Trusts and Estates – Page 18 – New York Appellate Digest

Attorneys, Fiduciary Duty, Trusts and Estates

IN A DISPUTE BETWEEN A HOSPITAL AND A DOCTOR CONCERNING A CHARITABLE GIFT TO THE HOSPITAL, DISQUALIFICATION OF THE DOCTOR’S LAW FIRM WAS PROPER, A LAWYER AT THE FIRM WAS ON THE HOSPITAL’S BOARD OF TRUSTEES (SECOND DEPT).

The Second Department determined the petitioner hospital's motion to disqualify an attorney. The underlying matter concerned a revocable trust related to a charitable gift to the hospital in the amount of $75 million. The oncologist, Williams, who treated the man who made the gift hired a law firm to represent him in the trust proceedings. A lawyer at the firm, Glassman, was on the hospital's board of trustees. The complaint … alleges … that the hospital and its executives are harassing Williams and trying to terminate his relationship with the hospital in order to take control of the gift in violation of the terms of the trust:

… [W]hile Glassman's status as member of the hospital's Board of Trustees did not constitute a traditional attorney-client relationship, there existed “sufficient aspects of such relationship”—notably the fiduciary duty owed by Glassman to the hospital—to trigger inquiry into the potential conflict arising from Fox Rothschild's simultaneous representation of Williams in litigation against the hospital … . Moreover, the hospital established that Glassman, as a member of the hospital's Board of Trustees, had access to confidential information regarding the gift and the ongoing dispute with Williams, both before and after this proceeding was commenced … . Matter of Blackman, 2018 NY Slip Op 06528, Second Dept 10-3-18

ATTORNEYS (CONFLICT OF INTEREST, IN A DISPUTE BETWEEN A HOSPITAL AND A DOCTOR CONCERNING A CHARITABLE GIFT TO THE HOSPITAL, DISQUALIFICATION OF THE DOCTOR'S LAW FIRM WAS PROPER, A LAWYER AT THE FIRM WAS ON THE HOSPITAL'S BOARD OF TRUSTEES (SECOND DEPT))/CONFLICT OF INTEREST (ATTORNEYS, IN A DISPUTE BETWEEN A HOSPITAL AND A DOCTOR CONCERNING A CHARITABLE GIFT TO THE HOSPITAL, DISQUALIFICATION OF THE DOCTOR'S LAW FIRM WAS PROPER, A LAWYER AT THE FIRM WAS ON THE HOSPITAL'S BOARD OF TRUSTEES (SECOND DEPT))/DISQUALIFICATION (ATTORNEYS, CONFLICT OF INTEREST, IN A DISPUTE BETWEEN A HOSPITAL AND A DOCTOR CONCERNING A CHARITABLE GIFT TO THE HOSPITAL, DISQUALIFICATION OF THE DOCTOR'S LAW FIRM WAS PROPER, A LAWYER AT THE FIRM WAS ON THE HOSPITAL'S BOARD OF TRUSTEES (SECOND DEPT))/TRUSTS AND ESTATES (ATTORNEYS, CONFLICT OF INTEREST, IN A DISPUTE BETWEEN A HOSPITAL AND A DOCTOR CONCERNING A CHARITABLE GIFT TO THE HOSPITAL, DISQUALIFICATION OF THE DOCTOR'S LAW FIRM WAS PROPER, A LAWYER AT THE FIRM WAS ON THE HOSPITAL'S BOARD OF TRUSTEES (SECOND DEPT))

October 3, 2018

Foreclosure, Trusts and Estates

APPELLANT EXERCISED UNDUE INFLUENCE OVER DECEDENT, SATISFACTION OF MORTGAGE PROVIDED TO APPELLANT NULLIFIED PURSUANT TO THE RIGGS DOCTRINE, FORECLOSURE OF THE MORTGAGE DEEMED PROPER (SECOND DEPT).

The Second Department determined the appellant, Rajic, had exercised undue influence over the decedent resulting in decedent's signing over her home to Rajic and providing a satisfaction of mortgage to Rajic for a fraction of the amount due. The satisfaction of mortgage was nullified and the foreclosure action brought on behalf of the estate was deemed proper:

Sometimes referred to as the “Riggs doctrine” … , from the seminal case in which a grandson, who had intentionally killed his grandfather in order to ensure his inheritance, was prevented from inheriting under the grandfather's will … , ” this fundamental equitable principle'” dictates that ” [n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime'” … . “Pursuant to this doctrine, which has been applied in both civil and criminal cases, the wrongdoer is deemed to have forfeited the benefit that would flow from his or her wrongdoing” … . “In determining whether the Riggs doctrine applies to a particular case, the court must examine the facts and circumstances before it, and determine whether the causal link between the wrongdoing and the benefits sought is sufficiently clear that application of the Riggs doctrine will prevent an injustice from occurring” … . * * *

The record supports the Supreme Court's conclusion that, by exercising “undue influence over the decedent,” “handling the decedent's financial affairs unscrupulously,” and, in effect, obtaining the deed to the decedent's house through fraud, then “accepting a satisfaction of mortgage from the decedent knowing the mortgage was far from being satisfied,” Rajic, “[b]y her conduct, . . . forfeited any rights that would flow” from the note and mortgage and from the subsequent satisfaction of mortgage … . …

As to the respondent's failure to provide notice of the intent to accelerate and notice of acceleration, the note contains an acceleration clause, “with no requirement of notice and demand”… , as well as a clause pursuant to which Rajic specifically waived any right to notice and demand, notice of intent to accelerate, or notice of acceleration. “Consequently, . . . [the respondent] had the right to exercise the acceleration option anytime after [default] without serving a notice of default or demand for payment” … , or notice of intent to accelerate or notice of acceleration. Rajic v Faust, 2018 NY Slip Op 06582, Second Dept 10-3-18

TRUSTS AND ESTATES (APPELLANT EXERCISED UNDUE INFLUENCE OVER DECEDENT, SATISFACTION OF MORTGAGE PROVIDED TO APPELLANT NULLIFIED PURSUANT TO THE RIGGS DOCTRINE, FORECLOSURE OF THE MORTGAGE DEEMED PROPER (SECOND DEPT))/RIGSS DOCTRINE (TRUSTS AND ESTATES, APPELLANT EXERCISED UNDUE INFLUENCE OVER DECEDENT, SATISFACTION OF MORTGAGE PROVIDED TO APPELLANT NULLIFIED PURSUANT TO THE RIGGS DOCTRINE, FORECLOSURE OF THE MORTGAGE DEEMED PROPER (SECOND DEPT))/UNDUE INFLUENCE (TRUSTS AND ESTATES, APPELLANT EXERCISED UNDUE INFLUENCE OVER DECEDENT, SATISFACTION OF MORTGAGE PROVIDED TO APPELLANT NULLIFIED PURSUANT TO THE RIGGS DOCTRINE, FORECLOSURE OF THE MORTGAGE DEEMED PROPER (SECOND DEPT))/FORECLOSURE (TRUSTS AND ESTATES, UNDUE INFLUENCE, (APPELLANT EXERCISED UNDUE INFLUENCE OVER DECEDENT, SATISFACTION OF MORTGAGE PROVIDED TO APPELLANT NULLIFIED PURSUANT TO THE RIGGS DOCTRINE, FORECLOSURE OF THE MORTGAGE DEEMED PROPER (SECOND DEPT))

October 3, 2018

Environmental Law, Labor Law, Labor Law-Construction Law, Negligence, Trusts and Estates

ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT).

The Second Department determined the action based upon exposure to lead in utero was properly dismissed. Plaintiff alleged his father’s clothes were saturated with lead at work:

At common law, employers have a duty to provide a safe workplace, but this duty has been limited to employees (see Labor Law § 200…). It has not, as the plaintiff contends, been extended to encompass individuals who were not employed at the worksite such as the plaintiff or his mother during her pregnancy … .

While “[a] landowner generally must exercise reasonable care, with regard to any activities which he carries on, for the protection of those outside of his premises'” … , the facts alleged in this case differ from those to which a landowner’s duty to exercise reasonable care for the protection of individuals off site has been held to extend … .

Contrary to the plaintiff’s contention, the alleged violations of Occupational Safety and Health Administration (hereinafter OSHA) regulations … , the Occupational Health and Safety Act of 1970 , specifically 29 USC § 654(a), and Labor Law § 27-a do not constitute negligence per se. The violation of OSHA regulations provides only evidence of negligence … . Moreover, neither the plaintiff nor his mother during her pregnancy belonged to the class intended to be protected by OSHA or its implementing regulations, 29 USC § 654(a), or Labor Law § 27-a, namely employees … . Campanelli v Long Is. Light. Co., 2018 NY Slip Op 06225, Second Dept 9-26-18

NEGLIGENCE (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))/LABOR LAW-CONSTRUCTION LAW (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))/LABOR LAW (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))/TOXIC TORTS (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))/ENVIRONMENTAL LAW (ACTION ALLEGING LEAD POISONING IN UTERO FROM FATHER’S CLOTHES WHICH WERE SATURATED WITH LEAD AND OTHER HAZARDOUS MATERIALS AT WORK DISMISSED (SECOND DEPT))

September 26, 2018

Evidence, Trusts and Estates

SUMMARY JUDGMENT DISMISSING THE OBJECTION THAT THE DECEDENT LACKED TESTAMENTARY CAPACITY WAS PROPERLY GRANTED, THE INQUIRY IS CONFINED TO THE TIME AT WHICH THE WILL IS SIGNED, TWO DISSENTERS (THIRD DEPT).

The Third Department, over a two-justice partial dissent, determined that Surrogate's Court properly granted summary judgment dismissing the objection that the decedent lacked testamentary capacity.

… [E]vidence of decedent's diagnosis of dementia and declining cognitive abilities “does not, without more, create a question of fact on the issue of testamentary capacity, as the appropriate inquiry is whether the decedent was lucid and rational at the time the will was signed” … .

From the dissent:

… “[S]ummary judgment is rare in a contested probate proceeding and where, as here, there is conflicting evidence or the possibility of drawing conflicting inferences from undisputed evidence, summary judgment is inappropriate” … . Although a diagnosis of dementia, standing alone, is insufficient to create a triable issue of fact regarding mental capacity … , where, as here, there is proof of a progressively worsening mental condition, evidence of specific facts that occur close in time to execution is probative of testamentary capacity at the relevant time and is sufficient to establish a triable issue of fact … . Matter of Giaquinto, 2018 NY Slip Op 06065, Third Dept 9-12-18

TRUSTS AND ESTATES (SUMMARY JUDGMENT DISMISSING THE OBJECTION THAT THE DECEDENT LACKED TESTAMENTARY CAPACITY WAS PROPERLY GRANTED, THE INQUIRY IS CONFINED TO THE TIME AT WHICH THE WILL IS SIGNED, TWO DISSENTERS (THIRD DEPT))/EVIDENCE (TRUSTS AND ESTATES, SUMMARY JUDGMENT DISMISSING THE OBJECTION THAT THE DECEDENT LACKED TESTAMENTARY CAPACITY WAS PROPERLY GRANTED, THE INQUIRY IS CONFINED TO THE TIME AT WHICH THE WILL IS SIGNED, TWO DISSENTERS (THIRD DEPT))/TESTAMENTARY CAPACITY (SUMMARY JUDGMENT DISMISSING THE OBJECTION THAT THE DECEDENT LACKED TESTAMENTARY CAPACITY WAS PROPERLY GRANTED, THE INQUIRY IS CONFINED TO THE TIME AT WHICH THE WILL IS SIGNED, TWO DISSENTERS (THIRD DEPT))/SUMMARY JUDGMENT (TRUSTS AND ESTATES, TESTAMENTARY CAPACITY, SUMMARY JUDGMENT DISMISSING THE OBJECTION THAT THE DECEDENT LACKED TESTAMENTARY CAPACITY WAS PROPERLY GRANTED, THE INQUIRY IS CONFINED TO THE TIME AT WHICH THE WILL IS SIGNED, TWO DISSENTERS (THIRD DEPT))

September 12, 2018

Labor Law-Construction Law, Trusts and Estates

HOMEOWNER’S DAUGHTER, AS EXECUTRIX OF DECEDENT HOMEOWNER’S ESTATE, ENTITLED TO HOMEOWNER’S EXEMPTION FROM LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6), BUT DECEDENT’S SON, WHO GAVE WORK INSTRUCTIONS TO THE INJURED PLAINTIFF, WAS NOT ENTITLED TO THE HOMEOWNER’S EXEMPTION AND MAY BE LIABLE AS AN AGENT OF THE OWNER (SECOND DEPT).

The Second Department determined one of decedent homeowner's children, Nina, who was the executrix of decedent's estate, was entitled to dismissal of the Labor Law 240 (1) and 241 (6) causes of action pursuant to the homeowner's exemption, but there was a question of fact whether decedent's son, Stephen, was liable as an agent of the owner. Plaintiff, who was hired to paint the interior of decedent's home, alleged Stephen instructed him to use a ladder to enter the house through a window. Plaintiff fell when the ladder slipped out from under him:

… [T]he defendants established the entitlement of Nina, as executrix of the decedent's estate, to the protection of the homeowner's exemption by submitting evidence that the decedent owned the one-family residence at which the work was being performed and that the decedent did not direct or control the work being done … . …

… Stephen did not own the subject residence and, therefore, was not entitled to the homeowner's exemption … . …

… [T]the defendants failed to demonstrate, prima facie, that liability for violations of Labor Law §§ 240(1) and 241(6) could not be imposed upon Stephen as an agent of the owner. “A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured”… . “To impose . . . liability [under the Labor Law], the defendant must have the authority to control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition” … . Here, a triable issue of fact exists as to whether Stephen had the authority to supervise and control the plaintiff's work. Stephen told the plaintiff which rooms to paint and, according to the plaintiff, directed him to use a ladder to access the house through a window. Diaz v Trevisani, 2018 NY Slip Op 05823, Second Dept 8-22-18

LABOR LAW-CONSTRUCTION LAW (HOMEOWNER'S DAUGHTER, AS EXECUTRIX OF DECEDENT HOMEOWNER'S ESTATE, ENTITLED TO HOMEOWNER'S EXEMPTION FROM LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6), BUT DECEDENT'S SON, WHO GAVE WORK INSTRUCTIONS TO THE INJURED PLAINTIFF, WAS NOT ENTITLED TO THE HOMEOWNER'S EXEMPTION AND MAY BE LIABLE AS AN AGENT OF THE OWNER (SECOND DEPT))/HOMEOWNER'S EXEMPTION (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER'S DAUGHTER, AS EXECUTRIX OF DECEDENT HOMEOWNER'S ESTATE, ENTITLED TO HOMEOWNER'S EXEMPTION FROM LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6), BUT DECEDENT'S SON, WHO GAVE WORK INSTRUCTIONS TO THE INJURED PLAINTIFF, WAS NOT ENTITLED TO THE HOMEOWNER'S EXEMPTION AND MAY BE LIABLE AS AN AGENT OF THE OWNER (SECOND DEPT))/TRUSTS AND ESTATES (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER'S DAUGHTER, AS EXECUTRIX OF DECEDENT HOMEOWNER'S ESTATE, ENTITLED TO HOMEOWNER'S EXEMPTION FROM LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6), BUT DECEDENT'S SON, WHO GAVE WORK INSTRUCTIONS TO THE INJURED PLAINTIFF, WAS NOT ENTITLED TO THE HOMEOWNER'S EXEMPTION AND MAY BE LIABLE AS AN AGENT OF THE OWNER (SECOND DEPT))/AGENCY (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER'S DAUGHTER, AS EXECUTRIX OF DECEDENT HOMEOWNER'S ESTATE, ENTITLED TO HOMEOWNER'S EXEMPTION FROM LIABILITY UNDER LABOR LAW 240 (1) AND 241 (6), BUT DECEDENT'S SON, WHO GAVE WORK INSTRUCTIONS TO THE INJURED PLAINTIFF, WAS NOT ENTITLED TO THE HOMEOWNER'S EXEMPTION AND MAY BE LIABLE AS AN AGENT OF THE OWNER (SECOND DEPT))

August 22, 2018

Constitutional Law, Mental Hygiene Law, Public Health Law, Trusts and Estates

DECISION TO WITHDRAW LIFE SUPPORT FROM A DEVELOPMENTALLY DISABLED MAN IN A VEGETATIVE STATE PURSUANT TO THE CRITERIA IN SURROGATE’S COURT PROCEDURE ACT 1750-b DID NOT VIOLATE HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, over a concurring opinion, determined that the decision to allow the withdrawal of life support from an 80-year-old developmentally disabled person (M.G.), who was in a vegetative state, did not violate M.G.'s right to equal protection under the law. Although M.G. had died, the appeal was considered as an exception to the mootness doctrine:

This is an appeal from an order that authorized petitioner physician, after a hearing pursuant to the Surrogate's Court Procedure Act (SCPA-1750-b), to withdraw life-sustaining treatment from a developmentally disabled person (M.G.), in accordance with the decision of his guardian. Applying SCPA 1750-b's best interests standard, Supreme Court granted the order over the objection of Mental Hygiene Legal Service (MHLS) that a meaningful inquiry into M.G.'s end-of-life wishes should have been conducted because M.G. had some prior capacity to make health care decisions … . This case presents a similar equal protection claim to the one this Court rejected in [Matter of Chantel Nicole R. (Pamela R.) 34 AD3d 99]: whether treating an intellectually and developmentally disabled person who had some prior capacity to make health care decisions differently from a previously competent, non-disabled person violates the equal protection rights of the intellectually and developmentally disabled person. In Chantel, we concluded that there was no violation of the Equal Protection Clause, because intellectually and developmentally disabled persons are not similarly situated to once competent persons and that the disparate treatment of the SCPA 1750-b was rationally related to a “legitimate [government] interest in advancing the right of [intellectually and developmentally disabled] persons to be free from prolonged suffering” … . … [w]e reject the equal protection challenge in this case as well. * * *

MHLS moved to summarily dismiss the petition, arguing that petitioner should proceed under article 29-CC of the Public Health Law and not SCPA 1750-b, since M.G. was previously found to have capacity to request life-sustaining treatment, and thus a meaningful inquiry into his end-of-life wishes should control, rather than merely a “best interests” analysis, and that proceeding otherwise would violate his equal protection rights. Dr. Sloane, however, argued that the application was properly brought under SCPA 1750-b, since M.G. was in a permanent vegetative state, lacked capacity to make health care decisions, was developmentally disabled with a full-scale IQ of 47, had no advanced directives in place, and had not discussed his wishes with his guardian, who lived in Chicago, or anyone at his community residence. * * *

… [W]e are satisfied that Supreme Court's decision with regard to M.G. was consistent with SCPA 1750-b's requirements for withdrawal of life-sustaining treatment. The undisputed medical evidence establishes that before his demise, M.G. was in a permanent vegetative state; he suffered from multiple organ failure of the lungs, kidneys, and brain. M.G. had no neurologic function and did not respond to stimuli or breathe without a ventilator. The medical expert's opinion was that the need for hemodialysis, the chest tubes, and ventilation were ongoing, that M.G.'s lack of cognitive ability could not be cured, and that there was no chance of meaningful neurological recovery. It was thus abundantly clear that M.G. was completely unable to interact with his environment, and that the medical probability that he would ever return to a cognitive sentient state, as distinguished from a chronic vegetative existence, was virtually non-existent. Any medical treatment administered would have provided minimal, if any, benefit and would only have postponed M.B.'s death rather than improve his life. In short, M.G.'s condition was irreversible, and treatment would have imposed an extraordinary burden on him… . The best interests of the patient under SCPA 1750-b embraces not only recovery or the avoidance of pain but also a dignified death. The guardian's decision conformed with the obligation to promote the patient's well-being, and to the extent possible, the decision of M.G. himself. Matter of Sloane v M.G., 2018 NY Slip Op 05800, First Dept 8-16-18

MENTAL HYGIENE LAW (DECISION TO WITHDRAW LIFE SUPPORT FROM A DEVELOPMENTALLY DISABLED MAN IN A VEGETATIVE STATE PURSUANT TO THE CRITERIA IN SURROGATE'S COURT PROCEDURE ACT 1750-b DID NOT VIOLATE HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW (FIRST DEPT))/TRUSTS AND ESTATES (DECISION TO WITHDRAW LIFE SUPPORT FROM A DEVELOPMENTALLY DISABLED MAN IN A VEGETATIVE STATE PURSUANT TO THE CRITERIA IN SURROGATE'S COURT PROCEDURE ACT 1750-b DID NOT VIOLATE HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW (FIRST DEPT)/CONSTITUTIONAL LAW (DECISION TO WITHDRAW LIFE SUPPORT FROM A DEVELOPMENTALLY DISABLED MAN IN A VEGETATIVE STATE PURSUANT TO THE CRITERIA IN SURROGATE'S COURT PROCEDURE ACT 1750-b DID NOT VIOLATE HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW (FIRST DEPT))/LIFE SUPPORT (DECISION TO WITHDRAW LIFE SUPPORT FROM A DEVELOPMENTALLY DISABLED MAN IN A VEGETATIVE STATE PURSUANT TO THE CRITERIA IN SURROGATE'S COURT PROCEDURE ACT 1750-b DID NOT VIOLATE HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW (FIRST DEPT))/SURROGATE'S COURT PROCEDURE ACT ((DECISION TO WITHDRAW LIFE SUPPORT FROM A DEVELOPMENTALLY DISABLED MAN IN A VEGETATIVE STATE PURSUANT TO THE CRITERIA IN SURROGATE'S COURT PROCEDURE ACT 1750-b DID NOT VIOLATE HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW (FIRST DEPT))/DEVELOPMENTALLY DISABLED (DECISION TO WITHDRAW LIFE SUPPORT FROM A DEVELOPMENTALLY DISABLED MAN IN A VEGETATIVE STATE PURSUANT TO THE CRITERIA IN SURROGATE'S COURT PROCEDURE ACT 1750-b DID NOT VIOLATE HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW (FIRST DEPT))

August 16, 2018

Civil Procedure, Trusts and Estates

MOTION TO AMEND THE COMPLAINT BY NAMING PLAINTIFF IN HER CAPACITY AS THE REPRESENTATIVE OF HER HUSBAND’S ESTATE, WHERE THE ORIGINAL COMPLAINT WAS ERRONEOUSLY BROUGHT IN HER INDIVIDUAL CAPACITY, WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined plaintiff's motion to amend her complaint in this legal malpractice action to sue as a representative of the estate of her husband, rather than in her individual capacity, was properly granted:

“[A]n amendment which would shift a claim from a party without standing to another party who could have asserted that claim in the first instance is proper since such an amendment, by its nature, does not result in surprise or prejudice to the defendants who had prior knowledge of the claim and an opportunity to prepare a proper defense” … .

The Supreme Court providently exercised its discretion in granting the plaintiff leave to amend the complaint to substitute herself in her representative capacity as the plaintiff in place of herself in her individual capacity. The proposed amendment, which only sought to shift the causes of action from the plaintiff in her individual capacity to herself in her representative capacity, was proper since the allegations set forth in the complaint gave the appellants notice of the legal malpractice causes of action being asserted against them in the amended complaint … . Moreover, the appellants' contention that they would be prejudiced by the amendment because the applicable statute of limitations had expired by the time the plaintiff sought leave to amend the complaint is without merit, since the original complaint was timely filed and gave the appellants notice of the transactions and occurrences pleaded in the amended complaint (see CPLR 203[f] … ). D'Angelo v Kujawski, 2018 NY Slip Op 05750, Second Dept 8-15-18

CIVIL PROCEDURE (MOTION TO AMEND THE COMPLAINT BY NAMING PLAINTIFF IN HER CAPACITY AS THE REPRESENTATIVE OF HER HUSBAND'S ESTATE, WHERE THE ORIGINAL COMPLAINT WAS ERRONEOUSLY BROUGHT IN HER INDIVIDUAL CAPACITY, WAS PROPERLY GRANTED (SECOND DEPT))/CPLR 203 (MOTION TO AMEND THE COMPLAINT BY NAMING PLAINTIFF IN HER CAPACITY AS THE REPRESENTATIVE OF HER HUSBAND'S ESTATE, WHERE THE ORIGINAL COMPLAINT WAS ERRONEOUSLY BROUGHT IN HER INDIVIDUAL CAPACITY, WAS PROPERLY GRANTED (SECOND DEPT))/TRUSTS AND ESTATES (CIVIL PROCEDURE, MOTION TO AMEND THE COMPLAINT BY NAMING PLAINTIFF IN HER CAPACITY AS THE REPRESENTATIVE OF HER HUSBAND'S ESTATE, WHERE THE ORIGINAL COMPLAINT WAS ERRONEOUSLY BROUGHT IN HER INDIVIDUAL CAPACITY, WAS PROPERLY GRANTED (SECOND DEPT))

August 15, 2018

Attorneys, Trusts and Estates

ATTORNEYS FOR THE EXECUTOR OF THE ESTATE IN A REMOVAL PROCEEDING SHOULD NOT HAVE BEEN DISQUALIFIED BASED UPON THEIR PRIOR REPRESENTATION OF DECEDENT’S WIFE FOR HER ESTATE PLANNING (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the law firm representing the executor and trustee of the estate in a removal proceeding should not have been disqualified based upon the firm’s prior representation of the decedent’s wife, Sandra, for Sandra’s estate planning:

” A party seeking disqualification of it[s] adversary’s counsel based on counsel’s purported prior representation of that party must establish (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse'” … . “When the moving party is able to demonstrate each of these factors, an irrebuttable presumption of disqualification follows”… . ” A party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted'”… .

Here, although the law firm had a prior attorney-client relationship with Sandra in connection with her own estate planning, which may have been intertwined somewhat with that of the decedent, the record does not reveal that the law firm’s prior representation of Sandra is substantially related or materially adverse to the removal proceedings. In the removal proceedings, Sandra’s estate is not being administered or litigated, and there is nothing to suggest that any confidences with Sandra might be breached by the law firm’s representation of the appellant in his capacity as executor and trustee of the decedent’s estate … . Matter of Kopet, 2018 NY Slip Op 05678, Second Dept 8-8-18

ATTORNEYS (DISQUALIFICATION, ATTORNEYS FOR THE EXECUTOR OF THE ESTATE IN A REMOVAL PROCEEDING SHOULD NOT HAVE BEEN DISQUALIFIED BASED UPON THEIR PRIOR REPRESENTATION OF DECEDENT’S WIFE FOR HER ESTATE PLANNING (SECOND DEPT))/TRUSTS AND ESTATES (ATTORNEYS, DISQUALIFICATION, ATTORNEYS FOR THE EXECUTOR OF THE ESTATE IN A REMOVAL PROCEEDING SHOULD NOT HAVE BEEN DISQUALIFIED BASED UPON THEIR PRIOR REPRESENTATION OF DECEDENT’S WIFE FOR HER ESTATE PLANNING (SECOND DEPT))/DISQUALIFICATION (ATTORNEYS, TRUSTS AND ESTATES, ATTORNEYS FOR THE EXECUTOR OF THE ESTATE IN A REMOVAL PROCEEDING SHOULD NOT HAVE BEEN DISQUALIFIED BASED UPON THEIR PRIOR REPRESENTATION OF DECEDENT’S WIFE FOR HER ESTATE PLANNING (SECOND DEPT))

August 8, 2018

Mental Hygiene Law, Trusts and Estates

SURROGATE’S COURT SHOULD HAVE GRANTED THE PETITION FOR THE APPOINTMENT OF A GUARDIAN TO MANAGE THE AFFAIRS OF A SEVERELY DISABLED PERSON, THE SURROGATE’S COURT PROCEDURE ACT AUTHORIZES THE APPOINTMENT, SURROGATE’S COURT ERRED BY FINDING THE PETITION SHOULD BE BROUGHT UNDER THE MENTAL HYGIENE LAW (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined that the petition under the Surrogate’s Court Procedure Act seeking the appointment of a guardian should have been granted. Petitioner is the sister of a severely disable person, Anna. Petitioner established Anna could not care for herself and the appointment was necessary to manage Anna’s affairs. Surrogate’s Court erroneous dismissed the petition, finding that it should have been brought under the Mental Hygiene Law:

Pursuant to article 17-A of the Surrogate’s Court Procedure Act, “the court is authorized to appoint a guardian of the person [who is intellectually disabled] . . . if such appointment . . . is in the best interest of the person who is intellectually disabled.” Under the statutory scheme, a person is intellectually disabled if that person has been certified by, among other possibilities, one licensed physician and one licensed psychologist “as being incapable to manage him or herself and/or his or her affairs by reason of intellectual disability and that such condition is permanent in nature or likely to continue indefinitely” … .

Here, the record establishes that Anna is intellectually disabled within the meaning of Surrogate’s Court Procedure Act article 17-A. Further, the record also establishes that it would be in Anna’s best interest to have the petitioner appointed as her guardian. The record shows that Anna is incapable of providing for her most basic needs and that in the absence of court-authorized guardianship, the petitioner, Anna’s only sibling, is unable to adequately manage Anna’s affairs. Nothing in the record suggests that the petitioner is unqualified to act as Anna’s guardian. To the contrary, despite the legal limitations she has encountered, the petitioner has been managing Anna’s affairs and providing for Anna since their parents’ deaths. Matter of Anna F., 2018 NY Slip Op 05590, Second Dept 8-1-18

TRUSTS AND ESTATES (GUARDIANSHIP, SURROGATE’S COURT SHOULD HAVE GRANTED THE PETITION FOR THE APPOINTMENT OF A GUARDIAN TO MANAGE THE AFFAIRS OF A SEVERELY DISABLED PERSON, THE SURROGATE’S COURT PROCEDURE ACT AUTHORIZES THE APPOINTMENT, SURROGATE’S COURT ERRED BY FINDING THE PETITION SHOULD BE BROUGHT UNDER THE MENTAL HYGIENE LAW (SECOND DEPT))/GUARDIANSHIP (GUARDIANSHIP, SURROGATE’S COURT SHOULD HAVE GRANTED THE PETITION FOR THE APPOINTMENT OF A GUARDIAN TO MANAGE THE AFFAIRS OF A SEVERELY DISABLED PERSON, THE SURROGATE’S COURT PROCEDURE ACT AUTHORIZES THE APPOINTMENT, SURROGATE’S COURT ERRED BY FINDING THE PETITION SHOULD BE BROUGHT UNDER THE MENTAL HYGIENE LAW (SECOND DEPT))/MENTAL HYGIENE LAW (GUARDIANSHIP, SURROGATE’S COURT SHOULD HAVE GRANTED THE PETITION FOR THE APPOINTMENT OF A GUARDIAN TO MANAGE THE AFFAIRS OF A SEVERELY DISABLED PERSON, THE SURROGATE’S COURT PROCEDURE ACT AUTHORIZES THE APPOINTMENT, SURROGATE’S COURT ERRED BY FINDING THE PETITION SHOULD BE BROUGHT UNDER THE MENTAL HYGIENE LAW (SECOND DEPT))

August 1, 2018

Civil Procedure, Medical Malpractice, Negligence, Trusts and Estates

MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED BASED ON A FINDING THE MOTION TO SUBSTITUTE THE REPRESENTATIVE OF THE ESTATE OF THE PLAINTIFF WAS UNTIMELY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the medical malpractice action should not have been dismissed on the ground that a motion to substitute the representative of plaintiff’s estate was not timely made:

In October 2004, Patricia Tokar (hereinafter Patricia) commenced this action to recover damages for medical malpractice based upon treatment she received from 2000 to 2002. Patricia’s deposition was taken in September 2006 and again in August 2009, while the defendant’s deposition was taken in April 2008. A note of issue was filed in December 2009. The matter was called for trial on 12 separate occasions between 2011 and 2012. By letter dated October 19, 2012, Patricia’s attorney informed the defendant’s attorney that Patricia had died two weeks before, and that her husband, Stanley Tokar (hereinafter Stanley), would be seeking to be appointed administrator of Patricia’s estate after he completed his mourning period. In October 2014, Stanley filed a petition for letters of administration of Patricia’s estate. By order to show cause dated May 12, 2015, the defendant moved pursuant to CPLR 1021 to dismiss the complaint for failure to seek a timely substitution of parties on behalf of Patricia. On June 5, 2015, letters of administration were issued to Stanley, who then moved, seven days later, on June 12, 2015, pursuant to CPLR 1012, to be substituted, as administrator of Patricia’s estate, as the plaintiff in the action. The Supreme Court denied Stanley’s motion and granted the defendant’s motion … . …

CPLR 1021 provides, in pertinent part, that “[i]f the event requiring substitution occurs before final judgment and substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made.” The determination of reasonableness requires consideration of several factors, including the diligence of the party seeking substitution, prejudice to the other parties, and whether the party to be substituted has shown that the action or defense has potential merit … .

Here, the record does not support a finding that there was a lack of diligence in the filing of the petition for Stanley to be substituted, or that the defendant was prejudiced by the delay in the appointment of Stanley as administrator, particularly since this case turns on medical records in the defendant’s possession … . Further, Stanley sufficiently demonstrated that the action has potential merit … . Moreover, there is a strong public policy that matters should be disposed of on the merits … . Tokar v Weissberg, 2018 NY Slip Op 05516, Second Dept 7-25-18

CIVIL PROCEDURE (MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED BASED ON A FINDING THE MOTION TO SUBSTITUTE THE REPRESENTATIVE OF THE ESTATE OF THE PLAINTIFF WAS UNTIMELY (SECOND DEPT))/TRUSTS AND ESTATES (MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED BASED ON A FINDING THE MOTION TO SUBSTITUTE THE REPRESENTATIVE OF THE ESTATE OF THE PLAINTIFF WAS UNTIMELY (SECOND DEPT))/MEDICAL MALPRACTICE (MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED BASED ON A FINDING THE MOTION TO SUBSTITUTE THE REPRESENTATIVE OF THE ESTATE OF THE PLAINTIFF WAS UNTIMELY (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN DISMISSED BASED ON A FINDING THE MOTION TO SUBSTITUTE THE REPRESENTATIVE OF THE ESTATE OF THE PLAINTIFF WAS UNTIMELY (SECOND DEPT))

July 25, 2018