BROOKLYN BARRISTERT H E O F F I C I A L P U B L I C A T I O N O F T H E B R O O K L Y N B A R A S S O C I A T I O N

©2013 Brooklyn Bar Association July 2013 VOL. 65 NO.10

On June 12, 2013, at the Brooklyn BoroughHall Ceremonial Courtroom, Andrew M. Fallekwas inducted as the Brooklyn Bar Association’snew President. Also inducted were newly elect-ed Trustees and Officers.

While many of the speakers remarked aboutPresident Fallek’s legal skills, integrity, characterand humility, and clearly were proud and hon-

ored to have him as out next President, no otherperson in the room must have felt more pride inthe moment than Andrew’s father, Joseph Fallek,a well known and accomplished trial lawyer anda well respected attorney in the Brooklyn legalcommunity. The practice of law runs deep in theFallek family. Also in attendance was Andrew’sbrother and law partner Larry Fallek. PresidentFallek spoke fondly of his father saying, “My fa-ther set standards for performance as a lawyerand as a human being that my brother Larry and

I follow every single day.” Also in attendancewere President Fallek’s mother, his wife of 30years, Lainey Fallek and their three children,Cooper, Michael and Brooke.

But, the evening was not just about family. Alarge contingent of the Brooklyn Judiciary turnedout for the event as well as bar association presi-dents from neighboring counties and esteemedmembers of the Brooklyn legal community. TheHonorable Marty Markowitz, Brooklyn Bor-ough President, presented a Proclamation to An-

drew Fallek and declared the day, “Andrew M.Fallek Induction As President Day.” He also pre-sented President Fallek with a Brooklyn Nets T-shirt and cap. Borough President Markowitz hadkind words for Immediate Past PresidentDomenick Napoletano and for incoming SecondVice President Hon. Frank R. Seddio, the Chair-man of the Kings County Democratic Party.About Judge Frank Seddio, he remarked that heis “inclusive” rather than “exclusive” and as suchthe Party should get stronger under him.

Steven Cohn filled in admirably for Hon.Barry Kamins who usually introduces the mem-bers of the judiciary, bar leaders and elected offi-

Induction of Andrew M. Fallek as BBA PresidentCompiled by Hon. Glenn Verchick, Esq. .............Pg. 1

The DocketCompiled by Louise Feldman ............................Pg. 2

New Members, June 2013 .............................Pg. 2

Legal BriefsBy Avery Eli Okin, Esq., CAE ................................Pg. 2

Respectfully SubmittedBy Andrew M. Fallek, Esq. ....................................Pg. 3

The State of EstatesBy Hon. Bruce M. Balter andPaul S. Forster, Esq. ...............................................Pg. 4

“Dilema”: Winner of the 2013 BBAFiction Writing ContestBy Sheldon Siporin, Esq. ........................................Pg. 5

Annual Meeting of the Brooklyn Bar Association Photos............Pg. 6-7

The Tort Report: Second Department UpdatesBy Shana DeCaro, Esq...........................................Pg. 9

What’s Inside

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INDUCTION PARTICIPANTS: Installing officer Hon. Barry Kamins, immediate-past-president Domenick Napoletano, Hon. Ellen Spodek, Andrew M.Fallek, and past presidents Steven D. Cohn and John Lonuzzi.

Induction Of Andrew M. Fallek As BBA PresidentBy: Glenn Verchick, Esq.

Hon. Barry Kamins administering the oath of office to Andrew M. Fallek, Esq.

Hon. Barry Kamins administering the oath of office to Andrew M. Fallek, Esq.

Page 2, BROOKLYN BARRISTER JULY, 2013

THE DOCKET

IFYOU HAVE ITEMS FOR INCLUSION IN THE DOCKET, PLEASE MAILOR FAXOR EMAILTHEM TO LOUISE FELDMAN, BROOKLYN BAR ASSOCIATION,

123 REMSEN STREET, BROOKLYN, NEWYORK 11201. FAX NO.: 718-797-1713 • E-mail: lfeldman@brooklynbar.org

BROOKLYN BAR ASSOCIATION 2012-2013Andrew M. Fallek, PresidentRebecca Woodland, President-ElectArthur L. Aidala, First Vice-President

Hon. Frank R. Seddio, Second Vice PresidentAimee L. Richter, SecretaryDavid M. Chidekel, Treasurer

Avery Eli Okin, Esq., CAE: Executive Director

CLASS OF 2014Theresa CiccottoJoseph R. CostelloPamela ElisofonFern FinkelDewey GolkinDino MastropietroSteven H. Richman

CLASS OF 2015Frank V. CaroneFidel F. Del ValleLara GenovesiRichard S. GoldbergJaime LathropAnthony W. Vaughn, Jr.Glenn Verchick

CLASS OF 2016Elaine N. AveryAemena D. GayleDavid J. HernandezRichard KlassAnthony J. LambertDeborah LashleyJoseph S.Rosato

Roger Bennet AdlerVivian H. AgressAndrea E. BoninaRoss M. BrancaRose Ann C. BrandaGregory T. CerchioneMaurice ChaytSteven D. CohnHon. Miriam CyrulnikLawrence F. DiGiovanna

David J. Doyaga, Sr.Joseph H. FarrellAndrew S. FisherEthan B. GerberDominic GordanoPaul A. GolinskiGregory X. HesterbergHon. Barry KaminsMarshall G. KaplanAllen Lashley

Mark A. LongoDomenick NapoletanoJohn. E. MurphyJohn LonuzziManuel A. RomeroHon. Harold RosenbaumBarton L. SlavinHon. Jeffrey S. SunshineHon. Nancy T. SunshineDiana J. Szochet

TRUSTEES COUNCIL (Past Presidents)

TRUSTEES

NEW MEMBERSMONTH JUNE 2013

MARYE DEANLISSETT FERREIRA

MICHELLE DESOUZA -FORTE

SAMSON FREUNDLICH

CARRIE GOLDBERGRORY GREEBELJILL MANDELL

ANDREW MANOFFLAURA S. OUTEDA

TRAZANA PINNOCKELENA POPOVA

ANDREW SMILEYARNOLD STREAMKATYA SVERDLOV

MARTHA TABACHNIKOVAASHLEY VAN HOFF

STEPHENIE YEHRODNEY ZERBE

STUDENT MEMBERSMARK HANNA

ILANA HOCHMANKATELYN KRUEGER

ANDREW KUMMERMOHAMED MEWAFY

JANNINE RAMLOCHAN

ELIZABETH SANDERCOCKJAMES STEVEN VILLAMAR

LEGAL BRIEFSJUDICIAL RECOGNITION

Congratulations to Brooklyn Bar Association memberHon. Ellen Spodek who has been selected for 2013-2014 asthe President of the Nathan B. Sobel Inns of Court. In addi-tion, on June 13, 2013 Hon. Ellen Spodek was installed asthe Corresponding Secretary of the Brooklyn Women’s BarAssociation.

Congratulations to Appellate Division, Second Depart-ment Justice Hon. Sylvia O. Hinds-Radix, the immediatePast President of the Brooklyn Women’s Bar Associationwho was installed on June 13, 2013 as a Director for a oneyear term.

Congratulations to former Brooklyn Bar AssociationAnnual Award recipient Hon. Marsha Steinhardt who wasinstalled on June 13, 2013 as the President-Elect of theBrooklyn Women’s Bar Association.

Congratulations to Hon. Arthur Schack, a former chairof the BBA Court Facilities Committee, who was selected asthe Counselor of the Nathan B. Sobel Inns of Court.

Congratulations to Brooklyn Bar Association Past Pres-ident Hon. Miriam Cyrulnik, who has been selected at theTreasurer of the Nathan B. Sobel Inns of Court for 2013-2014.

Congratulations to former Brooklyn Bar AssociationAnnual Award recipient Hon. Sylvia G. Ash who has beenselected as a Director of the Brooklyn Women’s Bar Associ-ation for 2013-2014.

Congratulations to Brooklyn Bar Association memberHon. Joanne Quinones who was installed as a delegatefrom the BWBA to the Women’s Bar Association of theState of New York.

KUDOS AND PROFESSIONALRECOGNITION

Brooklyn Bar Association Treasurer David M.Chidekel has been selected as the President-Elect of theNathan B. Sobel Inns of Court.

Former Brooklyn Bar Association trustee John Besun-der has been selected as the Secretary of the Nathan B. SobelInns of Court for 2013-2014.

Congratulations to Brooklyn Bar Association memberHelene Blank who was installed as a Vice President of theBrooklyn Women’s Bar Association on June 13, 2013.

Brooklyn Bar Association Trustees Elaine N. Averyand Theresa Ciccotto were installed as delegates from theBWBA to the Women’s Bar Association of the State of NewYork.

Congratulations to the following Brooklyn Bar Associ-ation members who were installed on June 13, 2013 as mem-bers of the Board of Directors of the Brooklyn Women’s BarAssociation: Carrie Anne Cavallo, Joanne Minsky Cohen,Jeannie Costello, Sara J. Gozo, Barbara H. Grcevic, LisaSchreibersdorf and Joy A. Thompson.

Congratulations to Brooklyn Bar Association memberAndrea F. Composto who was installed as a Vice Presidentof the Women’s Bar Association of the State of New York atthe Annual Convention held June 7-9, 2013 at the RadissonPlaza Warwick Hotel in Philadelphia, Pennsylvania.

Congratulations to Brooklyn Bar Association TrusteeJoseph R. Costello who has been appointed by AmericanBar Association President James R. Silkenat, as a memberof the Standing Committee on Lawyer Referral and Infor-mation Service for a three-year term. For the past severalyears Joseph R. Costello has served as the chair of theBrooklyn Bar Association Lawyer Referral Service.

Congratulations to Brooklyn Bar Association Immedi-ate Past President Domenick Napoletano who has beenappointed by the American Bar Association President JamesR. Silkenat as a member of the Gun Violence AdvisoryCommittee for a one-year term commencing in August.

Congratulations to Brooklyn Bar Association memberGregory M. LaSpina who is being honored by the Ameri-can Kidney Fund at their 8th Annual New York Golf Classicon Monday, August 5, 2013 at The Hamlet Golf and Coun-try Club in Commack, New York. For further informationor to register contact Maggie Eng-Salvaggio at 800-638-8299 ext. 8532 or email: MEng-Salvaggio@kidneyfund.org.

COURT NOTESWord has reached the Brooklyn Bar Association from

Hon. Richard E. Sise, Presiding Judge of the Court ofClaims of the State of New York that effective June 17, 013that:

“Pursuant to Section 206.5-aa(c) of the Uniform Rulesof the Court of Claims (22 NYCRR Section 205.5-aa(c)),and upon request of the Attorney General dated May 3,2013, the court hereby designates the following claims assubject to Electronic Filing in accordance with the provi-sions of Section 206.5-aa(c) of the Uniform Rules of theCourt of Claims and Section 202.5-b of the Rules of theChief Administrator of the Courts:

“Claims for personal injury or property damage accru-ing in the New York District of the Court of Claims (Section206.4(a); to wit, Bronx, Kings, Nassau, New York, Queens,Richmond and Suffolk counties).”

BEREAVEMENTSThe Brooklyn Bar Association extends its deepest sym-

pathy to the Casale Family on the passing of Donald D.Casale on June 28, 2013.

The Brooklyn Bar Association extends its deepest sym-pathy to Hon. Frank Seddio and Joyce Seddio on the passingof her mother Marsha Becker on July 2, 2013.Legal Briefs is compiled and written by Avery Eli Okin, Esq.,CAE the Executive Director of the Brooklyn Bar Association andits Foundation. Items for inclusion in “Legal Briefs” should besend to aokin@brooklynbar.org, faxed to 718-797-1713 ormailed to 123 Remsen Street, Brooklyn, NY 11201-4212.

Included below are events which have been scheduled for the period July 18, 2013 through December 31, 2013

Compiled by Louise FeldmanJuly 18, 2013 Thursday Brooklyn Bar Association outing to Brooklyn Cyclones Home game

MCU Park, Coney Island, 7:00 PM

September 2, 2013 Monday In observance of Labor Day, the Brooklyn Bar Association Building, the Foundation Law Library, the Lawyer Referral Service and the Volunteer Lawyers Project will be closed.

September 9, 2013 Monday CLE Liens in Conjunction with NYS Academy of Trial LawyersAuditorium, 6:00 PM

September 10, 2013 Tuesday BWBA Board MeetingBoard of Trustees Room, 5:30 PM

September 11, 2013 Wednesday BBA Board & Foundation MeetingsBoard of Trustees Room, 5:15 PM

September 12, 2013 Thursday CLE Bankruptcy Part IAuditorium, 6:00 PM

September 17, 2013 Tuesday VLP Board MeetingBoard of Trustees Room, 5:30 PM

Kings Country Criminal Bar Association – MeetingAuditorium, 6:00 PM

September 19, 2013 Thursday CLE Bankruptcy Part IIAuditorium6:00 PM

September 24, 2013 Tuesday Nathan R. Sobel Inns of Court meetingAuditorium, 5:00 PM

September 26, 2013 Thursday CLE Bankruptcy Part IIIAuditorium, 6:00 PM

October 6, 2013 Sunday VLP – Liz Padilla RaceProspect Park, 10:00 AM

October 9, 2013 Wednesday BBA Board & Foundation MeetingsBoard of Trustees Room, 5:15 PM

October 14, 2013 Monday In observance of Columbus Day, the Brooklyn Bar AssociationBuilding, the Foundation Law Library, the Lawyer Referral Service and the Volunteer Lawyers Project will be closed.

October 15, 2013 Tuesday BWBA Board MeetingBoard of Trustees Room, 5:30 PM

October 17, 2013 Thursday Kings County Criminal Bar Association – MeetingAuditorium, 6:00 PM

October 21, 2013 Monday Volunteer Lawyers Project Gala DinnerSteinway Studios, 6:00 PM

October 22, 2013 Tuesday Nathan R. Sobel Inns of Court meetingAuditorium, 5:00 PM

November 4, 2013 Monday CLE – Elder Law ProgramAuditorium, 6:00 PM

November 11, 2013 Monday In observance of Veteran’s Day, the Brooklyn Bar Association Building, the Foundation Law Library, the Lawyer Referral Service and the Volunteer Lawyers Project will be closed.

November 13, 2013 Wednesday BBA Board & Foundation Board MeetingsBoard of Trustees Room, 5:15 PM

November 14, 2013 Thursday CLE – Lawyers Helping Lawyers ProgramAuditorium, 6:00 PM

November 19, 2013 Tuesday BWBA Board MeetingRear Conference Room, 5:30 PM

November 21, 2013 Thursday Kings County Criminal Bar Association meetingAuditorium, 6:00 PM

November 26, 2013 Tuesday Nathan R. Sobel Inns of Court meetingAuditorium, 5:00 PM

November 28 & 29 Thurs & Fri In observance of Thanksgiving, the Brooklyn Bar Association Building, the Foundation Law Library, the Lawyer Referral Service and the Volunteer Lawyers Project will be closed.

December 9, 2013 Monday BBA Foundation Annual DinnerMarriott Hotel at the Brooklyn Bridge, 6:00 PM

December 17, 2013 Tuesday BWBA Board MeetingBoard of Trustees Room, 5:30 PM

December 19, 2013 Thursday Kings County Criminal Bar Association meetingAuditorium, 6:00 PM

December 25, 2013 Wednesday In observance of Christmas Day, the Brooklyn Bar AssociationBuilding, the Foundation Law Library, the Lawyer Referral Service and the Volunteer Lawyers Project will be closed.

JULY, 2013 BROOKLYN BARRISTER, Page 3

Brooklyn Barrister is published by Everything Brooklyn Media, LLC, under the auspices of the Brooklyn Bar Association. For advertising information call (718) 422-7410. Mailing address 16 Court Street, Suite 1208, Brooklyn, New York 11241.Vol. 65 No. 10 July, 2013. The Brooklyn Barrister (ISSN 007-232 USPS 066880) is published monthly except in August and December by the Brooklyn Bar Association. Office of publication is: Brooklyn Bar Association, 123 Remsen Street, Brook-lyn, New York 11201-4212. Telephone No. (718) 624-0675. Periodical postage is paid in Brooklyn, New York and at additional mailing offices. Subscription price is $11.00 per year. POSTMASTER: Send address changes to the Brooklyn Barrister,123 Remsen Street, Brooklyn, NY 11201-4212.

BROOKLYN BARRISTER EDITORIAL BOARDGlenn VerchickEditor-in-Chief

Diana J. SzochetManaging Editor

Aimee L. RichterArticles Editor

Cecilia N. AnekweHon. Bruce M. BalterJaime J. BorerMark DiamondJason EldridgePaul S. ForsterJason D. Friedman

Anthony LambertiHemalee J. PatelRobert P. SantoriellaMichael TreybichAlexis VigilanteShelly WerbelGregory Zenon

One of the benefits of being the Presi-dent of this Association is traveling toCooperstown, New York to attend theNYSBA meeting as a member of the Houseof Delegates. Attending the meeting inJune brought back memories of my lastvisit to Cooperstown, about thirty years ear-lier. I was a new lawyer then and my em-ployer sent me -- alone -- to a hearing up inCooperstown. As I recall, a union client hadattempted to organize a tiny struggling up-state machine shop that made one or twoparts for some major companies and theowner had unwisely told his employees thathe couldn’t afford to pay any more andwould have to close his business if theyvoted for a union. By telling them what hethought was the truth, the owner had unwit-tingly violated the National Labor Relations

Act. Counsel from the NLRB would behandling the unfair labor practice caseagainst the employer. My job was basicallyto provide a show of support for the em-ployees who might come to the hearing.

The day before the hearing I flew up tonearby Utica on a relatively small plane.When I exited the craft along with a dozenor so other passengers, it was raining. I wasimmediately met by a union representativewhom I did not know but who greeted meby name. “How did you know it was me?”I asked. “You were the only one using anumbrella,” he answered, “I knew you werefrom the City.” I was too inexperienced tojust let the matter drop, so I asked a follow-up question, “You don’t use umbrellas uphere?” “No,” he said. Still undeterred, Iasked, “What do you do when it rains?”“We get wet,” he responded.

The next morning this same gentlemandrove me to Cooperstown and as we neared

the main street I realized that I didn’t knowthe address where the hearing was to beheld. I wasn’t worried because it was asmall town and I had assumed it would beat some impressive granite sided federalbuilding. We cruised down the main draglooking for an appropriately grand structurebut we couldn’t find one. That’s when I re-membered hearing that before there werefederal courthouses, trials were often heldat the one federal building that every townhad, the U.S. Post Office. We found the PostOffice and inquired with the clerk therewhether they had a courtroom in the build-ing. He said “no,” but suggested we checkthe mail room.

We pushed open two large swingingdoors and entered a comparative large roomwith mailbags sitting along with walls as ifsomeone had moved them to the perimeterto make extra room. A man in shirtsleeves

R E S P E C T F U L L Y S U B M I T T E D

President Andrew M. Fallek, Esq.

By Andrew Fallek, Esq.

PRESIDENT’S MESSAGE

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cials in attendance. Past President Cohn did thehonors because Judge Kamins was handling theevening’s induction of Trustees and Officers andmaking remarks attendant to President Fallek’sinduction.

Hon. Ellen Spodek, Supreme Court, KingsCounty, was among those delivering remarks.Justice Spodek recalled picking a jury with An-drew’s father years ago in the Civil Court and at-tending a deposition with his brother, Larry Fall-ek. She met and worked closely with PresidentFallek through the Nathan R. Sobel - KingsCounty American Inn of Court. She found himto have the patience and intelligence to excel asthe President of the BBA. She also praised hiswork with the Judiciary Committee which shefound to be fair and balanced. Other speakershad high compliments for President Fallek’swork on the BBA’s Judiciary Committee. JudgeKamins said President Fallek questioned judi-cial candidates with the skill of a surgeon whileremaining tactful and diplomatic. Judge Kaminssaid that Andrew Fallek asks the questions thateveryone in the room knows have to be asked,but hope that someone else will do it.

Past President John Lonuzzi, a longtimefriend of Andrew Fallek, said that PresidentFallek was one of the brightest individuals heever met, but noted that he was humble abouthis abilities and intellect. He said Andrew was awealth of information and that he exudes char-acter and is the definition of integrity. Hepraised President Fallek’s work on the JudiciaryCommittee and his ten years at the helm of theBrooklyn Barrister as Editor-in-Chief. PastPresident Lonuzzi’s final comment summed uphis feelings for our incoming President quitewell, “I’ve been proud to call you my friend forso many years and now I’m proud to call youmy President.”

Judge Kamins also handled the responsibili-ty of inducting the Trustees Class of 2016 whoare Elaine N. Avery, Armena D. Gayle, David J.

Hernandez, Richard Klass, Anthony J. Lamber-ti, Deborah Lashley and Joseph S. Rosato. Thefollowing Officers were also inducted: RebeccaWoodland, President-Elect; Arthur L. Aidala,First Vice President; Hon. Frank R. Seddio, Sec-ond Vice President; Aimee L. Richter, Secretaryand David M. Chidekel, Treasurer.

Andrew M. Fallek delivered the closing re-marks. His speech was sprinkled with culturalreferences, quotes from Shakespeare and asmooth delivery that reflected the intelligencethat John Lonuzzi referred to earlier in theevening. He commented on the growing trendfor the press and people to consider Brooklyn asa “hip” borough and a place marked by style andtrendiness. He noted that with this new foundrecognition will come increased legal work - es-tate work, real estate closings and matrimonialwork. President Fallek also poignantly observedthat we must ensure that those who turn to ourcourts and judges here in Brooklyn are met by ajudiciary with the time and resources to fully ad-judicate cases and not be forced to turn to the pri-vate sector where important litigation is truncatedinto a 2-3 hour mediation. He cautioned againstthe “temptation to commoditize of cases.”

President Fallek left those assembled with asuccinct summary of his goals for the comingyear, “I don’t believe in re-inventing the wheel,but I do believe in checking the tires now andthen. I will be taking a closer look at how we dobusiness at the association with an eye towardsmaking improvements where needed and fresh-ening up the way we do things.” This maysound to some like less than lofty goals for ournew President, but to those who have workedwith and know Andrew M. Fallek, it is a state-ment that reflects his humility and his high am-bitions for his term and which previews goodthings to come for our Association.

The final speaker of the evening was theinimitable Rabbi Joseph Potasnik who gave theBenediction. Then the crowd retired to the mainRotunda for cocktails food and conversation.

Induction Of Andrew M. Fallek...Continued from page 1

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T H E S T A T E O F E S T A T E S

For many years we had the pleasure ofsubmitting our “copy” as they say in the bizto our newly elected President Andy Fallekand working with him on the Barrister wherehe was Editor-in-Chief. We would like to addour voices to the chorus of well-deservedpraise directed to him on his ascension to theleadership of the Association, and to wishhim the greatest of success. This month wepresent for your consideration some interest-ing cases involving a defective acknowl-edgement apparently arising out of anscrivener’s error invalidating a prenuptialagreement where it was undisputed that theparties’ signatures were authentic and therewas no claim of fraud or duress in the mak-ing of the instrument; the reversal of a juryverdict finding undue influence because theSurrogate ruled that as a matter of law a con-fidential relationship existed, rather thanhaving left that determination for the jury;and the rejection of an attempt to have aMental Hygiene Law Article 81 Guardianwhere the reason for the application was be-cause a financial institution refused to re-spect the authority of a statutory power of at-torney.

Defective Acknowledgement Apparent-ly Arising Out of an Scrivener’s Error In-validates a Prenuptial Agreement Whereit Was Undisputed That the Parties’ Sig-natures Were Authentic and There Was noClaim of Fraud or Duress in the Makingof the Instrument- a matrimonial action,plaintiff sought a determination that aprenuptial agreement she and her husbandsigned was invalid due to a defective ac-knowledgment. About a week before theirwedding, the couple each separately signed aprenuptial agreement. Neither party waspresent when the other executed the docu-ment and the signatures were witnessed bydifferent notaries public. The agreement hadapparently been prepared by the husband’sattorney. The wife had elected not to be rep-resented by counsel. In substance, the partiesagreed that their separate property, as listedon attached addenda, would remain separateand not subject to equitable distribution inthe event of dissolution of the marriage.They also decided that neither would seekmaintenance from the other. It was undisput-ed that the signatures on the document wereauthentic and there was no claim that theagreement was procured through fraud orduress. The parties' signatures and the ac-companying certificates of acknowledgmentwere set forth on a single page of the docu-ment. The certificates appear to have beentyped at the same time, with spaces left blankfor dates and signatures that were to be filledin by hand. The certificate of acknowledg-ment relating to the wife's signature con-tained the boilerplate language typical of thetime. However, in the acknowledgment relat-ing to the husband’s signature, a key phrasewas omitted and, as a result, the certificatefailed to indicate that the notary public con-firmed the identity of the person executingthe document or that the person was the indi-vidual described in the document. The recorddid not reveal how the error occurred and ap-parently no one noticed the omission untilthe issue was raised in the litigation by thewife who sought a declaration that theprenuptial agreement was unenforceable.The wife moved for summary judgment onthe request for declaratory relief, contendingthat the agreement was invalid because Do-mestic Relations Law §236B(3) compels thatprenuptial agreements be executed with thesame formality as for the recording of a deedand that the certificate of acknowledgmentrelating to the husband's signature did notcomport with Real Property Law require-ments. The husband asserted that the prenup-tial agreement was enforceable because thelanguage of the acknowledgment substan-tially complied with the Real Property Law.

He submitted an affidavit from the notarypublic who had witnessed his signature andexecuted the certificate of acknowledgment.The notary, an employee of a local bankwhere the husband then did business, averredthat it was his custom and practice, prior toacknowledging a signature, to confirm theidentity of the signer and assure that the sign-er was the person named in the document.He stated in the affidavit that he presumed hehad followed that practice before acknowl-edging the husband's signature. The SupremeCourt denied the wife's motion for summaryjudgment, reasoning that the acknowledg-ment of the husband's signature substantiallycomplied with the requirements of the RealProperty Law. A divided Appellate Divisionaffirmed the order denying summary judg-ment holding that the certificate of acknowl-edgment was defective but determined thatthe deficiency could be cured after the factand that the notary public affidavit raised atriable question of fact as to whether theprenuptial agreement had been properly ac-knowledged when it was signed. A two-jus-tice dissent would have reversed and grantedplaintiff summary judgment, declaring theprenuptial agreement to be invalid becausethe acknowledgment was fatally defective.The dissent reasoned that the issue ofwhether a defect in an acknowledgment canbe cured had not been preserved in the mo-tion court but concluded, in any event, thatsuch a deficiency cannot be cured, nor wasthe notary public's affidavit sufficient to raisea question of fact if a cure had been possible.The Appellate Division granted defendantleave to appeal to the Court of Appeals, cer-tifying the question: "Was the Order of thisCourt… properly made?" HOLDING- TheCourt of Appeals answered the certifiedquestion in the negative, holding that plain-tiff wife was entitled to summary judgmentdeclaring the prenuptial agreement to be un-enforceable. The Court of Appeals opinedthat prenuptial agreements are addressed inDomestic Relations Law §236B(3), whichprovides: "An agreement by the parties,made before or during the marriage, shall bevalid and enforceable in a matrimonial ac-tion if such agreement is in writing, sub-scribed by the parties, and acknowledged orproven in the manner required to entitle adeed to be recorded." The Court stated thatthe requisite formality explicitly specified inDRL 236B(3) is essential. In the view of theCourt of Appeals, the acknowledgment re-quirement fulfills two important purposes, towit: to prove the identity of the person whosename appears on an instrument and authenti-cate the signature of such person, and sec-ondly to impose on the signer a measure ofdeliberation in the act of executing the docu-ment. The Court reasoned that just as in thecase of a deed where the law puts in the pathof the grantor formalities to check haste andfoster reflection and care, in matrimonialmatters the formality of an acknowledgmentunderscores the weighty personal choices torelinquish significant property or inheritancerights, or to resolve important issues con-cerning child custody, education and care.The Court noted that the acknowledgmentrequirement imposed by Domestic RelationsLaw §236B(3) is onerous and, in some re-spects, more exacting than the burden im-posed when a deed is signed, in that althoughan unacknowledged deed cannot be recorded(rendering it invalid against a subsequentgood faith purchaser for value) it may still beenforceable between the parties to the docu-ment (i.e., the grantor and the purchaser), thesame is not true for a nuptial agreementwhich is unenforceable in a matrimonial ac-tion, even when the parties acknowledge thatthe signatures are authentic and the agree-ment was not tainted by fraud or duress. TheCourt pointed out that Real Property Law§292 requires that the party signing the doc-ument orally acknowledge to the notary pub-lic or other officer that he or she in factsigned the document, that Real Property Law

§303 precludes an acknowledgment frombeing taken by a notary or other officer un-less he knows or has satisfactory evidencethat the person making it is the person de-scribed in and who executed such instru-ment, and Real Property Law §306 compelsthe notary or other officer to execute a cer-tificate stating all the matters required to bedone, known, or proved and to endorse or at-tach that certificate to the document. TheCourt of Appeals explained that the purposeof the certificate of acknowledgment is to es-tablish that each of the specified require-ments had been satisfied: 1) that the signermade the oral declaration compelled by RealProperty Law §292; and 2) that the notary orother official either actually knew the identi-ty of the signer or secured satisfactory evi-dence of identity ensuring that the signer wasthe person described in the document. TheCourt of Appeals stated that at the time theparties signed the prenuptial agreement inproper certificates of acknowledgment typi-cally contained boilerplate language substan-tially the same as that included in the certifi-cate accompanying the wife's signature, towit: that “before me came (name of signer)to me known and known to me to be the per-son described in and who executed the fore-going instrument and duly acknowledged tome that s/he executed the same." The Courtof Appeals opined that the "to me known andknown to me to be the person described inthe document" phrase satisfied the require-ment that the official indicate that he or sheknew or had ascertained that the signer wasthe person described in the document, andthat the clause beginning with the words"and duly acknowledged…" established thatthe signer had made the requisite oral decla-ration. The Court of Appeals pointed out thatin the certificate of acknowledgment relatingto the husband's signature, the "to me knownand known to me" phrase was inexplicablyomitted, leaving only the statement: "On the8 [sic] day of July, 1997, before me came[husband] described in and who executed theforegoing instrument and duly acknowl-edged to me that he executed the same." Inthe view of the Court of Appeals, absent theomitted language, the certificate did not indi-cate either that the notary public knew thehusband or had ascertained through someform of proof that he was the person de-scribed in the prenuptial agreement. TheCourt of Appeals stated that an acknowledg-ment that fails to include a certification tothis effect is defective. The Court of Appealsagreed with the Appellate Division, whichhad concluded that the certificate of ac-knowledgment did not conform with statuto-ry requirements. The Court of Appeals re-jected the husband’s contention that the ac-knowledgment was not defective because itsubstantially complied with the Real Proper-ty Law. The Court of Appeals acknowledgedthat an acknowledgment may be valid even ifit does not track the preferred text, but theCourt of Appeals held that in such case noneof the substantive elements of an acknowl-edgment can be lacking, so that the differentverbiage used must establish that the RealProperty Law has been followed, which theCourt of Appeals termed a deviation in formbut not substance. The Court of Appealsheld, however, that in the case at bar, a corecomponent of a valid acknowledgment wasnot referenced in the certificate. The Court ofAppeals recognized that a compelling argu-ment could be made that the door should beleft open to curing a deficiency like the onethat occurred, where the signatures on theprenuptial agreement were authentic, therewas no claims of fraud or duress, and theparties believed their signatures were beingduly acknowledged but, due to no fault oftheir own, the certificate of acknowledgmentwas defective or incomplete. The Court ofAppeals stated that although neither partysubmitted evidence concerning how the erroroccurred, it inferred from the fact that thesignatures and certificates of acknowledg-

ment were contained on a single page of thedocument in the same typeface that the cer-tificates were typed or printed by the sameperson at the same time. The Court of Ap-peals added that since one acknowledgmentincluded all the requisite language and theother did not, it seemed likely to the Court ofAppeals that the omission resulted from a ty-pographical error. The Court of Appeals rec-ognized that consequently, the deficiencymay not have arisen from the failure of thenotary public to engage in the formalities re-quired when witnessing and acknowledginga signature, but that to the contrary, it mightwell have been that the prerequisites of anacknowledgment occurred but that the cer-tificate simply failed to reflect that fact. TheCourt of Appeals acknowledged that the hus-band made a strong case for a rule permittingevidence to be submitted after the fact tocure a defect in a certificate of acknowledg-ment when that evidence consisted of proofthat the acknowledgment was properly madein the first instance — that at the time thedocument was signed the notary or other of-ficial did everything he or she was supposedto do, other than include the proper languagein the certificate. In the view of the Court ofAppeals, by considering such evidence,Courts would not be allowing a new ac-knowledgment to occur for a signature thatwas not properly acknowledged in the firstinstance, but instead, parties who properlysigned and acknowledged a document yearsbefore would merely be permitted to con-form the certificate to reflect that fact. How-ever, the Court of Appeals ruled that it didnot need definitively to resolve the questionof whether a cure was possible because, theproof submitted was insufficient. The Courtof Appeals noted that in his affidavit, the no-tary public did not state that he actually re-called having acknowledged the husband'ssignature, or indicate that he knew the hus-band prior to acknowledging his signature.The Court of Appeals stated that the notaryaverred only that he recognized his own sig-nature on the certificate and that he had beenemployed at a particular bank at that time(corroborating the husband's statement con-cerning the circumstances under which heexecuted the document). The Court of Ap-peals pointed out that as for the proceduresfollowed, the notary had no independent rec-ollection but maintained that it was his cus-tom and practice "to ask and confirm that theperson signing the document was the sameperson named in the document" and he was"confident" he had done so when witnessingthe husband's signature. The Court of Ap-peals pointed out that a party can rely on cus-tom and practice evidence to fill in eviden-tiary gaps where the proof demonstrates adeliberate and repetitive practice by a personin complete control of the circumstancesthereby creating a triable question of fact asto whether the practice was followed on therelevant occasion, but the Court of Appealsheld that the averments presented by the no-tary public were too conclusory to fall intothis category. The Court of Appeals pointedout that custom and practice evidence drawsits probative value from the repetition andunvarying uniformity of the procedure in-volved as it depends on the inference that aperson who regularly follows a strict routinein relation to a particular repetitive practiceis likely to have followed that same strictroutine at a specific date or time relevant tothe litigation. The Court of Appeals ruledthat since the notary public understandablyhad no recollection of an event that occurredmore than a decade before, and instead at-tempted to proffer custom and practice evi-dence, it was crucial that the affidavit de-scribe a specific protocol that the notary re-peatedly and invariably used, proof of suchtype the Court of Appeals found absent. TheCourt of Appeals concluded that even as-suming a defect in a certificate of acknowl-edgment could be cured under Domestic Re-

Please turn to page 8

By Hon. Bruce M. Balter and Paul S. Forster, Esq.

JULY, 2013 BROOKLYN BARRISTER, Page 5

Dilemma ©2012 s.siporin

“I’m beautiful. No matter what they say. Words won’t bring medown. So don’t you bring me down today.”

She blinked. The colors were still there. Swirling, evaporating,then reappearing.

Pastel filaments and circlets of aqua. Tiny silverfish and paleyellow glow worms. She buried her face under the covers, takingsome slow, deep breaths. The ophthalmologist had said not toworry. Just ocular migraines. Drinking Coke might stop it. But shehated the syrupy black beverage. Better to just listen to music andwait it out. Anxiety made it worse.

Now that Cara was officially admitted, she worried even moreabout the shambles in the law office. Jay graciously allowed her tosign motion papers and subpoenas. She wanted things perfect if hername was on them.

“I can’t be bothered right now,” Jay hissed the other day, whenshe told him that she couldn’t find the Ramirez file. He waved thickarthritic fingers, “It’s here, somewhere.”

She had been so excited when she first got the job, her first reallegal job. After futilely applying to dozens of blind ads on Craigslistand in the law journal, she had prayed to the Lord for help. A fewdays later, she got a phone call from a “Mr. Jay Torres”. Jay was eld-erly and nearing retirement but had a “busy law practice”. Hestressed that she would get “great experience” and the chance towork with “one of the top trial men in Queens”. While he was a bitof a braggart, Cara was impressed with his age and vast years of ex-perience. She felt that his bald head with its sparse strands of whitehair, his dark wrinkled complexion, accentuated by an expensivenavy suit, made him look quite distinguished. She whispered thanksto the Lord, fingering her cross.

Thick set, with a deep, almost froggy voice, Jay had seemed sosympathetic when he heard of Cara’s living situation. His denturesclacked. “My pobrecita, you are me forty years ago. I was first alsoin my family to go to law school, to become an abogado.” Jay pat-ted her shoulder. Her own abuelo couldn’t have been nicer.

“Claro esta, I can’t afford to pay top dollar. But I will pay youas an independent contractor. That way, Uncle Sam don’t get yourmoney.” He winked. “And, a pretty girl has some extra cash tospend on herself”.

She was formally admitted to the bar a few weeks later, cele-brating with her mother at a local restaurant. Her father wasn’t in-vited. Thinking of him, her mouth grew tight.

“Words won’t bring me down. So don’t you bring me downtoday.”

In response to the bluesy voice of Christina Aguilera, the colorsslowly faded, the silver fish and glow-worms vanishing into somefathomless depth. Cara identified with Aguilera who, like herself,was Latina, light skinned and a bit plump. She stood up, stared ather reflection in the bedroom glass. The mirror seemed hostile, as ifangry at this Latina with white skin.

Although she avoided the sun, there was a slight pink burn onher cheeks. The long walk down Sutphin Boulevard to Jay’s officehad likely done it. Perhaps she should wear a wide-brimmed hatlike Christina.

Her lips pursed. She posed Christina-like, head tilted to one side.She thrust out her hips, then put her hands over her face andlaughed. The sound was soprano and chiming. The eyeliner wassmudged around her large brown eyes. Her long lashes flutteredlike butterfly wings. Oh dear. One of these days she would learnhow to put makeup on properly. For now, she would just have to beherself. The image of a sultry R&B singer vanished.

Cara’s father was in the living room with the shades drawn.Probably nursing a hangover.

Her mouth twisted. There was a sudden pain in her left foot. Thetoes had cramped. She leaned down to rub them.

Stout and balding, her father was sprawled in the leather easychair, his feet bare and grimy, the half grown beard a darker shad-ow on his dark skin. Saddled with law school debt, she had still notsaved enough for her own place, and had to endure his presence.Her mother, a hard

working secretary, supported him. Lips, normally wide and red,compressed into thin pale slats.

She disliked her father so much that she could not talk about it.When she was a teenager, he used to belittle her, finding fault withher hair, her light complexion, and her round body. (“Hija gorda!How do you expect to get married when you’re fat like a pig?”)

Words won’t bring me down. So don’t you bring me down today. He was also a phony. Years ago he claimed that he was an “in-

dependent talent agent” although this was a total lie. These days, hebragged that he was “self employed” as an “independent travelagent”. Cara shook her head. She couldn’t recall the last time he hadbooked any trips. He had no office, no license and didn’t do anywork. Without mother’s income, her father would be homeless.Mostly, he spent his time at the local OTB betting on the trotters.

Even so, mother gave the old fraud a weekly allowance. WhenCara argued with her, she just sighed, “You’ll understand when youhave your own marido.” Cara chewed her tongue. She would nevermarry a man like her father. Never. She said a small prayer, crossedherself.

She hoped that being a lawyer would change her life. At the of-fice, the day after her admission, Jay had congratulated her. “Mar-villosa,” he declared, his smile so broad his uppers almost droppedout of his mouth. He adjusted them carefully. “The first time shetakes it, she passes!” There was just a hint of white dribble at thecorner of Jay’s mouth as he gave her a mock salute. “That’s mygirl!” Jay looked so cute. Cara had grinned, her teeth small andshiny as porcelain.

“And so, as a reward, I will add a small increase to your pay-check. Also, (Jay had paused dramatically) I will now let you signaffirmations and motion papers like a real lawyer.”

It had been so gratifying to hear this. From then on, she signedmost of the papers that went out of Jay’s office. And she did so witha flourish.

Recently, she had become a bit concerned. Maybe the oldlawyer wasn’t really being so nice. A friend from law school hadpointed out that, as an independent contractor, she could not getworkers’ compensation or unemployment if (heaven forbid!) shelost the job. Nor did Jay provide any health insurance. Even worse,she was not covered by his attorney’s liability policy.

Her fingernails, like chicken beaks, began to peck at her thumb.The thumb was already hotdog red and swollen from habitual pick-ing. She caught herself and stopped.

Jay’s office was a mess, cluttered with dusty documents, wornaccordion folders and faded blue-backs. Also, the filing system wasalmost in a shambles. Court notices were strewn haphazardly on thedesk. And, curiously, although Jay had two daughters (“the oldest isa big shot abogada—too uppity to work for ole Jay”), the only pho-tos were yellowed ones of a much younger Jay wearing a footballhelmet and maroon jersey.

Jay liked to call Cara his “protegido”, or protege. “You’re a hardworker, my chica, and whip smart. You did a great job on thatmemo, a great job! And you can tell tu madre I said so.”

At first, his effusive compliments had made Cara feel tingly andwarm, as if a small, happy baby were wriggling in her womb. Still,the burden of endlessly searching for files began to drain her.

And later, she discovered that Jay could be shrill and obnoxious,pressuring her to work long hours beyond the thirty five he paid herfor. ( “Dios, chica! You got to get those papers out tonite! I don’tcare how long it takes.”). And lately, he had begun to criticize herwork. Awareness grew. It was then that the colors came back.

With a final glare at her father, Cara walked out, draping a thingreen sweater around her shoulders. She caught the city bus on thecorner, almost bent the Metrocard as she inserted it into the slot.She found a window seat, stared out at Anglos strutting in their cor-porate blues, at Hispanic street vendors hawking fruit from side-walk carts, at slope- shouldered black women toting heavy gro-ceries. Absorbed in thought, she almost missed her stop. When shegot off, she hurried quickly down Sutphin Boulevard, past the 24/7drugstore stocked with Advil, past the hordes of litigants filing intoCivil Court, and into the narrow hallway of Jay’s office building.

The structure was old but renovated and conveniently locatedacross from the Supreme Court.

Jay did not answer her knock, and she had to use her key to openthe office. As usual, she checked for email and voice mail. Therewas a garbled voice message from the Second Department, but shecouldn’t understand what it was about. She’d have to ask Jay.Sometimes he kept too much about the cases to himself.

Many of Jay’s client’s had been to several other attorneys beforethey retained Jay. Often, they complained that these other attorneyshad rejected their cases as having “nuisance value” at best. But Jaynever turned down a case. When Cara asked him about this, he justwinked, adding “I know how to turn a lemon into lemonade.”

Wading through a stack of papers, her head began to ache. Thefiles were so disorganized. It had been this way since she started.And, it remained this way despite her efforts. She had worked latethe past two nights trying to clean up the files. But Jay invariablymixed up files, stuffing papers from one into another. Sometimes heeven took documents home to review, then forgot to bring themback. She reminded herself that she was still getting good experi-ence. And money. She could almost see the small studio apartmentshe hoped to rent in Astoria.

Out in the hallway, elevator doors slammed with a metallicclang. She heard Jay’s heavy, shuffling footsteps. When he entered,the old lawyer seemed to sag under the thick navy coat, a favoritecoat that he wore regardless of the weather. She hesitated. Some-times he rejected her help. But, she went over anyway. This time,he mumbled “gracias” as she carefully pulled the thick wool off hisshoulders. She hung the coat in the tiny corner closet. Her nose

wrinkled. She should really bring something to spray the closetwith. It stank of stale sweat, camphor and the old man’s gas. “Jay, Istill can’t find those documents in Rodriguez.”

“No es importa. Don’t worry, chica. I’ve been a lawyer for morethan forty years. Just do what I tell you.” He brushed off her ques-tions about the voice mail from the court.

“Ehh. Old news.” Later, she struggled to compose an “aff in opp” to a dismissal

motion. There had been too many of these lately. Way too many. Inthe other room, she heard Jay arguing on the phone. His voice washarsh, the bass notes violent and stormy. “Mierdra!” She heardbanging noises.

Finally, he came out of his office carrying a thick accordion file.He encircled it with two chunky arms, like a short Hispanic Her-cules transporting the world. The old lawyer panted heavily, his facedark-splotched with strain.

Jesus! Was he going to have a heart attack? But, like Valjean inLes Miserables, his bulky old body still had some strength. Grunt-ing, he dumped the heavy file on her desk. It was so stuffed it burstopen, spilling out piles of motion papers and correspondence.

“These…..” He gulped air, snorted, then wiped his face. Hisforehead was moist, furrowed. “These… are the papers for an ap-peal. It needs to get done. Write it up.”

As he turned away, she protested, “I’ve never done an appeal.Don’t you want me to call Tom?”

“I don’t need that lowlife to do an appeal. You can do it.” Herubbed his forehead, smoothing deep ruts between murky grayeyes. He leaned closer. She could see the waxy whiteness of acataract in his left eye. His polished spectacles glittered like icicles.But his voice was mild. “You’re my bright girl, mi protegido. Youcan write it up, sign the papers, and take all the credit when wewin.” He winked.

Her lips were dry. Slowly, she licked them. They tasted odd,brackish. Oh dear. It would be nice to have an appeal under her belt.But…..

“But, what about Tom? Usually Tom handles your appeals. He’s theexpert. I think—“ “No pienses en nada. I’ll do the thinking. Just do.”

The file was enormous. It would take hours to sort through. To her ears, Jay’s heavy footfalls sounded like funereal drums.

The exertion of lifting had been too much for the old lawyer. Oncein his office, he collapsed in the chair. Afew minutes later, she heardloud, hoarse snoring.

She peered at the stack of papers. She needed to compile theminto an appellate record.

But she had never even seen this file before. She skimmedquickly through pages and pages of legal motions. It was a com-plicated case. Complex and confusing. Definitely missing papers.Oh dear. Strong salty taste in her mouth. A glimpse of visual rain-bows. Premonitory? She blinked to ward off the attack.

Anxiety made her cautious. Why was Jay having her do theappeal instead of Tom? Why didn’t the old lawyer do it himself?She picked intently at her thumb, her nail digging into the skin,chipping off bits of reddened flesh. She felt a sharp pain.

Shaking her head, she dragged herself to the computer. Sheneeded to know more. Her lawyer’s intuition had sparked. Brightflames cast shadows in her brain, forming vague patterns she re-fused to recognize. She skimmed through the office pdfs. Nothingthere. She checked Lexis. Still nothing. Moving to the internet, shegoogled the case name, clicking assorted links, browsing swiftlythrough web pages. But nothing worth noting turned up.

She paused. A long moment inserted itself, like a reddenedthumb in a yellowed law book. A few wispy green and purple col-ors did slow shanay turns before her eyes. She shooed them away.Then she meticulously typed Jay’s full name into the search field.And hit ENTER.

The words on the screen shot out like blasts of hot ice.

In the Matter of Jay TORRES, an attorney and counselor-at-law:Departmental Disciplinary Committee for the Second JudicialDepartment Disciplinary proceedings instituted by the Depart-

mental Disciplinary Committee Respondent Jay TORRES is here-by suspended from the practice of law for an indefinite period of

time and until further order of this Court

The order was dated three and a half months ago. Before he hadeven hired her. The wily old lawyer had placed the ad after he wassuspended.

He was suspended. Her thumb throbbed, the red color deepen-ing to scarlet. She was working for an attorney who was suspend-ed! Who had been subject to discipline. A suspended lawyer was nolawyer at all. A suspended lawyer was not allowed to practice law,or have an office, let alone hire an associate. The language of theOrder was unequivocal. The old man had violated it. And by work-

C O N G R AT U L AT I O N S T OSHELDON SIPORIN, ESQ.,

WINNER OF THE SECOND ANNUAL BROOKLYN BARRISTER FICTION WRITING CONTEST.

Please turn to page 8

Page 6, BROOKLYN BARRISTER JULY, 2013

President Designate Andrew M. Fallek

Annual Meeting Of The Brooklyn Bar Association

Wednesday, May 8, 2013Association’s Meeting Hall

LEFT-to-RIGHT: Newly elected trustee Joseph Rosato, Past President John Lonuzzi, Past President GregoryT. Cerchione, First Vice President Rebecca Woodland and Past President Steven D. Cohn

Treasurer Aimee L. Richter, President Domenick Napoletano, President Elect Andrew M. Fallek and First VicePresident Rebecca Woodland

LEFT-to-RIGHT: Appellate Division, Second Depart-ment Justice Hon. Sylvia O. Hinds-Radix with Dis-tinguished Service Award recipient Marc Aronson

LEFT-to-RIGHT: Justice Sylvia Ash with BrooklynBar Association Secretary Hon. Frank R. Seddio

LEFT-to-RIGHT: Hon. Genine Edwards andtrustee Anthony J. Vaughn, Jr.

LEFT-to-RIGHT: Justice Sylvia Asch, Past President Allen Lashley, Trustee Lara Genovesi, Treasurer Aimee L.Richter, Past President Steven D. Cohn and CLE Director Meredith D. Symonds

LEFT-to-RIGHT: Immediate Past President Ethan B. Gerber, Hon. Ellen Spodek andHon. Barry Kamins

LEFT-to-RIGHT: Past President Andrew S. Fisherwith President Domenick Napoletano

JULY, 2013 BROOKLYN BARRISTER, Page 7

Marc Aronson receiving the Distinguished Service Award fromPresident Domenic Napoletano

President Domnenick Napoletano presenting a DistinguishedService Award to Robert Gershon

Trustee Fern J. Finkel receiving the Distinguished Service Awardfrom President Domenick Napoletano

LEFT-to-RIGHT: President Domenick Napoletano presentinga framed board resolution to Trustee Hemalee J. Patel

LEFT-to-RIGHT: Trustee Steven Jeffrey Harkavy receiving theframed Board resolution from President Domenick Napoletano

LEFT-to-RIGHT: Sidney Cherubin, Managing Attorney of the Brooklyn VLP, Recipient of theFreda S. Nisnewitz Award for Pro Bono Service John Buhta and Executive Director of theBrooklyn VLP Jeannie Costello

LEFT-to-RIGHT: The unveiling of the Hon. Theodore T. Jones, Jr. formal portrait in theAssociationmeeting hall

Hon. Nathan B. Sobel Honoree John DeVito and President Domenick Napoletano

Annual Meeting Of The Brooklyn Bar Association

Wednesday, May 8, 2013Association’s Meeting Hall

Presentation of the golf tournament inaugural chair award toHon. Frank V. Carone

Page 8, BROOKLYN BARRISTER JULY, 2013

T H E S T A T E O F E S T A T E Slations Law §236B(3), the husband’s sub-mission was insufficient to raise a triablequestion of fact as to the propriety of theoriginal acknowledgment procedure, and thewife therefore was entitled to summary judg-ment declaring that the prenuptial agreementwas unenforceable. Accordingly, the Courtof Appeals reversed the Order of the Appel-late Division with costs, granted the wife'smotion for summary judgment determiningthat the parties' prenuptial agreement was in-valid, and answered the certified question inthe negative.?Galetta v. Galetta, N.Y.L.J.5/31/13 (Ct. of Appeals, 2013) [Authors’note: although this is a matrimonial case, itshould be of great interest to the estate andtrust bar, since an acknowledgement is re-quired on every ‘instrument’ utilized in thepractice, such as intervivos trusts, powers ofattorney, renunciations, waivers of the rightof election, waivers and consent, stipula-tions, receipts and releases, refunding agree-ments, authorizations to appear, etc.]

Jury Verdict Finding Undue InfluenceReversed Because the Surrogate RuledThat As a Matter of Law a ConfidentialRelationship Existed, Rather Than Hav-ing Left That Determination for the Jury-Decedent left three living sons, including pe-titioner who, as the executor of decedent'sestate, commenced a proceeding seeking torecover property allegedly belonging to theestate from his brother and wife, the respon-dents. Decedent moved in with respondentsafter being diagnosed with Alzheimer's dis-ease, and resided with them until her death.During that time, decedent contributed sig-nificant financial support to an addition to re-spondents' home, which included a bedroomfor decedent. Petitioner challenged approxi-mately $127,000 in transfers made by dece-dent to or for the benefit of respondents, al-leging lack of capacity and undue influence.The matter proceeded to trial. Following hiscase-in-chief, petitioner requested Surro-

gate's Court to find, as a matter of law, that aconfidential relationship had been estab-lished. The court reserved decision and, fol-lowing the close of proof, granted the mo-tion, ruling that a confidential relationshipexisted as a matter of law. The Surrogate'sCourt then sent the question of undue influ-ence to the jury, which rendered a verdictagainst respondents in the amount of$123,751.95. The respondent son appealed.HOLDING- The Appellate Division re-versed. The Appellate Division stated thatunder the doctrine of “constructive fraud,”where a confidential relationship exists be-tween two parties to a transaction such thatthey are dealing on unequal terms due to oneparty's weakness, dependence or trust justifi-ably reposed upon the other and unfair ad-vantage is rendered probable, the burden ofproof with respect to allegations of undue in-fluence will be shifted to the stronger partyto show, by clear and convincing evidence,that no undue influence was used. The Ap-pellate Division pointed out that in determin-ing whether a confidential relationship ex-ists, the existence of a family relationshipdoes not, per se, create a presumption ofundue influence, and that there must be evi-dence of other facts or circumstances show-ing inequality or controlling influence. In theview of the Appellate Division, the existenceof such a relationship will ordinarily be aquestion of fact.

The Appellate Division stated that theSurrogate’s Court ruling that a confidentialrelationship existed as a matter of law there-by shifted the burden of proof to respondentsto establish, by clear and convincing evi-dence, that the questioned transactions wereeach made free of any undue influence. TheAppellate Division ruled that although peti-tioner had introduced evidence that mightsupport a factual determination that a confi-dential relationship existed, such as dece-dent's complete dependence on respondentsdue to her combined mental and physical de-

terioration, respondents were entitled to havethe jury consider all the evidence regardingdecedent's relationship with respondents andto determine as a factual matter whetherdecedent maintained the ability to exercisefree will. Accordingly, the Appellate Divi-sion held that a new trial was necessary. TheAppellate Division rejected the respondents’argument that they were entitled to a direct-ed verdict because petitioner had failed to es-tablish a prima facie case of undue influence.In the view of the Appellate Division, therecord evidence of numerous checks writtenby respondents and signed by the decedent,ATM withdrawals, and electronic transfersfrom decedent's account for the benefit of re-spondents during a time when decedent wasunquestionably vulnerable, in amounts sig-nificant enough to entirely deplete decedent'schecking accounts, was sufficient proof ofundue influence to survive summary disposi-tion. For the purpose of providing guidanceon the retrial, the Appellate Division also ad-dressed the application of the Dead Man'sStatute (CPLR §4519) to the testimonyelicited at the trial. The Appellate Divisionnoted that the statute precludes an interestedparty from being examined as a witness inhis own behalf or interest concerning a per-sonal transaction or communication betweenthe witness and the deceased person. TheAppellate Division stated that the purpose ofthe rule is to protect the estate of the de-ceased from claims of the living who,through their own perjury, could make factu-al assertions which the decedent could notrefute in court. The Appellate Division point-ed out that the statute does not preclude anytestimony elicited by the representative ofthe estate, and does not preclude testimonyof transactions between decedent and a non-interested third party. The Appellate Divisionadded that the statute's protections with re-gard to a particular transaction may bewaived where the representative testifies inhis own behalf concerning a personal trans-

action of his adversary with the deceased orwhen he elicits testimony from an interestedparty on the personal transaction in issue.The Appellate Division opined that had peti-tioner limited his proof to documentary evi-dence of decedent's banking transactions andnot introduced any testimony regardingtransactions between decedent and respon-dents, the door would not have been openedto respondents' testimony concerning dece-dent's intentions with respect to those trans-fers. The Appellate Division said, however,that in his direct case, petitioner also had in-troduced respondents' deposition testimonywherein respondents explained that theywould write checks covering expenses relat-ed to home improvements and decedentwould sign them, and that decedent frequent-ly gave respondents money to cover house-hold expenses, groceries and other personalexpenses. The Appellate Division ruled thatthis testimonial evidence about specifictransactions between respondents and dece-dent, introduced by petitioner, opened thedoor to respondents' testimony at trial re-garding those specific transactions, thus ren-dering erroneous some of the Surrogate'slater rulings sustaining objections based onCPLR §4519. Matter of Nealon, 104 A.D.3d1088 (3rd Dept., 2013)

Brief briefs: Court refuses to appoint aMental Hygiene Law Article 81 Guardianwhere the reason for the application was be-cause a financial institution refused to re-spect the authority of a statutory power of at-torney. Matter of B.R., N.Y.L.J. 6/18/13(Sup. Ct., Dutchess Co., Justice Pagones)

Compiled by Hon. Bruce M. Balter,Acting Surrogate, Kings County Surro-gate’s Court and Justice of the SupremeCourt, Kings County, Chair, BrooklynBar Association, Surrogate's Court Com-mittee, and Paul S. Forster, Esq., Chair,Brooklyn Bar Association, Decedent's Es-tates Section.

Continued from page 4

ing for him, so had she. Oh dear Jesus. She pressed “Print”. A blackand white copy of the Order slowly clattered out of the machine.

The door of Jay’s office was slightly ajar. She could hear thesnoring sounds, muted now.

She knocked loudly. No response. She opened it, warily steppedin. Jay’s bald head lay on the desk, a musty piece of basalt, heavy,stiff. His scalp appeared rough and scaly. Nested deeply in it weretwo large warts. To Cara, they looked like giant cockroaches. Shehad never noticed them before. Her stomach churned. Cautiouslyshe poked the old man. Then shook him. Then shook him again.Hard. Loud wheezing as the snores cut off, were replaced by loudspastic coughs.

Like a throttled car engine. Or a death rattle. “Whah?” The head raised itself up, quivering like a wet terrier.

She wondered if the cockroaches would slide off. She waved the printed copy of the Order in his face. “What does

this mean? What is this?” Her voice sounded hoarse, barely audible.Her hands trembled. Inside her belly, an alien spawn churned andclawed.

“Whah, Huh? Oh.” The old lawyer took off his glasses, rubbedhis eyes. He took the document. “Yes. That.” He shrugged, tossed itdown on the desk. “Old news.” He took off his glasses again, knead-ed his face. The thick wrinkles deepened in the leathery skin, re-minding her of an obese Shar Pei.

“You’re suspended, aren’t you? Well, aren’t you?” He belched. “I may be. Or I may not be. No es importa.” He

stared at her. “Chica, are you working on that appeal? You need to finish it by

the end of this week.” He turned away. She interrupted as he began to shuffle docu-

ments. “But you’re suspended. And you’re violating the court Order. I

can’t work for you anymore. I should report you. I’ll have to leave.I can’t work here. I have to leave right now.”

“Leave?” The old lawyer’s voice was quiet, wistful. “Whywould you leave? My dear girl, you need this job, don’t you? Youneed the money. Just work on the appeal. “

“You’re suspended. You could be sent to jail. I can’t work here.I shouldn’t have been working for you at all.” She hurried out to herdesk, grabbed a bunch of the appeal papers. She carried them intothe old man’s office. “Take care of this crap yourself!” She threw thepapers down on the desk. He didn’t even blink. His eyes, magnifiedby the lenses, were blank ovals.

Striding out into the hallway, she stopped. Guilt, like a wave ofgrayness, flooded her.

She had left the old man alone, almost buried in a pile of papers.How would he manage? What would he do? He had deliberately ig-nored a court order. If they found out, he could be prosecuted. Theymight send him to jail. If they did, he would die there. Her handsbegan to shake.

Still trembling, she forced herself to leave the building, thenwalk down the street to the bus stop. The street noise was whitesound that blanketed her, muffling her thoughts, covering her guilt.

Cara entered her building to the sound of vibrant reggaeton. Inthe living room, Mother’s body was sinuous, undulating to loudmusic. Her face was flushed, her breasts heaving. She bared unevenyellow teeth as she swayed her hips against her husband’s. Cara no-ticed sweat beads crawling on her father’s baldness, like droolingaphids. His dark face was flushed to a brownish black. He held ahalf empty glass of fizzing pink liquid. An expensive bottle ofchampagne was on the table.

“Hey, hija,” He waved the drink. “Have some champagne. I justhit big at OTB”. He had won a few hundred betting on a long shot.Probably had spent most of it. Cara clenched her fists. She wishedthat he would die.

She went to her room, locked the door, threw herself down onthe bed. Her vision blurred. Hazy green and blue filaments floated.Golden glow worms sashayed, twirling to the reggaeton beat. Twindrum sticks rapped against her skull, echoing loudly in her brain.

She couldn’t stand it. She couldn’t live here anymore. And shecouldn’t go back to work.

The old lawyer had lied to her, made her clean up his slop, madeher sign documents. And jeopardized her law license. The licenseshe had worked so hard to earn. He was a phony.

A liar. Just like her father. And there was nothing she could do. She lay there. Minutes passed. Or hours. Iridescent greens red-

shifted, stretching out like thin latex balloons. Music began to singsoftly in her brain.

No matter what they say. No matter what they say. Words can’tbring me down. So don’t you bring me down today. Slowly, she gotup off the bed. She went to the desk, took out her laptop. Shesearched for the phone number of the disciplinary committee.

Then she made a call.

‘Dilemma’ ©2012 s.siporinContinued from page 5

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JULY, 2013 BROOKLYN BARRISTER, Page 9

VERDICTWilson v. Philie, 2013 NY Slip Op. 03993 (6/5/13)

The court denied a motion to set aside ajury verdict that found that defendant wasnegligent, but that the negligence was not asubstantial factor in the happening of an au-tomobile accident. Plaintiff was a passengerin a coworker's vehicle. The defendant's tes-timony indicated that she was struck on theright side by the vehicle in which plaintiffwas a passenger, as it was passing throughthe intersection. The court will not set asidea verdict if there is a valid line of reasoningby which the jury could conclude both thatthe defendant was negligent but that thenegligence was not a proximate cause of theaccident.

Vainer v. DiSalvo, 2013 NY Slip Op. 03991 (6/5/13)

The court set aside a verdict on futurepain and suffering and future loss of enjoy-ment of life unless defendants stipulated toincrease such damages from $18,000 to$300,000. The jury also awarded $67,000for past pain and suffering and furtherfound that plaintiff's condition resulted insignificant and permanent consequentiallimitation of a use or function. Plaintiff wasa 20 year old pregnant passenger who hadtwo arthroscopic surgeries to repair tornright medial and lateral menisci, sustainedfour bulging discs in lumbar spine, and aherniation at L5-S1. Her physician testifiedthat her injuries were permanent and pro-gressive, which the jury accepted, andwould require future surgeries and a totalknee replacement in the future, as well asphysical therapy and injections for pain.

Doran v. McNulty, 2013 NY Slip Op 04572 (6/19/13)

Plaintiff was allegedly injured when sheslipped and fell at defendant's premises.The jury found 100% liability against de-fendants but awarded no damages. Plaintiffclaimed an aggravation of a preexistingback injury. Although one defendant's ex-pert testified that the accident aggravatedthe preexisting degenerative condition, an-other defendant's expert contradicted thistestimony. The court held that the jurycould accept or reject the testimony of aparticular expert, and thus the verdict couldbe supported by a fair interpretation of theevidence and the verdict remained.

SUMMARY JUDGMENTSlip and FallMercedes v. City of NY, 2013 NY Slip Op 04314 (6/12/13)

Plaintiff, student at defendant's highschool, slipped and fell on juice and papersallegedly at the top of a staircase. Defen-dant did not meet its burden on summaryjudgment regarding the absence of actual orconstructive notice by merely submittingtestimony regarding general inspection orcleaning practices. Where there is no evi-dence regarding any particularized or spe-cific inspection or stair-cleaning procedurein the area of plaintiff's fall on the date ofthe accident, the defendant did not sustainhis burden and therefore it is unnecessary toaddress the sufficiency of plaintiff's opposi-tion.

Automobile LiabilityProsen v. Mabella, 2013 NY Slip Op 04589 (6/19/13)

Plaintiff was a passenger in the rearmostvehicle of a three car collision. The courtgranted summary judgment to the first ve-hicle that had been stopped in the right lanefor approximately 45 minutes due to a me-chanical problem. The court found that al-though stopped in a moving lane of traffic,

there was no fault on the part of the stoppedvehicle, but that it was caused by a me-chanical failure, and thus summary judg-ment was appropriate as to that defendant.

Labor LawMedina v. RM Resources, 2013 NY Slip Op 04582 (6/19/13)

Plaintiff was injured while trying to as-certain the source of a leak and repair an aircompressor at a Costco store, when hestepped through a drop ceiling and fell 12 -15 feet to the floor below. The court grant-ed summary judgment only as to defendantIngersoll-Rand (the manufacturer of thecompressor) as it had merely relayed acomplaint to its local distributor who dis-patched the plaintiff to the store. The claimarose out of defects or dangers in the meth-ods of work and defendant Ingersoll had noauthority to supervise or control, was nei-ther a contractor, owner, nor statutoryagent, and therefore summary judgmentwas appropriate only as to them. Motionsby all other defendants were denied.

Gallagher v. Resnick,2013 NY Slip Op 04774 (6/26/13

Plaintiff was injured when he was takingmeasurements in preparation for fabricatingcoping stones for the roof of a building,when he fell and suffered traumatic braininjury and had no memory of the accident.The plaintiff was granted summary judg-ment on Labor Law §240(1) as the courtfound that this was a covered activity, as itwas ancillary to the construction activitytaking place at the work site, and there wereno safety devices on the site which was acause of the accident. The fact that the ac-cident was not witnessed did not precludesummary judgment for plaintiff (owner ofsubcontractor) as he was hired by the gen-eral contractor and another subcontractor.The court also found that defendants werenot entitled to summary judgment on theLabor Law §200 claim as there were ques-

tions of fact as to whether defendants hadthe authority to supervise and control thework.

Medical MalpracticeZapata v. Buitriago, 2013 NY Slip Op 04794 (6/26/13)

The court granted defendant's motion forsummary judgment on informed consentbut denied that portion as to liability in acase where it was alleged that a physician'sassistant negligently administered a corti-sone injection which resulted in a staph in-fection. Plaintiff's testimony was that defen-dant neither washed his hands nor woregloves. Defendant's expert did not opine asto whether these omissions were deviations,but admitted that it could be a cause of astaph infection. Any conflict in testimonywould raise an issue of fact. As to the causeof action for informed consent, testimony ofdefendant, office record and expert opinionestablished entitlement to judgment andplaintiff failed to raise an issue of fact.

Loaiza v. Lam, 2013 NY Slip Op 04780 (6/26/13)

Plaintiff gave birth to infant plaintiff atdefendant hospital and attending physician,co-defendant, delivered the infant who suf-fers from Erb's palsy allegedly as a result ofmalpractice. Defendant Hospital's motionfor summary judgment was denied, wherealthough the doctor was not an employee ofthe hospital, plaintiffs raised a triable issueof fact as to whether hospital could be heldvicariously liable under a theory of appar-ent or ostensible agency. In the instant casethe court found that the plaintiff could havereasonably believed that the physician wasprovided by the hospital as she came to thefacility for all prenatal care and did not se-lect a physician, and when she arrived at thehospital for delivery she was not seekingany particular physician. Defendant doctorwas assigned by the hospital. Further, con-

The Tort Report: Second Department Update

Please turn to page 12

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stood behind a collapsible table at the farend of the room. It was stifling hot. Hebeckoned us to come in and we identifiedourselves. We had found the hearing room.

Since this case was more or less a slamdunk, I assumed that the government wouldsend some low level lawyer with not muchmore experience than I had. I was surprisedwhen two well-dressed government attor-neys showed up, one of whom had a highlevel title. Although there must have beenimportant labor issues before the NLRB thatyear, the government was bringing its fullweight down upon this man who operated asingle machine shop in little more than aconverted garage. The owner, who de-scribed himself as a “do it yourselfer,” ap-peared pro se and did pretty much what youwould expect any layman to do. Confidentthat he had done nothing wrong and beingunschooled in the law, he methodically toldhis story, making numerous admissionsalong the way and singlehandedly provingall the elements of the government’s caseagainst him.

After a few days, I returned to the City. Idon’t think I even bothered to find out theactual result. It hardly mattered. This com-pany would be out of business shortly,whether there was a union or not. It wasn’tthe proverbial last buggy whip maker, but ifits parts were still needed by industry, theywould be made somewhere else, in a realfactory – one that probably had a separatehuman resources department.

I learned several important lessons thatweek. First, that government has tremen-dous power, and sometimes it’s a lot easierfor it to make an example of a little guy whocan’t fight back than it is to go after a majorcorporation that can. Second, when you rep-resent a client, be careful what you wish for.To paraphrase the old saying, the operationin this case was a success but the patientwould die anyway. Third, for better orworse, in a world filled with governmentregulations, lawyers really are indispensa-ble. We are a lot like umbrellas. You can useus for protection or, if you choose not to,you can just get wet.

RESPECTFULLY SUBMITTEDContinued from page 3

sues, plaintiff's opposition stated that the al-leged medical malpractice worsened the in-fant plaintiff's condition causing both cere-bral hypoxia and the subsequent symptomsof pervasive developmental disorder, whichraised triable issues with respect to proxi-mate cause.

SEE ALSO on issue of DiscoveryFritz v. Burman, 2013 NY Slip Op 04772 (6/26/13)

The court ordered that plaintiff producethe school records of the infant plaintiff'sbrother for an in camera review as well un-dergo a blood test to determine geneticmakeup.

Landowner LiabilityFigueroa-Corser v. Town of Cortland, 2013 NY Slip Op 04306 (6/12/13)

Plaintiff's husband, decedent, was killedwhen a tree fell on his car as he was drivingon a street. The court found that summaryjudgment was inapposite as to the munici-pality which has a duty to maintain its road-ways in a reasonably safe condition, whichextends to trees adjacent to the roadwaywhich could reasonably be expected to posea danger to travelers. Plaintiff's oppositionincluded an expert affidavit which raised atriable issue as to whether the Town and thelandowner had constructive notice of the al-leged dangerous condition of the tree. Sum-mary judgment was denied both as to mu-

nicipality and landowner but was granted asto the entity that was in contract to purchasethe property.

PLEADINGSBrown v. Lutheran Med. Ctr., 2013 NY Slip Op. 04568 (6/19/13)

The court granted plaintiff's motion tostrike certain affirmative defenses assertedin a medical malpractice, wrongful deathcase. Plaintiff's wife allegedly sustained in-juries as a result of medical malpractice ofdefendants. Plaintiff commenced an actionindividually and as proposed guardian adlitem for his wife, but during the pendencyof that action his wife died. After more thana year had elapsed, but prior to the substitu-tion of parties, the court dismissed the action"with prejudice." Thereafter, plaintiff wasappointed administrator and commenced asecond action. Plaintiff moved to dismissdefendant's affirmative defenses of res judi-cata, collateral estoppel and the statute oflimitations, as well as laches by the hospitaldefendant, to the second action. The courtfound that the lower court did not intend topreclude the plaintiff from commencing anew action once he obtained capacity to sue,despite the dismissal being "with prejudice"as it was not a final judgment on the meritsand was not preclusive. ______________________________

Shana De Cara, Esq., is a partner at DeCaro & Kaplen, LLP. She is also on theBoard of Directors of the New York StateAcademy of Trial Lawyers and a regularcontributor to the Barrister.

Appellate Division, Second Department...Continued from page 9