Continuous representation doctrine toll only applies to the particular matter.

In Pace v Horowitz, 190 AD3d 619 [1st Dept 2021], the court held that the continuous representation doctrine toll only applies to the particular matter, not general representation. The court held:

The court correctly determined that plaintiffs failed to show that there is an issue of fact as to whether the legal malpractice claim was timely filed based on the application of the continuous representation doctrine toll (see Marzario v Snitow Kanfer Holzer & Millus, LLP, 178 AD3d 527, 528 [1st Dept 2019]). The continuous representation doctrine toll does not apply based merely on the existence of an ongoing professional relationship, but only where the particular course of representation giving rise to the particular problems resulting in the alleged malpractice is ongoing (see Matter of Lawrence, 24 NY3d 320, 341 [2014]; Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1 [2007]). Here, while plaintiffs allege that defendant law firm provided continuing estate administration work as part of an ongoing professional relationship of estate administration, they do not adequately allege that the particular course of representation regarding the sale of estate assets in 2007, which gave rise to the malpractice allegations, continued through February 2015, so as to make the instant malpractice claim timely filed.

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#CourtStreetLawyer #LegalMalpractice

Scales of justice illustrating article about legal malpractice.

Essential Components of a Last Will and Testament

A Last Will and Testament sets forth the wishes and directions of the “Testator” upon his/her death. It is important that, in considering the various issues of one’s Will, the following items be incorporated:

  1. Executor
    The first consideration of the person making the Will is who will be selected to carry out his/her wishes upon death. The person selected should be a responsible, trusted friend or relative. The person selected should not be someone who has been convicted of a felony, and preferably an American citizen who is over 18 years old. The Testator should approach the proposed Executor to make sure that he/she would be willing to serve as the same. Alternate Executors should be selected as well, in the event that the selected person does not serve. If the Testator wishes to restrict certain rights of the Executor (e.g. mortgage property or make a loan from the estate), the same should be stated in the Will.

  2. Guardians of children
    If the Testator has minor children, a serious discussion should be had with the friend or relative to be selected as guardian of the children in the event that neither parent survives. Alternate guardians should be selected as well, in the event that the selected person does not serve.

  3. Beneficiaries
    The people or entities to whom property will be left by the Testator are called the beneficiaries. The Testator may designate the property to be received by the beneficiaries in terms of specific dollar amounts, percentages of the estate, specific items, or rights to be given.

It is important in estate planning to be cognizant of the fact that certain assets will pass “outside of the estate,” and not be controlled by the dispositions in the Will, but rather by their own terms. Examples of such assets are life insurance policies, annuities, Individual Retirement Accounts, and other types where beneficiaries are designated therein.

R. A. Klass
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Probate/Administration: a guide to probate or administration proceedings in New York State.

Upon a person’s death, a proceeding may be brought in the Surrogate’s Court of the county in which the person formerly resided. The proceeding will seek to collect and administer assets of the deceased person, and distribute them to his/her heirs.

There are two basic types of proceedings: Probate and Administration.

Probate:

Where the deceased executed a “Last Will and Testament,” a proceeding will be filed to “probate” [or “prove”] the Will. The deceased, known as the “testator” will have designated an “executor” [someone selected to carry out the deceased’s wishes], who may or may not receive a commission for such services. The deceased will also have designated beneficiaries to receive portions of his/her estate. The deceased may indicate specific bequests of property (such as “to my brother, I leave my guitar”) or general bequests (such as “to my three siblings, I leave them each one-third of my net estate”).

Administration:

Where the deceased did not execute a Will, the person is referred to having died “intestate.” Contrary to popular belief, the assets of that person’s estate do not automatically go to the State. Rather, there is a section of law which specifies the manner in which an intestate’s assets are distributed. Depending on who the survivors of the intestate are (such as a spouse, child, parent, or cousin), the law will tell the “administrator” to whom the net assets of the estate must be paid. The “administrator” serves a similar duty to the deceased’s estate as the “executor” mentioned above, and may be appointed by the Surrogate of the county upon proper application.

Collection of assets

After appointment, the executor/administrator will have the duty to locate and collect the various assets of the deceased. An account may be opened in which the assets will be deposited; non-liquid assets, such as cars, houses, stocks, or furniture may be sold at auction or otherwise converted to money. Actions may be brought on behalf of the deceased to collect moneys due to the estate or for wrongful death/personal injury actions.

Tax returns

After all of the assets have been collected, the executor/administrator will determine whether federal and/or state estate tax returns must be filed. Various banks or institutions may require “tax waivers” or “releases of tax lien” from the State in order to release funds to the executor/administrator.

Accounting

The final duty of the fiduciary is to file with the court an “accounting” of what that person did during his term as executor/administrator.

Professional fees

The fiduciary will retain and pay professionals in connection with the estate proceeding, including attorneys, accountants, brokers, auctioneers, and appraisers.

copyr. 2014 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.comcreate new email with any questions.
Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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Abandonment under the Estates Powers and Trusts Law (“EPTL”)

A parent is not supposed to outlive his/her children. This is a tragic truth that can only be enhanced when determining that child’s estate. Due to the statute EPTL 3-1.1, a child under 18 dies intestate, meaning without a will.(1) The laws of intestacy clearly state that in the event the decedent is not married and has no children, his estate shall be inherited by the decedent’s parents. But what happens when one of those parents has not been there for the child? Either due to divorce or other circumstances the child and parent do not have a relationship; is that parent still entitled to collect his distributive share of the child’s estate?

The statute is clear. EPTL 4-1.1(a)(1) provides: “No distributive share in the estate of a deceased child shall be allowed to a parent if the parent, while the child is under the age of 21 years has failed or refused to provide for the child or has abandoned such child, whether or not such child dies before having attained the age of 21 years, unless the parental relationship and duties are subsequently resumed and continue until the death of the child.”

In interpreting and applying this statute, the courts have been clear in their determination. The disqualification of a parent is premised upon either (1) a failure or refusal to support the child or (2) abandonment of the child.(2) Either of these can be the basis for denying a parent their right a distributive share of the child’s estate, although neither is a necessary element in order to prove the other.(3) A parent’s disqualification is determined by their relationship before the child turns 18, regardless of whether or not the child dies after 18. If the child dies intestate and one parent asserts abandonment by the other parent, an analysis is necessary to determine whether the parent asserting abandonment has sustained her burden.(4)

A parent has the duty to support his minor child in accordance with his means.(5) A failure or refusal to support a child financially can prevent that parent from receiving his distributive share. Financial support of a minor child must be shown by monies paid by the non-custodial parent to the parent with custody. Direct payments to the child are not included, nor are payments made to the child by others. Relying on others, including the state in the form of public assistance will result in the parent forfeiting his rights to any distributive share. The statute “imposes an equitable penalty upon parents who fail to fulfill their obligations of support under FCA 413.”(6)

It is relatively easy to determine whether a parent takes on the responsibility of financially supporting his child. It is more difficult to determine whether a parent has abandoned his child. What is abandonment? The statute does not provide a definition of abandonment, so a review of the case law is necessary to determine how the term ‘abandonment’ is interpreted.

Case law has been clear on what constitutes ‘abandonment.’ Abandonment is a voluntary breach of neglect of the duty to care for and train a child and the duty to supervise and guide his growth and development.”(7) There are limitless interpretations of the relationship between a parent and child and each one is unique. Therefore, how can a court determine that a particular parent has abandoned his child under the statute? There must be an analysis of the facts and circumstances of the parent/child relationship in order to make a determination.

A father who paid child support, but made no effort to contact his son for the seven years between his remarriage and the child’s death, despite living nearby was found to have abandoned his son, despite the fact that he paid child support.(8)

Similarly, a father who professed his long-distance love for his child but had no more than sporadic, infrequent visits did not reach the threshold of demonstrating his “natural and legal obligations of training, care and guidance owed by a parent to a child.”(9) A claim the child’s custodial parent ‘poisoned’ the child against the non-custodial parent will not be sufficient to overcome the burden of proof.(10)

A court’s order limiting a parent’s involvement is also not a valid excuse to avoid a determination of abandonment. Courts have clearly held, “while a court order restricting a parent to visitation may lessen the measure of such parent’s obligation, it does not eliminate it. Rather the inquiry then becomes whether or not the parent has fulfilled this responsibility…”(11)

However, a father who was absent for nearly half a child’s life due only to the fact that he did not know of the child’s existence, and subsequently financially supported and attempted to participate was found to have not abandoned the child.(12)

A parent who has failed to fulfill his parental duties due to incompetency will not be held as abandoning his child so long as there is no history of non-support.(13)

A parent cannot prove his involvement in his child’s life merely by asserting his love for the child or by stating his intent to have a relationship with the child. Actions speak louder than words. It is the actions of the parent accused of abandoning his child that will determine whether or not his parental duties were fulfilled, not his plan or intent or wish to spend time with the child during their life. A parent’s absence in the child’s life, as evidenced by a lack of knowledge regarding the child’s health, education and well-being are strong indicators of abandonment and will support a court’s denial of any distributive share of the child decedent’s estate.

by Elisa S. Rosenthal, Esq.,
Associate
Copyright 2013 Richard A. Klass, Esq.
  1. NY EPTL §3-1.1; N.Y. Prac., Trusts and Estates Practice in New York §7:61 (A person must be 18 in order to execute a will).

  2. In the matter of Wright, 20 Misc.3d 648 (2008); In the matter of Pessoni, 11 Misc.3d 245 (2005).

  3. Matter of Pridell, 206 Misc. 316 (1954) (Where the father paid child support to decedent’s mother, he admits to having no relationship with the decedent, and was denied participation in decedent’s estate); Matter of Musczak, 196 Misc. 364 (1949).

  4. Matter of the Estate of Clark, 119 A.D.2d 947 (1986).

  5. Matter of Gonzalez, 196 Misc.2d 984 (2003).

  6. Id at 988.

  7. Wright at 867; Pessoni at 247; Pridell at 318; N.Y. Prac., Trusts and Estates Practice in New York §7:63

  8. Pridell at 318.

  9. Gonzalez at 987.

  10. Pessoni at 549.

  11. Pridell at 318.

  12. The matter of the Estate of Ball, 24 A.D.3d 1062 (2005).

  13. Musczak at 367.

copyr. 2013 Richard A. Klass, Esq.

Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.comcreate new email with any questions.
Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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An Extra $1,500,000 for the Aged

More than fifty years ago, a charitable woman executed her Last Will and Testament, bequeathing all of her assets to two Catholic charities in the event that her siblings did not survive her. The two Catholic charities named in the Will were the Columbus Hospital and St. Joseph Rest Home for the Aged, each to get 50% of her estate. Both of these institutions were founded or operated by Italian American Catholic Orders.

In March 2008, the woman passed away, leaving more than $3,000,000 worth of assets in her estate. Since her siblings predeceased her, the Will left everything to the two Catholic charities.

Demise of Columbus/Cabrini Hospital

Columbus Hospital was founded in 1892 and operated a hospital in Manhattan. It was opened by a mission of the Missionary Sisters of the Sacred Heart of Jesus to address the needs of Italian immigrants. In 1973, Columbus Hospital and Italian Hospital merged to form Cabrini Medical Center. Cabrini Medical Center operated as a hospital on the same site as Columbus Hospital on East 19th Street until it filed for bankruptcy on July 9, 2009. Through the bankruptcy proceedings, Memorial Sloan Kettering Cancer Center purchased the buildings in which Cabrini Medical Center was formerly located.

Charitable mission of St. Joseph Rest Home for the Aged

Similarly to Cabrini, St. Joseph Rest Home for the Aged was founded by Nuns whose lives are committed, without compensation, solely to their charitable and religious convictions. Both charitable organizations — Cabrini and St. Joseph — were founded and operated by Nuns of Italian heritage. The Order of St. Joseph’s was founded in Rome by Italian Nuns and still has a mother house located in the Vatican. St. Joseph’s Rest Home for the Aged, which operates a licensed nursing home facility that accommodates forty women, was founded by the Catholic Sisters of The Order of St. Joseph’s and is located in Paterson, New Jersey.

Accounting proceeding

Because Columbus Hospital had ceased to exist, the executor of the deceased woman’s estate filed a judicial accounting with the Surrogate’s Court, requesting that the Surrogate give the 50% share originally meant for Cabrini Hospital to Memorial Sloan Kettering. The executor indicated that the bequest originally meant for Cabrini should be given to Memorial Sloan Kettering because the deceased had been treated there.
The Chairman of the Board of Directors of St. Joseph contacted Richard A. Klass, Your Court Street Lawyer, about objecting to the bequest to Memorial Sloan Kettering and, instead, requesting that the Surrogate pay the entire net estate to St. Joseph Rest Home for the Aged.

Cy Pres doctrine

There is a centuries’ old doctrine of cy pres (pronounced “sigh – pray”), which is a rule that when literal compliance with a Will or trust is impossible, the intention of a donor or testator should be carried out as nearly as possible. This is especially true when a bequest to a charity has “lapsed” as the result of the charity no longer existing to receive the bequest; then the Surrogate may designate another charity in its place.
In the seminal case of In re Brundrett’s Estate [1940], a percentage of the remainder of the estate was left to St. Mark’s Hospital, but the hospital was bankrupt in 1931 and ceased to operate as a hospital and perform the functions for which it was originally incorporated. The court held that the gift to the hospital was, therefore, ineffectual. The court then applied the doctrine of cy pres and paid over that charity’s portion to the other charitable ‘remaindermen’ named in the Will (the term ‘remaindermen’ refers to others who receive the residuary or balance of an estate).
Following the holding in In re Brundrett’s Estate, the court in In re Shelton’s Estate [1942] was faced with a similar issue as presented here. In that case, the decedent left moneys to a charitable institution located in Italy that was maintained by a New York religious corporation. After the death of the decedent, the New York religious corporation relinquished its maintenance of the Italian institution and discontinued all of its religious and charitable activities. Although its officers continued to function, it was a “charity in name only.” The court held that the discontinuance of the charitable and religious functions precluded authorization of payment of the legacy to the entity. However, the court recognized that the decedent had charitable intentions to provide a gift for religious purposes and invoked the doctrine of cy pres. In granting the legacy originally left to the Italian charity to the other charitable legatee, the court in In re Shelton’s Estate held: “By the application of that doctrine [cy pres] the surrogate holds that the legacy did not lapse and may be paid to The Cathedral Church of St. John the Divine in the City and Diocese of New York, the other charitable legatees named in the will and object of the generous bounty of the testatrix.”
After the objection to the judicial accounting by St. Joseph, with sufficient case law being presented in support of the request to pay the bequest of Cabrini Hospital over to St. Joseph, the executor agreed to pay 100% of the residuary estate to St. Joseph, roughly $3 million in total. The nursing home needs a new roof — now they’ll be able to afford it!
Richard A. Klass, Esq.

Credits:

Photo of Richard Klass by Robert Matson, copyr. Richard A. Klass, 2011.
Newsletter marketing by The Innovation Works, Inc.
Image on page one: Salzgitter, Städtisches Altenheim, 1961, Maria retirement home in Tann, in a hospital room with a Dutch nun. Licensed under the Creative Commons Attribution-Share Alike 3.0 Germany license. Attribution: Bundesarchiv, B 145 Bild-F010160-0001 / Steiner, Egon / CC-BY-SA.

copyr. 2012 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.comcreate new email with any questions.
Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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