©2014 Brooklyn Bar Association

June 2014

VOL. 66 NO. 9

Rebecca Rose Woodland Inducted As The Ninety Ninth President Of The Brooklyn Bar Association wonderful event. Next, Hon. Marsha Steinhardt, the newly inducted President of the Brooklyn Woman’s Bar Association, spoke and praised President Woodland as a good friend and a person always willing to help others. She vowed to work together with President Woodland to present joint continuing legal education programs in conjunction with her organization. Administrative Justice of the Civil Term, Kings Supreme, Lawrence Knipel, spoke next followed by Hon. Frank R. Seddio. Both men spoke highly of President Woodland as a person and as a lawyer. In particular, Frank Seddio remarked that Rebecca was one of the nicest people he has ever known. He said she was, “smart, well spoken and determined — in a

By: Glenn Verchick, Esq. On June 11, 2014, Rebecca Rose Woodland was inducted as the Ninety Ninth President of the Brooklyn Bar Association. The event was held in the Ceremonial Courtroom of the Brooklyn Borough Hall. This architectural masterpiece was a fitting setting for this event and was filled to capacity with friends, colleagues and distinguished members of the judiciary and legislature. The evening was hosted by Brooklyn Bar Association Immediate Past President Andrew M. Fallek, who managed to pay tribute to the many dignitaries in attendance while moving the event along efficiently and with a fine sense of humor. After the invocation by Rabbi Joseph Potasnik and the presentation of the Citation of the Borough President of Brooklyn by Andrew Gounardes, Counsel to the Brooklyn Borough President, the first speaker was Glenn Lau-Kee, President of the New York State Bar Association. President Lau-Kee acknowledged the many accomplishments of the Brooklyn Bar Association, which he noted was formed four years before the State Bar Association. In particular, he praised the work of the Volunteer Lawyers Project. BBA Past President Steven D. Cohen introduced the many judges, elected officials and bar leaders who were in attendance for this

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Rebecca Rose Woodland, President of the Brooklyn Bar Association, with Avery Eli Okin, Esq., CAE, Brooklyn Bar Association Executive Director and Andrew M. Fallek, right, Brooklyn Bar Association Immediate Past President. Photo courtesy of the Brooklyn Bar Association

FICTION CONTEST WINNER ARTHUR SUSNOW, ESQ. for: “The Client From Hell” (To be published in July) HONORABLE MENTION


for: Book Chapter submission

What’s Inside Rebecca Rose Woodland Inducted as BBA President Compiled by Glen Verchick, Esq. ...............Pg. 1 The Docket Compiled by Louise Feldman ...................Pg. 2 New Members, May 2014 .......................Pg. 2 Legal Briefs By Avery Eli Okin, Esq., CAE ......................Pg. 2 Respectfully Submitted By Rebecca Rose Woodland, Esq. ...............Pg. 3 The State of Estates By Hon. Bruce M. Balter and Paul S. Forster, Esq. .....................................Pg. 4 NYS Commercial Landlord-Tenant Law & Procedure Part III By Gerald Lebovits and Michael Terk, Esq......Pg. 5 Induction Photos ....................................Pg. 6-7 Elder Law Update. Anthony Lamberti, Esq. ................................Pg. 9

Members of the Brooklyn Bar Association who traveled to Washington, D.C. to be admitted to practice before the Supreme Photo courtesy of the Brooklyn Bar Association Court of the United States of America.

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JUNE, 2014

THE DOCKET Included below are events which have been scheduled for the period July 4, 2014 through December 31, 2014 Compiled by Louise Feldman July 4, 2014


In observance of Independence Day the Brooklyn Bar Association Building including the Volunteer Lawyer Project, the Lawyer Referral Service, and the Foundation Library will be closed.

September 1, 2014


In observance of Labor Day the Brooklyn Bar Association Building including the Volunteer Lawyer Project, the Lawyer Referral Service, and the Foundation Library will be closed.

September 9, 2014


VLP Board Meeting Board of Trustees Room, 5:30 PM CLE Bankruptcy Part I Auditorium, 6:00 PM

September 10, 2014


Brooklyn Bar Association Board & Foundation Meetings Board of Trustees Room, 5:15 PM

September 16, 2014


CLE Bankruptcy Part II Auditorium, 6:00 PM

September 17, 2014


CLE Sports Law & Mets Game Citifield, 5:30 PM

September 23, 2014


CLE Bankruptcy Part III Auditorium, 6:00 PM

October 8, 2014


Brooklyn Bar Association Board & Foundation Meetings Board of Trustees Room, 5:15 PM

October 13, 2014


In observance of Columbus Day the Brooklyn Bar Association Building including the Volunteer Lawyer Project, the Lawyer Referral Service, and the Foundation Library will be closed.

November 11, 2014


In observance of Veterans Day the Brooklyn Bar Association Building including the Volunteer Lawyer Project, the Lawyer Referral Service, and the Foundation Library will be closed.

November 12, 2014


Brooklyn Bar Association Board & Foundation Meetings Board of Trustees Room, 5:15 PM

November 27 & 28 2014


In observance of Thanksgiving the Brooklyn Bar Association Building including the Volunteer Lawyer Project, the Lawyer Referral Service, and the Foundation Library will be closed.

December 2, 2014


VLP Board Meeting Board of Trustees Room, 5:30 PM

December 8, 2014


Brooklyn Bar Association Foundation Dinner Marriott at the Brooklyn Bridge Hotel, 6:00 PM

December 25, 2014


In observance of Christmas Day the Brooklyn Bar Association Building including the Volunteer Lawyer Project, the Lawyer Referral Service, and the Foundation Library will be closed.


Congratulations to Brooklyn Bar Association member Hon. Marsha Steinhardt who was installed as the President of the Brooklyn Women’s Bar Association at an induction ceremony held on Tuesday June 10, 2014 in the Central Jury Room of 360 Adams Street. Other BBA Judicial members installed that evening included Hon. Ellen Spodek as Vice President and Hon. Slyvia Ash, Hon. Nancy Bannon, Hon. Genine Edwards , Hon. Sylvia O. Hinds-Raddix, Hon. Shawndya Simpson and Hon. Lillian Wan. Selected and installed as Delegates to the Women’s Bar Association of the State of New York that same evening were Hon. Theresa Ciccotto, Hon. Deborah Kaplan and Hon. Joanne Quinones.


Congratulations to the following individuals who were sworn in on June 10, 2014 as officers of the Brooklyn Women’s Bar Association. They include Helene Blank, Sue Novick Wasko and Joanne Minsky Cohen as Vice Presidents, BB Liu as Treasurer, Sara Gozo as Recording Secretary and Natoya McGhie as Corresponding Secretary. Also installed as Directors of the BWBA were Carrie Anne Cavallo, John Coffey, Barbara Grcevic, Deborah Johson, Anqelique Moreno, Derefim Neckles, Harriet Polinsky, Lisa Schreibersdorf and Joy Thompson. Brooklyn Bar Association Trustee Elaine Avery, a past president of the Women’s Bar Association of the State of New York was also selected to be a delegate to the WBASNY. Word has reached the Brooklyn Bar Association that Bartholomew T. Russo was elected in May and was installed on Friday

evening June 13, 2014 as the President of the Columbian Lawyers Association of Brooklyn at a dinner held at the El Caribe Country Club. Also selected for the CLA Executive Board were Brooklyn Bar Association Past President Rose Ann C. Branda as First Vice President, Dean Delianites as Second Vice President, Linda LoCascio as Third Vice President, BBA Past President Mark A. Longo as Treasurer, BBA Trustee Joseph S. Rosato as Corresponding Secretary, Hon. Frank R. Seddio as Recording Secretary and George J. Siracuse as Historian. Selected and installed as members of the Board of Directors of the Columbian Lawyers Association were BBA Trustee Lara Genovesi, Marie Aragona, Christopher Caputo and Salvatore J. Sciangula. Congratulations to Brooklyn Bar Association member Bruce Baron who received “The Alumni Achievement Award” from the St. John’s School of Law Alumni Association on Wednesday June 11, 2014.


The Brooklyn Bar Association extends its deepest sympathy to the Pepe Family on the passing of long time member Thomas A. Pepe on February 14, 2014. The Brooklyn Bar Association extends its deepest sympathy to former Trustee Leardo Luis Lopez on the passing of his mother Marta Irene Cedeno on June 6, 2014 at the age of 85. Legal Briefs is compiled and written by Avery Eli Okin, Esq., CAE, the Executive Director of the Brooklyn Bar Association and its Foundation. Items for inclusion in “Legal Briefs” should be sent to [email protected], faxed to 718-978-1713 or mailed to 123 Remsen Street, Brooklyn, New York 11201-4212.







BROOKLYN BAR ASSOCIATION 2014-2015 Rebecca Rose Woodland, President Aimee L. Richter, Second Vice President Arthur L. Aidala, President Elect David M. Chidekel, Secretary Hon. Frank R. Seddio, First Vice President Hon. Frank V. Carone, Treasurer Avery Eli Okin, Esq., CAE: Executive Director

TRUSTEES CLASS OF 2015 Michael Farkas Fidel F. Del Valle Lara Genovesi Richard S. Goldberg Jaime Lathrop Anthony W. Vaughn, Jr. Glenn Verchick

CLASS OF 2016 Elaine N. Avery Armena D. Gayle David J. Hernandez Richard Klass Anthony J. Lamberti Deborah Lashley Joseph S. Rosato

CLASS OF 2017 Marianne Bertuna Joseph R. Costello Stefano A. Filippazzo Dewey Golkin Hemalee J. Patel Steven J. Harkavy Jeffrey Miller


Roger Bennet Adler Vivian H. Agress Andrea E. Bonina Ross M. Branca Rose Ann C. Branda Gregory T. Cerchione Steven D. Cohn Hon. Miriam Cyrulnik Lawrence F. DiGiovanna David J. Doyaga, Sr.

Andrew M. Fallek Joseph H. Farrell Andrew S. Fisher Ethan B. Gerber Dominic Gordano Paul A. Golinski Gregory X. Hesterberg Hon. Barry Kamins Marshall G. Kaplan Mark A. Longo

Domenick Napoletano John. E. Murphy John Lonuzzi Manuel A. Romero Hon. Harold Rosenbaum Barton L. Slavin Hon. Jeffrey S. Sunshine Hon. Nancy T. Sunshine Diana J. Szochet

JUNE, 2014


R E S P E C T F U L LY S U B M I T T E D By: Rebecca Rose Woodland, Esq. I welcome you all to my first column as President of the Brooklyn Bar Association. I hope this issue of the Barrister finds you well. On June 11, 2014 I had the privilege and honor of taking part in the Brooklyn Bar Association Installation of Officers and Trustees in the ceremonial courtroom of Brooklyn Borough Hall. Congratulations are in order to my fellow officers who were installed: Frank Carone, Treasurer, David Chidekel, Secretary, Aimee Richter, Second Vice President, Hon. Frank Seddio, First Vice President, and Arthur Aidala, President-Elect. What an amazing team of bar leaders I will have the pleasure of working with this coming year. I was so humbled and touched by your warm reception and the fact that so many of you came out to celebrate with us. The incredible turnout we had is a testament to the health and vitality of this Association. It was truly a great night and a memorable ceremony. Our Installation Dais consisted of eleven very distinguished speakers, all of whom I owe a debt of gratitude to for taking the time out of their busy schedules to help make the event spectacular. Andy Fallek, Immediate Past President of the Brooklyn Bar Association served as our master of ceremonies. Rabbi Joseph Potasnik delivered a beautiful blessing. Past President Steven Cohn recognized special guests in attendance and delivered heartfelt remarks. Andrew Guorardes

President Rebecca Rose Woodland, Esq. Counsel to the Borough President, presented a citation on behalf of the Borough President. Kings County Administrative Judge Lawrence Knipel, Justice Marsha Steinhardt, Justice George J. Silver, County Leader Frank Seddio, NYSBA President Glenn Lau-Kee and Past President John Lonuzzi all delivered kind remarks. Appellate Division Justice Cheryll Chambers delivered remarks and installed all officers and trustees. A special “thank you” is in order first and foremost to Immediate Past President Andrew

Fallek. He is owed a debt of gratitude for the hard work he did this past year as President of the Brooklyn Bar Association. Andy worked tirelessly to make sure that the transition from his term to mine would be seamless and that all loose ends were tied up before I took office. Andy’s hard work allowed me to start my term with a clean slate so I could focus on new matters. Andy was a masterful emcee — his wit and humor set the tone for the evening. My dear friend and mentor, Past President Steven Cohn was gracious enough to do us the honor of recognizing all of the dignitaries and special guests in attendance. Steve also delivered lovely and heartfelt remarks that will be forever cherished. I can’t thank Steve enough for being such an important part of our Installation ceremony. Rabbi Potasnik entertained us all with his wit and charm before delivering a beautiful nondenominational blessing to all in attendance. We were all touched that Glen Lau-Kee, who was recently installed as the first Asian-American President of the New York State Bar Association, took the time from his incredibly busy schedule to help us install our officers and directors. Having had a chance to first meet and spend some time with President Lau-Kee in Chicago at the Bar Leadership Institute, I can assure you that we

will be working closely together this year to promote the interests of the members of our respective associations. Andrew Guonardes Counsel to the Borough President, presented a special citation on behalf of Borough President Eric Adams, who was delayed in arriving to the ceremony, but made it to Borough Hall well in time to celebrate with us at the reception in the rotunda. I look forward to building a strong relationship with Borough President Adams and his staff during my term so that we can promote and foster community outreach and the delivery of quality and affordable legal services to the people of Brooklyn. To this end, Executive Director Avery Eli Okin and I already have a meeting scheduled with Borough President Adams for this summer. I also have to thank Administrative Justice Lawrence Knipel for taking part in our Installation ceremony. It is extremely important to me that the bench and the bar in Brooklyn maintain a strong relationship. Since becoming AJ of the Civil Term of the Kings Supreme Court, Justice Knipel has gone out of his way to reach out to the Brooklyn Bar and seek our input on important issues. I look forward to working with Justice Knipel on a host of issues affecting the bench and Please turn to page 8


Diana J. Szochet Managing Editor Aimee L. Richter Articles Editor

Cecilia N. Anekwe Hon. Bruce M. Balter Jaime J. Borer Mark Diamond Jason Eldridge Paul S. Forster Jason D. Friedman

Anthony Lamberti Hemalee J. Patel Robert P. Santoriella Michael Treybich Alexis Vigilante Shelly Werbel Gregory Zenon

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. 66 No. 9 June, 2014. 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, Brooklyn, 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.




By: Hon. Bruce M. Balter and Paul S. Forster, Esq. Weather conditions continue to be confounding and we still expect a scorching summer. It is hoped that you will be able to find respite and refuge in cool environs and will enjoy information about a new Court Rule restricting “public” access to certain parts of Surrogate’s Court files and some interesting cases involving the liability of a plaintiff in a contract action for the attorney’s fees of a defendant from that point forward, where the plaintiff fails at trial to obtain a better result than was offered by defendant; the amount of attorneys’ fees payable out of an estate for prosecution of a cause of action for wrongful death and for representing the fiduciary of the estate in the Surrogate’s Court proceedings being limited in the aggregate to one-third of the estate; the Surrogate’s Court transfer to itself of an eviction case against the estate pending in the Housing Part of the Civil Court brought by a cooperative corporation for nonpayment of maintenance and other fees; putative objectants to a will being allowed to withdraw Waivers and Consents to Probate previously executed and filed; the interpretation of a testamentary instrument as effectuating only the appointment of an executor with no direction as to the disposition of the decedent’s assets; reservation of the question whether the terms of a testamentary instrument are precatory to a construction proceeding after the will is admitted to probate, and the validity of an instrument which does not name an executor; one-third of an estate passing by intestacy by reason of a claimed scrivener’s error in omitting a paragraph in the residuary clause in the decedent’s will; denial of summary judgment for a gift by implication even though the decedent’s will by its terms did not provide for a complete disposition of the decedent’s property; the denial of a request to terminate a $250,000 trust as uneconomical; the incapacity of a fiduciary to appear pro se on behalf of an estate; the inability of an heir of a ‘parent’ of an alleged equitable adoptee to obtain letters of administration to commence a suit for the wrongful death of the alleged ‘adoptee’; the unavailability of a statute of limitations defense at the inquisitorial stage of an SCPA §2103 discovery proceeding; and the strong presumption of the validity of a second marriage where there have been two ceremonial marriages. New Surrogate’s Court Rule Restricts “Public” Access to Certain Parts of Surrogate’s Court Files- A new official Surrogate’s Court Rule §207.64 has been promulgated which states as follows: “The following documents may be viewed only by persons interested in the estate of the decedent, as defined by SCPA § 103(39), or their counsel; the Public Administrator or counsel thereto; counsel for any Federal, State or local governmental agency; or court personnel; except upon written permission of the Surrogate or Chief Clerk of the court, which shall not be unreasonably withheld: (1) all papers and documents in proceedings instituted pursuant to Articles 17 or 17-A of the SCPA; (2) death certificates; (3) tax returns; (4) documents containing social security numbers; (5) Firearms Inventory; and (6) Inventory of Assets.” After Rejecting Defendant’s Settlement Offer, Plaintiff in a Contract Action Liable for the Attorney’s Fees of a Defendant from That Point Forward, Where the Plaintiff Fails at Trial to Obtain a Better Result than Was Offered by Defendant- Plaintiff brought a breach of contract claim against defendant corporation and against a corporate principal individually. Prior to trial, defendant made an offer to liquidate. During the trial, plaintiff stipulated to withdraw her claims against the individual defendant. The plaintiff succeeded against the corporate defendant. The individual defendant sought her legal fees under CPLR §3220 in as much as, by reason of the withdrawal of the plaintiff’s claim against her during trial, the plaintiff received less ($0) than had been offered prior to trial. The request for legal fees by the individual defendant was denied and she appealed. HOLDING- The Appellate Division reversed, ruling that the individual defendant was entitled to a hearing on the amount of her individual attorney’s fees, if any, under CPLR §3220. The Appellate Division held that having failed to obtain a more favorable judgment than the offer, plaintiff became liable for defendant’s costs and

attorney’s fees thereafter. Abreu v. Barkin and Associates, Inc., et. al., 115 A.D.3d 624 (2nd Dept., 2014) [Authors’ note: under the Court’s holding, the right to attorney’s fees under CPLR §3220 would appear also to apply to its companion section, CPLR §3221, and would seem to have broad and significant application.] The Amount of Attorneys’ Fees Payable out of an Estate for Prosecution of a Cause of Action for Wrongful Death and for Representing the Fiduciary of the Estate in the Surrogate’s Court Proceedings Limited in the Aggregate to One-Third of the Estate- The administrator of the decedent’s estate sought authority to compromise and enter into a $150,000 settlement of her action in Supreme Court for decedent’s wrongful death. Petitioner also sought to judicially settle her account for and distribute the proceeds. The decedent died at age 46 from blunt impact trauma, which he suffered when he was hit by a taxi as a pedestrian. He never regained consciousness after the impact. The settlement amount was alleged to be the limit of defendants’ insurance coverage. The petition requested that amounts be paid to the attorney handling the tort action in Supreme Court for reimbursement of disbursements and 33 and 1/3 percent of the remaining proceeds as attorneys’ fees. The petition also sought to pay different counsel, who handled the applications in the Surrogate’s Court that concerned the wrongful death action, additional attorney’s fees and disbursements. HOLDING- The Court limited the aggregate attorneys’ fees to one-third of the net recovery. The Court found that given that the Appellate Division, First Department rule mandates that legal fees shall not exceed one-third (net of certain expenses) of the settlement, the Court was required to include the legal fees of the administrator’s counsel for applications in the Surrogate’s Court in respect of the action within the one-third contingency fee permitted. The Court ruled that to allow fees to separate counsel in an amount that exceeded the 33 and 1/3 percent for work done only to obtain limited letters of administration to bring that action and to seek compromise of it would circumvent the Appellate Division rule. Matter of Diouf, N.Y.L.J. 4/14/14, p. 17, c. 1 (Surr. Ct., New York Co., Surr. Mella) [Authors’ note: although not discussed in the Decision, under EPTL 5-4.4(b) the commissions of a fiduciary are calculated upon the net, not gross, wrongful death recovery.] Surrogate’s Court Transfers to Itself an Eviction Case Against an Estate Pending in the Housing Part of the Civil Court Brought by a Cooperative Corporation for Nonpayment of Maintenance and Other Fees- During the pendency of a contested accounting proceeding, the executor sought to transfer a case from Civil Court of the City of New York where the cooperative corporation had moved to evict the estate from the decedent’s apartment for non-payment of maintenance and additional fees. The executor’s request was opposed by the cooperative corporation but was supported by the fiduciary of the primary beneficiary, who argued that the two proceedings have common issues and thus are best tried in one court. HOLDING- The executor’s application was granted. The Court opined that the Surrogate’s Court clearly had jurisdiction to order such a transfer under SCPA §§209[3] and 501), and that whether or not to do so was a matter within the Court’s discretion. The Court ruled that in furtherance of the general principle that wherever possible, all litigation involving the property and funds of a decedent’s estate should be disposed of in the Surrogate’s Court, the Court would exercise its discretion in favor of the requested transfer. Accordingly, the executor’s motion to transfer the Civil Court proceeding to the Surrogate’s Court was granted. Matter of Clark, N.Y.L.J. 1/31/14, p. 21, c. 2 (Surr. Ct., New York Co., Surr. Anderson) Putative Objectants to a will Allowed to Withdraw Waivers And Consents to Probate Previously Executed and Filed- In a probate proceeding, the decedent’s children moved to vacate their Waivers of Process and Consents to Probate in order to object to the appointment of the nominated executor, the decedent’s surviving spouse. The spouse executor objected to the application. According to the decedent’s children, they executed the Waivers of Process and Consents to Probate based upon an assurance from the spouse’s first retained attorney that probate would proceed promptly and smoothly and that he would cooperate with their desire to retain the decedent’s twenty-five (25) per cent interest in real property located in Brooklyn, New York. The spouse then fired his first retained attorney and retained a new

JUNE, 2014



attorney. The decedent’s children were aware of the change in counsel and of the new counsel’s intention to proceed with the filing of the probate petition. However, a day before the probate petition was filed, counsel for the decedent’s children sent a letter by facsimile and electronic mail to the estate counsel stating that they revoked their Waivers of Process and Consents to Probate. Estate counsel did not receive the correspondence regarding the decedent’s children’s revocation of their Waivers the day of, but after, the filing of the petition and Waivers. The decedent’s children allege that they should be permitted to withdraw their Waivers because, pursuant to SCPA §707 (1)(e), they had meritorious objections to the issuance of letters to the spouse, they had demonstrated a reasonable probability of success on said objections, and that it was in the interest of justice to restore all parties to their former position. It was alleged that the spouse had removed and retained valuable items, including cash and jewelry, from a safe deposit box that the decedent’s daughter owned with the decedent. The spouse opposed the motion, asserting that had there been no delay due to his substitution of attorneys, Letters Testamentary would already had been issued to him, and the distribution of estate assets completed. The spouse alleged that the claims of misappropriation of funds made against him were false in that the property from the safe deposit box he held jointly with the decedent became his by operation of law, and that the name of the decedent’s daughter was added to a box that contained items of the decedent as a matter of convenience, so that she would have access to the decedent’s important papers. The spouse also noted the need to bring a wrongful death action on behalf of the decedent’s estate and several hospital and physician’s invoices which needed to be paid. HOLDING- The children were allowed to withdraw their Waivers. The Court opined that the test for determining whether to grant leave to withdraw a Waiver and Consent to Probate differs, depending on whether or not a probate decree had issued. The Court stated that where the application is made prior to the entry of a probate Decree, the Courts liken the Waiver and Consent to a stipulation, and treat the application accordingly. The Court said that the parties may be relived from the terms if the consent was entered into inadvisedly or if it would be inequitable to hold the parties to its terms. The Court added that where the Will has not been admitted to probate, an application to withdraw a Waiver and Consent should be granted if it appears that none of the parties will be prejudiced, and can be restored to substantially the same former position. The Court noted that the decedent’s children had moved expeditiously to withdraw their Waivers and Consents to the spouse’s appointment as executor, and that had there not been a missed communication between counsel, the need for the motion might not even have arisen. The Court pointed out that the decedent’s children objected to the appointment of the spouse as the executor of their mother’s estate, but not to the probate of the will, and that should the spouse be appointed as the executor, it expected that a motion to revoke his letters pursuant to SCPA §707 would shortly follow, thereby only delaying the inevitable proceedings to determine his eligibility to serve as a fiduciary. Accordingly, the Court found that it would be inequitable to hold the decedent’s children to the terms of their Waivers and Consents, and that no prejudice would result by permitting the Waivers and Consents to be withdrawn. Consequently, the application was granted. Matter of Knee, N.Y.L.J. 4/21/14, p. 26, c. 4 (Surr. Ct., Richmond Co., Surr. Gigante) A Testamentary Instrument Interpreted as Effectuating Only the Appointment of an Executor With no Direction as to the Disposition of the Decedent’s Assets- Decedent died at age 88 survived by his wife and an adult daughter. His will was admitted to probate and letters testamentary thereunder were issued to his wife. The wifeexecutrix petitioned for a construction of the decedent’s will that would leave the entire estate to her. In pertinent part, the decedent’s will stated only “I Richard J. Borowiak, being of Sound mind and body, Without any ones influence, am designating my wife, MARIAN M. BOROWIAK, To b[e] sole executor of my estate — (Property, Bank Accounts Stocks & Equipment). In the event of any accidents, Health Failures or otherwise, I do not wish to be resuscitated.” The wife contended that, because this was not an attorney drafted will, a relaxed view of the contents of the instrument should be taken and that the designation of her ”to b[e] sole executor of my estate“ should be construed as encompassing language somewhat along

the lines of ”to inherit all of my estate“. The wife asked that the language of the will be interpreted from decedent’s point of view as a layman, and more liberally than would be the language of an attorney, particularly that the testator’s use of the term ‘sole executor’ be interpreted to mean that he intended the phrase ‘sole executor’ to both appoint his spouse as fiduciary and name her as his sole beneficiary. In the wife’s view, any other reading would be contrary to the intent and dominant plan or purpose’ of the testator when the will is read as a whole. HOLDING- The Court denied the construction requested and ruled the estate be distributed under intestacy. The Court opined that the purpose of a will construction proceeding is to determine decedent’s intent from a reading of the entire instrument. The Court added that the prime consideration in all construction proceedings is to ascertain the intention of the testator as expressed in the will. The Court noted that all rules of interpretation are subordinated to the requirement that the actual purpose of the testator be sought and effectuated as far as is consonant with principles of law and public policy. The Court pointed out that this intent must be gleaned not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed. The Court opined that if the Court upon reading the will in this setting discerns a dominant purpose or plan of distribution, the individual parts of the will must be read in relation to that purpose and given effect accordingly, despite the fact that a literal reading of the portion under construction might yield an inconsistent or contradictory meaning. The Court noted that the decedent’s will contained only two substantive provisions, the designation of his wife to be the sole executor of his estate, and the decedent’s do not resuscitate instructions in the case of an accident or in the event of health failures or otherwise. The Court found no provision in the instrument disposing of any of decedent’s property. In the Court’s view, the will was a hybrid document, the do not resuscitate provision clearly being intended as a direction to anyone reading the document to be followed while decedent was alive, in the nature of a living will. The Court contrasted that with the statutory definition of a will as an oral declaration or written instrument, made as prescribed by EPTL §3-2.1 or EPTL §3-2.2, to take effect upon death, whereby a person appoints a fiduciary or makes any other provision for the administration of his estate. The Court pointed out that only the first provision of the decedent’s will, which nominated his wife as executor of his estate, took effect after his death. The Court found this to be a proper testamentary direction, even if it was the only direction to take effect once decedent had died. The Court acknowledged that most often wills dispose of the decedent’s property, but pointed out that it was not an unknown thing that the sole object of the making of a last will has been to appoint an executor, giving no testamentary disposition of the estate, but leaving the executor to dispose of it according to the statute of distribution. The Court added that EPTL 1-2.19(a) expressly so provides. The Court concluded that only the first substantive paragraph of the subject instrument constituted a will within the meaning of the statute and relevant case law, its sole purpose being to direct who shall be the executor of decedent’s estate. The Court found that to be the instrument’s dominant purpose and plan, and in fact its only purpose and plan. The Court further found and concluded that there were no provisions in the instrument directing the disposition of decedent’s property, in whole or in part. The Court ruled that it was not statutorily, linguistically, or legally proper to construe the instrument as the wife requested, and denied the wife’s request in all respects, and directed that the decedent’s estate pass according to the laws of intestate distribution. Matter of Borowiak, 2014 N.Y. Slip Op. 50444 (Surr. Ct., Erie Co., Surr. Howe, 3/25/14) Question Whether the Terms of a Testamentary Instrument Are Precatory Reserved to a Construction Proceeding After the will is Admitted to Probate; Instrument May Be Valid Even if it Doesn’t Name an Executor- In a probate proceeding, the respondent moved for an order determining that the document offered for probate was not a testamentary instrument. It was alleged by the respondent that the instrument did not direct the disposition of the testator’s property and therefore was not a testamentary instrument. It further was alleged that the failure to provide for the appointment of an executor should result in a denial of probate. Respondent moved for an order Please turn to page 8

JUNE, 2014


New York State Commercial Landlord-Tenant Law And Procedure: A Primer — PART III By: Hon. Gerald Lebovits & Michael B. Terk, Esq. Gerald Lebovits is a New York City Civil Court judge and an adjunct professor of law at Columbia, Fordham, NYU, and New York Law School. Michael B. Terk is an associate with David Rozenholc & Associates. The authors thank Shogik Oganisyan, an associate at Cohen Hochman & Allen, and Todd M. Neuhaus, a student at Benjamin N. Cardozo School of Law, for their generous contributions. Some research in this article comes from Gerald Lebovits, Damon P. Howard & Michael B. Terk, New York Residential Landlord-Tenant Law and Procedure — 2012-2013 (5th ed. 2013). Parts I and II of this article, published in the February and March 2014 issues of the Brooklyn Barrister, covered general procedures and pleadings in summary proceedings, holdover proceedings, nonpayment proceedings, illegal lockout proceedings by tenants against landlords, and personal jurisdiction and service of process in summary proceedings. We continue with defenses against summary proceedings, trials and settlements in summary proceedings, defaults and evictions in summary proceedings, venues where summary proceedings are adjudicated, various plenary actions between landlords and tenants outside the context of summary proceedings, and the implications of bankruptcy on the landlordtenant relationship.

F. Defenses against Summary Proceedings The foregoing requirements for summary proceedings might seem like a guide for landlords’ attorneys seeking to commence and prosecute summary proceedings. But these requirements are equally relevant and useful to tenants’ attorneys defending against summary proceedings, as a landlord’s failure to comply with any of these requirements will form a defense against the landlord’s petition and be a potential ground for dismissal. Some of the more common defenses against summary proceedings by commercial tenants include the following: Traverse/service of process/lack of personal jurisdiction. Omitting required elements of the petition. A petition is defective if it is missing or misstates required elements of the petition under RPAPL 741, such as an accurate description of each party’s interest in the property and a complete and accurate description of the premises from which removal is sought. These omissions or misstatements, however, are typically amendable. Absent prejudice to the respondent, the petition can usually avoid dismissal by the petitioner’s cross-moving to amend the petition to correct those defects. Defective predicate notice. The proceeding must be dismissed if a notice to cure, termination notice, rent demand, or other predicate notice required by statute or lease is either (i) not properly and timely served or (ii) is substantively defective or insufficient in its contents. Unlike a petition, predicate notices are not amendable.i Defects or omissions may not be corrected by amendment or otherwise. A defective predicate notice is not only fatal to the proceeding, but the petitioner must start from scratch by issuing a new underlying predicate notice. Predicate notice vitiated (in holdover proceedings). A petitioner will likely be deemed to have vitiated a termination notice and reinstated the tenancy by accepting rent for a period of time after the termination date, commencing a nonpayment proceeding, or issuing a subsequent termination notice or notice to cure. Breach of the lease waived (in breach-oflease holdover proceedings). When the proceeding is based on a breach of the lease or a violation of a substantial obligation of the tenancy, a petitioner will have waived its right to object to the breach by accepting rent for a period of time if it knows about the breach and took no step to terminate the tenancy.ii Even a lease’s “no waiver” clause can sometimes itself be waived by this acceptance of rent.iii Stale predicate notice. The predicate notice can be stale based on the passage of time, or if a

termination notice was previously used as the predicate for an earlier dismissed or discontinued proceeding and the current proceeding was not commenced promptly while the earlier proceeding was still pending and absent discernable prejudice to the tenant. Conditions precedent to exercising an early termination option not met (in early cancellation holdover proceedings). If the lease has an early cancellation option that allows early termination upon limited conditions such as a planned demolition of the building, the petitioner must prove the conditions precedent to exercising the early termination option. The petitioner must prove that it is planning to demolish the building and that it did not issue the notice in bad faith to free the space up for another tenant offering a higher rent. Other substantive defenses in breach-of-lease disputes (in breach-of-lease holdover proceedings). When a landlord alleges a breach of a provision of the lease and the parties dispute whether a breach that forms the basis for termination has occurred, the specific, substantive provisions of a lease often come into play. When the lease is on a form provided or substantially prepared by the landlord, ambiguities in the lease terms will be construed against the landlord.iv Incorrect calculation of rent or additional rent due under the lease; payment of rent owed, and rent not owed (in nonpayment proceedings). Constructive eviction and actual eviction (in nonpayment proceedings). To prove constructive eviction sufficient to form a complete defense against the landlord’s rent claim, the tenant must establish that (i) the landlord’s intentional acts or omissions created conditions that rendered the premises unusable for its intended purposes and thereby deprived the tenant of the use and enjoyment of the premises and (ii) the tenant vacated and was out of possession of the premises for the time period for which rent is sought.v To claim constructive eviction, the tenant must actually be out of possession; the tenant cannot remain in full possession and simultaneously be constructively evicted. Although the old common-law rule was an “all or nothing” rule requiring the tenant to vacate and abandon the entire premises to claim constructive eviction, the law now recognizes the concept of a partial constructive eviction, in which a tenant can claim a partial constructive eviction from only a portion of the premises to obtain a rent abatement proportional to the portion of the premises that the tenant was unable to use and which was An actual physical eviction that prevents the tenant’s access to all or part of the subject premises likewise constitutes a defense against all or part of the rent.vii Lease provisions barring tenants from claiming rent abatements for interruption or loss of business contemplate situations in which the interruption or loss occurs while the tenant remains fully in possession. These provisions do not bar constructive or actual eviction defenses.viii Similar to but separate from a constructiveeviction defense is a tenant’s entitlement to a set-off in rent if a landlord fails to provide services a lease requires. A commercial tenant is entitled to utilities and building services like heat, water, electricity, and elevator service provided by the landlord to the extent that such services are provided for in the tenant’s lease. A tenant may defend against a landlord’s rent claims and obtain an abatement of rent if the landlord fails to provide the building services required under the lease.ix Unlike residential tenants, however, the RPL 235-b warranty of habitability does not protect commercial tenants. If a landlord illegally rents commercial premises for residential purposes, an eviction proceeding in the commercial landlord-tenant part is improper. It must be brought in a residential Housing Part. If the petitioner leased the premises knowing that it would be used residentially or if the residential use was with the landlord’s knowledge and acquiescence, the tenancy is deemed residential, even if the premises are leased under a commercial lease. A residential proceeding brought in the commercial landlord-tenant part is improper and must be dismissed.x In a breach-of-lease holdover, the summaryproceeding court has the equitable power to excuse a breach, even where it has occurred, and dismiss the proceeding if the breach is not material but, rather, de minimis and inconsequential.xi

G. Trials in Summary Proceedings A summary proceeding not dismissed, discontinued, or settled must be tried. A petitioner’s prima facie case at trial includes: Proving that the petitioner is the real property’s owner, net lessee, sublessor, receiver, or otherwise authorized to maintain the proceeding. An owner should have an original or certified copy of the deed to introduce into evidence. If the subject commercial premises are in a building that contains three or more residential units, proof of a valid MDR statement. If applicable, the petitioner should have a certified MDR statement from HPD. Other than for month-to-month tenants, the lease between the parties. The petitioner should have the original lease or a satisfactory explanation for its absence from a credible witness if a photocopy is sought to be used. Other than a no-grounds holdover based on the natural expiration of the full term of a written lease, the predicate notice(s) (rent demand in a nonpayment proceeding; notice of termination and, if applicable, notice to cure in a holdover proceeding), and proof of serving the predicate notice(s) as required by the lease, statute, or both. This might require the testimony of the process server or individual who served the predicate notice(s). In a nonpayment proceeding, proof that the rent demanded is owed. This should include a rent ledger setting forth each month’s rent that has come due and each payment that has been made since the last undisputed zero balance. A witness must authenticate the rent ledger and explain and confirm the accuracy of the figures in the ledger based upon personal knowledge. In the case of a breach-of-lease holdover proceeding, testimonial and documentary evidence proving the respondent’s the breach and, if applicable, the failure to cure the breach by the deadline in the notice to cure. In the case of a holdover proceeding in which the petitioner has exercised an early termination option, such as pursuant to a demolition clause, testimonial and documentary proof of the existence of the condition(s) precedent to the petitioner’s right to exercise the early termination option (such as, in the case of a demolition clause, proof of the existence demolition the landlord alleges).xii At the end of the petitioner’s prima facie case, the petitioner should ask the court to amend the pleadings to add rent or use and occupancy that has become due, to conform the pleadings to the proof, and to take judicial notice of all the pleadings and papers in the court file.

H. Settlements of Summary Proceedings The overwhelming majority of landlord-tenant summary proceedings settle without a trial. There are endless permutations of potential settlements and settlement structures. Among the more common settlement structures are (i) in nonpayment proceedings, agreed upon “payouts” of rent arrears over a period of time, with judgments of possession and warrants of eviction issued with execution stayed pending payment under the “pay-out” schedule, and (ii) in holdover proceedings, the respondent’s agreement to vacate within an agreed-upon period of time (sometimes coupled with a rent/use and occupancy concession, sometimes not), again with judgments of possession and warrants of eviction issued with execution stayed through and including the agreed-upon vacate date. Respondents prefer to settle per stipulation, without a judgment, and even to ask the petitioner for written notice of any default. These things will force a petitioner to mail a notice and then move for a judgment if the respondent defaults, thus giving a respondent extra time to satisfy the stipulation and prevent an eviction. Settling without a judgment also prevents credit problems. A respondent that fails to make timely payments after a trial or under a payout schedule or requires additional time beyond the agreed-upon vacate date may bring a post-judgment order to show cause for an extension of time. Similarly, when a respondent fails timely to vacate under a judgment of possession issued upon a stipulation of settlement or after a trial in a holdover proceeding, the respondent may move by order to show to extend the time to vacate. If granted, the

court will typically grant the stay conditioned on the respondent’s paying use and occupancy for the additional time the respondent remains in possession. Whether to decline to sign or to sign and grant these orders to show cause is reserved to the court’s discretion. Judges exercise their discretion less liberally after a trial than after a stipulation resolves the proceeding. Judges are also less liberal in granting extra time in commercial cases than in residential cases. Petitioners whose priority is to remove the respondents from possession as quickly as possible will vigorously oppose these orders to show cause to extend a respondent’s time to pay or vacate under a stipulation. But it is strategically preferable for a petitioner whose priority is to be paid to consent to extensions if the petitioner believes that the respondent is likely to make additional payments with an extension of time but will be judgment-proof once evicted.

I. Defaults in Summary Proceedings In New York City, if the tenant fails to appear on an initial or adjourned return date in a holdover proceeding, the court will conduct an inquest. The inquest, which requires that a witness with actual knowledge offer testimony establishing the petitioner’s prima facie case, is required before a default judgment may be entered and the inquest sustained. Outside New York City, courts often award default judgments in holdover proceedings without holding inquests. If a tenant fails to answer or otherwise appear in a nonpayment proceeding and still owes the petitioner rent at the time of the default, the petitioner may apply for a judgment of possession and warrant of eviction on default. In addition, a respondent who files an answer but then fails to appear on any return date will be held in default, and a default judgment will be awarded to the landlord. Unlike in a holdover proceeding, an inquest is not held upon a respondent’s default in a nonpayment proceeding. Courts may not require an inquest before issuing a default judgment. The issuance of a default judgment is a nondiscretionary, ministerial act if the respondent does not appear and the petitioner’s papers are sufficient on their face.xiii

J. Carrying Out the Eviction Once a warrant of eviction has issued, the warrant must be delivered to an enforcement officer, along with the appropriate fees. A warrant of eviction will be executed by a city marshal in New York City and by the county sheriff’s office in counties outside New York City. The sheriff or marshal must issue a final notice at least 72 hours before removal. City marshals in New York City serve notice at least six business days before the warrant is executed. Sheriffs or marshals typically serve these notices, commonly known as “eviction notices,” by posting them to the door of the subject premises.

K. The Courts in which Summary Proceedings are Adjudicated The courts in which a summary eviction proceeding may be brought depend on the geographic location of the real property. Below is a breakdown of summary-proceeding courts by geography: (a) Statewide: Supreme Court in the applicable county has jurisdiction to hear the proceeding. As a practical matter, summary proceedings are almost never brought in Supreme Court. When another type of action is brought seeking relief that can be awarded in a summary proceeding, Supreme Court will typically exercise its discretion to decline to adjudicate the matter in favor of requiring the petitioner to commence a summary proceeding in the appropriate local court.xiv (b) New York City: Civil Court of the City of New York (governed by the New York City Civil Court Act). In Civil Court, each of New York City’s five boroughs has a Civil Court courthouse. In each borough, non-residential summary proceedings are commenced in a commercial landlord-tenant part known as Part 52. All commercial summary proceedings are initially Please turn to page 10


JUNE, 2014

BBA’s Induction Ceremony

New Trustee Michael A. Farkas.

Trustees taking oath of office: Jeffrey Miller, Hemalee Patel, Marianne Bertuna, Joseph R. Costello, Steven J. Harkavy and Stefano D. Filippazzo.

Officers taking oath of office: Secretary David M. Chidekel, Second Vice President Aimee L. Richter, First Vice President Hon. Frank R. Seddio, President-elect Arthur L. Aidala.

Induction participants: NYSBA President Glenn Lau Kee, President Rebecca Rose Woodland, Past President Steven D. Cohn, Hon. Lawrence Knipel and Hon. Frank R. Seddio.

Past President Domenick Napoletano, Trustees Steven J. Harkavy, Past President Manuel A. Romero.

President Rebecca Rose Woodland and Hon. Sylvia Ash

Trustee Hemalee J. Patel, Past Presidents Rose Ann C. Branda and Hon. Jeffrey S. Sunshine. Photo courtesy of the Brooklyn Bar Association

Executive Director Avery Eli Okin, Esq.,CAE and Immediate Past President Andrew M. Fallek.

Andrew Gounardis, General Counsel to Brooklyn Borough President Eric Adams.

JUNE, 2014


BBA’s Induction Ceremony

Past President Lawrence F. DiGiovanna, Past President Rose Ann C. Branda, Gregory LaSpina, Trustee Dino Mastropietro. Photos courtesy of the Brooklyn Bar Association

Installing officer Hon. Cheryl Chambers and Supreme Court Justice Marsha Steinhardt.

Rabbi Joseph Potasnik, Hon. Donald Scott Kurtz, George Farkas, Hon. Ellen Spodek and Secretary David M. Chidekel.

President Rebecca Rose Woodland and Supreme Court Justice Carl Landicino.

Past President Domenick Napoletano, Trustee Stefano Filippazzo and Trustee Richard Klass. Past President John Lonuzzi.

Trustee Marianne Bertuna, Past President Gregory T. Cerchione and President-elect Arthur L. Aidala.

Past President Mark A. Longo and Trustee Anthony J. Lamberti.

Immediate Past President and Master of Ceremonies Andrew M. Fallek and President Rebecca Rose Woodland.




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“rejecting probate” which the Court treated as a motion to dismiss the probate petition. The instrument provided in pertinent part: “On this day the 7th of June, 2, 2004 being of sound mind it is my wish that when I die my son … become the sole owner of my house and anything in it that he chooses to have. At this point in time he lives in this location with me and has been my caregiver and I needed [undecipherable] a lot. He has taken on many difficult and time consuming chores to enrich my life.” The instrument contained the purported signatures of the decedent, and two other persons. Respondent alleged that the language pertaining to the house was precatory and the instrument therefore made no direction as to the disposition of property. Petitioner argued that a determination as to meaning of the word “wish” should be determined in a construction proceeding, not a proceeding to determine the validity of the will. HOLDING- The respondent’s motion was denied. The Court opined that only an instrument which is testamentary in nature can be admitted to probate, and agreed with the respondent that the question as to whether a document was testamentary can be addressed on a motion to dismiss a petition for probate. The Court stated that generally, the two indicia of a testamentary instrument are that it expresses an intention to dispose of the testator’s property and that it takes effect at death. The Court said that where a document satisfies these requirements, it meets the threshold requirement of a testamentary instrument. The Court added that these requirements are separate and apart from issues which may be raised as to ca-

pacity, due execution and fraud or undue influence. The Court noted that a will may contain a request rather than a direction by the testator as to the disposition of property, and that it is not necessary that a disposition take the form of a mandatory direction. The Court ruled that the probate of an instrument is not affected by the fact that a question is raised as to whether language in a sole dispositive provision is precatory, and pointed out that even where the provisions in an instrument are wholly inoperative, probate cannot be denied if the instrument is otherwise valid. The Court added that a determination as to whether language in a will is precatory or mandatory requires a construction of the instrument, and that questions relating to the validity, effect and/or disposition of property are reserved for consideration after the instrument is admitted to probate. The Court also rejected the respondent’s argument that the probate petition should be dismissed on the grounds that the instrument did not nominate an executor. the Court pointed out that although the sole provision in a will may be the selection of an executor, there is no requirement that a will provide for the appointment of an executor. Consequently, the Court denied the motion to dismiss the probate petition. Matter of Langdon, 2014 N.Y. Slip Op. 50599 (Surr. Ct., Nassau Co., Surr. McCarty, 3/13/14) One-Third of an Estate to Pass by Intestacy by Reason of a Claimed Scrivener’s Error in Omitting a Paragraph in the Residuary Clause in the Decedent’s will- The executor of the estate petitioned for a reformation of the sole, but incomplete, dispositive provision of the decedent’s will. Petitioner, on consent of all parties, requested

RESPECTFULLY SUBMITTED Continued from page 3

bar this coming year. Having Justice Knipel speak at the Installation, and having so many distinguished Kings County judges in attendance was truly an honor and a privilege for us. My friend, Justice Marsha Steinhardt was kind enough to take part in our Installation ceremony as well. Justice Steinhardt joined us just twenty four hours after having been installed as the Brooklyn Women’s Bar Association President in a lovely ceremony that was highlighted by Chief Justice Jonathan Lippmann giving remarks and delivering the oath of office. I look forward to working closely with Justice Steinhardt this year — we plan to join forces on several important issues common to our respective associations. The Honorable Frank Seddio, our Kings County Democratic Leader, had a unique role at the Installation. Not only did County Leader Seddio deliver words of encouragement and heartfelt wishes for the year to come, he was also sworn in as the First Vice President of the BBA. Frank also entertained us with one of his signature jokes that brought the house down in laughter. It was a great honor to have Frank speak at the Installation and it will be an even greater honor to work with him this coming year. Frank is someone I’ll be turning to often during my presidency for advice and counsel. As everyone knows, speaking after Frank Seddio in a program is no easy task. That challenge fell to my partner and Past President, John Lonuzzi, who, in keeping with the evening’s theme, opened his speech with a witty joke with a very surprising punch line. I can’t say enough how lucky I am to have the benefit of John’s knowledge and experience to help guide me through this coming year. My dear friend, the Honorable George J. Silver travelled from what he referred to as the “outer borough” of Manhattan to help us install our officers and trustees in Brooklyn. While it’s no secret that Judge Silver had an incredible sense of humor and wit, the speech he delivered at the Installation was one for the ages. I’m forever grateful to Justice Silver for his friendship, his support and his mentoring. Appellate Division Justice Cheryl Chambers did us the honor of administering the oath of office to our new officers and trustees. On a personal level, I was thrilled to have Justice Chambers swear me in as the 99th President of the Brooklyn Bar Association. Justice Chambers is an incredible woman and a great role model for so many of us, for so many reasons. Her intellect, integrity, ability and character are second to none. I can’t thank Justice Chambers enough for doing

us the honor of taking part in our Installation, and for being my friend. I’m so thrilled to be stepping into this position at such an exciting time for Brooklyn. As we all know, Brooklyn is one of the most dynamic and emerging places in the world right now. And the Brooklyn Bar Association is right in the middle of the transformation. Industry of every kind is growing as an incredible pace, and that includes the legal profession. One of the things we plan on doing this coming year is tapping into that growth and figuring out more ways for our members to benefit from it. But we don’t just have a responsibility to our members. There is a great responsibility to the community. Such a diverse population deserves the knowledge and understanding that justice is available to all in this country, and this county. I believe it’s also our responsibility to make sure that those who live in Brooklyn know their rights, have access to the courts, and have access to affordable legal representation. I also hope to achieve diversity within our organization by outreach programs to members and leaders, and to reach the diverse inhabitants of Brooklyn. It is important to me that our Association reflect the diversity of the community it serves. I want to send a message that we understand the needs of the community, that we are part of the community, and that we are here to serve the community by providing access to justice. I was so proud and happy to announce at my installation the creation of a scholarship in the name and memory of my dear friend, the late Judge Theodore T. Jones, Jr., Associate Judge of the Court of Appeals. It will be a yearly scholarship awarded to a law student who exemplifies and embodies the qualities and characteristics that that made Judge Jones the incredible man he was. Judge Jones was a great judge, a wonderful person, and such an integral part of this Association. Judge Jones possessed exceptional values and was a brilliant jurist. He had a knack for making the complicated seem very simple, and an incomparable ability to communicate with people and bring them together. He went about his job, and his life, with an incredible sense of grace and humility. To be able to start this scholarship program during my term is an incredible honor. I know that my term as President will be guided by the light of Teddy Jones. These will be the issues that I focus on in the coming year. With a lot of help from my fellow officers and trustees, as well as from our Executive Director, Avery Eli-Okin and his staff, I know we will accomplish these goals and do some great things for the legal profession and for the people of Brooklyn.

JUNE, 2014



that the Court supply a dispositive provision allegedly omitted through the inadvertence of the attorney-drafter. Testator was survived by one distributee, her mother, and left a $1,265,000 estate. The will, as admitted to probate, left one-third of all of the decedent’s property to one of her siblings, and one-third to the decedent’s nieces and nephews. There was no disposition of the other one-third. According to the attorney-drafter, which he supported by an email to him from the decedent to that effect, the testator intended to dispose of the balance of her estate to her five other siblings. The attorney drafter attributed the omission of such provision to his own scrivener’s error. Petitioner asked the Court to supply it. HOLDING- The reformation was denied. The Court opined that as a rule, extrinsic evidence will not be admissible to vary or contradict the unambiguous expression of the decedent. The Court added that only if the terms are ambiguous may a Court consider extrinsic evidence. The Court found that the decedent’s will was unambiguous in that the testator clearly and unarguably disposed of only a portion of her estate. The Court noted that the extrinsic evidence proffered by petitioner as to testator’s alleged intent regarding the disposition of the balance of her estate was unsupported by testator’s actual words, and thus contradicted rather than clarified the express terms of the will. The Court concluded therefore that it could not consider the affidavit of the attorney-drafter and was bound by the language of the will. While acknowledging that the mere existence of a testamentary instrument gives rise to a presumption against intestacy, the Court stated that it should not rewrite a will or supply an omission not necessarily implied from the language used even though intestacy would result. Accordingly, the petition for reformation was denied. Matter of Isasi-Diaz, N.Y.L.J. 3/28/14, p. 21, c. 2 (Surr. Ct., New York Co., Surr. Mella) Summary Judgment for a Gift by Implication Denied Even Though the Decedent’s will by Its Terms Did Not Provide for a Complete Disposition of the Decedent’s Property- The executrix, the decedent’s niece, sought a construction of the decedent’s will. The decedent was survived by two distributees, a sister, and the niece-executrix, who was the daughter of a predeceased brother. The executrix sought the construction of the decedent’s will so as to include a gift by implication of the residuary to her. The respondent sister alleged that it would not be appropriate for the Court to find a gift by implication and that the residuary of the decedent’s estate should be distributed in accordance with the laws of intestacy. The decedent and her husband contemporaneously executed identical wills. The spouses left their estates to each other, they nominated petitioner as alternate executrix, and they provided that the husband’s will would control if the spouses perished in a common disaster. The decedent’s will provided that in the event she and her husband were to die in and by a common disaster, or in any other manner so that it would not be definitely known which of them survived, then it should be deemed that her husband survived and distribution of her estate should be made in accordance with the provisions of his will. The husband’s will provided that in the event the decedent predeceased him, his estate was to pass the petitioner-executrix. The decedent’s will failed to make any provision for the distribution of her estate if her husband predeceased her, which occurred. Both sides moved for summary judgment. HOLDING- Summary judgment was denied. The Court opined that the intent of the testator must be the overriding consideration in determining the import of the terms of her will, and that the intent of the testator must be gleaned not from a single word or phrase, but from a sympathetic reading of the will in its entirety and in view of all the facts and circumstances under which the provisions of the will were framed. The Court added that by the act of making a will, a testator expressly demonstrates the intention to completely dispose of his or her estate, and that the strong presumption against intestacy is particularly weighty where the subject of the gift is the residuary estate. The Court stated that the obligation of the Court in a construction proceeding is to discern and effectuate the intention or purpose of the testator, and that accordingly, where the express language of the entire will reveals such intention or purpose, the possibility follows that the testatrix may dispose of property by implication as well as formal disposition. The Court noted, however, that the implication must be a necessary one, not merely one that is possible or probable, and it must leave no hesitation in the mind of the Court as to what was the testatrix’ dominant purpose. The

Court explained that where the entire will unquestionably revealed a conscientious effort to provide for a complete disposition of the decedent’s property, but the testator inadvertently had neglected to foresee every contingency, the presumption against intestacy may be applied and a gift by implication found. The Court noted that summary judgment should not be granted where there is any doubt as to the existence of triable issues, and that if a genuine issue of fact is found to exist, summary judgment must be denied. The Court found there to be issues of fact as to the intent of the testator, and accordingly, the motion and cross motion for summary judgment were denied. Matter of Thompson, N.Y.L.J. 1/15/14, p. 26, c. 4 (Surr. Ct., Richmond Co., Surr. Gigante) Request to Terminate a $250,000 Trust as Uneconomical Denied- An application was made under EPTL §7-1.19 to terminate a trust on the ground that the trust’s continuation no longer was economical. All interested parties consented to the relief sought. The trust in question was established under testator’s will, which was admitted to probate in 1945. Testator’s daughter was the trust’s sole income beneficiary. Upon her death, the principal was to be disposed of as she appointed in her will or, in default of such appointment, distributed to testator’s descendants. The presumptive remainder beneficiaries were the four children of testator’s deceased son. The trustees requested that the trust be terminated and that all the principal be distributed to the beneficiary. The value of the trust principal was approximately $250,000. According to the petition, income distributed annually, net of expenses, was less than $5,000. The petitioners contended that the figures justified the conclusion that continuation of the trust was uneconomical within the meaning of EPTL §7-1.19 and that termination therefore was warranted. HOLDINGThe application was denied. The Court noted that when the expense of administering a trust is uneconomical, EPTL § 7-1.19 permits a court to terminate the trust as long as the terms of the trust instrument do not prohibit early termination and provided that such termination would not defeat the specified purpose of the trust and would be in the best interests of the beneficiaries. The Court opined that the statute was enacted in 2004 as a narrow exception to the general rule that a testamentary trust, as an irrevocable expression of a testator’s intent, was indestructible. The Court stated that after reviewing the petition and the terms of the trust, the court was not persuaded that early termination was warranted. The Court pointed out that although the testator left half of her residuary estate in trust for the beneficiary for the duration of her lifetime, she left the other half of her estate outright to her other child when the latter attained the age of 30. The Court added that the terms of the trust provided the beneficiary with only the trust’s income during her lifetime, with no discretionary distributions from trust principal being permitted. In the Court’s view, the testator clearly intended that the trust corpus would be distributed outright only upon the beneficiary’s death. The Court asserted that such an intent should be respected by the Court, even where all the interested parties were willing to ignore it. The Court also found that the size of the trust fund was not so insignificant as to render its continuation impracticable. Consequently, in light of petitioners’ failure to demonstrate that the continuation of the trust would be economically impracticable as required by EPTL §7-1.19, the Court denied their request for its early termination. Matter of Zara, N.Y.L.J. 4/11/14, p. 21, c. 2, (Surr. Ct., New York Co., Surr. Anderson) Fiduciary May Not Appear Pro Se On Behalf Of an Estate- In an accounting proceeding the trustee moved to dismiss objections filed pro se by the executor of the estate of an income beneficiary of the trust. The objections alleged that the trustee failed to produce all documents to which the objectant was entitled, that the trustee overpaid legal fees, and that her decedent did not receive all the income to which he was entitled during his life. The trustee moved to dismiss the objections, inter alia, on the grounds that the executrix lacked the legal capacity to sue. The trustee argued that, while a lay person can represent her own interests pro se, she cannot represent the interests of an estate because such representation implicates the interests of other interested persons. Objectant argued that the rule allowing pro se representation of one’s own interests should prevail because she was the only beneficiary of the estate. HOLDING- The Court agreed with the trustee and conditionally dismissed the objections. The Court stated that SCPA §401(1) provides that, with certain excepPlease turn to page 9

JUNE, 2014




Continued from page 8

tions, a person may represent him or herself in litigation. The Court added that the statute favors the principle that a party can choose his or her own counsel, constituting an exception to the general rule that prohibits the practice of law by a nonlawyer. Nonetheless, the Court said that when the interests of an estate are at issue, the fiduciary of the estate is named as a party not as an individual, but in her capacity as a representative of the persons interested in the estate. The Court noted that if she is not a lawyer and appears pro se, such representation is not merely a matter of a person’s choice to be her own counsel, but constitutes a prohibited practice of law without a license. The Court noted that this principle has been firmly established in New York case law in the context of powers of attorney. The Court opined that although a validly appointed lay attorney-in-fact may appear in a litigation in her representative capacity with regard to the interests of the principal who appointed her, she cannot prosecute or defend the matter pro se, even though her principal could have done so, such representation constituting an unlawful practice of law. The Court noted that a non-lawyer attorney-in-fact must be represented by counsel. The Court rejected objectant’s argu-

ment that the rule allowing pro se representation of one’s own interests should prevail because she was the only beneficiary of the estate. The Court stated that as executor of the trust beneficiary’s estate, the objectant had fiduciary responsibilities to creditors of the estate, and thus did not represent only her own beneficial interests, especially in view of the objectant’s admission that the estate was in deficit. Accordingly, the motion to dismiss was granted conditionally unless the objectant appeared by counsel within 30 days of the service of the Decision and Order upon her. Matter of Van Patten, N.Y.L.J. 2/24/14, p.17, c. 2 (Surr. Ct., New York Co., Surr. Anderson) An Heir of a ‘Parent’ of an Alleged Equitable Adoptee not Permitted to Petition to Obtain Letters of Administration to Commence a Suit for the Wrongful Death of the Alleged ‘Adoptee’- The Court was asked to entertain a petition for letters of administration under the doctrine of equitable adoption. The decedent died as a result of an accident. As a child, the decedent resided at an orphanage. Petitioner’s mother worked at the facility. Petitioner alleged that at some point in time the decedent lived with his family as a foster child. He contended that the doctrine of equitable adoption should be applied to



permit him to receive letters of administration for the purpose of commencing a wrongful death action on behalf of the estate. HOLDING- The Court declined to entertain the petition for letters of administration. The Court acknowledged that it could find an equitable adoption where there had been an agreement for adoption with an agency having the care and custody of a child, but pointed out that it was conceded by the petitioner that there had been no agreement for adoption. The Court found that petitioner lacked standing to receive letters of administration. The Court opined that an equitably adopted child lacks standing to receive letters in the parent’s estate. The Court added that an equitable adoption does not create a legal adoption of a child but merely is an exercise of the Court’s equitable powers to permit the child to acquire rights in intestacy based upon an agreement to adopt. The Court stated that the doctrine does not create a legal relationship between the equitably adopted child and the heirs of the adoptive parent. The Court added that inasmuch as the doctrine of equitable adoption is applied for the benefit of the child, the weight of authority is that the “parent” cannot commence a wrongful death action on behalf of the child. The Court concluded that consequently, the heirs of the deceased

“parent” lack standing to commence a wrongful death action. Accordingly, the Court declined to entertain the petition for letters of administration. Matter of Fairhurst, 2014 N.Y. Slip Op. 50600 (Surr. Ct., Nassau Co., Surr. McCarty, 3/31/14) Brief briefs: Statute of limitations defense unavailable at the inquisitorial stage of an SCPA §2103 discovery proceeding. Matter of Schleger, 2014 N.Y. Slip Op. 50598 (Surr. Ct., Nassau Co., Surr. McCarty, 2/28/14) Where there have been two ceremonial marriages there is a strong presumption of the validity of a second marriage. The heavy burden of proving invalidity is on the person challenging the later marriage, frequently requiring proof of a negative, to wit: that the earlier marriage was not dissolved by death, divorce or annulment. Matter of Perez, N.Y.L.J. 5/2/15, p. 21, c. 3 (Surr. Ct., Nassau Co., Surr. McCarty) __________________________________ Compiled by Hon. Bruce M. Balter, Justice of the Supreme Court, Kings County, Chair, Brooklyn Bar Association, Surrogate’s Court Committee, and Paul S. Forster, Esq., Chair, Brooklyn Bar Association, Decedent’s Estates Section.


2014 Changes to New York’s Estate, Gift, and Trust Income Taxes By Anthony Lamberti, Esq. Effective April 1, 2014 the 2014-2015 budget legislation (the “Executive Budget”) makes significant changes to New York’s estate tax and the income taxation of certain trusts. These changes will have a major effect on estate planning for New York residents and non-residents. Although these changes provide some tax relief for the moderately wealthy, they will clearly have a negative effect on the very wealthy, who will likely see an increase in their estate and income taxes. Estate Tax Exclusion Increased- but only for some. The Executive Budget increases New York’s basic exclusion amount ($1 million per decedent prior to April1, 2014) to $2.0625 Million per decedent as of April 1, 2014 with gradual increases annually until January 1, 2019 when the basic exclusion amount will reach $5.25 million. Thereafter, it will be indexed for inflation, which should link New York’s basic exclusion amount to the federal amount (presently $5,340,000, but also indexed

for inflation). The basic exclusion amount is increased as follows: Read on, however, because what appears to benefit New Yorkers has a negative effect on the very wealthy under what is referred to as the “cliff.” Because of this quirk in the way New York calculates its estate tax, the basic exclusion amount is rapidly phased out once the value of a decedent’s taxable estate is greater than 105% of the basic exclusion amount. The Executive Budget implements the exclusion by allowing a credit of the “Applicable Credit Amount” to be taken against the tax imposed by the statute as follows: • If the New York taxable estate is less than or equal to the basic exclusion amount, the Applicable Credit Amount will be the amount of the tax so computed and, therefore, serves as a wash. • If the New York taxable estate is up to 5% greater than the basic exclusion amount, the Applicable Credit Amount will be limited to the amount of the tax resulting in no tax. • If the New York taxable estate is greater than 105% of the basic exclusion amount, no credit is allowed.

Congress Delays Anti-Ah/born Medicaid Lien Amendment Congress has delayed by two years a provision in last year’s budget bill that gives states the ability to recover Medicaid costs from a beneficiary’s full personal injury settlement or award. The law, which negates the U.S. Supreme Court’s decisions in Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006) and Was v. E.M.A, 133 S. Ct. 1391(2013), was set to go into effect on October 1, 2014, but now has been delayed until October 1, 2016. In December 2013, Congress’ budget compromise unexpectedly contained language that amended the Social Security Act to give states the right to recover from Medicaid beneficiaries’ entire settlements and to place a lien on those settlements or awards. Last month Congress passed- and President Obama signed- HR 4302, which postpones pending Medicare physician payment cuts by one year. But tucked into the legislation is a one sentence provision (Sec.211) that delays the effective date of the anti-Ahlbom provision for two years, until October 1, 2016. This means that Medicaid will continue to be able to recover only from the portion of a personal injury settlement or award that was allocated to medical expenses until then. The original budget bill amendment was passed with no notice and advocates did not have a chance to challenge it. Advocates worry that the result of the new law will be that Medicaid recipients will receive less in personal injury settlements

because their full recovery will be subject to a Medicaid lien. The American Association for Justice (formerly the Association of Trial Lawyers of America) has been working to eliminate the provision. Another noteworthy piece of legislation did not make it into the final physician payment bill— The Fairness Act, which would have allowed mentally competent people with special needs to create their own special needs trusts. The Act was included in a Senate bill to permanently fix Medicare’s physician payment scheme, but lawmakers chose not to include it in the one-year “patch” measure.

Uniform Adult Guardian Jurisdiction and Protective Proceedings Act By virtue of legislation passed in the fall of 2013, a New Article 83 of the Mental Hygiene Law became effective on April 21, 2014. This Act provides for resolution of jurisdictional issues in cases where an elderly person in need of a Guardian may have contact with multiple states. They may be complex cases like granny napping cases or situations where an elderly person may be a snowbird and moves between New York and a southern state. It can also be something as simple as an elderly driving into an adjoining state and having a medical event in that state. As of this writing, there have been no reported cases on this statute. A more expansive article on this subject will be written in the near future.

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JUNE, 2014

New York State Commercial Landlord-Tenant Law And Procedure: A Primer — PART III Continued from page 5

on the calendar in Part 52. In Manhattan, Part 52 is just a calendar part that will entertain applications for adjournments or pendente lite use and occupancy. Trials, hearings, and motions will either be adjourned in Part 52 or, if not adjourned, sent out to another Civil Court “back up part” to be heard, tried, and decided by another judge. In the outer boroughs, the entire disposition of the case, including motions and trials, will often occur in Part 52 itself. (c) Long Island: District Court (governed by the Uniform District Court Act). Nassau County and most of Suffolk County (with the exception of the four east-end towns of Riverhead, Southold, Shelter Island, Southampton, and East Hampton) are under the jurisdiction of the two counties’ respective District Courts, which are Long Island’s jurisdictional equivalents of the New York City Civil Court. The District Court has a designated landlord-tenant part, in which commercial and residential summary proceedings are adjudicated. (d) Any city outside New York City: City Court (governed by the Uniform City Court Act). City Court is the jurisdictional equivalent, in the State’s other cities, of the New York City Civil Court and the District Court. (e) Any town or village other than on Long Island (and also within Suffolk County’s four east-end towns on Long Island): town or village Justice Court (governed by the Uniform Justice Court Act). These courts are typically in session only once or twice a week, frequently in the evening, and are presided over by part-time judges who usually hold full-time day jobs, often as non-lawyers. Eviction proceedings, particularly in smaller towns and villages, will often be on the same calendar as traffic tickets, violations, infractions, and small claims. (f) Surrogate’s Court: In the limited situation in which the real property at issue is the subject of a pending probate proceeding, a summary proceeding relating to that property may be commenced in the Surrogate’s Court for the applicable county. Appeals from the above-listed courts are directed as follows: (a) To the Appellate Term: In the First and Second Departments, appeals from (i) New York City Civil Court, (ii) District Court in Nassau County and Suffolk County, and (iii) any City Court or Justice Court in Westchester, Rockland, Putnam, Orange, Dutchess, Nassau, and Suffolk Counties are taken to an appellate part of the Supreme Court, known as the Appellate Term. (b) To the County Court: In the Third and Fourth Departments, appeals from City Court and Justice Court are taken to the County Court for the county in which the city, town, or village is located. (c) To the Appellate Division: Appeals from Supreme Court and Surrogate’s Court are taken to the Appellate Division for the judicial department in which the county is located.

III. PLENARY ACTIONS BETWEEN COMMERCIAL LANDLORDS AND TENANTS A. Ejectment Actions Before the New York Legislature’s codification of the summary proceeding in 1820, recovering possession of real property through the judicial process could be effectuated only through a common-law action for ejectment. While rare, common-law ejectment actions are still available and commenced on occasion, usually based on strategic considerations. These include a plaintiff’s desire to have the matter adjudicated before the Supreme Court’s Commercial Division if the plaintiff deems it a more favorable forum; a plaintiff’s wish to conduct disclosure, which is available as of right in Supreme Court ejectment actions; to cause the litigation to be more expensive for the respondent; or when a petitioner is unable to maintain a summary proceeding, as when the property lacks an MDR statement.

B. Actions for Rent or Use and Occupancy When a tenant vacates with remaining rent arrears, damages may be recovered in an ordinary contract action for unpaid rent for the term of the lease.

When an occupant was or is in possession of real property and the landlord is not limited to recovering a reserved rent under a lease or rental agreement, RPL § 220 authorizes an action to recover use and occupancy. If the building in which the property is located is destroyed or so severely damaged by the elements so as to be effectively destroyed and unusable, the tenant is entitled to break its lease, abandon the property, and be relieved of any further obligation for the duration of the lease.xv

C. Yellowstone Injunction Actions The opportunity to avoid eviction by effectuating a post-judgment cure after a landlord prevails in a holdover proceeding predicated on a breach of lease and a failure to cure is available only to residential tenants in New York City.xvi Commercial tenants are not entitled to a statutory cure period once the court in a holdover proceeding rules in the petitioner’s favor and grants a judgment of possession. To challenge the breach alleged in the notice to cure, a tenant’s only option under RPAPL Article 7 is to litigate the holdover proceeding and risk eviction if the petitioner prevails. Even if the respondent is willing and able to cure the breach, the RPAPL does not afford a commercial tenant an opportunity to cure once the holdover proceeding has been adjudicated in the petitioner’s favor. When a petitioner issues a notice to cure or notice of default to a commercial tenant and the commercial tenant disputes that it has breached the lease and thus refuses to cure an alleged breach that the respondent maintains does not exist, the respondent may assert in defense to the holdover proceeding that no breach occurred in the first place. If the court agrees with the respondent, the tenant will prevail, and the holdover petition will be dismissed. If the court disagrees and the petitioner prevails, the respondent will have no opportunity to cure and will lose the tenancy. Recognizing the preference against forfeiting tenancies,xvii New York law has developed the Yellowstone injunction to prevent the tenant from being forced to roll the dice in the high-stakes gamble that is a commercial breach-of-lease holdover proceeding. In addition to commercial tenants who receive a notice to cure or notice of default and argue that there has been no breach, those that do not dispute the breach and wish to cure but which are incapable of doing so within the limited cure period a lease will afford may obtain an extension of their time to cure by a Yellowstone injunction. Yellowstone injunctions are limited to tenants who have been issued a notice to cure as a predicate to a holdover proceeding and are unavailable to a tenant who has been issued a rent demand as a predicate to a nonpayment proceeding to extend its time to pay. In First National Stores, Inc. v. Yellowstone Shopping Center, Inc.,xviii the Court of Appeals held that a tenant may prevent forfeiting a tenancy by obtaining an injunction, now commonly known as a “Yellowstone injunction,” before the expiration of the notice to cure and issuance of the notice of termination. The injunction, if granted, will stay the landlord from terminating the lease while the court determines whether a breach has occurred. Yellowstone actions are brought in Supreme Court, typically by filing an order to show cause seeking a preliminary Yellowstone injunction simultaneously with the summons and complaint and request for judicial intervention (RJI). The order to show cause should contain a request for a temporary restraining order to toll the cure period and prohibit the landlord from terminating the tenancy pending a determination of the motion, as the cure deadline will come before the return date of the order to show cause and the order deciding it. A Yellowstone injunction “maintain[s] the status quo” to permit the tenant to “challenge the landlord’s assessment of [its] rights without . . . forfeiting its valuable interest in the leasehold.”xix Although a Yellowstone injunction is a form of preliminary injunction, courts have held that the “standards normally applicable to temporary injunctive relief have little application to a Yellowstone situation.”xx Courts have dispensed with the requirement that the tenant demonstrate a likelihood of success on the merits; courts have shown a willingness to grant the injunction without that showing.xxi

A tenant seeking a Yellowstone injunction must establish four elements to be entitled to the injunction: (i) it is the tenant under a commercial lease, (ii) it has received a notice to cure or notice of default, or the landlord has threatened to terminate the lease, (iii) the tenant’s application for a Yellowstone injunction was made before the termination of the lease, and (iv) the tenant has the desire and current ability to cure the alleged lease breach by any means short of vacating the premises.xxii To obtain a Yellowstone injunction, a tenant must demonstrate in Supreme Court that it is ready, willing, and able to cure if the Supreme Court ultimately finds that the tenant’s conduct constitutes a default under the lease and that the notice to cure is valid.xxiii If the tenant’s conduct at issue breaches a lease incurably, Yellowstone relief is unavailable.xxiv In the Second Department, there is an absolute bar against an application for a Yellowstone injunction made after a cure period has expired.xxv Although this is generally the rule in the First Department, when the lease requires the tenant to commence curing the breach within the cure period and the tenant has done so but cannot complete a cure within the cure period, a Yellowstone injunction may be granted even if it is brought after the expiration of the notice to cure.xxvi Nonetheless, even in the First Department, a tenant’s attorney is well-advised to bring the Yellowstone injunction application before the expiration of the cure period rather than to rely on this narrow exception. As a condition of a Yellowstone injunction, courts will typically require the tenant to pay ongoing use and occupancy during the pendency of the Yellowstone action, based on the rate of the monthly rent in the lease.xxvii In addition to use and occupancy, upon the defendant-landlord making a showing of its potential damages the court may also, it its discretion, direct the posting of an undertaking rationally related to the landlord’s potential damages.xxviii It is also properly in the court’s discretion, if the tenant obtaining the Yellowstone injunction has made substantial capital improvements to the property, to direct a minimal undertaking or dispense with an undertaking altogether.xxix Courts have also granted Yellowstone-type injunctive relief in other contexts, such as when a landlord threatens a tenant’s time to exercise a purchase option or right of first

D. Declaratory Judgments to Excuse a Failure to Renew Timely Excusing a failure to exercise a renewal option: If a respondent fails to timely exercise a lease renewal option, Supreme Court may exercise its equitable powers to excuse an inadvertent failure to renew under some circumstances in a tenant-commenced action for a declaration of the tenant’s right to continue its tenancy, in particular if the failure to exercise the option resulted from an honest mistake, the tenant has invested substantial sums of money to improve the property, and the landlord suffers no prejudice.xxxi

E. Collateral Effect of Bankruptcy Proceedings on Landlord-Tenant Proceedings Although not technically a proceeding commenced against a landlord by a tenant, a tenant’s filing of a bankruptcy petition in the United States Bankruptcy Court has critical implications on landlord-tenant proceedings. Under Bankruptcy Code § 362, a respondent’s filing a bankruptcy petition effectuates an automatic stay of all proceedings against the debtor-respondent to enforce any of the creditorpetitioner’s existing claims, including staying the commencement or continuation of any nonpayment or holdover proceeding.xxxii Two exceptions to this automatic stay arise. First, under Bankruptcy Code § 362(b)(22), a respondent’s eviction in a pending summary proceeding may go forward if a judgment of possession has already been issued before the bankruptcy petition was filed. Second, under Section 362(b)(23), an eviction based on endangering the subject property or illegally using controlled substances may go forward if the endangerment or illegal use occurred within thirty days before the bankruptcy petition was filed.xxxiii

If the respondent-debtor has personal property remaining in the premises after the bankruptcy petition is filed and the Section 362 stay takes effect, the stay must be vacated because the remaining property might be available as funds to pay creditors in connection with the bankruptcy proceeding.xxxiv A petitioner seeking to claim an exception to the Section 362 automatic stay must file with the Bankruptcy Court and serve on the respondent-debtor a certificate setting forth the basis for the exception. The tenant-debtor then has the opportunity to object to the certificate claiming an exception, in which case the Bankruptcy Court must hold a hearing to determine the petitioner’s claimed exception.xxxv Once a commercial tenant files a bankruptcy petition, it must assume or reject an unexpired lease.xxxvi A tenant that assumes the lease must pay all outstanding arrears and continue to pay the rent as it comes due. If the tenant rejects the lease and continues in occupancy, the landlord is entitled to damages for the lease rejection.xxxvii

IV. CONCLUSION Commercial landlord-tenant law is a field in which seemingly minor and inconsequential details are often crucial, or even dispositive. We hope that this three-part article has identified the more important details and most commonly litigated issues, both procedural and substantive, so that practitioners can obtain favorable outcomes for their clients. i Chinatown Apts., Inc. v. Chu Cho Lam, 51 N.Y.2d 786, 787, 412 N.E.2d 1312, 1313, 433 N.Y.S.2d 86, 87 (1980). ii United States v. Schmitt, 999 F. Supp. 317, 371 (E.D.N.Y. 1998) (finding that petitioner waived default where rent is accepted with knowledge of particular conduct claimed to be a default); In re Duplan Corp., 473 F. Supp. 1089, 1091-93 (S.D.N.Y. 1979); In re City Stores Company, 42 B.R. 685, 691-93 (S.D.N.Y. 1984); Jefpaul Garage Corp. v. Presbyterian Hosp., 61 N.Y.2d 442, 446-48, 462 N.E.2d 1176, 1178-79, 474 N.Y.S.2d 458, 459-60 (1984); Atkin’s Waste Materials, Inc. v. May, 34 N.Y.2d 422, 427, 314 N.E.2d 871, 873, 358 N.Y.S.2d 129, 132 (1974) (“When rent is accepted with knowledge of particular conduct which is claimed to be a default, the acceptance of such rent constitutes a waiver by the landlord of the default. The acceptance of the rent is in effect an election by the landlord to continue the relationship of landlord and tenant.”) (internal citation omitted); Woollard v. Schaffer Stores Co., 272 N.Y. 304, 312, 5 N.E.2d 829, 832 (1936); P&D Cards & Gifts, Inc. v. Matejka, 150 A.D.2d 660, 662, 541 N.Y.S.2d 533, 535 (2d Dep’t 1989) (finding waiver where commercial landlord had accepted rent before attempting to terminate lease); 201 E. 37 Owners Corp. v. Cass, 3 Misc. 3d 1102(A), 787 N.Y.S.2d 682, 2004 N.Y. Slip Op. 50339(U), **2-3 (Civ. Ct. N.Y. County 2004). iii TSS-Seedman’s, Inc. v. Elota Realty Co., 72 N.Y.2d 1024, 1027, 531 N.E.2d 646, 648, 534 N.Y.S.2d 925, 927 (1988) (“[W]e reject defendant’s contention that, because the leases contained ‘nonwaiver’ clauses, acceptance of the withheld rents did not prevent it from terminating the leases.”); Madison Ave. Leasehold, LLC v. Madison Bentley Assoc. LLC, 30 A.D.3d 1, 6, 811 N.Y.S.2d 47, 51 (1st Dep’t 2006) (“[A] no-waiver clause is waived by the acceptance of rent.”); Lee v. Wright, 108 A.D.2d 678, 680, 485 N.Y.S.2d 543, 544 (1st Dep’t 1985) (“[I]t has long been the rule that parties may waive a ‘no-waiver’ clause.”). iv Graff v. Billet, 64 N.Y.2d 899, 902, 477 N.E.2d 212, 213, 487 N.Y.S.2d 733, 734 (1985); 151 W. Assoc. v. Printsiples Fabric Corp., 61 N.Y.2d 732, 733-34, 460 N.E.2d 1344, 1344-45, 472 N.Y.S.2d 909, 910 (1984); Syed v. Normel Constr. Corp., 4 A.D.3d 303, 304, 773 N.Y.S.2d 345, 346 (1st Dep’t 2004); Fabulous Stationers, Inc. v. Regency Joint Venture, 44 A.D.2d 547, 547, 353 N.Y.S.2d 766, 768 (1st Dep’t 1974). v Barash v. Pennsylvania Terminal Real Estate Corp., 26 N.Y.2d 77, 81-85, 256 N.E.2d 707, 709-11, 308 N.Y.S.2d 649, 652-54 (1970); Johnson v. Cabrera, 246 A.D.2d 578, 578-79, 668 N.Y.S.2d 45, 45 (2d Dep’t 1998); Joylaine Realty Co. LLC v. Samuel, 100 A.D.3d 706, 706-07, 954 N.Y.S.2d 179, 180 (1st Dep’t 2012); Serge Joseph, Defending the Commercial Tenant in Summary Proceedings 9-10 (N.Y. City Civ. Ct. Bd. of Judges, Jud. Conf., Oct. 22, 2013). vi Minjak Co. v. Randolph, 140 A.D.2d 245, 247-49, 528 N.Y.S.2d 554, 556-57 (1st Dep’t 1988); E. Haven Assoc. v. Gurian, 64 Misc. 2d 276, 279, 313 N.Y.S.2d 927, 929-30 (Civ. Ct.. N.Y. County 1970). vii Fifth Ave. Bldg. Co v. Kernochan, 221 N.Y. 370, 372-77, 117 N.E. 579, 580-82 (1917). viii Camatron Sewing Machine, Inc. v. F.M. Ring Assoc., Inc., 179 A.D.2d 165, 168-69, 582 N.Y.S.2d 396, 398-99 (1st Dep’t 1992); Sidereal Studios v. 214 Franklin LLC, 18 Misc. 3d 1110(A), 856 N.Y.S.2d 26, 2008 N.Y. Slip Op. 50004(U), *10. ix George Locker, Outside Counsel, Defending the Commercial Tenant in Civil Court, NYLJ, Feb. 1, 2002, at 4, col. 1. x U.B.O. Realty Corp. v. Mollica, 257 A.D.2d 460, 460, 683 N.Y.S.2d 532, 533 (1st Dep’t 1999); 379 E. 10th St., LLC v. Miller, 23 Misc. 3d 137(A), 886 N.Y.S.2d 72, 2009 N.Y. Slip Op. 50864(U), *1 (App. Term 1st Dep’t 2009); Benroal Realty Assoc., LPv. Lowe, 9 Misc. 3d 4, 5-6, 801 N.Y.S.2d 114, 115-17 (App. Term 2d Dep’t 2005); A Real Good Plumber, Inc. v. Kelleher, 191 Misc. 2d 94, 95-96, 740 N.Y.S.2d 745, 746-47 (App Term 2d Dep’t 2002).

JUNE, 2014


Rebecca Rose Woodland Inducted as The Ninety-Ninth President of The BBA Continued from page 1

word, remarkable.” Next up was President Woodland’s law partner and husband, Past President John Lonuzzi. Past President Lonuzzi opened his remarks with one of the funniest jokes I have ever heard in all my years of attending BBA events. It was too well delivered to repeat effectively herein, but the punch line involved one of the BBA’s favorite Justices, Hon. George Silver, and it brought down the house with laughter. He then went on to praise his wife as one of the smartest persons he has ever met, who helped him build a law practice from a one laptop operation to what it is today. He remarked that not only is she able to be a vital part of their successful law practice, but she does so while having a successful second career as a television personality (President Woodland regularly appears as a legal analyst and commentator on NBC, CNN and Fox, as well as other networks). The Lonuzzis are longtime friends of recently deceased Hon. Theodore Jones and his family; John expressed his belief that, “today Ted Jones would have been just as proud of you as I am.” Certainly, it is no easy task to address a luminous crowd and speak about one’s wife and her accomplishments with objectivity, candor and style, but Past President Lonuzzi managed to do so in a way that genuinely expressed his appreciation for having Rebecca, not only as his wife and law partner, but also as the person set to lead our Brooklyn Bar Association for the next twelve months. Hon George Silver spoke next and said that President Woodland has vision and predicted that it will be a great year for the BBA. He praised our incoming President as being, “kind, intelligent, brilliant and my good friend.” Hon. Cheryl Chambers next related to the assembled that she met Rebecca Woodand eight years ago at the Kings County Inns of Court and described Rebecca as, “passionate about making a difference in the lives of the less fortunate.” Judge Chambers was certain that President

Woodland, at the end of her term, “will have made her mark and made a difference.” In addition to the induction of our new President, the evening also honored the newly installed Officers and Trustees. Hon. Cheryl Chambers inducted the following officers: Arthur L. Aidala, President-Elect, Hon. Frank R. Seddio, First Vice President, Aimee L. Richter, Second Vice President, David M. Chidekel, Secretary and Hon. Frank V. Carone, Treasurer. Judge Chambers also inducted the Trustees of the Class of 2017: Marianne Bertuna, Joseph R. Costello, Dewey Golkin, Hemalee J. Patel, Steven J. Harkavy, Jeffrey Miller and Stefano A. Filipazzo. Also inducted was Michael Farkas, Trustee Class of 2015. The last to speak, after her induction by Judge Chambers, was our new President, Rebecca Rose Woodland. She first thanked Andrew M. Fallek for all his help over the past weeks in working on the transition. She thanked everyone on the dais and, in particular, her husband, and expressed that she is grateful to have him and apologized for all the time she will miss from their law practice in carrying out her duties as the Association’s President. She thanked her parents and noted that her father, early in her career, urged her to join the Brooklyn Bar Association, “because there is no better way to learn and grow than to be active with those that are accomplished.” President Woodland stated that one of the goals of her presidency was to work through community outreach toward diversity and noted that to further this goal she has scheduled meetings with the Brooklyn Borough President and General Counsel. Certainly, this is a laudable goal, different from the goals pursued by recent Past Presidents of the organization, and the Association as a whole should do everything it can to help our President with this task as any progress in this regard will shine an extremely positive light on our Association. At the close of the ceremony, all retired to the Rotunda of the Borough Hall for food and drink. It was a wonderful evening and a great start to the Presidency of Rebecca Rose Woodland.

New York State Commercial Landlord-Tenant Law—Part III xi Helsam Realty Co., Inc. v. H.J.A. Holding Corp., 4 Misc. 3d 64, 66-68, 781 N.Y.S.2d 554, 556-57 (App. Term 2d Dep’t 2002). xii Madison 45 Co. v. Travel Overseas, Inc., NYLJ, Nov. 7, 1999, at 28, col. 4 (Civ. Ct. N.Y. County) (determining after trial whether petitioner had a good-faith demolition consistent with the lease-demolition clause and termination notice). xiii Brusco v. Braun, 84 N.Y.2d 674, 679-81, 645 N.E.2d 724, 725-27, 621 N.Y.S.2d 291, 292-94 (1994). xiv Post v. 120 E. End Ave. Corp., 62 N.Y.2d 19, 28-29, 464 N.E.2d 125, 129, 475 N.Y.S.2d 821, 825 (1984); A1 Entertainment LLC v. 27th St. Prop. LLC, 60 A.D.3d 516, 516-517, 875 N.Y.S.2d 463, 463-64 (1st Dep’t 2009); All 4 Sports & Fitness, Inc. v. Hamilton, Kane, Martin Enters., Inc., 22 A.D.3d 512, 513, 802 N.Y.S.2d 470 (2d Dep’t 2005); 44-46 W. 65th Apt. Corp. v. Stvan, 3 A.D.3d 440, 441, 772 N.Y.S.2d 4, 5 (1st Dep’t 2004); Lexington Ave. Assoc. v. Kandell, 283 A.D.2d 379, 379, 724 N.Y.S.2d 864, 864-65 (1st Dep’t 2001); E. 41st. St. Assoc. v. 18 E. 42nd St., 248 A.D.2d 112, 114, 669 N.Y.S.2d 546, 548 (1st Dep’t 1998); Phillips-Beirne v. Classic Residences, 203 A.D.2d 151, 152, 610 N.Y.S.2d 252, 253 (1st Dep’t 1994); Parksouth Dental Group v. E. River Realty, 122 A.D.2d 708, 709, 505 N.Y.S.2d 633, 635 (1st Dep’t 1986). xv RPL § 227 (“Where any building, which is leased or occupied, is destroyed or so injured by the elements, or any other cause as to be untenantable, and unfit for occupancy, and no express agreement to the contrary has been made in writing, the lessee or occupant may, if the destruction or injury occurred without his or her fault or neglect, quit and surrender possession of the leasehold premises, and of the land so leased or occupied; and he or she is not liable to pay to the lessor or owner, rent for the time subsequent to the surrender. Any rent paid in advance or which may have accrued by the terms of a lease or any other hiring shall be adjusted to the date of such surrender.”); Locker, supra note 9. xvi RPAPL 753(4). xvii JNA Realty Corp v. Cross Bay Chelsea, Inc., 42 N.Y.2d 392, 399-400, 366 N.E.2d 1313, 1317-18, 397 N.Y.S.2d 958, 96263 (1977); 57 E. 54 Realty Corp. v. Gay Nineties, 71 Misc. 2d 353, 354, 335 N.Y.S.2d 872, 873 (App. Term 1st Dep’t 1972). xviii 21 N.Y.2d 630, 634-638, 237 N.E.2d 868, 689-871, 290 N.Y.S.2d 721, 722-26 (1968). xix See, e.g., Post v. 120 E. End Ave. Corp., 62 N.Y.2d 19, 2526, 464 N.E.2d 125, 1237-28, 475 N.Y.S.2d 821, 823-24 (1984); ); Xiotis Rest. Corp. v. LSS Leasing, LLC, 50 A.D.3d 678, 678-79, 855 N.Y.S.2d 578, 579 (2d Dep’t 2008). Lexington Ave. & 42nd St. Corp. v. 380 Lexchamp Operating, 205 A.D.2d 421, 423, 613 N.Y.S.2d 402, 403 (1st Dep’t 1994). xx E.g., Finley v. Park Ten Assoc., 83 A.D.2d 537, 538, 441 N.Y.S.2d 475, 476 (1st Dep’t 1981). xxi TSI W. 14, Inc. v. Samson Assoc., 8 A.D.3d 51, 53, 778 N.Y.S.2d 29, 31 (1st Dep’t 2004); Herzfeld & Stern v. Ironwood Realty Corp., 102 A.D.2d 737, 738 , 477 N.Y.S.2d 7, 8 (1st Dep’t 1984); Ameurasia Int’l Corp. v. Finch Realty Co., 90 A.D.2d 760, 760, 455 N.Y.S.2d 900, 90 (1st Dep’t 1982); Podosky v. Hoffman, 82 A.D.2d 763, 763, 441 N.Y.S.2d 238, 239 (1st Dep’t 1981). xxii Graubard Mollen Horowitz Pomeranz & Shapiro v. 600

Third Ave. Assoc., 93 N.Y.2d 508, 514, 715 N.E.2d 117, 120, 693 N.Y.S.2d 91, 94-95 (1999); Purdue Pharma, LP v. Ardsley Partners, LP, 5 A.D.3d 654, 655, 774 N.Y.S.2d 540, 541 (2d Dep’t 2004); WPA/Partners LLC v. Port Imperial Ferry Corp., 307 A.D.2d 234, 236-37, 763 N.Y.S.2d 266, 268-69 (1st Dep’t 2003); Lee v. TT & PP Main St. Realty Corp., 286 A.D.2d 665, 666, 729 N.Y.S.2d 775,776 (2d Dep’t 2001); Empire State Bldg. Assoc. v. Trump Empire State Partners, 245 A.D.2d 225, 227-28, 667 N.Y.S.2d 31, 34-35 (1st Dep’t 1997); 225 E. 36th St. Garage Corp. v. 221 E. 36th Owners Corp., 211 A.D.2d 420, 421, 621 N.Y.S.2d 302, 303-04 (1st Dep’t 1995); Herzfeld & Stern, 102 A.D.2d at 738, 477 N.Y.S.2d at 8-9. xxiii 51 Park Place LH, LLC v. Consolidated Edison Co. of N.Y., 34 Misc. 3d 590, 592-93, 939 N.Y.S.2d 255, 256-57 (Sup. Ct. N.Y. County 2011); Fifth Ave. Restaurant Corp. v. RCPI Landmark Props, LLC, 13 Misc. 3d 1206(A), 824 N.Y.S.2d 753, 2006 N.Y. Slip Op. 51708(U), **1-2 (Sup. Ct. N.Y. County 2006). xxiv Excel Graphics Tech. v. CFG/AGSCB 75 Ninth Ave., 1 A.D.3d 65, 70-71, 767 N.Y.S.2d 99, 103-04 (1st Dep’t 2003). xxv Korova Milk Bar of White Plains, Inc. v. PRE Props., LLC, 70 A.D.3d 646, 647-48, 894 N.Y.S.2d 499, 500-01 (2d Dep’t 2010); King Party Ctr. of Pitkin Ave. v. Minco Realty, 286 A.D.2d 373, 375, 729 N.Y.S.2d 183, 185 (2d Dep’t 2001). xxvi Vill. Ctr. for Care v. Sligo Realty & Serv. Corp., 95 A.D.3d 219, 220-22, 943 N.Y.S.2d 11, 11-13 (1st Dep’t 2012). xxvii Metropolitan Transit Auth. v. 2 Broadway LLC, 279 A.D.2d 315, 315, 720 N.Y.S.2d 12, 13 (1st Dep’t 2001); 401 Hotel, L.P. v. MTI/The Image Group, Inc., 271 A.D.2d 228, 230, 705 N.Y.S.2d 364, 366 (1st Dep’t 2000); Phillips & Huyler Assoc. v. Flynn, 225 A.D.2d 475, 475, 640 N.Y.S.2d 26, 27 (1st Dept. 1996). xxviii Medical Bldgs. Assoc. v. Abner Props. Co., 103 A.D.3d 488, 488-89, 959 N.Y.S.2d 476, 476-77 (1st Dep’t 2013); Sportsplex of Middletown, Inc. v. Catskill Regional Off-Track Betting Corp., 221 A.D.2d 428, 428-29, 633 N.Y.S.2d 588, 588 (2d Dep’t 1995); 61 W. 62nd Owners Corp. v. Harkness Apt. Owners Corp., 173 A.D.2d 372, 372-73, 570 N.Y.S.2d 8, 8-9 (1st Dep’t 1991). xxix John A. Reisenbach Charter Sch. v. Wolfson, 298 A.D.2d 224, 224, 748 N.Y.S.2d 247, 247-48 (1st Dep’t 2002). xxx Syndicom Corp. v. Shoichi Takaya, 275 A.D.2d 676, 677-78, 714 N.Y.S.2d 256, 256-57 (1st Dep’t 2000); S.B.R.’s Rest. v. Towey, 130 A.D.2d 645, 647, 515 N.Y.S.2d 573, 575 (2d Dep’t 1987). xxxi Godnig v Belmont Realty Corp., 124 A.D.2d 701, 702, 508 N.Y.S.2d 213, 214-15 (2d Dep’t 1986); Tritt v. Huffman & Boyle Co., 121 A.D.2d 531, 531, 503 N.Y.S.2d 842, 843 (2nd Dep’t 1986); Joseph, supra note 5, at 12-13. xxxii Homeside Lending, Inc. v. Watts, 16 A.D.3d 551, 55253, 792 N.Y.S.2d 513, 513-14 (2d Dep’t 2005); Lewis A. Lindenberg, A Commercial Tenant’s Perspective to Defending its Leasehold Interest in a Summary Proceeding 3-4 (N.Y. City Civ. Ct. Bd. of Judges, Jud. Conf., Oct. 22, 2013). xxxiii Lindenberg, supra note 32, at 4. xxxiv Id. at 3. xxxv Id. at 4-5. xxxvi Id. at 5-6.

Rebecca Rose Woodland, President of the Brooklyn Bar Association. Photo by Mario Belluomo


JUNE, 2014

BBA’s Induction Ceremony

Brooklyn Bar Associatin President Rebecca Rose Woodland, at podium, addresses a rapt audience of legal professionals and guests in the rotunda of the Borough Hall courthouse.

Photos courtesy of the Brooklyn Bar Association