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September 2015 Archives

Summary Judgment and Contested Accountings, not just for Petitioner anymore; Fiduciaries Beware

By: Gary E. Bashian, Esq.* Both veteran and novice litigators alike know the potential and the pitfalls that come with moving for Summary Judgment pursuant to CLPR § 3212.Arguably once hostile to its use, the New York Surrogate’s Courts appear to be increasingly receptive to Summary Judgment Motions in order to expedite litigation, eschew issues that can be addressed before trial, and frame issues for settlement negotiations.An area of Estate litigation not regularly considered for Summary Judgment are Accounting proceedings, more specifically, an Objectant’s motion for Summary Judgment in an Accounting proceeding against an Accounting.

LAWYERS AND DEFAMATION

By Irving O. Farber, Esq.In Lynn & Cahill v Witkin, 130 AD3d 484 [1st Dept 2015], the Appellate Division 1st Department recently reversed a Lower Court’s significant award of damages in a defamation matter, a ruling that should make attorneys throughout the State take notice.Lynn & Cahill involved a former client who, in an internet post, viciously maligned and impugned the Lawyer’s reputation by referring to him as “a confidence man”, and accusing him of being “unethical”, “sleazy”, “dangerous”, “a rotten egg”, and a “greedy, crazed and irrational nut job.”

Supreme Court Westchester Sends Original Last Will & Testament of Article 81 Incapacitated Person to Surrogate's Court of Westchester: Clash of Jurisdictions in our own Backyard

By: Gary E. Bashian, Esq.* As is often the case with elderly clients, matters that are initiated in the Supreme Court can, for a variety of reasons, find themselves later embroiled in questions of jurisdiction.Though each proceeding may involve the same characters and nucleus of facts, there are nevertheless jurisdictional concerns that can arise which must be addressed so as to ensure that the proper Court is exercising its authority on an issue over which they have jurisdiction. With the ever expanding population of senior citizens in the nation, this problem will only grow over the next few years because of issues relating to seniors that never existed years ago.

A Recent Primer on Undue Influence: Estate of Julia Elizabeth Taschereau

By: Gary E. Bashian, Esq.* On October 29, 2010 Surrogate Webber, of the N.Y. County Surrogate’s Court, rendered a decision regarding the Will of Julia Elizabeth Taschereau (NYLJ 1202474902148 at *1) which offers a detailed illustration of how to meet the evidentiary burden of proving Undue Influence in a Will contest.Objecting to a Will on the grounds of Undue Influence presents evidentiary challenges. The close relationships that often surround an allegation of Undue Influence make it difficult to prove by direct evidence. The burden is on the Objectant to prove motive, opportunity, and the actual exercise of Undue Influence.
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