Representative Matters
Mamaroneck Coastal Environmental Coalition v. Village of Mamaroneck Board of Appeals ___ A.D. 3d __ (2d Dep’t July 26, 2017).
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]1216 Henry Avenue LLC v. Village of Mamaroneck Planning Board (Sup. Ct,, Westchester Co. February 7, 2017)
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.
[Read in full]Mamaroneck Ices, Inc. v. Village of Mamaroneck Zoning Board of Appeals (Sup. Ct., Westchester Co.; August 9, 2016)
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.
[Read in full]Village/Town Scarsdale v. Kreuter, 144 A.D.3d 1033 (2d Dep’t 2016)
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]Matter of Tedesco (Surr. Ct., Westchester 2016) (File No. 2012-7811D)
Surrogate’s Court Litigation – Charitable Gift Annuities – Defense Against an Executor’s Claim to Decedent’s Gift
Our Surrogate’s Court Litigation lawyers sometime represent beneficiaries seeking to carry out a decedent’s intention as to gifts made to the client during the decedent’s lifetime. Here, Frank W. Streng successfully represented a client who was a successor beneficiary of a charitable gift annuity established by the decedent with Fordham University, against a claim brought against her by the executor of the decedent’s estate. The issue in the case was that the decedent, while fully competent at the time that he met with Fordham representatives and in the transfer of assets to fund the annuity, was hospitalized shortly thereafter and died in the hospital. The estate argued that the gift should be set aside because the decedent did not personally sign an annuity agreement sent to him by Fordham during his hospitalization. The Surrogate’s Court agreed with Frank and Fordham’s counsel, who sought and obtained summary judgment to dismiss the estate’s efforts to set aside the charitable gift. They argued, and the Court agreed, that the agreement to establish the gift annuity was fully enforceable well before the decedent was presented with the formal written agreement.
[Read in full]Berkson & Walisever v. Assessor of Town of Scarsdale, Westchester (SCAR Index# 3385/14)
Tax Certiorari & Condemnation – Small Claims Assessment Review (SCAR) – Reduced Assessment on Highly-Valued Property
Our Tax Certiorari & Condemnation lawyers understand that, in Westchester, highly-valued properties sometimes brings on excessive tax assessment. Here, Stephen Davis, on behalf of the owners of one of the highest valued one-family residences in Scarsdale, tried the Small Claims Assessment Review (SCAR) proceeding contesting the Assessor’s assertion of a $9,679,700 value. SCAR limits assessment reduction to 25% of the contested assessed value. Steve achieved the maximum permitted reduction, obtaining after trial a revised assessment of $7,259,775. The Court Hearing Officer rejecting the Town’s assertion of greatly added value attributed to the basketball half-court located in the basement. He did so, perhaps on the basis of Steve’s observation at trial of the court’s suitability for no more than free-throws and lay-ups.
McCrory v. Village of Mamaroneck Zoning Board of Appeals (Sup. Ct., Westchester Co. May 23, 2014)
Municipal Law & Land Use – Zoning – Res Judicata – Collateral Estoppel
Our Municipal Law & Land Use lawyers sometimes use procedural defenses in representing their municipal clients. Here, the Petitioner challenged the Village of Mamaroneck Zoning Board of Appeals’ (ZBA) denial of her appeal of the issuance of a certificate of occupancy to the same neighboring property owner. The issues raised by Petitioner had previously been raised in a prior appeal to the ZBA in which she participated. As a result Lester Steinman and Anna Georgiou, on behalf of the ZBA, successfully moved to dismiss the Article 78 proceeding on the grounds of res judicata and collateral estoppel.
[Read in full]Matter of Tedesco, Surr. Ct., Westchester (File No. 2012-781/B) (8-13-2014)
Surrogate’s Court Litigation – Trusts & Estates – Will & Trust Contests – Summary Judgment Motions
In contested will proceedings, objections to probate must be grounded in admissible evidence to avoid dismissal. Here, Frank Streng and Dina Aversano successfully defended our client in a will contest between the decedent’s niece and nephew and our client, the decedent’s long-time, but unmarried, partner of over 40 years, by moving for summary judgment to dismiss objections to probate. A motion for summary judgment is appropriate where, like in this case, there are no issues of material fact to warrant a trial by a fact-finder. What made the case particularly unusual is that the executor named in the Will did not move for summary judgment, forcing McCarthy Fingar and its client, representing a beneficiary, to seek to uphold the will through the successful summary judgment motion.
[Read in full]Matter of Goldstein, Rockland County Surrogate’s Court (September 16, 2013, File No.: 2010-481/E)
Gail M. Boggio, Yvonne St. John
Surrogate’s Court Litigation – Property Turnover – Alleged Gift by the Decedent
Often, controversies in families arise as to gifts allegedly made by a decedent during his or her lifetime. Such controversies frequently result in a property turnover proceeding in the Surrogate’s Court to deal with such alleged gifts. Here, McCarthy Fingar lawyers, Gail M. Boggio and Michelle L. Santoro, successfully opposed a summary judgment motion that sought dismissal of a property turnover proceeding brought by our client as Temporary Administrator of the decedent’s Estate and Co-Trustee of the decedent’s irrevocable trust. The turnover proceeding demanded that the Estate’s Executor/Co-Trustee, who was also an estate and trust beneficiary, turn over property belonging to the estate and trust. In addition to summary judgment, the Executor/Co-Trustee also sought to have our client’s interest in the decedent’s trust forfeited due to a claimed violation of its “no contest” clause, and to have our client personally pay the executor’s legal fees. The court denied the motion in its entirety because the Executor/Co-Trustee failed to meet her burden that she was entitled to summary judgment as a matter of law and that issues of fact exist that would preclude summary judgment. In a related matter, the court similarly denied the movant’s (the Executor/Co-Trustee) request to vacate a temporary restraining order whereby the movant is precluded from utilizing funds and encumbering property whose sources are from the purported gift, requesting that our client post an undertaking and sought to surcharge our client.
[Read in full]Representation of Wife in Successfully Imputing Income to Husband For Purposes of Calculating Child Support & Maintenance
Matrimonial & Family Law – Pendente Lite Support – Imputing Larger Income to Spouse Than Claimed Salary
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.