Queens Bar BulletinQueens Bar BulletinQueens County Bar Association / 90-35 One Hundred Forty Eighth Street, Jamaica, NY 11435 / (718) 291-4500

www.qcba.org

Vol. 74 / No. 8 / May 2011

BY MARK WELIKY*

On Monday, May 2nd a special ceremonyand luncheon was held at the home of the NewYork State Bar Association (NYSBA) inAlbany. The purpose of the event was to honorthe recipients of the NYSBA President’s ProBono Service Awards for the year 2011. Thehonoree for the Eleventh Judicial District(Queens County) was Ned Kassman, a volun-teer lawyer at the CLARO-Queens ConsumerDebt Clinic. CLARO-Queens, a service pro-vided by our pro bono program, the QueensVolunteer Lawyers Project (QVLP) in partner-ship with the St. John’s University School ofLaw, assists pro se litigants with cases inQueens Civil Court. To date CLARO-Queenshas assisted over 2,500 visitors to the clinic.

The NYSBA President’s Pro Bono ServiceAwards recognize attorneys who provide civillegal services, without compensation, to thepoor and/or disadvantaged in their communi-ties. These lawyers uphold the highest tradi-tions of our profession and respond to thenoblest of our ethical precepts by helping toassure that the poor have access to justice.NYSBA President Stephen P. Younger andNYSBA President-Elect Vincent E. Doyle IIIpresided over the awards ceremony and Hon.Jonathan Lippman, Chief Judge of the State ofNew York, presented Law Day remarks to theattendees.

Our award winner, Ned Kassman, has beenan important member of our volunteer attorneypanel for CLARO. Ned has not only been anomnipresent volunteer at CLARO but has alsoserved as a mentor for lawyers volunteering forthe first time at the clinic. In addition to themany consultations he has provided at the clin-ic, Ned has taken on a number of cases thatrequired many hours of research and documentpreparation outside of the clinic. He has beensuccessful in defending pro se litigants againstMotions for Summary Judgment and has helpedin vacating numerous default judgments.

The Queens County Bar Association and theQueens Volunteer Lawyers Project salute ouraward winner Ned Kassman and all of the otherpro bono attorneys who continue to provideinvaluable service to our community.

*Mark Weliky is the Pro Bono Coordinatorfor the Queens County Bar Association.

As Trust and Estate’s practitioners we are oftenposed with our client’s complaint that the LastWill and Testament of the decedent is not validand/or that the client was not provided for in thewill. In order to assist in determining whether theclient has sufficient grounds to file objections tothe Last Will and Testament, the attorney may uti-lize SCPA 1404 before or after the filing of formalobjections. Conducting the examination of theattesting witness pursuant to SCPA 1404 allowsfor a respondent to ascertain the viability of objec-tions as well as the ability to frame objections.

Similarly, Trust and Estate practitioners are often presentedwith a complaint from a client that they were a beneficiaryunder a Last Will and Testament and that they did not receivetheir fair share or what they were supposed to receive from theestate. In order to assist the client with determining whetherthere is any validity to their assertion that may warrant the filingof formal objections to the accounting of a fiduciary, the attor-ney may demand an examination of the fiduciary pursuant toSCPA 2211. SCPA 2211 states that “the fiduciary may beexamined under oath by any party to the proceeding, whetherbefore or after filing objections, if any, to the account as to anymatter relating to his/her administration of the estate.” Similarto SCPA 1404 the SCPA 2211 examination may take placeeither before or after the filing of objections (SCPA 2211 (2)).In the examination, the fiduciary is to be examined as to all

matters concerning the accounting. The examination can be uti-lized to ascertain whether or not the accounting should haveincluded assets in the estate. The books and records of the fidu-ciary can be inspected and questions can be presented whichwill reveal whether the fiduciary acted prudently. (Matter ofSheir, NYLJ January 24, 1979, at 26 col 3 Sur. Ct. NY County).Additionally, it can be determined if the decedent left allegedtestamentary substitutes which can be found to be part of theestate. The Court thereafter can order that property or assets beturned over to the estate. (In re Will of Wojnowski, 136 Misc.2d 401, 518 N.Y.S.2d 587, Sur. Ct Monroe county 1987).

On the return date of the citation, the respondentto the accounting will either have filed objections,(In the Estate of Mann, 41 A.D. 2d 861, 342N.Y.S.2d 617, 3rd Dept 1973) “Generally speakingin an accounting proceeding, the objections shouldbe filed on the return date of the citation”); or haveten days from the return date to file the objections,(22 NYCRR 207.41 states that “on any accountingby an executor, administrator, temporary adminis-trator, trustee, any creditor or any party interestedmay file objections thereto in writing in such timeas shall be allowed by the Surrogate”).

If an examination is requested, the Court will setdown a date for the examinations to be held. 22 NYCRR 207.28provides that the examination is an official court proceeding andwill be held at the court house before the official Court reporter.(See 22 NYCRR 207.28(a) “all examinations . . . should be con-ducted on reasonable notice to all attorneys, guardians ad litem,and parties entitled under SCPA 302(3). Unless the Court other-wise directs, all examinations . . . shall be held at the courthouse.”) The examination itself is similar to a 1404 exam as it isa hearing more than it is a deposition. The Court in the case of Inre Fiddle, 13 Misc. 3d 827, 823 N.Y.S.2d 859 (Sur. Ct. SullivanCounty 2006) stated that a 1404 hearing is not a hearing in theevidentiary sense. It is an examination pursuant to SCPA 1404and 22 NYCRR 207.27 and therefore witnesses must be pro-duced before the Court, the examinations must be conducted atthe courthouse and the examination must be supervised by theSurrogate. The same is true for the SCPA 2211 examination.

In Queens County Surrogate’s Court the official court reporteris an electronic recording device. The device is either a tapemachine or a newer recording device that records on CD-Rom ora computer hard drive. In most instances the Court will makeavailable a conference room on the 7th floor of Supreme Courtbuilding or the jury room in Surrogate’s Court if there is not a jurytrial in progress. Tapes are available in the MiscellaneousDepartment and must be returned upon the completion of theexamination. The tapes can be subsequently transcribed. The

QVLP AttorneyHonored byState Bar

I N S I D E T H I S I S S U EExamination of the Fiduciary in Queens

County Surrogate’s Court.........................1

QVLP Attorney Honored by State Bar .... 1

Editor’s Message: 9-1-1 and Osama’s

Death ..................................................... 2

Notice of Meeting .................................... 2

President’s Message.................................3

Remembering Michael Jay.......................3

Marital Quiz ...............................................4

Photo Corner: Judiciary, Past Presidents

and Golden Jubilarians Night.............8-9

Culture Corner ....................................... 10

__________________________________Continued On Page 11

Examination of the Fiduciary inQueens County Surrogate’s Court

BY: SCOTT G. KAUFMAN*

Scott G. Kaufman

What do three of theseJubilarians

have in common?

They are also Past Presidents!

(See Page 8-9)

Chanwoo Lee, Michael Dikman, Francis J. Kilkelly, Sheldon Lobel, George J. Nashak, Jr.,Paul Pavlides, Edward H. Rosenthal, Hon. Bernard Strauss and Hon. Hazel C. Strauss

THE QUEENS BAR BULLETIN – MAY 20112

being the official notice of the meetings and programs listed below, which, unless otherwise noted, will be heldat the Bar Association Building, 90-35 148th St., Jamaica, New York. More information and any changes will bemade available to members via written notice and brochures. Questions? Please call (718) 291-4500.

PLEASE NOTE:The Queens Bar Association has been certified by the NYS Continuing Legal Education Board as anAccredited Legal Education Provider in the State of New York.

Hon. Vincent F. Naro Hon. Robert A. Ross

TH E DO C K E T . . .

NE W ME M B E R S

NE C R O L O G Y

June 2011

Monday, June 13 Juvenile Justice Committee SeminarWednesday, June 15 Article 81/Guardianship Training for Laypersons5:30 - 8:00 pm

September 2011

Monday, September 5 Labor Day, Office ClosedMonday, September 12 Annual Golf Outing

Patrick C. AbohwoAram Barikian

Sergio Andres BlancoJae Choi

Sandra DavermanJ. Cavin Flores

Michael G. ForlenzaBrandon Walter Howick

Eric Lee KangAli Najmi

Stephanie SternSewnarine Desmond Sukhdeo

Vindiya Y. SurujpaulJulia Sverdloff

Renee Juanita TelloAlan F. Thau

Class of 2011David L. CohenPaul E. KersonZenith T. Taylor

Timothy B. RountreeClifford M. Welden

Class of 2012Jennifer M. Gilroy

Richard Harris LazarusGary Francis Miret

Steven S. OrlowJames R. Pieret

Class of 2013Gregory J. Brown

Tracy Catapano-FoxMona Haas

Gregory J. NewmanGuy R. Vitacco, Jr.

2010-2011 Officers and Board of Managers

of the Queens County Bar Association

President - Chanwoo LeePresident-Elect - Richard Michael Gutierrez

Vice President - Joseph John Risi, Jr.Secretary - Joseph Carola III -*Treasurer - Joseph F. DeFelice

Publisher: Long Islander Newspapers, LLC. under the auspices of Queens

County Bar Association. Queens Bar Bulletin is

published monthly fromOctober to May.

All rights reserved. Material in this publication maynot be stored or reproduced inany form without permission.

©2011 The Queens County

Bar Association.Advertising Offices:

Long Islander Newspapers, 149 Main Street, Huntington, New York (631) 427-7000

Arthur N. Terranova . . . Executive DirectorQUEENS BAR BULLETIN

EDITOR - Paul E. Kerson (kersonpaul@aol.com)Richard Golden (goldenlaw@nyc.rr.com)Stephen David Fink (finkylaw@aol.com)

Gary DiLeonardo (garygcd@aol.com)Manuel Herman (mannyherman@aol.com)

“Queens Bar Bulletin”(USPS Number: 252-520) is published monthly exceptJune, July, August and September by Long IslanderNewspapers, LLC., 149 Main Street, Huntington, NY11743, under the auspices of the Queens County BarAssociation. Entered as periodical postage paid at thePost Office at Jamaica, New York and additional mailingoffices under the Act of Congress. Postmaster sendaddress changes to the Queens County Bar Association,90-35 148th Street, Jamaica, NY 11435.

Send letters and editorial copy to: Queens Bar Bulletin, 90-35 148th Street, Jamaica, New York 11435

Editor’s Note: Articles appearing in the QueensBar Bulletin represent the views of the respec-tive authors and do not necessarily carry theendorsement of the Association, the Board ofManagers, or the Editorial Board of the QueensBar Bulletin.

CLE Dates to be AnnouncedElder Lawyer’s AssistanceSurrogate’s Court, Estates & Trusts

NOTICE OF MEETING

9-11-01 and Osama Bin Laden’s Death

Advertise To 27000Lawyers

in Queens, Kings, New York & Suffolk Counties

Call 866-867-9121

Christopher Xuereb

To: President Barack ObamaVice President Joe Biden

Dear Barack and Joe,

I came within 20 minutes of dying on 9-11-01.

I rarely talk about it. The memory is toopainful.

I am a New York City courthouselawyer. I have argued hundreds of cases inthe New York metropolitan area court-houses over the past 35 years.

On the morning of 9-11-01, I was driv-ing to the Staten Island courthouse frommy home in Westchester County. I waslate because I had driven my son to highschool that morning, as I usually did in2001. He had overslept.

I was driving quickly down the WestSide Highway headed for the BatteryTunnel to Brooklyn and on to StatenIsland. As I approached 42nd Street, I sawthe World Trade Center surrounded by bil-lowing black smoke. I turned around. Inever made it to the Staten Island court-house that day. Fortunately, no default wastaken, and an adjournment was granted.

Had I been 20minutes earlier, asplanned, I wouldhave been atGround Zero atthe moment ofimpact. The WestSide Highway isimmediately adja-cent to GroundZero. The fallingdebris would havecrushed my carwith me in it. Photos of the damaged TwinTowers showed dozens of crushed cars allaround it.

I am a third generation New Yorker. Iwas born and raised within blocks of theWorld Trade Center. My first job after lawschool was as a New York State AssistantAttorney General stationed at the WorldTrade Center.

Although I did not die on 9-11-01, a partof me was lost that day. My home town wasbuilt and maintained in part by the efforts ofmy parents and grandparents. It wasbombed on 9-11-01 using two civilian air-

Paul E. Kerson

ED I T O R ’S ME S S A G E

___________________Continued On Page 9

A joint, well attended meeting of theSurrogate’s Court, Estates and TrustsCommittee and The Elderly andDisabled Committee was held on April27 at the Bar Association. Specialguests were Surrogate Peter J. Kellyand Chief Clerk Margaret M. Gribbon.

The meeting was comprised pri-marily as a convivial meet and greetbetween the guests and members ofthe bar. In a brief, formal component

of the meeting, Judge Kelly dis-cussed the recent personnel changes,and his practical approaches to twocommon scenarios, adjournmentsand compromise actions. ChiefClerk Gribbon also discussed per-sonnel changes, and the advent ofelectronic filing in this Court, ofwhich she was instrumental in estab-lishing. Many thanks to our friendsfor their interest in the concerns ofattorneys.

Saturday…

Dear Anita,I just learned of Michael’s heart

attack late yesterday. I am so sorrythat I cannot be there for the service,or I would be offering to deliver theseremarks myself. If you feel they arenot appropriate, then just pass themalong to the family, especially thekids. If you care to, please read them.Thank you, Stephen Singer

My friendship with Michael Jay goesback almost 40 years. I was there whenhe was a criminal defense lawyer, stilltelling tales about his carefree, Hippiedays riding across country, all alone, onhis motorcycle, sporting a ponytail andsleeping outdoors. I was there when heswitched sides and became an AssistantDistrict Attorney. He was equally goodon both sides of the “aisle” and lovedthe practice of criminal law. I was therethrough the Joan Carey period … for-ever a taboo subject I hasten to add…Iwas there when he decided to ventureinto the world of civil practice … prob-ably a mistake, but we all makethem…and when he became a matri-monial/real estate lawyer.

In fact, Michael represented me inmy own divorce case and he closedon several properties which I owned,so that I was both a client and a closefriend. We both had offices on thesecond floor of the Silver TowerBuilding in Kew Gardens for as longas I can remember. I was his, downthe hall, buddy and we shared lunch-

es together all these years,whenever we could spare thetime…I would come lookingfor him, he would come lookingfor me….often, it was to have asounding board for the prob-lems that vexed him that day.We grew quite close, Michaeland me, and I became his confi-dant and partial advisor duringhis own sad divorce.

We spent leisure time togeth-er as well. My trips up to Vermontwith him were very special and I willalways remember sharing a beer ortwo on the back porch of his doublewide, watching the beavers throughhis binoculars or when we would fishfor trout while standing in the streamthat ran through his property, the sixpack just below the water, keepingcold on those hot days. The long drivesthere and back gave us plenty of timeto exchange philosophies and personalthoughts. I got to know the MichaelJay who was so special, along the way.

He loved a great many people andwas not afraid to show it. He was agentle giant of a man who did not hes-itate to give another man a kiss or ahug if he wanted to show his affec-tion. I was fortunate enough to be therecipient of those affectionate hugsand kisses on many an occasion…andI loved him back. Mike never had amean thing to say about anyone ...except possibly Harold…and that wason your behalf Anita… He was espe-cially crazy about your children, and

of course, when hewas fortunateenough to have hisown, he was the nut-tiest father ever.

I would be cor-ralled and compelledto listen to storiesabout his kids adinfinitum…..evenhelping Benjaminwith one of his school

projects on one occasion. As Mikewould say, “Children don’t come witha playbook”” I only hope that I amdoing the right thing.” I would assurehim that he was…he had uncommonlygood common sense about child rear-ing and an endless amount of patiencefor both of them, equally due to hismaturity and his boundless love forthem. He never ceased bragging abouthis children, who he loved more than lifeitself…they should always know that.

Michael was the most loyal anddedicated friend anyone could everask for. When he bought his suite onthe second floor, he designed it him-self, furnished it himself and hung hisDad’s paintings on every availablewall space. He was so proud of hisaccomplishment. He ensconced histwo close friends in that office toshare the space with him. CindyReese and Brent Blacksburg (Blackieto everyone)…I danced alongsideMichael at Cindy’s wedding. I wentwith him to Blackie’s funeral. Both ofthem long gone now, both too soon,

just like Michael…how ironic that allthree of them died so young…allthree so beloved by so many. Michaelcollected wonderful friends by care-ful selection and his office … whenthose three Musketeers were together… was a happy, busy … but won-drous place….entering there was likegoing to no other law office…therewas friendship and warmth and freeadvice and great conversation atevery turn. I miss all three of them somuch.

At the end, when real estate was nolonger a great device for making aliving, his office was quiet … I wouldattend there for those occasionallunches and we would get lost inwonderful conversations that wouldsometimes go on for hours…I lovedspending time with him. I can onlyoffer this. The most important thingfor Michael would be to say twothings to his children and that wouldbe… (1) never forget me…I willalways be out there somewherewatching over you … (2) make meproud, not only of your personalaccomplishments, but because youbecome “good people” in your ownright. He was a man of peace, of lovefor many and especially cherished aselect few. I consider myself sooooofortunate that I counted myself in thatgroup. It was a privilege knowinghim….

I will not forget you Michael…With much love…Steve Singer

THE QUEENS BAR BULLETIN – MAY 2011 3

It’s hard for me to believe that a fullyear has passed since I took the oathto accept the position of President ofthe Queens County Bar Association.

I was the third woman... Only the second person of color to

serve...And the first Asian-Americanto ever hold this position.

And now we have Richie Gutierrez,our first Hispanic president.

After 134 years of existence, theQueens County Bar is suddenlychanging very fast.

I am very proud of some of thechanges this past year.

For one thing, we are now onFacebook.

For another, we’ve worked hard tobring our Continuing Legal Educationinto alignment with the needs of ourmembers.

Another thing that I’m very proudof is the effort we’ve made to create astrategic plan for QCBA.

Because the one-year term ofPresident begins just before summer,

it’s really more like a nine-month term. That makes ithard to create continuity,and to develop ongoingprojects.

That is why we asked theAmerican Bar Associationto join us for an all-dayplanning session. Based onthe questionnaires that youfilled out, we discussed a 4-to-5 year plan that Richieand subsequent presidentswill be able to follow...

To improve on the weaknesses ofQCBA...

and better meet your needs.The most satisfying part of my term

as a President was the opportunity tomeet and work with our members ofQCBA as well as our colleagues in thelegal profession.

That’s why I want to thank all ofyou, our Executive Officers and Boardof Managers for your support.

Every year, the officers and man-

agers strive to improve theservice we provide to allof you, our members.

I also want to personallythank our dedicated com-mittee chairs. QCBAcould not exist without theleadership of these mem-bers, whose work helpsmaintain continuity andprogress toward our goals,even as officers and man-agers change.

I would also like to recognizeand thank Mark Weliky, ExecutiveDirector of the Queens VolunteerLawyers Project, and his staff and volun-teer lawyers. They have done an excel-lent job of saving homes for many resi-dents of Queens County.

Our Association... the residents ofQueens County... and the entire legalcommunity have benefited from theparticipation of these dedicated mem-bers.

Finally, I want to thank our

Executive Director, ArthurTerranova... as well as Janice Ruiz...Sasha Khan... and Shakema Oakleyfor their support in the past year.

I’m going to close with a familiarplea:

Our Association’s growth is yourgrowth!

Please become an active participant,and ask your friends to join!

If I have learned anything this pastyear... it’s that QCBA is more impor-tant — and more exciting — than Icould ever have imagined.

Richie, I wish you all the best inyour coming year as President!

Finally, congratulations toHonorable Joseph A. Grosso, ActingSupreme Court Justice, who retiredfrom the court system. We will missyou and wish you the very best as youbegin a new and, we hope, excitingchapter in your life!

Very truly yours,- Chanwoo Lee

President

PR E S I D E N T ’S ME S S A G E

Chanwoo Lee

Remembering Michael Jay

Steve Singer

THE QUEENS BAR BULLETIN – MAY 20114

Marital QuizBY GEORGE J. NASHAK JR.*

Question #1 - Does an appeal lie froman order denying leave to reargue?

Your answer -

Question #2 - Does prohibition againstdouble counting apply to distribution ofparties’ tangible income-producing busi-ness?

Your answer -

Question #3 - Is a life insurance policyon wife’s parents, with defendant wife asbeneficiary, purchased during the marriageand premiums were paid, in part, withmarital funds, marital property?

Your answer -

Question #4 - May the court suspendchild support payments, if the non-custodi-al parent established that his or her right ofreasonable access to the child has beenunjustifiably frustrated by the custodialparent?

Your answer -

Question #5 - Husband prior to com-mencement began taking classes necessaryto earn Bachelor of Science and Doctoratedegree in physical therapy. Twenty-onemonths after the wife’s commencement ofan action for divorce the husband wasawarded both degrees. Is the wife entitledto equitable distribution of a portion of thehusband’s enhanced earnings?

Your answer -

Question # 6 - Can child support pay-ments be waived prospectively, before theobligation to make such payments hasaccrued?

Your Answer -

Question #7 - Can the court set aside thechild support provisions of a stipulation ofsettlement which was incorporated but notmerged into the judgment of divorce, uponthe motion of one of the parties?

Your answer -

Questions #8 - If a pending action wascommenced prior to the “no-fault” legisla-tion, may the defendant start a new actionon “no-fault” grounds?

Your answer -

Question #9 - Are motions to enforcethe terms of a stipulation of settlementsubject to a statute of limitation?

Your answer -

Question #10 - Is an action to enforce adistributive award in matrimonial actiongoverned by the six-year statute of limita-tions?

Your answer -

*Editor’s Note: Mr. Nashak is a PastPresident of our Association and Vice-Chair of our Family Law Committee. He isa member of the firm of Ramo NashakBrown & Garibaldi LLPANSWERS APPEAR ON PAGE 11

THE QUEENS BAR BULLETIN – MAY 2011 5

Reprinted from the November 1959 issue of the Queens Bar Bulletin.

BECKERMAN, Ray Address stays the same. Office number is 718-544-3434. Fax number is 718-559-6584

COOPERMAN, Arthur J. 115-23 Grosvenor Road, Kew Gardens, NY11418-3477, 347-628-2649

KALINA, Paul J. Address stays the same. Office number has changedto 718-441-4483

LEACH, Leslie J. NYS Executive Chamber, 633 Third Ave, New YorkNY 10017-6706, 212-681-4647

CO R R E C T I O N S F O R 2011 DI R E C T O R Y

866-867-9121

MEET YOUR MARKET

IN OUR PUBLICATIONS

THE QUEENS BAR BULLETIN – MAY 20116

PH O T O CO R N E R

Judiciary, Past Presidents and Golden Jubilaruion NightApril 11, 2011

NYSBA Vincent E. Doyle, III, Guest Speaker

Photos by Walter Karling

Joseph Carola, III, Chair of the Program Committee Leslie Nizin congratulating Samuel Freed on beingnominated for the Academy of Law Award.

Joseph Carola presenting Guy Vitacco, Jr. with hisPast President's Scroll.

Chanwoo Lee shaking hands with Steven S. Orlow(08-09). Standing to the right of Mr. Orlow are DavidL. Cohen (07-08), George J. Nashak, Jr. (05-06), GuyR. Vitacco, Jr. (09-10), Hon. Sidney F. Strauss (90-91),

Joseph A. Baum (92-93) and Edward H. Rosenthal(02-03). Sitting down are Leslie S. Nizin (00-01),

Howard D. Stave (82-83), Wallace L. Leinheardt (77-78), Michael Dikman (78-79), David N. Adler (88-89)

and Paul S. Goldstein (94-95

Hon. Valerie Brathwaite Nelson, Hon. Janice Taylor,Hon. Ulysses Leverett, Hon. Marguerite Grays and

Hon. Pam Jackman-Brown.

Hon. George Heymann and Hon. Harriet Thompson. Joe Baum, Hon. Robert Rosengarten, Hon. JamesDollard and DominicVilloni.

Hon. Phyllis Orlikoff Flug, Hon. Len Livote, Hon.Bernice Siegal, Mona Haasand Zenith Taylor.

Hon. Jeremy Weinstein, Hon. Fernando Camacho, Hon. GeorgeHeymann, Hon. Joseph Golia, Hon. Sy Boyers, Hon. Richard Brown and

Hon. Sheri Roman.

Paul Goldstein, Marilyn Harbater, Hon. Richard Latin, George Nashak,JayAbrahams, Hon. Stephen Knopf and Alexander Orlow.

THE QUEENS BAR BULLETIN – MAY 2011 7

PH O T O CO R N E R

Judiciary, Past Presidents and Golden Jubilaruion NightApril 11, 2011

Photos by Walter Karling

Steve Hans, Hon. Roger Rosengarten, RichardGutierrez, Hon. Lee Mayersohn, and Hon. Joseph Golia.

Ted Gorycki, John Marotta, Gerry Chiarielloand Marilyn Harbater.

Violet Samuels, Dominic Villioni, Hon. MargaretParisi-McGowan, Howard Stave, June Briese

and Rich Lazarus.

Hon. Sy Boyers, Hon. Randall Eng, Vincent Doyle, Chanwoo Lee, WallyLeinheardt, SeymourJames and Tom Principe.

Sheldon Lobel, Hon. Sid Strauss and Ted Lobel.

P.O. BOX 419LONG BEACH, NY 11561

Tel: 888-805-8282Fax: 516-706-1275Text: 321-480-1678

APPEARANCES IN QUEENS COUNTY

E-mail: DianainQueens@aol.com

Diana C. GianturcoATTORNEY AT LAW

THE QUEENS BAR BULLETIN – MAY 20118

BY-ARNOLD H. RAGANO, ESQ.-

Rosy-Cheek, just recently festedA legal career I coveted then-

The trials I pursued were fiery testedOf invidious traps I did not ken-

The tortuous labyrinths I disavowedTwisted arguments that freely flow-

Intellects pounding logic still unbowedEach party bombastic, skills to hoe-

Our profession once was glorifiedThe Law for adventurous souls to cast-Its ship of state with wind-tossed mastSailing still, billowing sails held fast-

Unfettered clear its clarion callsWith raucous hyperbole misspent

Shining lucre ingeniously enthrallsIs touted in terms irreverent-

The advertising rage of lawyersTinged with shameless unflinching booty-

How do we milk the sacred cowTo garner more of the tutti frutti?

Is this the lofty goal inspiredWith which our mind was once so fired?

God bless our erstwhile enlightening ambitionImprinted with its untarnished mission.

Truly Honorable

Profession Debased Advertising

BY-BOB SPARROW

When the final chapterOf his life is writ

You’ll see how “honorable”So aptly fit,

For now, Justice Joseph GrossoFrom the bench is retiring

Prompting thoughts of this manThat are truly inspiring...

A jurist possessedOf an intellect, so keen,

And judicially temperate-Considerate, never mean,

Always respectfulOf the letter of the law-

Insightful, and ableTo note an argument’s flaw,

Yet readily flexibleAnd willing to bend,

And find a wayA dilemma to mend.

A man of great faith-To wonderful family devoted,

All his achievements Must be noted

As we wish him wellOn life’s future journey-

He’s won the respectOf every attorney.

Thus, till that last pageIs finally complete,

We wish him good healthAnd a life of joy, replete!

With Respect,Bob Sparrow

Bob Sparrow

Arnold H. Ragano

[ Over 25 Years \

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Custody/Visitation, Neglect/Abuse, Termination,

Delinquency, Family Violence, & Adoptions

• Civil Cases: Competency Issues, Head Trauma,

Sexual Harassment, Discrimination, Immigration,

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MAIN OFFICE26 Court Street, Suite 1711, Brooklyn, NY 11242

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LONG ISLAND OFFICE45 North Station Plaza, Suite 404, Great Neck, NY 11021

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MANHATTAN139 Manhattan Avenue, New York, NY 10025

212-280-3706

The New York Center forNeuropsychology

& Forensic Behavioral Science

Dr. N.G. Berrill, Director

THE QUEENS BAR BULLETIN – MAY 2011 9

BY JOSEPH F. DEFELICE*

She’s looking all around,yes, the Clerk looks around,

the jurors come,the jurors go,

and the Clerk looks around,

They come from herethey come from there,

and the Clerk steers them round,

She calls their names,and spells them out,

she lines them upand sits them down,

yes, the Clerk looks around

She swears them in and sends them round

she even sometimes writes things down,yes, the Clerk looks around

Yes, some are talland some are short,

some are fatand some are slim,

some walk fastand some are slow,

some are white,some are black,

some are oldand some are not,

but the Clerk looks around

Yet, all around the jurors march,over here

and over there,and the Clerk looks around

Some, they readand some do sleep,

some are smartand some are not,

but the Clerk steers them round

She orders hereshe orders there,

she tells them where to go,cause this is actuallythe Clerk’s own show

Editor’s Note: Joseph F DeFelice is a solo practitioner in Queens County practic-ing Criminal and Immigration law.

The Jury Clerk

liners as deadly weapons. This was anAct of War. Nearly 3000 of my neighborswere lost, and many injured.

I am very grateful that the U.S.Government arranged the killing of thehate-filled mastermind of the bombingof my home town. I am especiallygrateful that this was done with two bul-lets from the rifle of a U.S. Navy serv-iceman. Osama Bin Laden won’t bemasterminding any mass murders again.

I am even more grateful that youarranged to seize his computer disks,hard drives, thumb drives, DVDs, com-puters, cell phones and paper records.Our Armed Forces can use this intelli-gence to eliminate or imprison addi-tional individuals who seek to harm our

country with further Acts of War. All ofthis information would have beendestroyed had you elected to use bombsrather than helicopters and rifles.

You did not just end the threat ofOsama Bin Laden on May 1, 2011. Byseizing Al Qaeda’s records at theirheadquarters, you turned the corner onthe “War on Terror”. Our Armed Forcescan now finally accurately determineexactly who is the Enemy, and huntdown each and every one.

I am very grateful that no ordinaryPakistani on his way to work was killedwith my tax dollars. I am thankful thatyou chose not to drop any bombs on anyinnocent Pakistanis in order to terminateOsama Bin Laden’s continued threats.

For the first time since 9-11-01, I amdeeply proud of the U.S. Government, andof the decisions you made in this matter.

I just wanted you to know.

-PAUL KERSON

9-11-01 and OsamaBin Laden’s DeathContinued From Page 2 ______________

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BY HOWARD L. WIEDER

FROG & PEACH THEATRE COM-PANY’S PRODUCTION OFWILLIAM SHAKESPEARE’S“TWELFTH NIGHT”

THE FROG & PEACH THEATRECOMPANY’S entertaining production ofWilliam Shakespeare’s “TWELFTHNIGHT,” directed by LYNNEA BEN-SON, is being presented at The West EndTheatre (the Church of St. Paul and St.Andrew), 263 West 86th Street (betweenWest End Avenue and Broadway), inManhattan’s Upper West Side.Performances run through Sunday, May15.

William Shakespeare’s “TWELFTHNIGHT,” one of his greatest comediesconcerns a brother and sister Viola andSebastian, who are not only very closebut look a great deal alike. When they’reshipwrecked off the coast of Illyria, theyboth think the other dead. When Violalands in this foreign country she dressesas a boy and adopts the name Cesario,becoming a trusted friend and confidanteto the Count Orsino. Orsino is madly inlove with the lady Olivia, who is inmourning due to her brother’s recentdeath, which she uses as an excuse toavoid seeing the Count, whom she doesnot love. He sends Cesario to do his woo-ing, and Olivia falls in love with the dis-guised maiden. Things get more compli-cated when a moronic nobleman, SirAndrew Aguecheek, and a self importantservant, Malvolio, get caught up in theschemes of Olivia’s cousin, the fun lovingSir Toby, who orchestrates a clever prankto make Malvolio think Olivia is madly inlove with him. The happy confusionmounts when Sebastian arrives in Illyria,alive and well, perplexed to find strangerscalling themselves his friend.

Director LYNNEA BENSON hasdirected over two dozen Shakespeare pro-ductions for Frog Peach including: As YouLike It (with Emmy winner CamrynGrimes); Richard III; Hamlet (with AustinPendleton as Claudius and The Ghost);Richard II (with Mr. Pendleton asRichard); Macbeth with Jason Kuschner inthe title role; The Merchant of Venice; andKing John (with Oscar nominee CatalinaSandino Moreno as Blanche). Ms. Bensonis also Artistic Producer and co founder ofFrog & Peach.

The cast of “TWELFTH NIGHT” hasmany talented and memorable perform-ances. JANE CORTNEY was electric asViola, at turns, both strong and vulnerable.BRANDO BONIVER exuded greatcharm as Sebastian. JONATHAN MAR-BELLI was hilarious as Toby Belch, andhas a voice that can be heard 20 blocksaway. The entire ensemble cast was well-cast and talented. In addition to the afore-mentioned actors, the cast “TWELFTHNIGHT” included: Matthew Bayer(Captain/Priest), Collin Blackard(Valentine), Michael Broadhurst (SirAndrew), Lenny Ciotti (Malvolio), KylaD’Souza (Curio), Peter Forde (Delbert),Eric Dysart (Feste), Erick Gonzalez(Orsino), Mark Sage Hamilton (Antonio),Steve Mazzoccone (Fabian), MonteNummi (Bartok), Amy Frances Quint(Olivia), and Leah Reddy (Maria).

The set design is by Peter Adams, thecostumes are by Jessa Raye Court, and thechoreography is by Tom Knutsen, and thecombat design, including sword fighting,is by Marcua Watson. Ted Zurkowski com-posed music for the production. Alexandra

Rubin is Associate Producer.The production stage manageris Blair Hotchner.

Frog & Peach TheatreCompany (www.frogand-peachtheatre.org), co foundedby Ted Zurkowski and LynneaBenson - - both Actors Studioalumni - - is dedicated to stag-ing Shakespeare’s plays craftedfor modern audiences (undertwo and a half hours) and inkeeping with this approachenjoyable for audiences of all ages.

Again, the show runs through Sunday,May 15. All tickets will be $18.00. Thebox office number for tickets is 212 8684444 or www.smarttix.com.

HOW AND WHY I ROBBED MYFIRST CHEESE STORE

La MaMa E.T.C. [ExperimentalTheatre Company] will present the WorldPremiere of HOW AND WHY I ROBBEDMY FIRST CHEESE STORE by MIKEGORMAN. Directed by DAVE BEN-NETT, HOW AND WHY I ROBBED MYFIRST CHEESE STORE features video,photography, cheese, and a life size taxi-dermy horse. Previews begin May 19.Opening night is slated for Thursday, May26.

In HOW AND WHY I ROBBED MYFIRST CHEESE STORE, a homelessplaywright turns the tables on the patroniz-ing Artistic Director of a downtown the-ater. Can he pull off what will inevitablybecome a potent Page Six story headline,if not the most absurd heist of all time?

Produced by The Forty Hour Club, theproduction features costumes by ObieAward winner Gabriel Berry, sets byDonald Eastman, sound by Obie Awardwinner Tim Schellenbaum and an installa-tion by Gregory de la Haba. The cast fea-tures Melody Bates (Patrial Comfort’sBooty Candy), Joseph Mullen (PreDisposal), Mary Notari (InternationalWOW’s Auto DaFe, FringeNYC’s ThereWill Come Soft Rains), Alan B. Netherton(Jean Claude van Italie’s America Hurrah,Labapalooza! at St. Ann’s Warehouse),Tommy Piper (Andrei Serban’s Richard 3)and Travis York (Anne Washburn’s TheInternationalist, Adam Szymkowicz’sNerve).

MIKE GORMAN is a playwright inresidence at La MaMa ETC where he haspresented works including The Honor andGlory of Whaling (2008), Death byJoinery (2006), Counting Coup (2002),Single Action Shotgun (2001), UltraLight(2000) and A Funny Old Bird (1998). Hisplays have also been seen at The PortlandStage Company and Gloucester StageCompany (Israel Horovitz, ArtisticDirector), among others. Mike was the cocreator of the acclaimed performancetroupe The Fabulous Giggin’ Bros. Hebegan his career as a playwright at ClarkUniversity in Worcester, Massachusettswhere received a degree in Literature(1988). At Clark, MIKE GORMAN wasnominated for a Rhodes Scholarship andhas recently been nominated for inductioninto the Clark University Athletic Hall ofFame.

The late ELLEN STEWART [1919-2011], who died earlier this year at age 91,founded La MaMa in 1961 in a tiny base-ment on Manhattan’s Lower East Side.She dedicated it to the playwright and allaspects of the theater. Today, La MaMa isa world renowned cultural institution rec-

ognized as the seed bed of newwork by artists of all nationsand cultures. To date, LaMaMa has presented artistsfrom over 70 nations. Each sea-son, over 100 productions withover 400 performances arestaged in their three theaters.Among the playwrights whoseearly work was presented on itsstage were Harold Pinter, SamShepard, and Hanford Wilson;the actors Harvey Keitel, Jill

Clayburgh, Bette Midler and Nick Nolteperformed there. Harvey Fierstein created“Torch Song Trilogy” at La MaMa beforeits critically acclaimed transfer toBroadway. Among those other artists whobegan at La MaMa include: MeredithMonk, Robert Wilson, Jean Claude vanItallie, Tan Dun, Joel Zwick, Mike Figgis,Jackie Curtis, Blue Man Group, JohnKelly, David and Amy Sedaris. La MaMahas been honored with over thirty ObieAwards, Drama Desk Awards, BessieAwards and Villager Awards. www.lama-ma.org .

HOW AND WHY I ROBBED MYFIRST CHEESE STORE runs May 19June 5, Thursday Saturday at 7:30 PM,Sunday at 2:30 PM. La MaMa E.T.C. islocated at 74A East Fourth Street (between2nd Avenue & Bowery - - accessible fromthe F train at 2nd Ave). Tickets are $18,available at 212 475 7710 or www.lama-ma.org.

MANIPULATION

MANIPULATION, a world premiereplay by VICTORIA E. CALDERONabout one woman’s struggle for freedomand self discovery, is set to begin OffBroadway previews May 14 prior to itsofficial press opening June 16 at CherryLane Theatre (38 Commerce Street) inManhattan. MARILYN FRIED directs.

In MANIPULATION, Cristina out-wardly appears to have everything she candesire, however, she cannot enjoy her life.Her husband, Mauricio, torments her withflagrant displays of infidelity while hermother, Dona Beatriz, encourages her tohave an affair with Luis. When Cristinaturns to a psychoanalyst for help, he pro-ceeds to take advantage of her. With everyattempt to find herself, Cristina is manipu-lated back into submission until she finds away to cut the ties that bind her to her pre-vious existence.

The ensemble of MANIPULATIONfeatures Robert Bogue (“GuidingLight,”“Oz”); Mark Ethan; GabrielFurman; Jeremy Stiles Holm (MintTheatre’s WIFE TO JAMES WHELAN);Mihaela Mihut (“Perkins’ 14,” NationalTheatre of Romania’s FOOL FOR LOVE);

Robert Mobley (SUDDENLY LASTSUMMER); and Saundra Santiago (“TheSopranos,” “Miami Vice,” NINE onBroadway with Antonio Banderas).

MANIPULATION features scenicdesign by Bill Stabile (TORCH SONGTRILOGY, Drama Desk nominee forSPOOKHOUSE, SUDDENLY LASTSUMMER); lighting design by KirkBookman (THE SUNSHINE BOYS, THEGIN GAME); costume design by AlejoVietti (SECRETS OF THE TRADE);sound design by Jeremy Lee; and technicalsupervision by Jay Janicki (FELA!).Mexican born playwright VICTORIA E.CALDERON began her writing career asa journalist. “El Heraldo de Mexico” pub-lished a series of her essays. Additionallyshe was a columnist and director of thesocial and cultural section at “El Sol deMexico.” MANIPULATION marks herAmerican premiere.

Director MARILYN FRIED has trav-eled extensively throughout Europe, con-ducting acting workshops. Some of theactors she has worked with have beennominated for Academy Awards andGolden Globes and others have been nom-inated for and awarded Emmys and Tonys.Her credits include “Reds,” “Baby Boom,”“Something’s Gotta Give,” The GodfatherI, II & III, “First Wives Club,” “Prizzi’sHonor,” “Michael Clayton,” and “Silenceof the Lambs.” She currently has twofilms, which she will direct, in develop-ment, one of which will be shot inRomania.

Off Broadway, MARILYN FRIEDrecently directed Tennessee Williams’sSUDDENLY LAST SUMMER withKathryn Luce and Joan Copeland. Shebecame a member of The Actors Studiounder the leadership of Lee Strasberg.

VICTORIA E. CALDERON’sMANIPULATION begins its open endedOff Broadway run on May 14, with an offi-cial press opening set for June 16 at theCherry Lane Theatre (38 CommerceStreet). Performances run TuesdaysFridays at 8pm; Saturdays at 2PM and8PM; Sundays at 3pm and 7pm Tickets are$68.50. For tickets, visit Telecharge.com orcall 212 239 6200 or 800 432 7250. Ticketsmay also be purchased at the Cherry Lanebox office: Tuesdays Fridays, 4 8 PM;Saturdays, 12 8 PM; and Sundays, 1 7 PM.

* * * * * * * * * * * * * * * ** * * * * * * * * *

HOWARD L. WIEDER is the writerof both “THE CULTURE CORNER”and the “BOOKS AT THE BAR”columns, appearing regularly in THEQUEENS BAR BULLETIN, and is JUS-TICE CHARLES J. MARKEY’SPRINCIPAL LAW CLERK in SupremeCourt, Queens County, Long IslandCity, New York.

TH E CU L T U R E CO R N E R

Howard L. Wieder

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THE QUEENS BAR BULLETIN – MAY 2011 11

ANSWERS TO MARITAL QUIZ ON PAGE 4

Question #1 - Does an appeal lie from anorder denying leave to reargue?

Answer: No, Rogers v. Rogers 2011 N Y SlipOp 1012 (2nd Dept.).

Question #2 - Does prohibition against dou-ble counting apply to distribution of parties’tangible income-producing business?

Answer: No, Weintraub v, Weintraub 912N.Y.S.2d 674 (2nd Dept. 2010).

Question #3 - Is a life insurance policy onwife’s parents, with defendant wife as benefici-ary, purchased during the marriage and premi-ums were paid, in part, with marital funds, mar-ital property?

Answer: Yes, Weintraub v, Weintraub 912N.Y.S.2d 674 (2nd Dept. 2010).

Question #4 - May the court suspend childsupport payments, if the non-custodial parentestablished that his or her right of reasonableaccess to the child has been unjustifiably frus-trated by the custodial parent?

Answer: Yes, Matter of Thompson v.Thompson 2010 NY Slip Op 08120 (2nd Dept.).

Question #5 - Husband prior to commence-ment began taking classes necessary to earnBachelor of Science and Doctorate degrees inphysical therapy. Twenty-one months after thewife’s commencement of an action for divorcethe husband was awarded both degrees. Is thewife entitled to equitable distribution of a por-tion of the husband’s enhanced earnings?

Answer: Yes, Kuznetsova v. Kuznetsova 913N.Y.S.2d 325 (2nd Dept. 2010).

Question # 6 - Can child support paymentsbe waived prospectively, before the obligationto make such payments has accrued?

Answer: Yes, Stevens v. Stevens 2011 NYSlip Op 1830 (2nd Dept.).

Question #7 - Can the court set aside thechild support provisions of a stipulation of set-tlement which was incorporated but not mergedinto the judgment of divorce, upon the motionof one of the parties?

Answer: No, a plenary action to set aside astipulation of settlement is required, Brody v.Brody 2011 NY slip Op 1782 (2nd Dept.).

Questions #8 - If a pending action was com-menced prior to the “no-fault” legislation, maythe defendant start a new action on “no-fault”grounds?

Answer: Yes, Heinz v. Heinz 203438/10,NYLJ 1202483036423 at *1 (Sup., NA DecidedFebruary 16, 2011).

Question #9 - Are motions to enforce theterms of a stipulation of settlement subject to astatute of limitation?

Answer: No, Bayen v. Bayen 2011 NY SlipOp 01421 (2nd Dept.).

Question #10 - Is an action to enforce a dis-tributive award in matrimonial action governedby the six-year statute of limitations?

Answer: Yes, Bayen v. Bayen 2011 NY SlipOp 01421 (2nd Dept.).

Marital Quiz

Miscellaneous Department has a list of tran-scription companies that have been used bythe Bar Association to transcribe the record.

Usually the parties set an agreed upon datefor the examination and inform the Judge ofthe proposed date. It is advisable to leaveenough time from the return date of the cita-tion to the date of the actual examination toprovide for the turning over of documents thatare subject to discovery associated with theaccounting. Article 31 discovery is broadand may take time to be provided. In theMatter of the Estate of Delisle, 149 A.D.2d793, 339 N.Y.S.2d 588 (3rd Dept 1989).

Most of the document discovery that aparty would require of the fiduciary isrequired to be turned over pre-objection.SCPA 2211 (2) states that a party con-ducting an examination is entitled to allrights granted under Article 31 of theCPLR with respect to document discov-ery, equally if such examination takesplace before or after the party files objec-tions. However, the objecting attorneyshould keep in mind that just because theyare now filing objections they will not bepermitted to examine the fiduciary for asecond time. See In Re Coyles Will, 61Misc. 2d 720, 306 N.Y.S.2d 161 (Sur. Ct.Albany County 1969).

Ordinarily, the Court will also ask theparties for an agreed upon date for theobjections, if any, to be filed. This date isusually ten days after the completion of theexamination. Pursuant to Hon. C.Raymond Radigan, “Courts typicallyorder that objections must be filed within10 days after the completion of such exam-inations” or within such other time as isfixed by stipulation of the parties or by theCourt. Margaret Valentine Turano & C.Raymond Radigan, New York EstateAdministration 6.03(b) (2007). All ofthese dates should be well thought out bythe attorney seeking the examination. Asstated, the Court rarely allows for a secondexamination. See In the Matter of the Willof Ettinger, 7 Misc. 3d 316, 793 N.Y.S.2d739 (Sur. Ct. Nassau County 2005) (hold-ing that SCPA examinations may be asbroad as any objections that may be filedand the examining party gets only oneopportunity to examine. Permission fromthe Court to reexamine these witnesses isnot granted lightly.); In re Estate ofMacLeman, 9 Misc. 3d 1119(A), 808N.Y.S.2d 918 (Sur. Ct. WestchesterCounty 2005); In re Estate of Roth, 7Misc. 3d 1010(A), 801 N.Y.S.2d 242 (Sur.Ct. Bronx County 2005). Therefore, allpotential issues should be the subject ofthe discovery demands and the fiduciaryshould be questioned about said issuesduring that examination.

The scope of the examination of thefiduciary is broad. The fiduciary should beprepared to turn over documentation andbe questioned on all issues which are partof the accounting. Additionally, the fiduci-ary can be questioned regarding assets

which were not collected. In the Matter ofFenton, 23 Misc. 2d 1074, 203 N.Y.S 2d23 (Sur. Ct. Nassau County 1960); In reEstate of Stanley, 59 Misc. 2d 232, 299N.Y.S.2d 47 (Sur. Ct. NY County 1969);In the Estate of Dorman, 175 Misc. 2d479, 669 N.Y.S.2d 193 (Sur. Ct.Cattaraugus County 1998). Items thatpassed by operation of law such as testa-mentary substitutes can be the subject ofinquiry as well as Totten Trust accountsand payable on death beneficiary designa-tions (i.e. life insurance). The inquiringattorney will also be permitted to questionthe fiduciary regarding the activities of acorporation that was owned by the dece-dent in which the fiduciary continued theactivities of the business. Therefore, theactivities of the corporation for which theestate had a controlling interest are to befully disclosed. In Re Tutle’s Estate, 4N.Y.2d 159, 173 N.Y.S.2d 279 (1958).

The fiduciary will be required to pro-duce checkbook ledgers, QuickBooksreports, cancelled checks, bank statements,broker agreement statements, estate taxreturns, fiduciary returns, appraisals of realproperty, business appraisals, etc.Attorney’s bills for services and account-ing reports can also be disclosed. In theMatter of Storecky, 85 N.Y.2d 518, 626N.Y.S.2d 733 (1995). In the case of theMatter of Dorman, 175 Misc. 2d 479, 669N.Y.S.2d 193 (Sur. Ct. New York County1998), the Court held that a thorough 2211examination may be difficult without doc-ument discovery. See also, In re Schneier,50 A.D.2d 715, 374 N.Y.S.2d 872 (4thDept 1975) which makes clear that thescope of disclosure is broad. “The test ismateriality; that is relevancy and useful-ness.” Id. Disclosure in Surrogate’s Courtis governed by Article 31 of the CPLR.

An accounting proceeding is one of themost utilized proceedings because of thewide range of relief that can be sought. Asthe scope of the examination and the dis-covery of information leading up to theexamination are very broad so is the natureof the relief that can be demanded in theaccounting. In re Rappaport’s Estate, 150A.D.2d 779, 542 N.Y.S.2d 215 (2d Dept1989) (holding that “the obligation rests onthe fiduciaries to make complete disclosureof all relevant data pertaining to theestate.”); See, also, In re Levine’s Will, 15Misc. 2d 281, 181 N.Y.S.2d 316 (Sur, Ct.Kings County 1958); In re Davidson’sEstate, 89 N.Y.S.2d 221 (Sur. Ct. NYCounty 1949) (holding that a party can seekinformation as to any matter relating to theadministration of the estate); In re Estate ofGrossman, 211 A.D.2d 409, 621 N.Y.S.2d44 (1st Dept 1995) (holding that “the statutegives examiners even wider latitude thenthe pertinent general discovery rules.”) Theaccounting proceeding can be the forumwhere an interested party seeks reliefagainst the fiduciary such as a claim that thefiduciary has withheld property from theestate. In re Fenton’s Estate, 23 Misc. 2d

1074, 203 N.Y.S.2d 23 (Sur. Ct. NassauCounty 1960) finding that the inquiryrelates to her acts or neglect in her fiduciarycapacity. Accounting examination orinquiry historically is a remedy for the dis-covery of assets withheld by the representa-tive. In the alternative, the fiduciary canseek a surcharge against a beneficiary for aloan that remains unpaid to the decedentand the decedent’s estate. All other out-standing issues that may remain are to beaddressed and litigated in the accounting.

The attorney involved in the accountingproceeding should also keep in mind thatthe issue of whether they are entitled to atrial by jury is dependent on whether therelief requested is equitable in nature orlegal in nature. Generally, no right to trialby jury exists in an accounting proceedingbecause the proceeding is a matter of equi-ty. Matter of Estate of Rappaport, 150A.D.2d 779, 542 N.Y.S.2d 215 (2d Dept1989). Usually the assertions made in anaccounting proceeding are made regardingproperty owned by the decedent; therefore,generally, the claim is in equity. In reEstate of Filipiaks, 66 Misc. 2d 742, 322N.Y.S.2d 9713 (Sur. Ct. Erie County1971). Additionally, it is generally a dis-pute that involves a fiduciary obligationwhich also sounds in equity. Matter ofEstate of Rappaport, 150 A.D.2d 779, 542N.Y.S.2d 215 (2d Dept 1989). The SCPApreserves the claimant’s right to trial byjury of issues relating to the validity andenforceability of the rejected claim, evenwhen they must be determined in anaccounting proceeding. In re Boyle’sEstate, 242 N.Y.2d 342 (1926); 40 N.Y.Jur. 2d Decedents’ Estates Section 1242.

Among the actions of the fiduciary thatare fair game in the SCPA 2211 examina-tions and subsequent to objections to theaccount, include but are not limited to: selfdealing; failure to marshal all assets; negli-gent handling of estate taxes; investmentsthat are improper; wrongful payment ofcreditors or claims; failure to distribute;wrongful payment of commissions; loans;propriety of appointing the preliminaryexecutor; issues relating to the right of elec-tion; administration expenses; reasonable-ness of attorney’s fees and construction ofthe will. In addition, a beneficiary mayseek to surcharge a fiduciary for the sale ofreal property for less than fair market value.

The accounting proceeding is the forumwhere a client can have his/her allegationsheard with regard to the administration of atrust or an estate. The examination of thefiduciary pursuant to SCPA 2211 and thediscovery tools associated with the exami-nation is critical in ascertaining whetherobjections should be filed. TheExamination can also be used to allow theparties to adequately frame their objections.

*Editor’s Note: Scott G. Kaufman is a partnerin the firm Crowley & Kaufman, PC, located inElmhurst, NY. He is also a Vice-Chair of theSurrogate’s Court, Estates and Trusts Committeeof the Queens County Bar Association.

Continued From Page 1 ______________

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