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July 2015 Archives

Surrogate’s Court Discovery: Recent Cases Illustrate Changes Under Provisions of SCPA

Over the past 10 years, Surrogate’s Court judges across the state have made a series of decisions dealing with the discovery proceedings and “reverse” discovery proceedings under the Surrogate’s Court Procedure Act (SCPA) that provide valuable guidance on how the statutes are being interpreted and how attorneys should develop strategies on behalf of their clients.

Bashian & Farber Support LGBT Community

On June 6, 2015, the LOFT LGBT Community Center of Lower Hudson Valley held its annual Pride celebration in White Plains at the Memorial United Methodist Church which was attended by hundreds of participants. Bashian & Farber was proud to support this event by hosting a booth to provide those in attendance with information regarding a broad range of legal issues including those specifically pertaining to the LGBT Community, including changes in the law pertaining to marriage and protections against discrimination.James Hyer, who is a partner at Bashian & Farber, is also on the Board of Directors of the LOFT and noted, "This yearly event is always such a great opportunity to come together to support LGBT Rights and I'm delighted that Bashian & Farber once again was able to support this event."Bashian & Farber is one of a handful of Law Firms practicing in the Hudson Valley which has dedicated a portion of its practice to serving the LGBT community by maintaining a firm base of knowledge of the specific laws and developments and case decisions which affect the LGBT community as it evolves.

Bashian & Farber Sponsors Veteran's Day event at the VA Hospital

On Veteran’s Day, Paralegal Caitlin Baranowski, Legal Assistant Elizabeth Troyano and James L. Hyer, Esq., attended an event sponsored by Bashian & Farber, LLP, at the VA Hospital in Montrose, NY. The event provided Bingo games, prizes, and refreshments to elderly veterans living in the senior center. The firm sponsored and assisted the Westchester County Bar Association with this event to thank the men and women who have served in our nation’s armed forces.

Bashian & Farber hosts Booth at the Fair & Affordable Housing Expo

The Fair & Affordable Housing Expo, attended by hundreds of people from throughout the Hudson Valley, this Expo aimed to educate the public regarding housing issues. Various workshops offered information on first-time home purchases, financing the purchase of a home, housing discrimination, and other relevant topics. Participants also had the opportunity to speak to professionals involved in different housing issues. Bashian & Farber hosted a booth at the event to discuss legal issues related to all aspects of home ownership, including real estate transfers, housing discrimination, and landlord-tenant matters. James L. Hyer, who is a member of the Board of Directors of Westchester Residential Opportunities, Inc., reported, "One of the essentials of being a professional is providing service to the community and I am proud that our firm could be part of this important event."  

Bashian & Farber Participates in the New York State 2015 High School Mock Trial Tournament

The New York State Bar Association, Westchester County Bar Association and Pace Law School collaboratively held the New York State 2015 High School Mock Trial Tournament last month. Students were provided with materials including rules of procedure, evidence and pleadings, pertaining to a fictitious case wherein they were assigned to represent one of the parties. Bashian & Farber was pleased to support the event by having James L. Hyer serve as a competition judge at the Westchester County Courthouse. Following the mock trial, Mr. Hyer noted that "It was remarkable to see how prepared the students were and they had worked to develop their advocacy skills. I can’t wait to participate again next year."  

Summary Judgement Motion in a Will Contest: An Updated Proponent's Perspective

By: Gary E. Bashian, Esq.A motion for summary judgment, pursuant to CPLR § 3212 or § 3211, is a powerful procedural tool that can end litigation immediately.Summary judgment can deliver a swift and decisive victory on the outcome of a matter. It can limit the issues, or award the broadest types of relief by ending all claims. When granted, it can avoid years of potential litigation and expense.But for all of its versatility, drafting a motion for summary judgment can be a daunting and complex undertaking. The facts (hopefully none in question), and the applicable law in every matter can make it difficult to identify issues with no triable issue of fact. Communicating them clearly to the Court so as to show that summary judgment should be granted is the challenge.

"Death Bed" "Quickie" Marriages Held to be Void Ab Initio by Appellate Division

Elder abuse, including the financial exploitation of elderly individuals, especially by non family members, who have become mentally incapacitated[1] is an unfortunate and growing problem in our society. The unique vulnerabilities of those abused, the easily overlooked evidence of such abuse, and the sometimes invisible nature of the abuse itself, make this a difficult issue to both recognize and address, even by those closest to its victims.  This abuse, compounded by individuals seeking to profit from their abuse and seemingly statutory loopholes allowing them to do so beckoned judicial intervention.

Revoking a Waiver and Consent Is Not As Easy As You Think

American author Alfred A. Montapert once said that “nobody ever did, or ever will, escape the consequences of his choices.” That statement holds true in the field of trusts and estates, in particular when it comes to the execution of a waiver and consent in a probate proceeding. As this article will show, a party to a probate proceeding must exercise care in signing such a document, as it carries with it powerful consequences that cannot be easily undone.

Court of Appeals Rules there is Privity between the Estate Planner and the Client's Personal Estate Representative: But no Privity to Beneficiaries of the Estate

The traditional protection from legal malpractice claims afforded Estate practitioners by the doctrine of Privity has been relaxed by a recent New York Court of Appeals decision.In the Estate of Saul Schneider v Finmann[i], a unanimous Court of Appeals has ruled that a personal Estate representative “stands in the shoes of the decedent,” and therefore has “the capacity to maintain a malpractice claim on the Estate’s behalf[ii].”

New Durable Statutory Power of Attorney Form Enacted with Major Changes Effective, September 1, 2009

On September 1, 2009, significant changes to the New York law of Durable Powers of Attorney will take effect.The current statute in the General Obligations Law has a Durable Power of Attorney Statutory Short form, which has been in effect since January 1, 1997 and is a basic form in which you can add unlimited gift giving authority to the Power of Attorney within the form by initialing a box. In Salvation Army v. Ferrara, 2006 N.Y. Slip Op. 05156 (2006) the Court of Appeals restricted the statutory provisions and determined that the gift-giving authority including gift giving to the attorney-in-fact, had to be in the “best interests of the principal,” which was narrowly defined as gift giving authority to the attorney in fact which is allowed only if it is for gift, income, and estate tax purposes.

The Westchester Human Rights Commission: A Convenient Forum

By: James L. Hyer, Esq. For attorneys representing clients with claims of discrimination in housing, employment, public accommodations and credit the Westchester Human Rights Commission, (“Commission”), offers a convenient venue operating under straightforward rules and regulations.[i] This article addresses the key points of the procedures pertaining to the filings, investigations, and hearings within the Commission with respect to non-housing discrimination matters which are governed by separate county statute and rules as primer for attorneys.

Stewardship of Historic New York State Cemeteries

By: James L. Hyer, Esq. Immediate legislative and administrative action is necessary to preserve the historic cemeteries of New York State (NYS) effectively. Worthy of preservation, these cemeteries present an amalgam of historic information, offering valuable data about the past and the evolution of society. Preservation of these sites will permit the continued opportunity to research the burial practices of the region, including the location and relocation of cemeteries, methods of burial, segregation in burial, trends of cemetery design and public perception of burial. This comment offers arguments in favor of historic cemetery preservation, a synopsis of pertinent NYS cemetery law, as well as ways to alter NYS laws, regulations and procedures to better achieve preservation.

Penny D. Taylor v. Joseph Rosa: A Recent Decision Changing the Law of Paternity By Estoppel

By: James L. Hyer, Esq. On May, 2, 2007, a decision was rendered in Penny D. Taylor v. Joseph Rosa, No. 76026-04 (Bronx Sup. 2007), significantly changing the law of Paternity By Estoppel.This noteworthy decision came less than a year after the New York State Court of Appeals holding In The Matter of Shondel J. v. Mark D., 7 N.Y.3d 320, 853 N.E.2d 610, 820 N.Y.S2d 199, 2006 N.Y. Slip Op. 05238 that ruled in favor of Paternity By Estoppel. In that case, the Court of Appeals upheld the lower court determinations that a man was required to pay child support for a child despite irrefutable DNA evidence that the child was not biologically his.

Court of Appeals Overturns Itself in Hyde and Approves Allocating Estate's Attorney Fees against Objecting Beneficiaries if Litigation against Estate is Vexatious

By: Gary E. Bashian, Esq.The New York Court of Appeals, on June 29, 2010, resurrected what it has deemed was the original intent of SCPA § 2110, which governs the fixing and determining of attorney’s fees for services rendered to a fiduciary, devisee, legatee, or ­­­­­interested party, for legal services rendered to a fiduciary by an attorney in Estate matters. In the Matter of Hyde,[i] the Court considered if a fiduciary’s legal fees, which the Estate is obligated to pay, could be allocated to a particular beneficiary who filed objections in an accounting proceeding, or if such fees must be paid by the Estate as a whole, and thus all beneficiaries share in the cost equally.

Estate Litigation Tidbits Fall 2006

“INITIALLY” IT SEEMED IMPORTANT:  DUE EXECUTION OF WILL DEMONSTRATED EVEN WHEN “INITIALS” AND SIGNATURE DID NOT MATCH  In this contested probate proceeding, Westchester County Surrogate, Hon. Anthony A. Scarpino, found that in executing her Last Will and Testament, the fact that the testatrix initialed each page of the instrument with her three initials, and signed her name without her middle initial, did not raise an issue on due execution.The proponent of the Will set forth a prima facie case on due execution.  The objectant emphasized that while the Testatrix initialed each page of the instrument with her three initials, her signature did not contain her middle initial.The Court held that the mismatched initials and signature did not raise an issue on due execution and granted summary judgment for the proponent.  In Re Taylor, N.Y.L.J. Feb. 6, 2006 at 46 (Sur. Ct. Westchester County).

Equity Prevails and Voids Marriage Between Aides and Aged Patients

As ever growing segments of the American population transition into senior citizenship, there has been an alarming rise in what is broadly known as Elderly abuse. Neglect, financial exploitation, physical and or mental abuse, are all forms of elder mistreatment that are adversely effecting increasing numbers of people in our community, and people throughout the country.This unfortunate occurrence is exacerbated by tough economic times, an increasingly strained healthcare system, and a lack of awareness about the nature and depth of this problem on behalf of families, and the professional communities that offer services to them.As illustrated in a recent series of decisions, the Courts have been actively taking steps to protect older generations from new forms of elder abuse by using traditional legal tools to address this growing social problem.

Discovery Under the Surrogate's Court Procedure Act: a Primer

Often when the issue of a discovery proceeding is raised in either a will contest, accounting contest or related litigated estate matter, the initial reaction by the attorney is to assume that reference is being made to the discovery and disclosure permitted by Article 31 of the Civil Practice Law and Rules. While the attorney would be correct in believing that the provisions of Article 31 of the CPLR and other laws relevant to practice and procedure apply in the Surrogate’s Court, a discovery proceeding in the Surrogate’s Court, as many attorneys have learned the hard way, is a beast of a different color.The purpose of this article is to acclimate the general practitioner with some of the intricacies of Sections 2103 and 2104 of the Surrogate’s Court Procedure Act (SCPA) relevant to a discovery proceeding and to briefly touch upon what is commonly referred to as a reverse discovery proceeding permitted by Section 2105 of the SCPA.

Surrogate's Court Wrongful Death Compromises 101

In any wrongful death action, a successful outcome for your client will doubtlessly be hard won. However, whether recovery comes from an “action or by settlement without an action,”[i] counsel’s job is far from over once an award is procured in the Supreme Court as the final phase of wrongful death litigation involves Petitioning the Surrogate’s Court to direct the final distribution of the recovery from the Decedent’s Estate to the proper parties.

Estate Litigation Tidbits Spring/Summer 2011

By: Gary E. BashianPROBATE DECREE MUST BE VACATED BEFORE 1404 DISCOVERY CAN PROCEED.  In 2008, Petitioner submitted for probate the Last Will and Testament of Decedent, which was executed in 1994. Oddly, the affidavit of attesting witnesses was not executed until 1997. Petitioner was named executor, and the sole beneficiary. At the time of probate, Respondent, Decedent’s brother in law, made no objection. In 2009 Respondent attempted to transfer real property located in Lake Placid, NY, the primary asset of the Estate. While conducting discovery related to that transfer, Respondent uncovered evidence that credibly questioned the due execution of the Will.Thereafter, Respondent moved by Order to Show Cause to have the Petitioner’s authority as executor suspended, and the Probate Decree vacated. Petitioner cross moved in opposition, and for an order of protection regarding further discovery regarding both the Estate and the real property action.

Successful Summary Judgment by Objectant in Contested Accounting Proceedings on the Rise

Accelerated Judgments are a perfect tool to best help balance the rights of litigants who seek access to the Courts, and the practical demands of managing a ballooning docket. As a result, if the facts warrant it, and if the damage done to an Estate by a fiduciary is so egregious, Surrogate’s Courts have become more receptive  to Trusts and Estates practitioners who move for Summary Judgment on behalf of an Objectant in a Contested Accounting proceeding.

Estate Litigation Tidbits Fall/Winter 2014

Surrogate’s Summary Judgment Roundup – Very Interesting!A Series of Recent Decisions from Surrogate’s Throughout Metropolitan New York, Further Highlight the Increased Use of Summary Judgment in the Courts.
  1. Matter of Lubin, 30 Misc. 3d 1234A [Bronx County Surrogate’s 2011], is instructive as it again reminds practitioners of the burdens assigned to Objectants and Proponents in a Will contest proceeding.

Singer Contra Cohn, New York's Evolving Approach to In Terrorem Clauses

Over the past two years the New York Courts have taken increasingly nuanced positions in the interpretation, enforcement, and denial of In Terrorem clauses in a variety of contexts. A more expansive reading of Estates, Powers and Trusts Law (EPTL) § 3-3.5(b) advocated by the Court of Appeals in the 2009 case Matter of Singer[i], has lead to a broader discovery process, and arguably, a narrower interpretation of a testator’s intent. Alternatively, in 2010 the Appellate Division, First Department, declined to broaden the application of EPTL § 3-3.5(b), surprisingly yielding a more expansive interpretation of an In Terrorem clause in the Matter of Cohn[ii]. Each of these cases are instructive on how to better drat and use the In Terrorem clause when trying to preserve a client’s Estate plan, and offer insight into the Courts’ approach to determining a testator’s intent regarding its use.

“Attorney Client Privity is Alive and Well Now, Even when You're Dead"

Until quite recently, Estate practitioners were protected from Estate planning malpractice claims by Estate representatives by the often overlooked protections afforded by the doctrine of Privity. However, with their unanimous June 2010 decision in the Estate of Saul Schneider v Finmann[i], the New York Court of Appeals has relaxed this traditional safeguard and allowed for a new cause of action in the State against a negligent Estate planning attorney.Although the Schneider decision represents a marked change from the prior bar on suits by personal representatives against a negligent Estate planning attorney, its rationale is far from revolutionary, and its rather narrow ruling endeavors to balance the interests of both Estate representatives and their legal counsel.

Article 15: Short Form Power of Attorney- A Valuable Tool

Our firm recently argued before the Appellate Division, Second Department and was affirmed on the conflicting burdens of proof on a fiduciary when a gift is made pursuant to a short form Power of Attorney, modified in accordance with 1997 amendments to the General Obligations Law. Such was the case in Matter of Salvation Army v. Ferrara, 2005 NY Slip Op 07531 (October 11, 2005). The Appellate Division, Second Department, affirmed the decision and order of the Rockland County Surrogate’s Court. Both courts held that a Power of Attorney, which was modified to allow the respondents to make gifts to themselves “without limitation,” was valid in accordance with General Obligations Law §5-1503. The Appellate Court then went one step further and held that “evidence was adduced at the hearing to support the respondents’ contention that the decedent specifically authorized the distribution of his funds to the respondent Dominick Ferrara.” The Court then dismissed the action which sought the return of the gifts to the Estate.

5 Reasons Why We fell in Love with the Durable Statutory Short Form Power of Attorney and Statutory Major Gifts Rider Form

In the words of Elizabeth Barrett Browning, “How do I love thee? Let me count the ways.”Effective September 1, 2009, the General Obligations Law (hereinafter “GOL”) has been amended, updated and refined to provide significant reforms to the use of Powers of Attorney in New York and to reflect the complexities that surround the use of Powers of Attorney in financial and estate planning matters.

New York State Bar Association Trusts & Estates Law Section

Long-recognized as a leader in Estate and Trust litigation as well as sophisticated estate and tax planning, Gary Bashian currently serves as a member of the Executive Committee of the Trusts and Estates Law Section of the New York State Bar Association, and he recently attended the 2015 Annual Meeting of the Section in New York City. At the meeting, Mr. Bashian discussed new developments within the laws pertaining to Surrogate’s Court advocacy and Federal and State tax changes. Mr. Bashian noted, "Taking part in these professional events is one of the efforts that our firm engages in to remain at the forefront of any new developments in the law so that we are better able to provide our clients with the best representation available."Mr. Bashian also plans to attend the next two-day seminar of the New York State Bar Association’s Trusts and Estates Law Section on the topic of "Providing For and Protecting the Children (No matter what life throws at them)." 

Appellate Motion Practice

Bashian & Farber is pleased to announce that Andrew Frisenda, a Senior Associate and Appellate practitioner, was a featured lecturer at the Westchester County Bar Association Appellate Practice Committee’s recent Continuing Legal Education seminar, "Appeals: What’s it all About?"Held at Pace Law School, the event included several speakers who practice in both the State and Federal Appellate Courts. Mr. Frisenda spoke at length about Motion practice at the Appellate level, focusing on both practical and procedural considerations when before the Court. Andrew has practiced extensively in the Appellate Division, Second Department, the Appellate Court for Westchester, Dutchess, Orange, Rockland, Putnam, Richmond, Kings, Queens, Nassau, and Suffolk counties, and was recently involved in Motion practice before the New York State Court of Appeals which is New York State’s highest judicial authority. This lecture was the first in a series hosted by the Westchester County Bar Association Appellate Practice Committee regarding Appellate practice, offering guidance to the Westchester legal community about this unique—and often complex—area of the law. Please contact Mr. Frisenda if you have any questions about this Continuing Legal Education series or Appellate practice in general. 

Westchester County Bar Association's Past Presidents

[caption id="attachment_102" align="aligncenter" width="268"](above: Association’s Past Presidents Peter Zeltner, Gary Bashian, and John Marwell) (above: Association’s Past Presidents Peter Zeltner, Gary Bashian, and John Marwell)[/caption]Gary E. Bashian and James L. Hyer, two of the firm’s partners, attended the Annual Meeting and Past Presidents Dinner of the Westchester County Bar Association held on March 4, 2015. The event included many local attorneys, judges, the President of the New York State Bar Association, and the Dean of Pace Law School. Bashian & Farber is pleased to announce that following a vote at this meeting, Mr. Hyer was elected to become a Director on the Board of Directors of the Westchester County Bar Association.As a past President of the Association, Mr. Bashian noted, "The time that I have spent throughout my career in providing service to the profession through the Association have been personally fulfilling to me, and I am delighted that James will continue that tradition by taking a leadership position within the Association." 

Collection Drive Donates to Local Veterans

[caption id="attachment_85" align="aligncenter" width="300"](pictured above) Bashian & Farber’s James L. Hyer, Esq., and Paralegal Caitlin Baranowski, Mary Ellen McCourt of the Westchester County Bar Association and Yvette Rodriguez-Cacho, Montrose VA Hospital Volunteer Services Chief. (pictured above) Bashian & Farber’s James L. Hyer, Esq., and Paralegal Caitlin Baranowski, Mary Ellen McCourt of the Westchester County Bar Association and Yvette Rodriguez-Cacho,
Montrose VA Hospital Volunteer Services Chief.[/caption]Bashian & Farber, LLP, is proud to announce that the second annual Hat, Scarf and Glove Drive sponsored by the Diversity Committee of the Westchester County Bar Association was a great success. Working with over a dozen local Courts and Town Halls, James L. Hyer, Esq., coordinated the drive which collected hundreds of winter coats, hats, gloves, and scarves. All of the collected items were provided to the Clothing Room of the VA Hospital in Montrose, New York which serves approximately 250 veterans each month.You can read more about this event on the VA Hudson Valley Health Care System’s Facebook page by clicking on the following link: https://www.facebook.com/VAHudsonValley?fref=nf#!/VAHu dsonValley/photos/a.116756108369168.7346.105276666183779/905871089457662/?type=1&theater. Thank you to everyone who participated in this event and thank you to our veterans![caption id="attachment_88" align="aligncenter" width="174"](Above) James L. Hyer, Esq., stands before Montrose VA Hospital with some of the Drive’s collected items. (Above) James L. Hyer, Esq., stands before Montrose VA Hospital with some of the Drive’s collected items.[/caption] 

Announcing our Firm's New Partner: James L. Hyer, Esq.

Bashian & Farber is pleased to announce that James L. Hyer, Esq., is now a partner of Bashian & Farber, LLP, joining Gary E. Bashian, Esq., and Irving O. Farber, Esq., who founded the firm."James’ experience and expertise handling full-service counsel is unmatched," said Gary E. Bashian, Esq. "Adding an incredibly talented practitioner, like James, as a partner provides us with a significant advantage in this fast-paced environment."Mr. Hyer has worked for years as an Associate at Bashian & Farber, successfully assisting clients in a wide range of areas including matrimonial and family court actions, real estate transactions, housing issues, estate planning, estate and trust litigations, business and commercial law and litigations, personal injury claims, discrimination violations and LGBT issues.Mr. Hyer has served in a number of leadership roles with outside organizations, including the Westchester Residential Opportunities Attorney’s Panel where he assists individuals facing housing discrimination.He is actively involved in service organizations which benefit the community, and he frequently organizes service events with the Westchester County Bar Association, such as the most recent Hat, Scarf and Glove Drive for local veterans."I’m proud to carry on our firm’s tradition of effective legal assistance and will continue to achieve the best outcomes for my clients. As partner, I plan to further develop the firm’s projects geared towards charitable community projects," said Mr. Hyer.[caption id="attachment_82" align="aligncenter" width="216"]James L. Hyer, Esq. (above) James L. Hyer, Esq. (above)[/caption] 

Consider Before your Divorce

At a time in which approximately half of all American marriages end in divorce, it is imperative that those interested in dissolving their marriage understand the key issues that must be addressed when seeking to obtain a Judgment of Divorce. Regardless of whether the spouses are interested in proceeding with litigation or a form of Alternative Dispute Resolution, such as mediation or collaborative law, each spouse should consider the following key issues prior to taking any action:

Estate Planning

Bashian & Farber, LLP, would like to wish all of our readers a happy and healthy 2015, and to thank you for considering our firm for all of your Trust & Estate litigation, administration and planning needs.As marking the New Year always invites reflection, please take a moment to consider how your short-term Estate planning needs and your long-term Estate planning goals, may have changed since we last spoke.Has your family grown? Have your recently purchased real property? Do you have a parent or in-law who has yet to consider Medicare and/or tax mitigation planning?

N.Y. Court of Appeals: Firefighters & Police can Sue Employers for Unsafe Workplace

Our office has a particular respect and appreciation for the nature of modern police and firefighting work which exposes police and firefighters to risk of physical injury on a daily basis, thereby increasing their vulnerability to physical injury or death. Our firm’s partner, Irving O. Farber, Esq., has a first-hand understanding of the dangers faced through his role as a Mount Kisco volunteer firefighter.

Draft your Will with an Attorney

Many people go through life without much thought to how their property will be divided upon their death. People are typically either too busy to deal with the subject or they do not want to deal with it for emotional reasons. However, there are at least two reasons why you should not put off having an experienced estate lawyer complete your Estate Planning, which should include a Will describing how you would like your property divided upon your death.First, if you do not have a Will, the state will write one for you, applying a process known as intestacy. This process, wherein your survivors divide your assets, can be excruciatingly complicated and expensive.Second, if you wait until the last minute, such as if you are in the hospital and you think that a handwritten Will completed in the hospital will suffice, a recent case from Long Island proves otherwise. In this case, the deceased had two nurse witnesses to his handwritten Will while he was in the hospital; following his death, however, his surviving sons objected to this Will and the Judge ultimately held that the Will failed to meet the statutory requirements for due execution of the Will. Had the Will been supervised by an attorney, it may have passed muster.The results of this case offer an abject lesson on why you should not procrastinate the drafting of your Will, and why it is so important to make sure your Will is done by an attorney who concentrates his or her practice in Wills, Trusts and Estates to assure that proper New York Statutory procedure is followed. 

WCBA Hat, Scarf & Glove Drive for Local Veterans

Bashian & Farber, LLP, is pleased to announce that 2014 marks the second annual Westchester County Bar Association ("WCBA") Hat, Scarf and Glove Drive, which was again organized by James L. Hyer, Esq., an attorney with Bashian & Farber, LLP. Collections boxes have been placed and will remain within Courts and town halls throughout Westchester as well as other locations, including our office, until late December. The items collected from this drive—including hats, scarves, gloves and winter coats—will benefit local veterans as all items will be presented to the FDR Veteran’s Hospital in Montrose, New York.The WCBA Diversity Committee believes that this drive will be even more successful than last year’s drive, which collected hundreds of items for Neighbor’s Link, a not-for-profit community service organization located in Mount Kisco, New York.To donate items, simply drop them off in a donation box or call Mr. Hyer at (914) 946-5100. 

Legislative Update

The New York State legislature has voted to amend New York Law and change the rules governing payment of interest on a delayed distribution of a cash legacy from an Estate.Under the prior law, interest was only payable on a cash legacy that was not paid within seven months of the appointment of a fiduciary, and only if a demand was made upon the fiduciary prior to commencing a proceeding in the Surrogate's Court to compel payment of that distribution. The prior statute fixed interest at 6% starting seven months from the time that Letters Testamentary, including Preliminary Letters Testamentary, are granted and permits the Court to award interest at the legal or judgment rate of 9% as set forth in the CPLR, if the delay in paying legacies was unreasonable.Under the new law: 1) The interest rate will be pegged to the "Federal Funds" rate so as to ensure that the statutory rate is neither too high nor too low; 2) Unless otherwise provided for in the terms of the Will or Trust, such outright cash legacies are to be paid no less than seven months from the time Letters Testamentary (including Preliminary or Temporary Letters) are issued, with interest attaching automatically thereafter; and 3) Any actual interest paid will be deductible by the Estate, and considered income for the beneficiary.Given this new change, when undertaking your Estate planning please consider if you would like to address this issue of interest regarding such cash bequest. Alternatively, if you are appointed as a fiduciary, be advised that the legislature has changed the law, and now requires that interest be paid on a delayed cash legacy. 

Congratulations to Our Newest Attorney

Bashian & Farber, LLP, is proud to announce that Jordan C. Conger, Esq., who has worked as a Law Clerk with the firm for over a year, was admitted to the practice of law before the Courts of the State of New York by the Supreme Court Appellate Division, Second Department, on November 12, 2014.Mr. Conger is a graduate of Pace University School of Law, ’13, where he was an active member in Pace’s Moot Court and Trial Advocacy Programs, and served as a member of the Pace Law School Moot Court Honor Board. Mr. Conger was also able to hone his oral advocacy skills by making appearances at County Criminal Courts in Southern California, while participating as a Certified Law Clerk during his summer internship between his second and third year of law school. Mr. Conger also made appearances in both local criminal Court and the Integrated Domestic Violence Court as an Honors Extern with the Westchester County District Attorney’s Office, Yonkers Bureau, during his third year of law school.Mr. Conger has worked with the firm primarily in the areas of Estate Planning, Estate Administration, and Estate Litigation matters, as well as Guardianship, Real Estate, and Matrimonial proceedings. Bashian & Farber, LLP, is excited to promote Mr. Conger to the firm as an associate attorney, and Mr. Conger looks forward to the opportunity to be able to return to the Courtroom on behalf of our clients.

Expanding our Appellate Practice

To fellow practitioners, past, and potential clients: Bashian & Farber, LLP, is pleased to announce that as part of our continued efforts to offer the highest quality legal services in the greater Hudson Valley, we are enthusiastically expanding in the area of Appellate Practice. We are currently litigating several matters in the Appellate Division, Second Department; the Appellate Term, Second Department; and have recently applied for leave to appeal to the Court of Appeals, the highest Court in New York State.

B&F Attorneys Join Strategic Plan Committee

The Westchester County Bar Association ("WCBA") is a professional organization including over two thousand attorneys as well as hundreds of other affiliate members involved in the legal community. A Strategic Plan Committee has been formed by the President of the Association to develop a blueprint for the future of the organization, including fundraising, membership, programs and services, as well as other key issues pertaining to the long-term goals of the organization. Bashian & Farber, LLP, is happy to announce that its attorneys, Andrew Frisenda and James L. Hyer, have been appointed to this Strategic Plan Committee.The first meeting of the Strategic Plan Committee is scheduled for September and Bashian & Farber, LLP, is pleased to have Mr. Frisenda and Mr. Hyer participate in this very important committee which will help to plan the future of the Bar Association. 

Supplemental Needs Trusts: Planning for the Disabled

In New York State, two types of Supplemental Needs Trusts ("SNT") exist, both of which insulate assets of the trust Beneficiary while allowing that Beneficiary to access government assistance. Utilizing such an estate planning vehicle can be vital for many people, particularly those who have become disabled and parents of disabled children. A SNT can, for instance, provide parents with the ability to ensure their children will be financially secure after they pass away. In many cases, family members will create a SNT for a loved one as part of their estate planning as they are interested in leaving a portion of their estate to their relative while not preventing that relative from obtaining government assistance.

Defending against Elder Abuse and Unfounded Allegations of Elder Abuse

The Courts have long recognized that elder abuse is a systemic problem facing our senior population and have noted, "[E]lder abuse, including the financial exploitation of elderly individuals, is often a well hidden problem, in part because the perpetrator of such conduct is in many cases a member of the victim’s family." However, although elder abuse does occur, many allegations of abuse are unfounded and are utilized by family members who find themselves in a struggle over a relative’s estate prior to their relative’s death. Further, in Surrogate’s Court, which is often referred to as the "matrimonial court for siblings," we find heirs to an estate who assert claims of elder abuse following the death of their loved one in an unveiled effort to undo the testamentary wishes, gifts and intent of their deceased relative. Like so many issues we as attorneys are faced with, the allegation of elder abuse is often coupled with other legal matters and sadly many times have more to do with the family members of the elderly individual than the elderly individual themselves.

James L. Hyer, Keynote Speaker at Law Day

[caption id="attachment_61" align="aligncenter" width="300"]James L. Hyer (far right) with WCBA President-elect P. Dan Hollis III, WCBA Executive Director Donna Drumm, County Clerk Timothy Idoni, and WCBA Board Member Tejash Sanchala. James L. Hyer (far right) with WCBA President-elect P. Dan Hollis III, WCBA Executive Director Donna Drumm, County Clerk Timothy Idoni, and WCBA Board Member Tejash Sanchala.[/caption]In the continuance of a tradition which began in 1958, each year the President of the United States has annually recognized Law Day, during which citizens around our nation gather to recognize the struggles of workers in their fight for better wages and working conditions, as well as to honor the rules of law and judicial system we have developed in the United States.

Pace Court Moot Judges

Jordan Conger, lawyer in waiting, sat as a Moot Court judge at the Louis V. Fasulo 1L Moot Court Competition, held on March 29 and March 30, 2014, at Pace University School of Law in White Plains, New York.The Moot Court Competition was held over a two day period with nearly 150 first year law students from Pace University competing in their first oral argument competition. The Preliminary Round was held on March 29, 2014. The top 63 competitors then moved on to compete on March 30 with the winners of each round progressing onto Semi-Finals rounds of 32, 16, 8, and 4 competitors.Mr. Conger, an alumnus of Pace Law School, competed as a first year student in the 1L Moot Court Competition during his time at Pace. Mr. Conger was one of the top 32 competitors in his class and he then went on to compete in the Advanced Appellate Advocacy at Pace Law School. Mr. Conger now returns to Pace Law School each year to sit as a Moot Court judge.[caption id="attachment_63" align="aligncenter" width="177"]Jordan Conger, of Bashian & Farber, LLP sat as a Moot Court judge at Pace Law. Jordan Conger, of Bashian & Farber, LLP sat as a Moot Court judge at Pace Law.[/caption] 

Westchester County Bar Association Leadership Awards

On May 21, the Westchester County Bar Association held its Annual Leadership Award’s Ceremony at the Westchester Hills Golf Club. One of the honorees was James L. Hyer, a Senior Associate at Bashian & Farber, LLP.At Bashian & Farber, LLP., our attorneys have a long tradition of participating in professional associations within the legal community, including the Westchester Bar Association, Senior Partner Gary E. Bashian having served in many roles including President, and Senior Partner Irving O. Farber having served in many roles including one of the Judicial Screening Committee Chairs. The associates in the firm have sought to continue that tradition and as such, Mr. Hyer currently serves as the Co-Chair of the LGBT Sub-Committee. He has worked on many projects with the Westchester County Bar Association benefiting the Neighbor’s Link in Mt. Kisco which serves the immigrant community with events including a Glove, Hat and Scarf Collection during this past winter. 

Bashian & Farber Dedicated to Clients and Community

Bashian & Farber is proud of its record in serving client interests in multiple areas of legal services. In addition to having attorneys who are experienced generally in the law, we also have attorneys who concentrate and are well-versed in sub-specialty areas of the law such as estates, divorces, litigation, trials, guardianships, elder abuse, defamation, personal injury, malpractice, and more.

June 19th CLE Program with Gary Bashian

On June 19 in White Plains, the Westchester County Bar Association hosted a CLE program titled, "Motions for Summary Judgment in Probate Proceedings." Senior Partner Gary E. Bashian was selected to speak as one of the three event Moderators. Mr. Bashian discussed Pre-Discovery, Motion for Summary Judgment, Discovery, depositions, document demands, interrogatories, non-party witnesses, and the use of experts. More information about this program can be found on: https://m360.wcbany.org/event.aspx?eventID=102230&instance=0

Bashian & Farber, LLP invalidates Power of Attorney, Health Care Proxy and Protects $1 Million in Assets of an Incapacitated Person

On June 4, 2014, New York State Supreme Court Judge Hon. Sharon A.M. Aarons entered a Decision on an Article 81 Proceeding commenced by Bashian & Farber, LLP., granting our client a complete victory. Our client, the son of an elderly man suffering from cognitive decline, was concerned that his father’s assets of over $1 million dollars were being improperly taken by his step-mother against the wishes of his father who had previously drafted estate planning documents with the intent of providing all of his assets for the care of his disabled daughter. The son was further concerned that his step-mother was not able to take care of his father’s personal or financial affairs and sought to have a Guardian appointed.
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