult children, who challenged a propounded instrument purporting to be the last will & testament of Francesca Morris, their grandmother. Francesca Morris had two children, a son who predeceased his mother and was survived by our clients, and a daughter, the aunt of our clients. The aunt filed an amended probate petition seeking to probate a propounded instrument pursuant to which the decedent/her mother bequeathed her entire estate to her daughter. Under a prior will, the decedent bequeathed her estate equally between her daughter and her son. Frank and Irma made a motion to dismiss the amended probate petition on the grounds that the propounded instrument was not executed in accordance with the strict statutory formalities required by the law, specifically New York’s Estates, Powers and Trusts Law (“EPTL”) § 3-2.1(a)(1). Frank and Irma argued that the testator, Francesca Morris, never signed the purported will “at the end of thereof” as required by law. Instead, at the will execution, which was not supervised by an attorney, a notary public signed the purported will where the testator was supposed to sign. As Frank and Irma asserted in their motion to dismiss, the testator only placed her initials on a self proving affidavit, which is not an integral part of the propounded instrument. The Court agreed with Frank and Irma, and denied probate. The Court ruled that the decedent’s initials, appearing solely on the self proving affidavit, did not constitute a signature “at the end” of the propounded instrument and failed to satisfy the statutory requirements of EPTL § 3-2.1 as a matter of law. The Court granted Frank and Irma’s motion to dismiss the amended probate petition pursuant to CPLR Rule 3211 (a) (1) and (7).

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Probate Proceeding, Will of Elinor Haight, Surr. Ct., Westchester (File No. 2019-148/C) (2-28-19)

Irma K. Nimetz, Frank W. Streng

Irma K. Nimetz Frank W. Streng

Surrogate’s Court Litigation – Trusts & Estates – Will Contests – Award of Preliminary Letters Testamentary

As part of our firm’s representation of clients in will contests, battles sometimes take place on applications for preliminary letters testamentary at the inception of the probate proceeding, that determines who shall administer the estate during the will contest. In Matter of Elinor J. Haight, Frank W. Streng and Irma K. Nimetz represented the sole nominated executor under her deceased mother’s codicil, dated March 10, 2015, and will, dated February 13, 2002. Both the codicil and the will were drafted by attorneys, who supervised the execution of the instruments. Our client’s mother named her daughter, as the sole executor in her 2015 codicil. In her earlier will, the mother nominated her daughter and her two sons, our client’s brothers, as co-executors. Frank and Irma filed an application for preliminary letters testamentary on behalf of their client in a contested probate proceeding. The two brothers opposed our client’s application for preliminary letters and asked the Court to deny our client’s application entirely, or to appoint one or both of them to serve as co-preliminary executor(s) arguing, among other things, that the codicil was procured by undue influence, duress and fraud. Frank and Irma argued that the Court should issue preliminary letters to their client pursuant to the well settled law under SCPA § 1412(2)(a), and reject the brothers’ unsubstantiated and conclusory allegations. Frank and Irma pointed out that by awarding preliminary letters to their client, the sole nominated executor, the Court would be honoring the testator’s preference in choosing the fiduciary and would enable the estate to be immediately administered since there may be a delay in probate. The Court agreed and awarded preliminary letters testamentary to the sole nominated executor, the firm’s client.

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Krowe v. Todd, AAA Case No. 01-18-0000-4009

James K. Landau, Irma K. Nimetz

James K. Landau Irma K. Nimetz

Commercial Litigation – Arbitration/Mediation

Our Commercial Litigation lawyers represent clients in arbitration before the American Arbitration Association. James K. Landau  and Irma K. Nimetz successfully represented a business owner in a dispute with the other member of a closely held limited liability company. Here, our client commenced an arbitration through the American Arbitration Association seeking damages on theories of breach of contract, breach of fiduciary duty, breach of the covenant of good faith and fair dealing and seeking an accounting and the imposition of a constructive trust based on certain alleged unauthorized use of company funds by the respondent. After the respondent interposed counterclaims and moved for summary judgment, a settlement favorable to our client was obtained in mediation.

Probate Proceedings – Complicated Uncontested Will

Michael S. Kutzin

Michael S. Kutzin

Trusts & Estates– Probate Proceedings – Complicated Uncontested Will

Not all probate proceedings are created equal. In 2018, after taking over from prior counsel, Michael S. Kutzin succeeded in having a will admitted to probate that clerks in the New York County Surrogate’s Court referred to as one of the most complex uncontested matters that they had seen. In that case, the decedent, who was unmarried and had no children, had filed a prior will in the court which had a series of unusual provisions, including a trust for the benefit of first cousins once removed living in Ireland and England. She also had a large extended family in the United States and abroad. To complicate matters further, numerous beneficiaries and interested parties died after the decedent did but before the will was admitted to probate, making the probate particularly difficult. Nevertheless, through hard work and determination, Michael succeeded in having the will admitted to probate.

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.

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1216 Henry Avenue LLC v. Village of Mamaroneck Planning Board (Sup. Ct,, Westchester Co. February 7, 2017)

Lester D. Steinman

Lester D. Steinman

Municipal Law & Land Use – SEQRA – Conditioned Negative Declaration 

Knowledge of the intricacies of the New York State Environmental Quality Review Act (“SEQRA”) is a vital asset of our Municipal Law & Land Use in defending local government land use board decisions against environmental challenges. Here, Petitioner filed an Article 78 proceeding challenging certain aspects of a Conditioned Negative Declaration (“CND”) adopted by the Planning Board under SEQRA in connection with its review of a three lot subdivision application.  Representing the Planning Board, Lester D. Steinman moved to dismiss the litigation on the grounds that, in the absence of a determination on the merits of the underlying subdivision application, the challenge to the CND was premature. The Supreme Court, (Minihan, A.J.S.C.), agreed and dismissed the proceeding.

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Mamaroneck Ices, Inc. v. Village of Mamaroneck Zoning Board of Appeals (Sup. Ct., Westchester Co.; August 9, 2016)

Lester D. Steinman

Lester D. Steinman

Municipal Law & Land Use – Injunctive Relief – Zoning Board of Appeals

Our Municipal Law & Land Use lawyers sometimes oppose injunctive relief applications by private entities who seek to stay the effectiveness of determinations by land use boards. To prevail in such litigation, familiarity with the prerequisites for injunctive relief – irreparable harm, likelihood of success on the merits and the balancing of the equities – is imperative. Here, the Petitioner sought to enjoin the effectiveness of a ZBA resolution which revoked the Petitioner’s certificate of occupancy to operate an ice cream store but stayed that revocation pending Petitioner obtaining special permit and site plan approval and otherwise reducing the hours of operation pending the receipt of those approvals. Representing the ZBA, Lester D. Steinman persuaded the Court to deny the injunctive relief on the grounds of Petitioner’s failure to show irreparable harm and a balance of the equities in its favor.

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