Journal - New York State Bar Association

NEW YORK STATE BAR ASSOCIATION

Also in this IssueA Case for Amending EPTL 4-1.4

Kinship Proceedings

Estate Planning in the Face of Divorce

Motorist Insurance LawUpdate - Part II

JUNE 2005

VOL. 77 | NO. 5

Journal

Owls Shouldn’t Claw at EaglesBig Ed Reilly and the Lindbergh Kidnapping Case

by William H. Manz

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BOARD OF EDITORSEDITOR-IN-CHIEFDavid C. Wilkes

Tarrytowne-mail: [email protected]

Rose Mary BaillyAlbany

Willard H. DaSilvaGarden City

Louis P. DiLorenzoSyracuse

Philip H. DixonAlbany

Lesley Friedman RosenthalNew York City

Judith S. KayeNew York City

John B. NesbittLyons

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Sanford J. SchlesingerNew York City

Richard N. WinfieldNew York City

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JournalN E W Y O R K S T A T E B A R A S S O C I A T I O N

Journal | June 2005 | 3

CONTENTS

DEPARTMENTS5 President’s Message8 CLE Seminar Schedule20 Burden of Proof

BY DAVID PAUL HOROWITZ

39 Planning AheadEstate Planning in the Face of DivorceBY GARY B. FREIDMAN

48 Meet Your New Officers51 Book Review

BY HENRY G. MILLER

52 Attorney Professionalism Forum54 Language Tips

BY GERTRUDE BLOCK

56 New Members Welcomed59 Index to Advertisers60 Classified Notices63 2005-2006 Officers64 The Legal Writer

BY GERALD LEBOVITS

JUNE 2005

24 2004 Case Update – Part IIUninsured, Underinsured, SupplementaryUninsured Motorist LawBY JONATHAN A. DACHS

34 Proposed Amendment to EPTL 4-1.4Expand Grounds for Parental DisqualificationDisinheriting parents where their parental rights are terminated for abuse and neglect

BY ILENE S. COOPER AND STACI A. GRABER

42 Kinship ProceedingsProving the Family TreeHow to find and present the evidence to proveinheritance rights

BY DAVID N. ADLER

The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are theauthors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations andquotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print,film, electronically and/or other media. Copyright © 2005 by the New York State Bar Association. The Journal (ISSN 1529-3769), official publication of the New York State BarAssociation, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/August, September, October,November/December. Single copies $18. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One ElkStreet, Albany, NY 12207.

OWLS SHOULDN’TCLAW AT EAGLESBig Ed Reilly and theLindbergh Kidnapping CaseBY WILLIAM H. MANZ

CARTOONS © CARTOONRESOURCE.COMCOVER PHOTO: COURTESY OF THE NEW JERSEY STATE POLICE

10


As I begin my year as Presidentof the New York State BarAssociation, I do so with a

great sense of gratitude for thisextraordinary opportunity to serve theprofession and our system of justice.Our Bar Association is not only thelargest voluntary state bar associationin the country, the members of ourAssociation are known historically,and currently, as the leaders of the pro-fession. When I go to meetings withleaders of other state bar associations,I am struck by how far ahead we are inso many areas.

I also have a strong sense of the tra-dition of our 130-year-old Associationand the extraordinary leaders whohave gone before me and who haveincluded Supreme Court Judges,Governors of the State, AttorneysGeneral and 12 members of the Courtof Appeals, in addition to simply out-standing lawyers in their time. I have astrong sense of humility in that givenour tradition and the strength of ourmembers, I realize many people couldhave fulfilled this role, but somehow ithas come to me for one year. I alsohave a strong sense of duty andresponsibility to do no harm to theAssociation during my stewardship,but also to improve our work in carry-ing out our commitment to our mem-

bers and to the public and, at least insome small way, to leave the Associa-tion stronger. All of these thoughts alsogive me a strong sense of urgencybecause I know I only have one year,which will go by in what will seem likean instant, as it did when I wasPresident of the Monroe County BarAssociation.

Because my time will pass so quick-ly, I have tried, while I was President-Elect, to plan as much as possible whatI want to accomplish. In so doing, Ihave relied on my experience in barwork over the last 30 years, but I havealso attempted to listen to others toobtain new ideas and hear what peopleare thinking. As President-Elect I con-vened town hall meetings with mem-bers of associations to listen to theirconcerns and to throw out my ownideas, and I have learned a great dealfrom them. I attended section meetingsand focus groups. I also solicited opin-ions from all the members for whomwe have e-mail addresses and inJanuary I convened a meeting of pastpresidents to hear their views. Thoseefforts reinforced my previous notionsabout what we should be doing, but Ialso obtained new ideas and addition-al priorities.

Bar association work to me can betruly exhilarating, depending on how

it is approached. If the goal is to simplydo everything the way it has been donein the past, then the primary duty of abar president is to make sure that thedates are changed on the same invita-tions that are used every year. If, on theother hand, we use the opportunity tothink outside the box and think morecreatively and boldly, then improve-ments can be made in what we do andwe can add new approaches and initia-tives.

The functioning of our legal systemdepends upon public understandingand trust, and we are in the best posi-tion to promote it. Our priority as a barassociation, I believe, must be to con-tinually work to increase public com-prehension of how vital the legal sys-tem is in society and daily life and howwe as lawyers fulfill our essential roles.When the legal system and the profes-sion are attacked or misunderstood,then we must be at the forefront toeducate and to debunk myths –charges of judicial activism, talk of aso-called litigation explosion, the falseimpression that the legal process caus-es job growth to decline, health carecosts to rise, and so on. This is not onlyour public responsibility, but also ourduty to our members to protect andrestore their pride in what they do inmaking the legal system function. I

PRESIDENT’S MESSAGEA. VINCENT BUZARD

The Year Ahead

6 | Journal | June 2005

want you to know that, as yourPresident, I will seize every opportuni-ty to explain to the broadcast and printmedia the legal system and thelawyer’s role in it and seize everyopportunity to answer unwarrantedattacks on the legal system, judges, andlawyers. I have a fair amount of expe-rience dealing with the media andbeing on the air, and I relish the task. Ihave a number of other ideas, includ-ing launching a statewide “Ask-a-Lawyer” column and a statewide peo-ple’s law school, and we will be look-ing for other creative ways to explainour side of the story.

Also, we will be establishing a legaladvertising task force to develop rulesand standards and a mechanism forlimiting lawyer advertising to thefull extent permitted by the FirstAmendment. Most of our members,I believe, agree that inappropriatelawyer advertising is detrimental to apublic understanding of what we do. Itis a source of great frustration to theprofession. Furthermore, convincingpeople that there is not a litigation cri-sis when advertisements by lawyers

seemingly promise large amounts ofmoney is extremely difficult.

The extent to which the men andwomen who are lawyers properly per-form their function – zealously withinthe bounds of law and our profession-al responsibility – determines whetherour system of law does justice and fos-ters public confidence. In that connec-tion, we must continue to provide thebest possible continuing legal educa-tion and promote professional respon-sibility and also emphasize the corevalues of our profession, commonlyreferred to as professionalism. Somemay believe that the practice of law isnow simply a business, which mustnever be the actual case. However,there is a business side to the practiceof law, which must be carefully han-dled so as to permit us to be thelearned profession that we must be. Inthat connection, we are working torebuild and strengthen our efforts inlaw practice management and, at thesame time, provide specific ways ofhelping our members observe thehighest professional standards.

Providing legal services to the poorremains a priority issue, as fundingcontinues to dwindle. We will continueto press the legislature for funding, butwe also will be exploring and launch-ing new methods of providing legalservices to the poor, such as use of set-tlement funds and class actions andutilizing senior lawyers and in-houselawyers in providing assistance tothose in need.

Protecting the public from the unau-thorized practice of law must again beembraced by our Association as one ofour core missions. The purpose is notto protect the work of lawyers, butrather, to protect the public from harmcaused by those who are essentiallydoing legal work, but without thetraining or responsibility. I will beappointing a task force to quicklyinvestigate what needs to be done andto report back and act upon on it.

We must continue the extraordinaryefforts begun by Lorraine Power Tharpand carried forward by Tom Levin andnow further emphasized by Ken

PRESIDENT’S MESSAGE

Standard in improving diversity in ourAssociation and particularly in ourleadership. I will continue to treatdiversity as a priority.

Even though I could hardly beaccused of being of the computer gen-eration or even especially literate incomputers, I do recognize the extraor-dinary tool that the computer presentsto us for communication and will pur-sue further use of technology to deliv-er Association services to you and keepyou up-to-date on developments. Inthat connection, I have already usede-mail addresses to solicit our mem-bers to nominate themselves or othersfor committee membership. I havebeen extremely gratified as I gothrough the responses of the new peo-ple we have picked up for committeeassignments. I also believe that usingthe computer in this way sends a mes-sage to our members that we care andwe are listening to them. My requestfor their comments on my prioritiesand on programs not only providedme with their information, but showsthat we were listening. I will be doingmore of that this year.

Anyone who is reading this mes-sage and who has any doubt aboutwhether we have your e-mail address,please provide it by e-mail [email protected]. Otherwise, you will bemissing out on a great deal of commu-nication. I have also come to recognizethat instant information regarding newcases in practice would be helpful andwe will be exploring ways to use theInternet for instant legal updates.

I know that other issues willemerge and we will be looking at themand actively working on them, butthese are my preliminary thoughtsabout what we want to get done andthey are already underway. I wouldgreatly appreciate hearing from youabout what you think we should bedoing or doing better and I look for-ward to meeting you this year. ■

A. VINCENT BUZARD can be reached [email protected].

Simply contact NYSBAMembership Services:518.487.5577 / 800.582.2452 – [email protected] – e-mail

Once we have your e-mail on file, youcan sign up for NYSBAR.com – it’s the e-mail address you can take with you.

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+Closing or Selling a Law Practice(half-day program)Fulfills NY MCLE requirement (4.0): 1.0 in ethics andprofessionalism; 3.0 in practice management and/or areasof professional practiceJune 17 Rochester

Labor and Employment Law for the GeneralPractitioner and Corporate CounselorFulfills NY MCLE requirement for all attorneys (7.5): 1.0 in ethics and professionalism; 6.5 in practice management and/or professional practiceJune 15 Rochester

+Real Estate Titles and TransfersFulfills NY MCLE requirement (7.5): 1.0 in ethics andprofessionalism; 6.5 in practice management and/or areasof professional practiceJune 16 Tarrytown

+Emerging Environmental Topics for Corporate LawyersFulfills NY MCLE requirement (6.5): 6.5 in practicemanagement and/or areas of professional practiceJune 13 Albany

+Advanced Document Drafting for the Elder Law PractitionerFulfills NY MCLE requirement (7.5): 7.5 in practicemanagement and/or areas of professional practiceJune 13 SyracuseJune 14 Uniondale, LIJune 15 Albany

Ethics and ProfessionalismFulfills NY MCLE requirement for all attorneys (4.0): 4.0 in ethics and professionalismJune 16 Melville, LI, RochesterJune 17 Albany

Partial Fall 2005 Schedule

+Collection and Enforcement of Money Judgments (video replay)August 11 Jamestown

+Three Hot Topics in Criminal Law (video replay)(half-day program)September 16 Canton

Benefits, Health Care and the WorkplaceSeptember 19 AlbanySeptember 21 New York CitySeptember 29 Rochester

+First Corporate Counsel Institute(two-day program)Note: CLE seminar coupons and complimentary passesCANNOT be used for this programSeptember 22–23 New York City

When Your Client’s Problems Become YourProblems and Meet the AUSAsSeptember 23 New York City

Federal Sentencing Guidelines After Booker, Fanfan and Their Progeny: Update and Advice from Experts and Key FiguresSeptember 23 New York CityOctober 12 AlbanyOctober 14 Buffalo

Drafting Enforceable Employee Non-Competition Agreements(one-hour program)October 6 Telephone Seminar

† Does not qualify as a basic level course and, therefore, cannot be used by newly admitted attorneys for New York MCLE credit.

The New York State Bar Association Has Been Certified by the New York State Continuing LegalEducation Board as an Accredited Provider of Continuing Legal Education in the State of New York.

NYSBACLESchedule of Spring & Fall Programs (Subject to Change)

To registeror for more information call toll free 1-800-582-2452

In Albany and surrounding areas dial (518) 463-3724 • Or fax your request to (518) 487-5618http://www.nysba.org/CLE/spring2005 orhttp://www.nysba.org/CLE/fall2005 (Note: As a NYSBA member, you’ll receive a substantial discount)

+Tenth Annual New York State and City Tax InstituteOctober 6 New York City

Update 2005(live sessions)October 7 SyracuseNovember 4 New York City(Video replay sites to be announced)

+Ethics and Professionalism (video replay)October 14 Canton

Medical Malpractice LitigationOctober 14 Buffalo; New York CityOctober 21 Albany; Long Island

Premises LiabilityOctober 14 Albany; Long IslandOctober 21 SyracuseOctober 28 Buffalo; New York City

Practical Skills – Basic Matrimonial PracticeOctober 18 Albany; Buffalo; Long Island;

New York City; Rochester; Syracuse; Westchester

+Seventh Annual Institute on Public Utility LawOctober 28 Albany

New York Appellate PracticeOctober 21 AlbanyOctober 28 TarrytownNovember 10 Uniondale, L.I.December 1 New York City(More dates and locations to be announced)

Mental Health Courts: Better Outcomes from the Legal and Mental Health Systems(half-day program)November 4 New York City

Practical Skills – Purchases and Sales of HomesNovember 15 Albany; Buffalo; Long Island;

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Some of the topics to watch for this fall:The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005Ethics for Real Estate Lawyers Discovery Proceedings

Owls Shouldn’t Claw at EaglesBig Ed Reilly and the Lindbergh Kidnapping Case

Ist das nicht der schoene Reilly?

Ja, das ist der schoene Reilly.

Ist his record rated highly?

Ja, his record’s rated highly.1

Last year, Scott Peterson, represent-

ed by high-profile California

defense attorney Mark Geragos,

was tried, convicted, and sentenced to

death for the murder of his wife and

unborn child. Seventy years ago in

Flemington, New Jersey, amidst even

greater media hysteria, another client of a

noted criminal lawyer, German-born car-

penter Bruno Richard Hauptmann, the

alleged kidnap-killer of the Lindbergh

baby, also received a death sentence. His

attorney, Edward J. Reilly, was indeed

“rated highly,” but Hauptmann partisans

have since condemned him as “Death

House,” a syphilitic alcoholic whose fail-

ings helped doom his client to the electric

chair.2 Even the more dispassionate

observers have found much to criticize,3

raising the question of how such a noted

defense attorney’s performance could

have fallen so far below expectations.

WILLIAM H. MANZ

<[email protected]> is SeniorResearch Librarian at St. John’sUniversity School of Law. Hereceived his law degree from St.John’s and his undergraduatedegree from the College of theHoly Cross. Mr. Manz is author ofGibson’s New York LegalResearch Guide (William S. Hein &Co., Inc. 2004). The author wishesto thank Mark Falzini, archivist atthe New Jersey State PoliceMuseum, for making availableoriginal documents dealing withEdward J. Reilly.


By William H. Manz


The “Bull of Brooklyn”The 53-year-old Reilly was one of the best-known crimi-nal lawyers in the New York City area when he took overthe Hauptmann defense. A life-long Brooklyn resident, hehad graduated from Boys High School, worked as a clerkat the Metropolitan Life Insurance Co., earned his lawdegree from St. Lawrence University, and was admittedto the bar in 1904. He was an assistant attorney generalduring the administration of Governor John Alden Dix.In World War I, Reilly saw service with the artillery andmilitary intelligence.

Reilly was large and ponderous in appearance, stand-ing six feet tall and weighing about 200 pounds. He hasbeen variously described as looking like a “retired police-man with a flair for clothes”4 and the “Rich Uncle” in the“Monopoly” game.5 Reilly had a ruddy, fleshy face andhis thinning hair was slicked back over his head. Knownas the “Beau Brummel of Brooklyn,” he favored cutawaycoats, striped trousers, spats, and a fresh flower in hisbuttonhole. The attorney “was addicted to public dinnersand robust amusement,”6 and loved “thick crowds,bright lights, and sweet music,”7 although he professedto enjoy quiet evenings at home.

The jovial Reilly was widely popular; newspapercolumnist and future television show host Ed Sullivanregarded him as a “swell person.”8 However, not every-one was taken by his persona. Reilly’s judicial ambitionsallegedly went unrealized because Brooklyn’s Demo-cratic political boss, John H. McCooey, disliked the attor-ney’s sense of humor and his habit of handing outexploding cigars. McCooey’s sensibilities may also havebeen offended by Reilly’s marital misadventures. Reillybehaved like a Hollywood celebrity in an era when Irish-Catholic lawyers and politicians kept their personalindiscretions to themselves. In 1914, his wife of eightyears, Elizabeth, sued for a divorce citing his affair with awaitress. A year later he wed 19-year-old Vivien Ellis,although remarriage was barred by Roman Catholic law.In 1923, she too sued Reilly for a divorce, claiming he’dhad two affairs, and had consorted with additionalwomen on trips to Hollywood. Undaunted, Reilly mar-ried yet again in 1929. His new wife was the chic French-born Fleurette Scheldon.

As a young lawyer, Reilly attended the TriangleShirtwaist trial and studied Max Steuer’s successfuldefense of the factory owners. He observed that Steuernever took notes, didn’t shout, and seized upon smallpoints and magnified them. In his own cases, Reilly issaid to have avoided elaborate preparation, often cominginto court with little more than a cursory knowledge ofthe case.9 He relied on his good memory, the ability tospot weak points in the prosecution’s case, his cross-examination skills, and an ability to sway the jury.Naturally, this did not always work. At the trial of anundertaker accused of strangling his daughter-in-law,

Reilly expressed doubts about a medical examiner’sclaim that only two or three fingers pressed to the wind-pipe could cause strangulation. When the doctor demon-strated on a court attendant, the man became uncon-scious.

Reilly’s courtroom style was as flamboyant as hisattire. An amateur actor in his youth, he incorporated atheatrical flair into his courtroom presentations. His ora-tory might feature appeals to home, family, and commonsense. On cross-examination, his questions could be filledwith sarcasm and innuendo. Ed Sullivan maintained thatwitnesses would think, “His quiet voice can’t be on thelevel – he’s got a bombshell up his sleeve.”10 Anotherobserver noted, “His gruff voice is always insinuating,making even his most simple questions sly and frighten-ingly important.”11 However, Reilly’s oratorical abilitiessometimes failed him. Once, when attempting to winclemency for convicted murderer John Farina, he angeredGovernor Alfred E. Smith by the use of the words “turn-ing on the current.” An angry Smith retorted: “Stop aminute right there. I don’t turn on the current.”12 Thehapless Farina was executed two days later.

In his prime, Reilly had a busy criminal practice.Besides homicide cases he handled many less seriousoffenses, including cocaine possession, bribery, and loansharking. His practice also included an assortment of civilcases, such as domestic relations, real estate deals, andeven an unsuccessful $100,000 lawsuit against theMetropolitan Life Insurance Co. on behalf of a womanwho had been subjected to an “unwanted embrace” byone of its agents.13 Reilly’s interests also extended to mil-itary law, and he once assisted in the court martialdefense of the captain of the U.S.S. Colorado after it ranaground off Battery Park.

It has been reported that Reilly was friendly with big-name Brooklyn crime bosses, and counted them amonghis clients.14 If so, he appears never to have actually rep-resented one in a major court proceeding. When BlackHand leader Frankie Yale needed an attorney for hisfriend Al Capone after the 1925 killing of rival gangsterRichard “Pegleg” Lonergan, he hired Reilly’s rival,Samuel Liebowitz. In 1936, when Charles “Lucky”Luciano was prosecuted during District AttorneyThomas E. Dewey’s campaign against “compulsory pros-titution,” attorney George Morton Levy acted as hisdefense counsel; Reilly’s role was limited to the unsuc-cessful defense of Luciano underling Jack Ellenstein,accused of booking women into disorderly houses.

Reilly’s courtroom style was asflamboyant as his attire.


An Ace DefenderReilly had won his reputation by winning acquittals inmany well-publicized Brooklyn homicide cases. The oneAnna Hauptmann mentioned when she told her hus-band, Bruno, that Reilly would lead his defense wasthe case of 19-year-old Cecelia McCormick. In 1933,McCormick faced first-degree murder charges aftersmuggling a gun into the Raymond Street jail, which herhusband, inmate Andrew McCormick, then used to fatal-ly shoot the head keeper before turning it on himself andcommitting suicide.15 Reilly won the case by maintainingthat Cecelia had suffered from “confusional insanity,”and that the weapon was meant for use in a suicide pact.He also claimed that the fatal bullets may have been firedby another guard, and that the state was “whitewashingthe case” and attempting “to pin the whole mess on thislittle girl.”16

His string of acquittals for sympathetic women defen-dants began in 1912 with Winifred Ankers, a young hos-pital maid charged with fatally poisoning nine infantswith oxalic acid. Reilly successfully demonstrated thatthe hospital had carelessly stored the poisonous com-pound in the same closet as crystals used in baby formu-la, and charged that Ankers’ confession had been coercedby police threats to take away her own 10-month-oldinfant. In 1914, he defended Rosa Traina Bellina, an

attractive 20-year-old mother of two, accused of shootingartist James Montiglia, for whom she had been posing fora “Madonna and Child” picture. After her common-lawhusband left her, and her grandmother threw her out,Bellina turned to the artist for help, only to be laughed atand insulted. She later claimed to have no memory of theshooting, and Reilly’s defense stressed the shabby treat-ment his client had received from Montiglia.

In a 1922 case that attracted national attention, Reillydefended Olivia M.P. Stone, a Cincinnati nurse who hadkilled attorney Ellis G. Kinkead, a former Cincinnati citysolicitor, in broad daylight on a busy Brooklyn street.After Kinkead left Stone for another woman, she fol-lowed him to Brooklyn and shot him five times with a .38Colt. Reilly told the jury that Stone was “an honorablewoman whose mind could stand the strain no longer,”and produced an alienist who testified that she had suf-fered a “brain explosion.”17 After the not guilty verdict,the defendant was showered with flowers by women

spectators, and celebrations broke out in the courtroomand among the estimated 500 people waiting in the court-house rotunda.

A year later, courtroom celebrations again eruptedwhen the jury returned a not guilty verdict in the case of46-year-old Mary Lonergan. Mrs. Lonergan, the motherof 14 (including future Yale-Capone victim, “Pegleg”Lonergan), had been accused of fatally shooting her hus-band, ex-prize fighter John Lonergan, an alleged brutewho regularly beat her and the children. Other womenfor whom Reilly won acquittals included: MargaretTompkinson, who claimed she’d acted in self-defenseafter her husband had attacked her with an axe (1927);Jennie Muzzio, who shot her brother-in-law after he’dthreatened her during an argument (1932); and MargaretKiernan, who shot her policeman husband five timeswith his service revolver after he’d returned home fromspending Christmas Day with his girlfriend (1932).

In these cases, Reilly benefited from the “unwrittenlaw” that resulted in so many acquittals of women thatPalsgraf trial judge Justice Burt Jay Humphrey onceremarked, “When a man kills a woman it is just murder,but when a woman kills a man it is just a brainstorm onher part.”18 However, Reilly was also successful withmale clients. In February 1927, Harold P. Webster wasconvicted of only second-degree murder for beating his

mother-in-law to death after Reilly argued he was toomuch of a weakling ever to have the “sand” to commitpremeditated murder.19 Three months later, jubilant NewUtrecht High School students carried 18-year-old WalterGoldberg from the courtroom after Reilly won a directedverdict of not guilty in the shooting of a female classmate.Another acquittal occurred in 1930 when Reilly con-vinced the jury that newly retired policeman FrankSchepp was temporarily insane when he shot hisestranged wife during a quarrel.20

One of Reilly’s most remarkable acquittals came at thetrial of George Small, in 1930. Small, an escaped convict,had been interrupted by police during a hold-up. Whenhe hijacked a passing car and fled, a running gun battleensued that ended when Small was cornered and shotseveral times. Afterwards, it was discovered that awoman bystander had been fatally shot, and Small wascharged with her murder. Reilly argued that the case wasa “frameup,” and the victim had really been shot by a

Reilly told the jury that the defendant was “an honorable womanwhose mind could stand the strain no longer,” and produced analienist who testified that she had suffered a “brain explosion.”


policeman.21 Judicial reaction to the not guilty verdict isnot recorded, but shortly before the Hauptmann trial,Reilly infuriated Kings County Judge Franklin Taylor bywinning acquittals in successive trials for the same killing(one accused murderer said the killing took place duringa struggle, while the other claimed he wasn’t there).Addressing the second jury, Taylor said, “Gentlemen, thesame lawyer defended both men. Gentlemen, two mur-derers have been let go.”22

However, employing Reilly as defense counsel was noguarantee of an acquittal. In a 1927 case that bears asuperficial resemblance to Hauptmann’s in that itinvolved a foreign-born defendant accused of a crimethat shocked the community, Reilly defended LudwigHalversen Lee, a down-on-his-luck Norwegian cabinet-maker employed as a janitor and accused of murderingand dismembering two women – his employer-landladyand her neighbor. The crime came to the attention ofpolice when human body parts were discovered inBattery Park, in Grand Army Plaza, behind a Brooklyntheater, and on the lawn of a local Catholic church.

At trial, Reilly charged that the case had been builtwith planted evidence and attempted to cast suspicion onone victim’s estranged son, a grade school drop-out withan arrest record. The prosecution argued that Lee hadhoped to use the contents of one victim’s bank account to

finance his passage back to Norway, and presented alarge body of circumstantial evidence, including a blood-stained axe. The jury convicted Lee in three hours and 36minutes, and he went to the electric chair on August 2,1928, still insisting on his innocence.

Lee’s fate was shared by numerous other Reillyclients, causing authors seeking to disparage his legalabilities to stress that one of his nicknames was “DeathHouse.” This name was commonly used in conversationby reporters who covered the Hauptmann trial,23 butthose that usually appeared in print were “Big Ed” andthe “Bull of Brooklyn.” “Death House” was never used inthe New York Times or Reilly’s hometown Brooklyn DailyEagle, although a variant, “Electrocution Reilly,”appeared in a New Yorker profile. The nickname has beenvariously ascribed to courtroom losses coming eitherearly or late in his career, but the best explanation proba-bly comes from Reilly himself, who observed that henever refused assignments of even the most hopelesscases.

Among the roster of hopeless causes who precededLudwig Halversen Lee to the electric chair were: BernardCarlin, who celebrated his release from the reformatoryby buying a gun, going home, and shooting his motherfive times (1909); Frank Schleiman, who killed a man dur-ing a bungled house burglary (1910); Thomas “Bangor


Billy” Barnes, a yeggman convicted of murdering a sus-pected informant (1910); civil engineer Robert Kane, whofired four bullets into his former lover (1915);Giovanbatista Ferraro, who shot his boss after beingdemoted (1919); Frank J. Kelly, who murdered a maidduring a house burglary and then claimed he had beenunder the hypnotic control of a female accomplice (1920);Peter Nunziato, a 17 year old convicted of the mugging-related killing of a professor from the Manhattan JewishTheological Institute (1923); John Farina, a participant inthe cold-blooded daylight shooting of two bank couriers(1925); and George Ricci, who claimed he’d killed his for-mer employer because he’d had “illicit relations” withRicci’s wife (1927).

The Trial of the CenturyReilly, who had once said he would “relish the opportu-nity to [lynch] the ‘Lindbergh baby snatchers’” once theywere apprehended,24 became involved in the Hauptmanndefense because of the Hearst newspapers. According tonovelist and Hearst reporter Adela Rogers St. Johns, hisservices were obtained for Hauptmann by John AloysiusClements, a reporter who had once covered Brooklyn.25

Reilly replaced Hauptmann’s original attorney, the less-experienced James Fawcett, who had reportedly dis-pleased Anna Hauptmann by appearing too deferentialtoward the prosecutor, New Jersey Attorney GeneralDavid Wilentz. By bringing in Reilly, William RandophHearst was certainly not trying to help Hauptmann.Instead, he was hoping for an edge in reporting the case,and Reilly was experienced, available, and likely to pro-vide good copy.

Assisting Reilly were three New Jersey attorneys, C.Lloyd Fisher, who would become the leading championof Hauptmann’s cause and a severe Reilly critic, and

Frederick Pope and EgbertRosecrans, both grandsons of CivilWar generals. Reilly referred to hiscolleagues as “country lawyers,”and unsurprisingly, there were peri-odic rumors about dissentionamong the defense team. Fisher latercomplained that Reilly never reallyconferred with his co-counsel,ignored their advice, and that theyoften came to court with no ideawhat Reilly planned to do that day.26

As expected, Reilly provided thepress with a media show and highlyquotable lines. Attempting to dosomething to counter the avalancheof anti-Hauptmann publicity, hepledged to name the real kidnap-pers, predicted “bomb shells,” andpromised surprise witnesses. The

big promises continued right to the end of the trial whenhe threatened that there would be “no ice cream for[eccentric go-between Dr. John] Condon” in his summa-tion.27 Unfortunately, the hype never lived up to the real-ity; one reporter observed, “We jeer when Reilly threatenswitnesses with a grand display of firecrackers and all hehands out are damp squibs.”28

Reilly had correctly predicted that the case would behis most difficult, and that because of all the pre-trial pub-licity, his client would have to prove his innocence.29 Healso correctly perceived the major weaknesses inWilentz’s case. However, circumstances prevented Reillyfrom successfully using such favorite ploys as arousingjury sympathy for his client. Even George Small, chargedwith shooting an innocent bystander in his gun battlewith police, elicited some sympathy since his bulletwounds had left him severely disabled. Unfortunately,there was nothing sympathetic about the uncharismaticHauptmann, a veteran of Kaiser Wilhelm II’s army, whohad arrived in the United States illegally after escapingfrom a German prison.

Another Reilly tactic was to attack the victims. At theStone trial, he characterized the murdered attorney,Kinkead, as a roué and drug addict, and his widow as a“woman of the underworld,”30 an approach obviouslyunavailable when the victim was the young son of themost admired man in America. Another tactic was toattack the prosecution’s witnesses. Stone trial witness,U.S. Attorney James R. Clark of Cincinnati, was con-demned as “the most crooked liar and monumental per-jurer who ever sat in a witness chair.”31 However, at theHauptmann trial, efforts to discredit the star state wit-ness, Bronx educator Dr. John H. Condon, were under-mined by Lindbergh. When asked if he thought it pecu-liar that a man from the Bronx he did not know would

Charles Lindbergh on the witness stand.Photo courtesy of the New Jersey State Police


call claiming to have a ransom note, he answered: “Notunder those circumstances, no; something like that had tohappen.”32 Lindbergh also dismissed suggestions that hishousehold staff could have been involved, testifying thathe did not think that former maid Violet Sharpe, who hadkilled herself while under police investigation, had anyconnection with the kidnapping.33 Reilly also targeted thequality of police investigations, but his attempt toimpugn the work of the New Jersey State Police was metby Lindbergh’s statement that “we have very finepolice.”34

Reaction to Reilly’s cross-examination of the reveredaviator was predictable. After their courtroom encounter,one Hearst headline read “Lindy’s Mind Puts Reilly inShadow,”35 and reporter James Cannon compared theattorney to a blinking owl futilely clawing at a soaringeagle. Faith in Lindbergh was so strong that his testimo-ny that Hauptmann’s was the voice of the kidnapper –

relying on only two words spoken with a foreign accent:“Hey Doctor,”36 heard when the ransom was paid twoyears earlier – brought the following reaction from AdelaRogers St. Johns: “Lindbergh KNOWS that is the voice ofthe kidnapper.”37

In some previous cases, Reilly had overcome appar-ently damning physical evidence. When defendingGeorge Small, he claimed that a ballistic expert’s findingswere part of a police cover-up. During the Stone trial,when his client was confronted with letters that threat-ened the victim, she was able to simply deny they were inher handwriting. Such tactics could not work at theHauptmann trial. Two noted handwriting experts, fatherand son Albert D. and Albert S. Osborne, testified that theransom notes were written by Hauptmann, and a “woodexpert,” Arthur Koehler, maintained that his exhaustivescientific investigation proved conclusively that one kid-nap ladder rail had been made from a board fromHauptmann’s attic. Reilly could not hope to match thecaliber of these experts, and the witnesses he did put onthe stand suffered credibility problems because theirexamination of the evidence was far more limited thanthat of the state’s experts.

Reilly did find weaknesses in the testimony of somemajor prosecution witnesses. He pressed the Lindberghbaby’s nurse, Betty Gow, about how one of the child’sthumb guards could possibly have lain undiscovered onthe Lindbergh driveway for over a month after the kid-napping before she found it. And he forced Condon intoa series of answers consisting of “I don’t know” and “Idon’t remember.” However, the lasting image of the Gowcross-examination was that of a plucky Scottish girlstanding up to a Brooklyn bully. As for Condon, after-wards he would brag, “I toyed with the Bull ofBrooklyn.”38

Reilly is often criticized for failing to establish that eld-erly witness Amadeus Hochmuth, who claimed he’d seenHauptmann on the road to the Lindbergh estate, hadpoor vision. Early in his career, Reilly had won a murdercase by demonstrating that an eyewitness could not readthe clock on the courtroom wall, but here, Judge Thomas

Trenchard interrupted questions about Hochmuth’svision, saying, “He says his eyes are all right.”39 Thedefense had some success with a few of Wilentz’s weakerwitnesses. It produced three men who testified thatMillard Whited, who also claimed he’d seen Hauptmannnear the Lindbergh home, had an extremely poor reputa-tion for veracity. Reilly was also able to demolish the tes-timony of Henry and Erna Jung, who had been producedby Wilentz to bolster the reputation of Hauptmann’s for-mer business partner, the deceased Isidor Fisch, thealleged source of the ransom money found in the carpen-ter’s garage.40 However, discrediting the likes of Whitedor the Jungs accomplished little because they were hard-ly essential to Wilentz’s case.

In contrast, some of Reilly’s ill-chosen witnessesundermined the entire defense effort. As veteran defenseattorney Samuel Liebowitz noted at the time of the trial:“I have known cases in which one or more witnessescalled by the defense made such a poor impression uponthe jury that all the defense witnesses – good as well asbad – were discredited in the jury’s mind.”41 A defensewitness who fared particularly poorly under cross-exam-ination was Sam Streppone, whose credibility collapsed

“Hauptmann Defense Hires ‘Ace’ Lawyer: Veteran of 2,000 Homicide Trials Takes Case; Fawcett Out.”

– Headline in the Washington Post, November 3, 1934.


when Wilentz brought out that he’d been in mental insti-tutions at least five times, most recently in July 1934.42

Not content with attempting to establish that IsidorFisch was the sort of shady character who would handle“hot” ransom money, Reilly tried to tie him into the kid-napping itself by producing witnesses like cabdriverPhilip Moses, who performed an impromptu Will Rogersimitation while testifying. Another witness-stand disasterwas August von Henke, who said he’d seen Hauptmannin the Bronx on the night of the kidnapping. Wilentzforced him to admit that he’d used three differentnames;43 the prosecutor also pressed the increasinglyangry witness to admit that his “restaurant” was really aspeakeasy that had upstairs rooms where “whites andblacks mingle[d].”44

The use of such witnesses dismayed both Hauptmannand co-counsel C. Lloyd Fisher. Earlier, Fisher was mysti-fied and angered when Reilly, trying to show thatLindbergh had once believed a “gang” was responsiblefor the kidnapping, inexplicably asked the aviator if nowin his opinion Hauptmann was the kidnapper. In anotherincident Fisher became incensed and left the courtroomwhen Reilly conceded that a badly decomposed child’sbody found in the woods near the Lindbergh estate wasthat of the Lindbergh child. Because Wilentz’s casedepended on demonstrating that the Lindbergh baby wasmurdered, Fisher believed that the concession wouldsend Hauptmann straight to the electric chair. Ordin-arily, conceding such a point would be a major error but,in Reilly’s defense, he was aware that Lindbergh, inwhom the jury appeared to have absolute faith, hadidentified the body as that of his child at the time of itsdiscovery.

Another problem was Reilly’s methods. His practiceof forgoing rigorous preparation worked well enoughwhen the key issue was not whether his client had com-mitted a homicide, but the defendant’s state of mind.However, Hauptmann’s defense required presentingcredible alternative suspects for the crime. Reilly was alsoon stage too long – six weeks – before a tough audience,and his distinctive style did not wear well. All-male45

Brooklyn juries may have enjoyed him, but he alienatedthe eight men and four women from rural HunterdonCounty. One reporter maintained that during Reilly’s

summation, the women jurors had a “pouty almost angrylook,”46 and after the trial, a male juror complained thatReilly had gone out of his way to show his contempt forthem. The effect of long-term exposure to Reilly is alsoreflected in press reports. Comments were initially posi-tive, such as the report that the local townsfolk liked his“booming ways” and were awed by “his spats, his niftyderby and the carnation that blooms perpetually in hisbuttonhole.”47 Within a few weeks, the same reporter wascalling Reilly a “big league mouthpiece,”48 and claiminghis voice has “the sating arrogance of a small tent talk-er.”49

The trial’s media circus was a fatal distraction for thepublicity-loving Reilly. He may have found little time toconsult with his co-counsel, but he wasted few opportu-nities to give interviews and appear on radio broadcasts.In one episode, Fisher reported that during a minor fire atthe courthouse he saw Reilly posing for pictures whileperched on a fire engine, wearing a fireman’s hat.50 Hisbest-known publicity ploy was ordering special sta-tionery with his name and local address in red ink on theletterhead and a picture of the alleged kidnap ladderprinted in the left margin.51

It has also been charged that Reilly was not really com-mitted to his client, and rarely saw him. The log of visi-tors to Hauptmann’s cell does indicate that Reilly wasthere only 10 times.52 This may or may not show a lack ofcommitment, but it certainly didn’t help Reilly’s directexamination of Hauptmann, where good communicationbetween attorney and client is essential. Also cited is amemo from an FBI trial observer stating that Reilly hadexpressed dislike for his client and hoped he’d go to theelectric chair.53 Reilly’s loyalty is additionally questionedbecause all or part of his fee was allegedly paid by theanti-Hauptmann Hearst newspaper chain. During thetrial, one Hearst reporter did brag that his paper had paidReilly’s $7,500 retainer, but novelist St. Johns quotes herboss, William Randoph Hearst, as saying that “we cannotbe in the position of paying money to defend a manaccused by our public servants.”54 Reilly himself laterclaimed to have lost money defending the case and afterthe trial sued the Hauptmanns for the balance of hisclaimed $25,000 fee.

Another explanation for Reilly’s questionable per-formance at the trial was his well-documented fondnessfor alcohol. Co-counsel C. Lloyd Fisher said that Reillydrank liquor from a teacup during lunch, and that he wasdrunk virtually every evening.55 Other references toReilly’s drinking include St. Johns’ report that he “wasalways at his worst” right after lunch,56 complaints byHauptmann that Reilly was drunk on the few occasionswhen he came to his cell,57 and Fleurette Reilly’s chargesof “habitual intoxication,”58 made when she filed for aseparation soon after the trial. Another Reilly weakness –women other than his wife – provided additional distrac-

Reilly was on stage too long –six weeks – before a tough

audience, and his distinctivestyle did not wear well.


tion. According to Fisher, he had two “secretaries” withdubious office skills, and nearly turned the residencewhere he was staying “into a disorderly house.”59

The AftermathSoon after her husband’s conviction, Anna Hauptmann,who had been disgusted by Reilly’s efforts at self-promo-tion, dismissed him, although the attorney maintainedhe’d really left the case because of the pro-Nazi sympa-thies of some Hauptmann supporters.60 While engagingin a messy dispute with his former client over his bill,Reilly returned to his more usual type of cases – mostnotably the hopeless defense of Anthony “Tough Tony”Garlaus and several accomplices, charged with murder-ing a patron during a bar hold-up; they went to the elec-tric chair on July 1, 1937.

Several weeks after the Hauptmann trial, Reillychecked himself into the Mt. Sinai Hospital Pavilion com-plaining that he’d been unwell during the trial, and need-ed a “rest.” Far worse was to come. During 1936, Reillywas observed to be drinking heavily and acting erratical-ly. Depressed and withdrawn, he obsessively reviewedthe Hauptmann trial record looking for some mistake hemight have made, and wrote checks for which no fundsexisted. On one occasion, his physician, Dr. MortimerSherman, claimed Reilly had booked the Grand Ballroomat the Waldorf, planning to host a banquet for every cho-rus girl in New York City.61 Finally, on January 30, 1937,at the request of his mother, Reilly was committed to theKings County Hospital. Dr. Sherman blamed Reilly’s con-dition on the loss of the Hauptmann case and domesticdifficulties – the separation suit by his wife, Fleurette,who charged that not only was Reilly always drunk, butthat he used his office for “obscene and improper conductand practices.”62

While committed, Reilly began a campaign to win hisfreedom, writing without success to Court of AppealsJudge Frederick Crane and noted defense attorney MaxSteuer. In January 1938, he filed a writ of habeas corpuswith the Appellate Division, and in March convinced aSuffolk County jury he should be released from KingsPark State Hospital. His application was opposed by thehospital superintendent Dr. Charles S. Parker, who statedthat Reilly suffered from a “general paresis,”63 and theassistant district attorney, who claimed Reilly was “suf-fering from the ravages of a certain social disease thatmade him a mentally sick person.”64

Reilly’s commitment and the paresis diagnosis aresometimes referred to by Hauptmann verdict criticswhen arguing that the German carpenter did not get afair trial. However, if Reilly’s judgment was impairedduring the trial, it was probably not the result of tertiarysyphilis. Tertiary syphilis is a progressive disease, andtreatments during the 1930s were very limited. Reportsthat Reilly showed his “old-time wit” at the trial where he

won his freedom is inconsistent with tertiary syphilis,65

as is his post-commitment level of activity. It contrastsmarkedly with that of the era’s best known tertiarysyphilis victim, Al Capone. Capone suffered a breakdownwhile at Alcatraz, was restored to a semblance of normal-ity, but thereafter declined into a childlike state beforedying of cardiac arrest in 1947.66 Thus, although Reilly’sextra-marital affairs may well have caused him to becomeinfected with syphilis, his breakdown and commitmentwere more likely to have been the result of depressionand heavy drinking.67

After returning to his law practice, Reilly sued thepublishers of Liberty magazine for running an article byNew Jersey Governor Harold Hoffman, which referred tothe lawyer as “Death House.”68 He also filed suit againsthis former assistant, Maurice Edelbaum, whom hecharged with taking assets of the law firm, and Dr.Sherman, who had helped commit him. None of thesesuits proved successful, but less than a month after hisrelease, Reilly successfully defended a property owner ina slip-and-fall action.69 A year later, he won a $12,500 ver-dict in an estate case.70 He never regained his status as ahigh-profile criminal defense attorney, but as late as1943–44, he assisted with criminal appeals.71 Reilly alsocontinued having affairs. When his long-suffering wifefinally sued for divorce in 1945, she charged he’d beenliving with a model.72 Reilly lived only a short time afterthe divorce, dying of a cerebral thrombosis on ChristmasDay, 1946.73 He received a Roman Catholic funeral at theChurch of the Nativity, attended by several of his formerlegal and political colleagues, and was buried inBrooklyn’s Holy Cross Cemetery.

Whatever Reilly’s failings, no defense attorney couldhave won an acquittal for Bruno Richard Hauptmann.Wilentz had the unimpeachable witness Charles A.Lindbergh, a mountain of circumstantial evidence, unlim-ited funds (C. Lloyd Fisher estimated that New Jerseyspent $2 million on the case),74 and highly regardedexpert witnesses. Subsequent research has also revealedthat much exculpatory evidence was withheld from thedefense,75 and there have been charges that the prosecu-tion presented fabricated or doctored evidence, includingthe ladder rail, handwriting samples, and Hauptmann’s

Whatever Reilly’s failings,no defense attorney could have

won an acquittal forBruno Richard Hauptmann.


work records. Regardless of the outcome though, hadHauptmann been represented by an attorney who reliedmore on careful preparation than theatrics, and who wasmore visibly dedicated to his client’s cause, in the wordsof Adela Rogers St. Johns, people would have felt that theGerman carpenter “had a better shake.”76

As for Reilly, when he took the case, he declared it tobe “a lawyer’s dream – the murder trial of the century.”77

Instead it was the wrong case in the wrong place, and thebeginning of the end of his career as a big-time criminallawyer. As attorney Leslie Abramson once commented onthe love of fame – “sometimes it eats you.”78 ■

1. From Du Schoene Hauptmann Trial, reprinted in Stanley Walker, Mrs. Astor'sHorse 162 (1935).

2. See, e.g., Anthony Scaduto, Scapegoat (1976). Reilly’s alleged failings wereone basis of an unsuccessful civil rights action brought by Anna Hauptmann inthe early 1980s. See Hauptmann v. Wilentz, 570 F. Supp. 351 (D.N.J. 1983).

3. See, e.g., Lloyd Gardner, The Case That Never Dies 276–77, 282, 336 (2004)(hereinafter “Gardner”). Professor Gardner, however, does point out instanceswhere Reilly performed well. See id. at 345–48.

4. My Case is Half Hare, Half Hound Says Hauptmann’s Aid [sic], N.Y. WorldTelegram, Dec. 28, 1934, at 17.

5. Gardner, supra note 3, at 243.

6. Profiles: For the Defense, New Yorker, Jan. 12, 1925, at 22, 24 (hereinafter“Profiles”).

7. James Cannon, Lindy’s Chair Fails to Lure Young Visitor, N.Y. Evening J., Jan.7, 1935, at 12 (city ed.).

8. Ed Sullivan, In a Little Jersey Town, Wash. Post, Jan. 12, 1935, at 6.

9. For discussions of Reilly’s style and methods, see generally Profiles supranote 6; Reilly’s Victories Won on Errors of State, N.Y. Evening J., Jan. 11, 1935, at10 (city ed.).

10. Ed Sullivan, In a Little Jersey Town, Wash. Post, Jan. 12, 1935, at 6.

11. James Cannon, Reilly Like Owl, Claws at Eagle; But Lindbergh Soars to Safety,N.Y. Evening J., Jan. 5, 1935, at 3 (afternoon ed.).

12. Smith Hears Plea for Diamonds, N.Y. Times, Apr. 29, 1925, at 23.

13. See $100,000 Suit for Embrace, N.Y. Times, Sept. 21, 1926, at 7; see alsoAnderson v. Metro. Life Ins. Co., 128 Misc. 144, 218 N.Y.S. 494 (Sup. Ct., Kings Co.1926) (dismissing the case on the grounds that a principal is not liable for theunauthorized acts of its agent), aff’d, 220 A.D. 779, 222 N.Y.S. 763 (2d Dep’t1927).

14. Profiles, supra note 6, at 25.

15. Gardner, supra note 3, at 219 (quoting H. Stockberger, Conversationbetween Mr. and Mrs. Hauptmann (Nov. 3, 1934)).

16. M’Cormick Case Ready for Jury, N.Y. Times, Oct. 6, 1933, at 38.

17. Shrieking Denial, Nurse Collapses, Wash. Post, Apr. 4, 1922, at 3.

18. James Fuller, Veteran Jurist is 70 Today, L.I. Daily Press, Apr. 23, 1936, at 1,2. Of course, there were limits as to how far juries would go. Reilly could donothing for Anna De Hall, convicted in 1931 in the so-called “Dream Killer”case. Here, one of De Hall’s sons had confessed to killing his brother whilesleepwalking, but changed his story and blamed his mother after receiving along prison sentence.

19. See Webster is Guilty in the Second Degree, N.Y. Times, Feb. 18, 1927, at 1, 14.

20. See Wife Slayer Acquitted, N.Y. Times, Dec. 4, 1930, at 33.

21. See Convict Acquitted in Woman’s Murder, N.Y. Times, Dec. 18, 1930.

22. Reilly Gets 2 Clients Acquitted; Irate Court Calls Both Killers, Brooklyn DailyEagle, Oct. 4, 1934, at 3.

23. Letter from C. Lloyd Fisher to Gov. Harold G. Hoffman (Sept. 3, 1938) (onfile at the New Jersey State Police Archives).

24. Lively Debate on ‘Lynch Law’ Merits Is Held, Brooklyn Daily Eagle, Nov. 29,1933, at 3.

25. Adela Rogers St. Johns, The Honeycomb 351–52 (1969) (hereinafter “St.Johns”).

26. C. Lloyd Fisher, I Appeal!, pt. 1, at 18, 20 (unpublished manuscript on fileat the New Jersey State Police Archives) (hereinafter “Fisher, I Appeal!”).

27. Reilly Ready to Turn Guns on ‘Jafsie’, N.Y. Evening J., Feb. 11, 1935, at 3 (cityed.).

28. Sheilah Graham, Lawyer’s Open Rage Shock to Briton, N.Y. Evening J., Jan. 8,1935, at 3 (city ed.).

29. My Case is Half Hare, Half Hound Says Hauptmann’s Aid [sic], N.Y. WorldTelegram, Dec. 28, 1934, at 17.

30. Paints Miss Stone a Wronged Woman, N.Y. Times, Mar. 30, 1922, at 7.

31. Id.

32. Record at 186, State v. Hauptmann, 180 A. 809 (N.J. 1935) (hereinafter“Record”).

33. Id.

34. Id. at 205.

35. Gilbert Seldes, Lindy’s Mind Puts Reilly in Shadow, N.Y. Evening J., Jan. 5, at6 (city ed.).

36. Record, supra note 32, at 113.

37. Adela Rogers St. Johns, Mute Evidence Louder Than Words to Writer, N.Y.Evening J., Jan. 23, 1935, at 2 (city ed.).

38. ‘I Toyed With the Bull of Brooklyn,’ Jafsie Boasts, N.Y. Evening J., Jan. 11, 1935,at 3 (city ed.).

39. Record, supra note 32, at 455.

40. See Gardner, supra note 3, at 345–48.

41. Samuel Liebowitz (as told to Tyrell Krum), Liebowitz Sees Jury CleavingTwisted Knot, N.Y. Evening J., Feb. 7, 1935, at 12 (city ed.).

42. Record, supra note 32, at 3641, 3644.

43. Id. at 3128.

44. Id. at 3127.

45. Women were not permitted to sit on New York juries until 1937. See 1937N.Y. Laws ch. 513.

46. Elsie Robinson, Reilly Draws Masterful Word Picture, Says Author, N.Y.Evening J., Feb. 19, at 8 (city ed.).

47. James Cannon, Reilly Slicker to Natives, N.Y. Evening J., Jan. 3, 1935, at 8(city ed.).

48. James Cannon, Characters in Bruno Trial Fit Roles Too Perfectly, Says Writer,N.Y. Evening J., Jan. 19, 1925, at 3 (sports complete ed.).

49. James Cannon, Trial Seen as Side Show With Bruno as Freak Exhibiting BothTender and Sardonic Faces, N.Y. Evening J., Jan. 25, 1935, at 17 (final night extraed.).

50. Fisher, I Appeal!, supra note 26, pt. 1, at 4.

51. See Ladder, Red Ink on Paper Used by Reilly in Fan Mail Replies (press clippingon file at the New Jersey State Police Archives). A sample of the stationery isalso on file at the Archives.

52. Visitors Log, Wilentz Collection (on file at the New Jersey State PoliceArchives).

53. FBI Memorandum (Jan. 22, 1936), cited in Robert R. Bryan, The Execution ofthe Innocent: The Tragedy of the Hauptmann and Bigelow Cases, 18 N.Y.U. Rev. L. &Soc. Change 831 (1990/1991).

54. St. Johns, supra note 25, at 351.


55. Letter from C. Lloyd Fisher to Gov. Harold Hoffman (Sept. 3, 1938) (on fileat the New Jersey State Police Archives).


57. Harold G. Hoffman, The Case of Mr. Reilly, at 3 (draft of Liberty magazinearticle on file at the New Jersey State Police Archives).

58. Reilly and Wife Ask Separation, N.Y. Herald-Trib. (undated clipping on file atthe Brooklyn Public Library).

59. Letter from C. Lloyd Fisher to Gov. Harold G. Hoffman (Sept. 3, 1938) (onfile at the New Jersey State Police Archives).

60. See Edward J. Reilly, Will Lindbergh Save Hauptmann?, Liberty, Oct. 5, 1935,at 8.

61. Florence Wessels, Reilly, Noted Hauptmann Counsel, Now Insane, Retries OldCases, N.Y. Evening J., Jan. 2, 1938 (unpaginated press clipping).

62. Reilly, Hauptmann Lawyer, is in Hospital as a Mental Patient FollowingBreakdown, N.Y. Times, Jan. 31, 1937, at 1.

63. Reilly is Found Sane; Freed from Hospital, N.Y. Times, Mar. 24, 1938, at 24.

64. Reilly Shows Old Time Wit in Court Fight (undated press clipping on file atthe Brooklyn Public Library).

65. E-mail from Dr. Edward Tramont, National Institute of Health, to theauthor (Jan. 19, 2005).

66. See Robert J. Schoenberg, Mr. Capone: The Real and Complete Story of AlCapone 342–53 (1993).

67. E-mail from Dr. Edward Tramont, National Institute of Health, to theauthor (Jan. 20, 2005).

68. Memo from Bill Conklin to Gov. HaroldHoffman (Oct. 11, 1938) (on file at the New JerseyState Police Archives).

69. See Reilly Back in Court, Wins First Case, BrooklynDaily Eagle, Apr. 20, 1938, at 1.

70. See Reilly Makes Comeback, Wins $12,500 Verdict,Brooklyn Daily Eagle, Apr. 1, 1939, at 1.

71. See People v. Palmer, 292 N.Y. 506, 53 N.E.2d 846(1944) (first-degree murder conviction); People v.Lewis, 291 N.Y. 731, 52 N.E.2d 955 (1943) (first-degreemurder); People v. Larkin, 266 A.D. 787, 41 N.Y.S.2d920 (2d Dep’t 1943) (second-degree grand larceny).

72. See Mrs. Reilly Wins Divorce by Default, BrooklynDaily Eagle, Apr. 3, 1945, at 2.

73. New York City Department of Health, Boroughof Brooklyn, Certificate of Death, Edward J. Reilly,No. 24,694 (Dec. 28, 1946).

74. Fisher, I Appeal! , supra note 26, pt. 1, at 1.

75. Louis M. Seidman, The Trial and Execution ofBruno Richard Hauptmann: Still Another Case That ‘WillNot Die,’ Geo. L.J. 1, 11 (1977).


77. Profiles, supra note 6, at 22.

78. Linda Deutsch, Legal Hotshot's Star Has Fallen,Newsday.com, formerly available at http://www.newsday.com.


This cry is often heard when prac-titioners, both plaintiffs’ anddefendants’, attempt to obtain

medical information in personal injurycases.

In 1996 Congress passed the HealthInsurance Portability and Accountabi-lity Act, commonly referred to asHIPAA; the act’s requirements man-dating federal minimum standards ofprivacy protection for patients’ healthinformation came into effect in 2003.HIPAA preempts state law unless astate enacts state standards more strin-gent than the federal requirements.Laudable in intent, particularly in lightof recent concerns over identity theft,HIPAA has impacted on litigationpractice in New York, primarily in thepersonal injury field. The conse-quences of HIPAA are in flux and,keeping in mind the time-lag betweenthe writing of this article and its publi-cation, recent cases should be moni-tored and decisions carefully consid-ered. Courts have enacted local rulesaddressing HIPAA issues, and manyare in transition.1

Current issues include medicalrecord authorizations, trial subpoenasfor medical records, attorney inter-views with treating physicians, andgeneral issues of privilege. Each will beaddressed separately, below.

Medical Record AuthorizationsThe first hint that most practitionersreceived that there was somethingcalled HIPAA, and that it wouldimpact on their practices, came to per-sonal injury litigators who suddenlystarted receiving rafts of complicatedand verbose “HIPAA compliant”authorization forms from medicalproviders, especially hospitals. Thiscomplicated the already laborious pro-cedure for obtaining individualauthorizations signed by the client foreach medical provider, where univer-sally accepted, generic authorizationforms, including Blumberg forms,were utilized.

Fortunately, two events coincided toease this pain and, in fact, make lifeimmeasurably easier for practitioners.The first was the development, bya committee chaired by ChiefAdministrative Judge JacquelineSilbermann of New York CountySupreme Court, Civil, of a universal,HIPAA compliant authorization form,designated OCA Official Form No. 960,acceptable to the court, medicalproviders, and the bar. The form hasmet widespread acceptance, and isavailable for download at the OCAWeb site.2 In addition to having a judi-cial imprimatur to facilitate accept-ance, the wide circulation of this form

has given it a familiar feel, furtherencouraging acceptance.

The second event was the enact-ment of legislation known colloquiallyas the “Sklar Bill,” after State SupremeCourt Justice Stanley Sklar, who hadadvocated for the passage of the billfor eight years. The new law permits aclient to sign a limited power of attor-ney which, in turn, permits the attor-ney to sign authorizations for medicalrecords on the client’s behalf, eliminat-ing the need to send authorizations tothe client, have the client execute themin front of a notary, and then return theexecuted authorizations to the attor-ney. The law also permits a distributeeof a decedent to obtain records relatingto the decedent without having to firstobtain authority from the surrogate’scourt, traditionally in the form of limit-ed letters of administration. The lawpermits the distributee to attach a copyof the decedent’s death certificate to anauthorization signed by the distributeeand, thereby, obtain the records.

Trial SubpoenasTraditionally, state courts in New Yorkhave routinely “so ordered” subpoe-nas seeking records, including medicalrecords, where there was no legalrequirement that the subpoena be “soordered,” and without any require-

BURDEN OF PROOFBY DAVID PAUL HOROWITZ

HIPAA . . . Help!

DAVID PAUL HOROWITZ <[email protected]> practices as a plaintiff’s personal injury litigator in NewYork City. Mr. Horowitz teaches New York Practice at New York Law School, is a member of theOffice of Court Administration’s CPLR Advisory Committee, and is a frequent lecturer and writer onthe subject.


ment that an authorization be fur-nished. “Although a subpoena signedby the attorney would suffice underthe applicable statute,3 the present-ment agency is following the commonpractice of having the subpoena ‘soordered’ by a Court. Apparently, med-ical service providers will more likelyrespond to a subpoena ‘so ordered’ bythe Court as opposed to one signedsolely by an attorney. Courts generallysign such subpoenas since it aids incompliance with a lawful subpoenaand avoids possible motion practice.”4

However, the interplay of CPLR3122(a) and HIPAA posed issues forcourts issuing “so ordered” subpoenasfor medical records. The first court toexamine the impact of HIPAA on aparty’s request to have a subpoena formedical records “so ordered” wasCampos v. Payne.5 The court refused,citing both a failure to comply withCPLR 3122(a), which requires a state-ment, omitted in the subpoena served,“in conspicuous bold-faced type thatthe records shall not be providedunless the subpoena is accompaniedby a written authorization from thepatient,” and for failing to furnish aHIPAA compliant authorization. Thecourt concluded:

Accordingly, the Court cannot “soorder” the subpoena without theauthorization of the party whoserecords are sought. To do so wouldbe to sanction an end run aroundthe privacy protections establishedboth by Congress and the State leg-islature. Production of the recordscan be accomplished either bycomplying with CPLR 3120 and3122, or by bringing a motion onnotice to all parties. Furthermore,even if the court were inclined to“so order” the subpoena, the sub-poena in this case is defective inthat it lacks the bolded languagemandated by CPLR 3122.6

In a second decision, In re C.D.,7 thetrial court was confronted with a sub-poena sought on the eve of trial, appar-ently without an authorization fromthe patient, and framed the issuebefore it as being “one of providing

notice and adequate opportunity to theperson whose records are being sub-poenaed to be heard. The Courts are ina position to fashion appropriate pro-cedures to guarantee such notice andopportunity while taking into consid-eration the needs and practices in theirparticular Courts.”8 In C.D., the courtsigned the subpoena, and issued withit an order and notice, to be served,along with the subpoena, by therequesting party upon both the recordcustodian and opposing counsel, noti-fying them that the records had beensubpoenaed, and providing an oppor-tunity to be heard, at a date and timeset forth on the notice, on the issue ofwhether the records should be dis-closed.9

The Campos decision is not withoutcritics, and the Advisory Committee onCivil Practice has proposed an amend-ment to CPLR 3122(a) that clearly pro-vides that a court has the authority toorder the production of medicalrecords without the patient’s consent.“The proposed amendment to CPLR3122(a) resolves the uncertainty [inCampos v. Payne] by providing that amedical provider served with a sub-poena ducus tecum must respond ifserved with a demand and either anaccompanying authorization for the

release of the medical record or a courtorder.”10

Once the records are subpoenaedinto court, they may be inspected andcopied. “[T]he clerk’s function is onlyto receive the records and documentwho is seeking to view or copy thesubpoenaed records. After September1, 2003 all medical records delivered tothe court will have had to have con-tained the proper authorizations andwill be subject to examination andcopying by opposing counsel.”

Local rules are in place in manycourts addressing HIPAA compliancein the issuance of subpoenas for med-ical records. In the City Trial Part, thefollowing rule is currently in effect:

Be Prepared: Do not wait until theeve of the trial to get prepared. It iscounsel’s obligation, well before acase is scheduled for trial, to ascer-tain the availability of all witnessesand the sufficiency of all subpoe-naed documents. Counsel shouldsubpoena all required documentsin [] sufficient time to have sameavailable for trial without delay.Subpoenas for medical recordsmust be accompanied by an appro-priate HIPPA form. In order toavoid a delay in processing arequest for a ‘’court ordered’’ sub-


poena for medical records it isstrongly suggested that counseluse the HIPAA OCA Official FormNo. 960, which can be obtainedfrom the Court website, or from theclerk in Room 217, or from the IA-3 clerk in Room 407.11

Interviews with Treating PhysiciansThe traditional bar to medical malprac-tice defense counsel interviewing aplaintiff’s treating physician wasrelaxed by the Second Department in1989.12 Levande permitted such inter-views once the note of issue was filed,without any need for an authorizationfrom the plaintiff. This practice con-flicted with HIPAA’s requirements,and a number of trial courts haveexamined the issue, with a split in thedecisions as to whether or not to allowthe interviews, and, for those courtsthat do permit them, without agreeingon a uniform approach. A recent frontpage article in the New York Law

Journal13 analyzed the current split inopinion between the medical malprac-tice judges in New York County.

The first court to grapple withHIPAA’s impact on post-note-of-issueinterviews was Justice James Dollard,who issued guidelines in an unpub-lished opinion, Beano v. Post,14 whichwere subsequently incorporated into,and expanded by, Justice Joseph J.Maltese in Keshecki v. St. Vincent’sMedical Center.15 Keshecki required:

1. Defense counsel must obtain anauthorization separate and apartfrom any other authorization; and

2. The authorization on its faceshould state in BOLD letters thatthe purpose of the disclosure is notat the request of [the plaintiff]patient; and

3. The purpose should be stated inBOLD print that: “The purpose ofthe information is to assist thedefendant in defense of a lawsuitbrought by the plaintiff”; and

4. The authorization must containthe name and business address ofthe person to whom the health careprovider or hospital employeemay give an interview and identifythe persons or entities the inter-viewer is representing (see 45 CFR§ 164.508[c][iii]); and

5. The authorization must conformto all of the core elements and re-quirements of 45 CFR § 164.508[c];and

6. There shall be a separate author-ization for each interview and theauthorization shall not be com-bined with a subpoena, which onlyacts to intimidate the doctor.

Within five days after the inter-view, whether in person or on thetelephone or by any other mannerwhich technology allows, thedefendant must provide the plain-tiff with:

1. Any and all written statements,materials or notations and anydocument obtained from the inter-viewed health care provider; and

2. Copies of any memoranda,notes, audio or video recording,which records any oral or writtenstatements made of the health careprovider.16

Keshecki further held that interview-ing counsel did not have to disclose“their observations, conclusions,impressions or analysis of any of thestatements.”17

Thereafter, Keshecki has generallybeen followed, with some variations,by decisions in Kings County,18

Monroe County,19 New York County,20

and, most recently, Suffolk County.21 Anoteworthy distinction is contained inJustice Sklar’s decision in Smith v.Rafalin,22 where he held: “Accordingly,the desire of both sides to have accessto a medical provider militates in favorof an informal interview at the physi-cian’s office. Fairness in providingequal access to the physicians militatesin favor of permitting continuation ofinterviews by defense counsel. Notonly have the majority of my distin-


guished colleagues who have writtendecisions on this subject of which I amaware agreed, but Justice Lunn madethe critical point in his decision inSteele v. Clifton Springs Hospital,23 thatwe are required to permit the continu-ation of ex parte interviews of subse-quent treaters by defense counsel untilthe appellate cases permitting them areoverruled binding appellate authori-ty.”24 Justice Sklar further held that allmaterial gathered by interviewingcounsel was protected by attorneywork product, and did not have to beexchanged.

However, Justice Eileen Bransten inNew York County has not followedKeshecki, voicing concern over thepotential effect of post-note-of-issueinterviews: “Private interviews outsidethe patient or patient representative’spresence present very troubling confi-dentiality problems. In the course ofprivate interviews a treating physicianmay release information about apatient that has not even been commu-nicated to that patient. Additionally,there is a very real risk that defensecounsel may inquire into matters thatdo not relate to the condition at issueand, unlike in the context of judiciallysupervised disclosure proceedings, noone is present to ensure that thepatient’s rights are not violated. Whileit is clear that certain privacy rights arewaived by commencement of a med-ical malpractice action, it is equallyclear that there are limitations on thewaiver.”25

Pointing out that the defendantsfailed to explain why the informationsought was not obtained during disclo-sure, and further failed to explain howthe information sought was materialand necessary to the defendants prepa-ration for trial, Justice Bransten con-cluded:

This Court will not sanction a post-note-of-issue request to obtaininformation from a witness whowas never even deposed. Doing sowould authorize post-note-of-issuediscovery without fidelity to thediscovery devices, without theconsent of both parties and with-

out a showing of the “unusual orunanticipated circumstances,” re-quired for obtaining informationonce the note of issue has beenfiled. It would improperly allow aparty to do indirectly that which itcannot do directly and couldunfairly cause surprise at trial.26

Justice Alice Schlesinger hasexpressed the preference that permis-sion to speak to treating physicians besought during formal disclosure, priorto filing the note of issue.

PrivilegeOne final consideration: HIPAA mayprovide a basis for asserting privilegebarring the release of certain records,independent of, and perhaps to agreater extent than, state law. This wassuggested recently, in dicta, by the FirstDepartment.27 In a case where theplaintiff was injured in a cardiac reha-bilitation center, plaintiff’s counselsought the names of other patientswho were present in the center at thetime the accident occurred, presum-ably as potential witnesses to the acci-dent or notice witnesses of the alleged-ly dangerous condition. The FirstDepartment held that this would vio-late the physician-patient privilege ofthe other patients in the rehabilitationcenter, since disclosure of their patientstatus in such a facility was equivalentto disclosing that they suffered from acardiac condition.

The court went on to refer to themodern trend towards increasing theprotection of patient confidentiality,embodied in HIPAA, and, while theissue was not raised by the defendant,the court, in dicta, opined that HIPAAwould bar the release of the requestedinformation.

There will undoubtedly be devel-opments in this area. Reader inquiriesand submissions of HIPAA problemsand issues will be appreciated. ■

1. See, e.g., Rule 9(c) of the IA-3 City Tap Rules,infra.

2. <www.nycourts.gov/litigants/forms/shtml>.

3. See CPLR 2302(a).

4. In re C.D., 6 Misc. 3d 1034A, 2005 N.Y. Misc.LEXIS 417 (Fam. Ct., Orange Co., Mar. 8, 2005).

5. Campos v. Payne, 2 Misc. 3d 921, 766N.Y.S.2d 535 (N.Y. City Civ. Ct. 2003).

6. Id. at 926–27.

7. In re C.D., 6 Misc. 3d 1034A.

8. Id.

9. Id.

10. Report of the Advisory Committee on CivilPractice, January 2005, pp. 5–8. In the interest of fulldisclosure, I am a member of the AdvisoryCommittee and support the proposed amendment.

11. Rule 9(c) of the IA-3 City Tap Rules.

12. Levande v. Dines, 153 A.D.2d 671, 544 N.Y.S.2d864 (2d Dep’t 1989).

13. Daniel Wise, Courts Split on Privacy Act Effect onDiscovery, N.Y.L.J., Mar, 29, 2005, p. 1, col. 3.

14. Index No. 5694-2001, Mar. 12, 2004, QueensCounty Supreme Court.

15. Keshecki v. St. Vincent’s Med. Ctr., 5 Misc. 3d 539,785 N.Y.S.2d 300 (Sup. Ct., Richmond Co. 2004).

16. Id. at 544–45.

17. Id.

18. O’Neil v. Klass, N.Y.L.J. Nov. 19, 2004, p. 17 (Sup.Ct., Kings Co.) (Rosenberg, J.).

19. Steele v. Clifton Springs Hosp. & Clinic, 6 Misc. 3d953, 788 N.Y.S.2d 587 (Sup. Ct., Monroe Co. 2005).

20. Smith v. Rafalin, 6 Misc. 3d 1041A, 2005 N.Y.Misc. LEXIS 546 (Sup. Ct., N.Y. Co. Mar. 24, 2005).

21. Valli v. Viviani, 2005 N.Y. Misc. LEXIS 575 (Sup.Ct., Suffolk Co. 2005).

22. 6 Misc. 3d 1041A.

23. 6 Misc. 3d 953, 788 N.Y.S.2d 587 (Sup Ct.,Monroe Co. 2005).

24. Valli, 2005 N.Y. Misc. LEXIS 575.

25. Brown v. Horbar, 6 Misc. 3d 780, 792 N.Y.S.2d314 (Sup. Ct., N.Y. Co. 2004).

26. Id. (citation omitted).

27. Gunn v. Sound Shore Med. Ctr. of Westchester, 5A.D.3d 435, 772 N.Y.S.2d 714 (2d Dep’t 2004).

“Private interviews outside the patient orpatient representative’s presence present very

troubling confidentiality problems.”


2004 Case Update – Part IIUninsured, Underinsured, Supplementary UninsuredMotorist Law

By Jonathan A. Dachs

Many developments in the field of uninsured motorist(UM), underinsured motorist (UIM), and supplementaryuninsured motorist (SUM) law from 2004 were covered inlast month's issue of the Journal. In this issue, we will dis-cuss several additional general issues that pertain to bothuninsured and underinsured motorist claims, and willalso address issues more specific to each of these separatecategories of coverage.

General Issues1

Petitions to Stay Arbitration: Arbitration vs. LitigationIn Russell v. New York Central Mutual Fire Ins. Co.,2 thecourt held that insofar as the insured’s endorsement pro-vided for more than the minimum amount of uninsuredmotorist coverage mandated by Insurance Law

§ 3420(f)(1), and the insured did not exercise his option toarbitrate the dispute, the dispute could be resolvedthrough an action at law instead of arbitration.

In Sclafani v. Allstate Ins. Co.,3 the court held that wherethere is a dispute arising under the right of an insured topayment of SUM benefits, or as to the amount of those

JONATHAN A. DACHS <[email protected]>, a member of the firmof Shayne, Dachs, Stanisci, Corker & Sauer, in Mineola, New York, is theauthor of “Uninsured and Underinsured Motorist Protection,” 4 NewYork Insurance Law, ch. 51 (LexisNexis/Matthew Bender), and of a chap-ter on UM/UIM and SUM (pre- and post-regulation 35-D), in Weitz onAutomobile Litigation: The No-Fault Handbook (New York State TrialLawyers Institute). He is a graduate of Columbia University and receivedhis J.D. degree from New York University Law School.


benefits, the insured will always have the right to initiatelegal action, or, in the alternative, to demand arbitration.

Two examples of SUM lawsuits are Mendoza v. AllstateIns. Co.4 and Brathwaite v. New York Central Mutual Fire Ins.Co.5 In both of those cases, the courts considered the issueof whether the plaintiff sustained a “serious injury” asdefined in the No-Fault Law6 – a condition precedent to avalid UM/SUM claim.

Filing and ServiceCivil Practice Law and Rules 7503(c) provides, in perti-nent part, that “[a]n application to stay arbitration mustbe made by the party served within 20 days after serviceupon him of the notice [of intention to arbitrate] ordemand [for arbitration], or he shall be so precluded.”The 20-day time limit is jurisdictional and, absent specialcircumstances, courts have no jurisdiction to consider anuntimely application.7

In Allstate Ins. Co. v. Duffy,8 the court held that wherethe issue of whether the insured/claimant is entitled touninsured/underinsured motorist benefits under a par-ticular policy relates to “whether certain conditions ofcoverage were satisfied, not whether the parties agreed toarbitrate”; the insurer must seek a stay of arbitrationwithin the 20-day limitation period set forth in CPLR7503(c).9

In State Farm Mutual Auto. Ins. Co. v. Dowling,10 theinsurer’s application to stay arbitration was deemeduntimely, the court noting that “[i]t does not avail peti-tioner that it timely commenced a proceeding to stay thearbitration in Queens County, that the Queens Countycourt ordered to be transferred to New York County, andthat it instituted the instant stay proceeding only becauseof ministerial difficulties it encountered in effectuatingthe transfer.”

In State Farm Mutual v. Kathehis,11 the court noted thatwhen the 20th day after receipt of the demand for arbitra-tion is a Sunday (or Saturday or public holiday), accord-ing to General Construction Law § 25-a, the petition tostay arbitration may be filed the next business day.

In three cases that originated from the Supreme Court,Westchester County (Nastasi, J.), the Appellate Division,Second Department addressed the proper way to com-mence a special proceeding to stay arbitration. In AllstateIndemnity Co. v. Martinez,12 the court noted that “[u]nderNew York’s commencement-by-filing system, in order tocommence a special proceeding, the petition must be filedwith the Clerk of the Court and the filing fee paid.”Further, “when service of process is made without filing,the resulting proceeding is a nullity, it not having beenproperly commenced, and such nonfiling constitutes anonwaivable jurisdictional defect.” In this regard, OneBeacon Ins. Co. v. Daly13 and Progressive Northeastern Ins.Co. v. Frenkel14 should be reviewed. Although in Martinezand Daly the court affirmed the denials of the petitions

because the petitioner failed to demonstrate that the peti-tion had been filed with the county clerk, in Frenkel thecourt reversed on the basis of evidence, upon renewal,that established such a filing.

In Liberty Mutual Ins. Co. v. Tigre,15 the court held thatwhere a petition was filed on June 25, 2004, but bore areturn date of June 27, 2004, a period of just two days, andthere was no affidavit of service in the record, and onJune 30, 2004, the petitioner served an amended petitionbearing a return date of July 27, 2004, the petition wasjurisdictionally defective because it failed to give ade-quate notice of the return date, and the amended petitionwas jurisdictionally defective because it was improperlyserved by regular mail on the respondents’ attorney.

In Nationwide Ins. Co. v. Singh,16 the claimant’s counselsent to the insurer, by certified mail, return receiptrequested, a letter enclosing a no-fault application and“Notice of Intention to Make Claim and Arbitrate,” whichwas skillfully created so as to appear virtually identical inappearance, content, layout and color to the Blumbergform entitled “Notice of Intention to Make Claim.” Morethan three months later, and after the insurer disclaimedcoverage on the grounds of late notice, counsel served ademand for arbitration upon the insurer. Within 20 daysof receipt of the demand – but nearly four months afterreceipt of the notice of intention – the insurer commenceda proceeding to stay arbitration. The claimant cross-moved to dismiss the stay proceeding on the ground thatit was not timely commenced following the undisputedreceipt of the notice. In opposition to the cross-motion theinsurer argued, incorrectly, in an affirmation of its coun-sel, that the notice of intention to arbitrate was not a for-mal demand to arbitrate against which a proceeding tostay would be required. Counsel did not, however, arguethat the notice was misleading or deceptive. The supremecourt, sua sponte, raised the issue and held that the noticeof intention to arbitrate, in its timing and circumstances,was intended to mislead. Thus, the court measured the20-day period from the subsequent demand for arbitra-tion and granted the petition.

On appeal, however, the Second Department reversedthat determination. Despite recognizing that “serviceintended to conceal a notice of intention to arbitrate andto precipitate an insurer’s default will not be givenpreclusive effect when the notice is buried among unre-lated documents or is served on a remote office of theinsurer,” citing several of the cases cited above, the courtnoted that “these cases were not decided in a vacuum.”The court further stated that “[t]he issue of misleadingtactics had to be raised by the petitioners who tardilysought to stay arbitration, and had to be supported bysomeone with knowledge of the facts on the basis ofwhich they contended that they had been misled.”Noting that the insurer never claimed to have been mis-led and that, therefore, no affidavit was submitted by an


insurance company employee to support such a con-tention, the court reversed and denied the petition.Interestingly, the court focused solely upon the fact thatthe claimant’s counsel, to his credit, did not bury thenotice among a sheaf of other documents, and that serv-ice of the notice to the insurer’s North Syracuse office didnot adversely affect its ability to respond promptly to it;the court did not comment at all on the misleading anddeceptive nature of the notice itself.17

Burden of ProofAn insurer seeking to stay arbitration of an uninsuredmotorist claim has the burden of establishing that theoffending vehicle was insured at the time of the accident.Once a prima facie case of coverage is established, the bur-den shifts to the opposing party to come forward withevidence to the contrary.18

In GEICO v. Burrell,19 the petitioner submitted proof ofcoverage on the offending vehicle by State Farm. In oppo-sition to the petition, State Farm asserted that it had dis-claimed coverage on the ground, inter alia, of late notice ofclaim. The supreme court granted the petition, without ahearing, on the basis of its finding that State Farm’s dis-claimer was invalid. On appeal, the Second Departmentreversed and held that an evidentiary hearing on theissue of whether State Farm validly disclaimed coveragewas necessary.

In New York Central Mutual Fire Ins. Co. v. Hall,20 thepetitioner submitted the police accident report, whichindicated coverage for the offending vehicle by Allstateand a copy of a letter from Allstate disclaiming coverageto its insured. The court held that this evidence raised aquestion of fact as to whether Allstate timely and validlydisclaimed coverage for the offending vehicle and, there-fore, remitted the case for an evidentiary hearing on thetimeliness and validity of Allstate’s disclaimer, to whichthe proposed additional respondents would be joined asparties.

In Liberty Mutual Ins. Co. v. Morgan,21 however, thecourt held that the petitioner, which submitted only acopy of the other insurer’s disclaimer letter (and no policereport or DMV record indicating the existence of cover-age in the first instance), “failed to establish its entitle-ment to a stay of arbitration” and, therefore, upheld the

denial of the petition to stay the uninsured motoristclaim.

In AIU Ins. Co. v. Marciante,22 the proof established thatthe tortfeasor’s insurer’s purported cancellation wasdefective and invalid. Thus, the policy would haveremained in effect until its stated termination date unlessanother event, such as the insured’s procurement ofreplacement coverage, excused the provision of a propernotice of cancellation. Since the insurer did not produceany documents showing that the tortfeasor had actuallyacquired other insurance, it failed to establish that it wasrelieved of its obligation to defend and indemnify thetortfeasor.

In New York Central Mutual v. Coriolan,23 the court heldthat the insurer’s prima facie showing of coverage wasrebutted by testimony of the other insurer’s claims repre-sentative, as corroborated by the documentary evidence,that several searches of the company’s records were con-ducted and no policy could be located.

In State Farm Mutual Auto. Ins. Co. v. Jackson,24 thecourt held that a jury trial may be requested where thereis a factual issue preliminary to arbitration pursuant to anuninsured or underinsured motorist claim.

Waiver of Right to AppealIn Windsor Group v. Gentilcore,25 the court reiterated theestablished rule that where the parties participate in thearbitration that was the subject of an unsuccessful peti-tion to stay arbitration, without seeking interim relief (i.e.,a stay of the hearing), the unsuccessful insurer waives itsright to appellate review of the denial of its petition, andits appeal must be dismissed.26

Default – Limits of CoverageIn Kleynshvag v. GAN Ins. Co.,27 the court was faced withthe interesting question of what limits of coverage toapply in a direct action against an insurer to recover on ajudgment obtained against its purported insured wherethe insurer contended that it never issued a policy to the“insured,” but a finding of coverage was renderedagainst the insurer by default in a proceeding to stay arbi-tration. Although the supreme court held that “faced withthe task of ascertain[ing] the terms of a policy which, infact, does not appear to exist,” the logical conclusion wasto limit the insurer’s liability to the statutory minimumautomobile liability insurance limits set forth in Vehicle &Traffic Law § 311(4)(a) (i.e., $25,000), the AppellateDivision disagreed. In the view of the SecondDepartment, under the circumstances of this case, whichincluded the fact that the insurer was made a partyrespondent to the proceeding to stay arbitration andknowingly chose not to participate therein, the insurerchose not to seek to vacate the default judgment against itfor some five years (and such motion was denied), andthe insurer failed to meet its burden to prove any limita-

Arbitration awards are subjectto great judicial deference,

therefore, “it is imperative thatthe integrity of the process . . . be

zealously safeguarded.”


tion on the plaintiff’s right to recover. “Plaintiff’s recov-ery should not have been limited to the statutory mini-mum of $25,000 but, instead should have been allowed tothe full extent of the judgment in the underlying action torecover damages for personal injuries,” i.e., $125,000.

Arbitration Awards: Issues for the ArbitratorIn Karadhimas v. Allstate Ins. Co.,28 the court vacated anarbitration award in which the arbitrator considered andruled upon the issue of whether there was physical con-tact with the claimant’s vehicle, notwithstanding the factthat the insurer never sought to stay arbitration prior tothe hearing. Repeating the rules that “an arbitrator maynot decide the question of whether there was contact witha ‘hit and run’ vehicle on the ground that lack of contactconstitutes a ‘contractual coverage defense’ and not a ‘lia-bility defense,’” and “where the insurance carrier’s appli-cation to stay arbitration is untimely, ‘[t]he arbitrator maynot decide this issue by creating an artificial distinctionbetween contractual issues and liability issues,’”29 thecourt noted that “[t]he arbitrator could determine liabili-ty and dismiss the claim based upon a determination thatthe claimant’s negligence was the sole proximate cause ofthe accident,” but that “the arbitrator was required tobase his determination upon a finding that there was infact contact with an unidentified vehicle.” Thus, the courtremanded the matter for a rehearing before a differentarbitrator on the questions of negligence and compara-tive negligence.

Scope of ReviewIn Lumbermen’s Mutual Casualty Co. v. City of New York,30

the court noted that “[p]ursuant to CPLR 7511(a), anapplication to vacate an arbitrator’s award must be madeby a party within ninety days after [its] delivery to [thatparty].” Moreover, the court added that “the fact that thearbitrator’s decision was served on the petitioner by maildid not extend its time to commence [the] proceeding byfive days, as the provision of CPLR 2103 extending timefor service made by mail ‘is expressly restricted to service“in a pending action”’ (citations omitted).”

In NCO Financial Systems, Inc. v. Pettas,31 the court reit-erated that “even though CPLR § 7511(a) imposes a 90day limit to modify or vacate an arbitration award, arespondent may wait until the prevailing party moves toconfirm the award to seek that relief” by way of a cross-motion to vacate.

In State Farm Mutual Auto. Ins. Co. v. Perez,32 the courtstated,

Arbitration awards are subject to great judicial defer-ence, therefore, “it is imperative that the integrity ofthe process, as opposed to the correctness of the indi-vidual decision, be zealously safeguarded.” As aresult, an arbitrator must grant a fundamentally fairhearing. “A fundamentally fair hearing requires

notice, an opportunity to be heard and to present rele-vant and material evidence and argument before thedecision makers, and that the decision makers are notinfected with bias.”

In that case, the SUM arbitrator rejected certain of theclaimant’s medical evidence on the basis that it did notcontain an original signature but rather a rubber-stampedsignature. The court held that, in so doing, the arbitratorfailed to take into account a subsequently submitted,properly sworn and signed affidavit, which reaffirmedthe doctor’s stamped report and thus cured the defectwith the authenticity of that report. Moreover, the courtnoted that although the arbitrator had given notice in her“Pre-Hearing Memorandum” that she would not consid-er reports that were “dictated but not read,” she gave nonotice regarding her objection to stamped material,which, in the view of the court, was not equivalent.Whereas the use of the phrase “dictated but not read”indicates “a tolerance for uncorrected errors and an indif-ference to significant matters of legal import,” the use ofa signature stamp “does not necessarily suggest that thephysician did not read his own report, only that he didnot sign every copy. The stamping of a copy after theoriginal has been signed is a common practice.” The courtfound that the arbitrator’s rejection of relevant and mate-rial evidence, and her “unsupported and conflicting con-clusions,” resulted in the denial of a fair hearing “due tothe appearance of bias” and, accordingly, vacated thearbitrator’s award and directed that a new hearing beheld.

In Reilly v. Progressive Ins. Co.,33 the claimants’ attempt-ed to vacate an arbitrator’s award against them, whichdenied their claims for UM benefits, on the ground thatthe arbitrator was not impartial and that his determina-tion was irrational. The partiality argument was basedupon the fact that the arbitrator and the attorney for theinsurer allegedly kissed each other hello prior to the com-mencement of the hearing, and that during the hearing,the arbitrator referred to defense counsel by her firstname. The court rejected the claimants’ contentions andaffirmed the award because the claimants “waived their


right to object to the determination on the ground of par-tiality by participating in the arbitration without objec-tion after observing the conduct they believed revealedsuch partiality.” The court also found the arbitrator’saward to have been rational.

In Kaufman v. Allstate Ins. Co.,34 the court held that thearbitrator’s denial of a request for an adjournment didnot constitute either an abuse of discretion or misconductsufficient to warrant vacatur of an award.

Actions Against Insurance Agents/BrokersIn Utica First Ins. Co. v. Floyd Holding, Inc.,35 the court heldthat if an insurance broker was negligent in making a rep-resentation on an insurance application that resulted inthe insurer disclaiming coverage, the insured would beentitled to indemnification from the broker for any liabil-ity incurred in the underlying action against the insured.

In Venditti v. Liberty Mutual Ins. Co.,36 the court notedthat the allegation that an insurance agent or brokerbreached the common-law duty to obtain requested cov-erage “sets forth a claim in tort which requires the appli-cation of the three-year limitations period.”37

In Rendeiro v. State-Wide Ins. Co.,38 the court held that“[a]lthough an insurance broker is generally consideredto be an agent of the insured, a broker will be held to haveacted as the insurer’s agent where there is some evidenceof ‘action on the insurer’s part, or facts from which a gen-eral authority to represent the insurer may be inferred.’”

Conflicts of LawIn GEICO v. Nichols,39 the issue was whether to applyNew York law or Florida law to resolve a dispute over theretroactive cancellation of a policy on the ground of mate-rial misrepresentation on the application for insurance.Florida law allows such retroactive cancellations, butNew York law does not. Because the policy at issue wasissued in Florida, to residents of Florida, covered vehiclesregistered in Florida, referenced and incorporated Floridalaw, and the only connection between the policy and NewYork was that the insured was driving the vehicle in NewYork at the time of the accident, the court applied Floridalaw and found it to be controlling under New York’s con-flict of law rules.

Statute of LimitationsIn Allcity Ins. Co. v. Cedena,40 the court explained that

[a] demand for arbitration of an uninsured motorist’sclaim is subject to the six-year Statute of Limitations,which runs from the date of the accident or from thetime when subsequent events render the offendingvehicle “uninsured.” . . . Where a claim is filed morethan six years after the accident date, therefore, theparty bringing said claim is “required to come forwardwith legally sufficient proof that a later accrual dateapplies.”

In Provenzano v. Ioffe,41 the court rejected the plaintiff’scontentions that his personal injury action against thetortfeasor was tolled, pursuant to CPLR 204(b), duringthe time period that he attempted to arbitrate a claim foruninsured motorist benefits against his insurer. In theview of the court CPLR 204(b) did not apply, because thedemand for arbitration did not concern a personal injuryclaim asserted in a common-law negligence action but,rather, the plaintiff’s contractual rights to uninsuredmotorist benefits under his insurance policy.

Thus, it is incumbent upon the claimant’s attorney toprotect against the statute of limitations by commencinga lawsuit against the tortfeasor within three years of thedate of the accident, even if the framed issue hearing isstill pending.42

Uninsured Motorist IssuesPrompt Written Notice of Denial or DisclaimerInsurance Law § 3420(d) requires liability insurers to“give written notice as soon as is reasonably possible of. . . disclaimer of liability or denial of coverage to theinsured and the injured person or any other claimant.”The statute applies when an accident occurs in the state ofNew York and the insurer will be estopped from dis-claiming liability or denying coverage if it fails to complywith this statute. The timeliness of an insurer’s disclaimeror denial is measured from the point in time when it firstlearns of the grounds for the disclaimer or denial.43

In Baust v. Travelers Indemnity Co.,44 the court reiterat-ed the rule that a disclaimer after the date of an accidentrelates back to the date of the accident and renders thevehicle uninsured at the time of the accident for the pur-poses of a UM/SUM claim.45

In 2833 Third Avenue Realty Assoc. v. Marcus,46 the courtheld that a delay of 37 days in issuing a disclaimer basedupon the insured’s failure to give timely notice of claimand failure to forward the summons and complaint, asrequired by the policy, was unreasonable as a matter oflaw because the grounds for the disclaimer were evidentfrom the face of the late notice of claim.

In Progressive Northeastern Ins. Co. v. Cirocco,47 a delayof “over 80 days” after receiving notice of the facts uponwhich the disclaimer was based was held to be unreason-

The arbitrator’s “unsupportedand conflicting conclusions,”

resulted in the denial of afair hearing.


able as a matter of law. The court further noted that theinsurer offered no explanation or excuse for waiting“more than 60 days” before commencing its investigationinto the facts that supported its exclusion from coverage.

In Mann v. Gulf Ins. Co.,48 the court held that an excessliability insurer’s delay of four months in disclaiming lia-bility after learning that the insured’s vice president andclaims manager has ascertained that brokers to whomnotice was allegedly sent were not the insurer’s agents,was unreasonable as a matter of law. In U.S. UnderwritersIns. Co. v. City Club Hotel,49 the court held that a four-to-five-month delay in investigating the terms of a lease wasunreasonable as a matter of law, particularly whereanother ground for disclaimer existed. And, in NewHampshire Ins. Co. v. Zurich Ins. Co.,50 a delay of either 111days or 58 days was held to be unreasonable as a matterof law.51

On the other hand, in New York Central Mutual Fire Ins.Co. v. Majid,52 the court held that a disclaimer issued 31days after the insurer’s completion of its investigationwas not unreasonably late. It was not unreasonable forthe insurer to investigate the claim and to consult withcounsel regarding the livery vehicle exclusion prior todisclaiming coverage based thereon.53

In New York State Ins. Fund v. Merchants Ins. Co. of NewHampshire,54 the court held that a 49-day delay in issuinga disclaimer based upon an exclusion for bodily injuriesto employees of the insured was not unreasonablebecause there was confusion as to the identity of theinjured party’s employer.55

The New York courts have repeatedly held that for thepurpose of determining whether a liability insurer has aduty to promptly disclaim in accordance with InsuranceLaw § 3420(d), a distinction must be made between(a) policies that contain no provisions extending coverageto the subject loss, and (b) policies that do contain provi-sions extending coverage to the subject loss, and thatwould thus cover the loss but for the existence, elsewherein the policy, of an exclusionary clause. It is only in theformer case that compliance with Insurance Law§ 3420(d) may be dispensed with.56

In Liberty Mutual Ins. Co. v. McDonald,57 the court heldthat

[w]here an insurer attempts to disclaim coverageunder a policy of liability insurance by invoking theterms of an exclusion, including an exclusion for non-permissive use, it must do so “as soon as is reasonablypossible” after learning of the grounds for disclaimer.However, where the nonpermissive use falls outsidethe policy’s coverage and the denial of the claim isbased upon lack of coverage, estoppel may not be usedto create coverage regardless of whether or not theinsurance company was timely in issuing its dis-claimer.58

In Ambrosio v. Newburgh Enlarged City School District,59

the court noted that the insured and an additionalinsured have independent duties to provide timely noticeof an occurrence to the insurer.

Where notice is provided directly by the injured party,the disclaimer must address with specificity the groundsfor disclaiming coverage applicable to both the injuredparty and the insured. However, where the insured is thefirst to notify the insurer, even if that notice is untimely,any subsequent information provided by the injuredparty is superfluous for notice purposes and need not beaddressed in the notice of disclaimer issued by the insur-er.60 In GEICO v. Jones,61 the court held that “in order fora disclaimer letter to be valid against an injured party, thenotice of disclaimer must specifically advise the claimantthat his or her notice of claim was untimely.” Thus, wherethe injured party provided notice to the insurer pursuantto Insurance Law § 3420(a)(3), but the disclaimer letterwas based solely upon the insured’s failure to timely noti-fy it of the accident, the disclaimer was held to beinvalid.62

In First Central Ins. Co. v. Malave,63 the court held thatbecause the claimant did not exercise his right pursuantto Insurance Law § 3420(a)(3) to provide independentnotice to the insurer, the disclaimer letter, which stateduntimely notice by the insured as the ground for dis-claimer without any reference to untimely notice by theclaimant, was proper.64

In New York State Ins. Fund v. Merchants Ins. Co. of NewHampshire, Inc.,65 the court held that

[i]n order to disclaim coverage on the ground of aninsured’s lack of cooperation, the carrier must demon-strate that (1) it acted diligently in seeking to bringabout the insured’s cooperation, (2) the effortsemployed by the carrier were reasonably calculated toobtain the insured’s cooperation, and (3) the attitude ofthe insured, after cooperation was sought, was one ofwillful and avowed obstruction.66

Moreover, inaction by the insured, by itself, will not justi-fy a disclaimer of coverage on the ground of lack of coop-eration.67

In Blue Ridge Ins. Co. v. Jiminez,68 the court noted that“[a] ‘reservation of rights’ letter does not constitute aneffective notice of disclaimer.”69

Florida law allows suchretroactive cancellations,

but New York law does not.


In Scappatura v. Allstate Ins. Co.,70 the court noted thatproperty damage claims do not fall within the ambit ofInsurance Law § 3420(d).

Cancellation of Coverage One category of an “uninsured” motor vehicle is wherethe policy of insurance for the vehicle had been canceledprior to the accident. Generally speaking, in order effec-tively to cancel an owner’s policy of liability insurance,an insurer must strictly comply with the detailed andcomplex statutes, rules, and regulations governingnotices of cancellation and termination of insurance,which differ depending upon whether, for example, thevehicle at issue is a livery or private passenger vehicle,and whether the policy was written under the AssignedRisk Plan or was paid for under a premium financingcontract.

A proper notice of cancellation must also adequatelyspecify the reasons for the cancellation. In Lumbermen’sMutual Casualty Co. v. Brooks,71 the reason for the cancel-lation stated on the notice was “Producer’s AccountClosed” and the insured was referred to Code No. 4,which stated, in pertinent part, “after the issuance of thepolicy . . . discovery of an act or omission, or a violationof any policy condition that substantially and materiallyincreases the hazards insured against, and whichoccurred subsequent to inception of the current policyperiod.” The court held that this notice was deficientbecause it did not specify the act or omission or violation.Moreover, the court held that the notice did not mentionthe real reason for the cancellation, which was that thepolicy had been procured by a brokerage that hadallegedly engaged in fraudulent policy procurementpractices – a ground that nevertheless would have beeninadequate as a basis to terminate the policy in theabsence of any demonstrable link between the assertedfraud and the procurement of the particular policy atissue.

In Badio v. Liberty Mutual Fire Ins. Co.,72 the court notedthat

[t]he insurer has the burden of proving the validity ofits timely cancellation of an insurance policy. An insur-er is entitled to a presumption that a cancellationnotice was received when “the proof exhibits an officepractice and procedure followed by the insurers in theregular course of their business, which shows that thenotices of cancellation have been duly addressed andmailed.” In order for the presumption of receipt toarise “office practice must be geared so as to ensure thelikelihood that a notice of cancellation is always prop-erly addressed and mailed.”73

In Badio, the court held that the insurer presented suf-ficient evidence of its office mailing practice through thetestimony of an employee who possessed personalknowledge of the office mailing practice, including howthe mail was picked up and counted and how the namesand addresses on each item were confirmed.

The court further noted that “[a]n insured’s denial ofreceipt, standing alone, is insufficient to rebut the pre-sumption,” and that “[i]n addition to a claim of noreceipt, there must be a showing that routine office prac-tice was not followed or was so careless that it would beunreasonable to assume that the notice was mailed.”

And, in York v. Allstate Indemnity Co.,74 the court specif-ically held that the insurer’s proof that it mailed a copyof the notice of cancellation to the address shown onthe insured’s signed application established that iteffectively canceled its policy, regardless of whether ornot the address on the policy was the correct address ofthe insured at the time the notice was mailed, because thecarrier was not notified that the address shown on thepolicy was incorrect.

In MetLife Auto & Home v. Agudelo,75 the court held thatVehicle & Traffic Law § 313(1)(a)

“supplants an insurance carrier’s common-law right tocancel a contract of insurance retroactively on thegrounds of fraud or misrepresentation, and mandatesthat the cancellation of a contract pursuant to its provi-sions may only be effected prospectively.” . . . This pro-vision “places the burden on the insurer to discoverany fraud before issuing the policy, or as soon as pos-sible thereafter, and protects innocent third partieswho may be injured due to the insured’s negli-gence.”76

In AIU Ins. Co. v. Marciante,77 the court held that “[a]supervening policy of liability insurance terminates aprior insurer’s obligation to indemnify irrespective of theprior insurer’s noncompliance with the notice require-ments of section 313 of the Vehicle & Traffic Law.”78


Stolen VehicleIn New York Central Mutual Fire Ins. Co. v. Dukes,79 the courtreiterated that Vehicle & Traffic Law § 388(1) creates a pre-sumption that the driver of a vehicle was using the vehi-cle with the owner’s express or implied permission, whichmay only be rebutted by substantial evidence sufficient toshow that the vehicle was not operated with the owner’sconsent. Evidence that a vehicle was stolen at the time ofthe accident will rebut the presumption of permissive use.

Moreover, the court held that the issue of whether thevehicle was stolen or being used without permission atthe time of the accident was within the scope of the orderof reference to the Judicial Hearing Officer to hear anddetermine the issue of “insurance coverage” insofar asthe petition affirmatively alleged that the vehicle ownedby its insured was stolen at the time of the accident, andthe petitioner raised no objection at the hearing to theadmission of evidence on the issue of permissive use.

An owner of a vehicle that is used without the owner’spermission may still be held liable if he or she violatedthe provisions of Vehicle & Traffic Law § 1210(a), the “keyin the ignition” statute.

In Merchants Ins. Group v. Haskins,80 the court appliedVehicle & Traffic Law § 1210(a) to hold the insurer of astolen vehicle responsible to cover the loss of a motoristinjured in an accident with the stolen vehicle where theevidence established that a permissive user of the vehicle(the vehicle owner’s friend) left the vehicle parked on apublic roadway with the keys on the dashboard, thus pre-cipitating the theft.

Hit-and-RunOne of the requirements for a valid uninsured motoristclaim based upon a hit-and-run is “physical contact”between an unidentified vehicle and the person or motorvehicle of the claimant.81

In Metropolitan Property & Casualty Co. v. Sands,82 thecourt noted that where the determination that there wasnot physical contact between the claimant’s vehicle andan alleged hit-and-run vehicle is supported by a fairinterpretation of the evidence adduced at the hearing,that determination should not be disturbed on appeal.83

Another requirement for a valid hit-and-run claim isthe filing of a statement under oath concerning the detailsof the claim. In Empire Ins. Co. v. Dorsainvil,84 the courtheld that the claimant’s failure to file a sworn statementunder oath providing details of a hit-and-run accidentconstituted a breach of a condition precedent to coverageand, therefore, vitiated coverage under the individualmotorist endorsement of the policy.

Insurer InsolvencyThe SUM endorsement under Regulation 35-D includeswithin the definition of an “uninsured” motor vehicle avehicle whose insurer “is or becomes insolvent.”

In Eagle Ins. Co. v. Hamilton,85 the court held that wherean insured policyholder is entitled to UM coverage, asopposed to SUM coverage, from his or her own insurer,and the alleged tortfeasor’s insurer has paid into the NewYork Public Motor Vehicle Liability Security Fund(known as the PMV Fund), but has been declared insol-vent after the underlying accident, the injured policy-holder’s recourse is not against his or her own insurer forUM coverage but against the PMV Fund. The court thendiscussed the question of what is to occur if the

Superintendent of Insurance, as administrator of thePMV Fund, denies the claimant recovery from the fund.Specifically, the court inquired whether this would be adenial of coverage within the meaning of Insurance Law§ 3420(f)(1), thereby triggering the claimant’s right to UMcoverage from his own insurer. Insofar as the only evi-dence in the record on the issue of whether the superin-tendent was denying the claim was a letter from thesuperintendent stating that coverage from the PMV Fundwas being denied “at this time” due to “financial strain,”the court referred the question of whether the denial ofrecovery from the PMV Fund is a denial of coverage, tothe supreme court for determination at a hearing, atwhich the superintendent would be joined as a party.

This decision was rendered after granting the superin-tendent’s motion to reargue or clarify the court’s priororder, rendered in February 2004.86

In Metropolitan Property & Casualty Ins. Co. v.Carpentier,87 the court reiterated that where the insuredpurchased SUM coverage, as opposed to merely compul-sory UM coverage, “the insured is entitled to seek suchbenefits under the insolvency of the alleged tortfeasor’sinsurer and need not proceed against the PMV Fund.”88

In Pomerico v. ELRAC Inc.,89 the court held that oncethe tortfeasor’s insurer became insolvent, the tortfeasorbecame an uninsured person for purposes of InsuranceLaw § 5208 and, thus, the injured party was entitled tocompel the Motor Vehicle Accident IndemnificationCorp. (MVAIC) to represent the tortfeasor.

Underinsured Motorist IssuesTrigger of CoverageIn Russell v. New York Central Mutual Fire Ins. Co.,90 thecourt held that “[a]n insurer’s duty to pay SUM benefits

The insurer has the burdenof proving the validity of

its timely cancellation of aninsurance policy.


vehicle prior to pursuing a claim for underinsuredmotorist benefits. ■

1. This section continues the discussion of “General Issues” from Part I in theMay 2005 issue of the Journal.

2. 11 A.D.3d 668, 783 N.Y.S.2d 404 (2d Dep’t 2004).

3. 3 Misc. 3d 634, 777 N.Y.S.2d 251 (Sup Ct., Richmond Co. 2004).

4. 13 A.D.3d 594, 786 N.Y.S.2d 341 (2d Dep’t 2004).

5. 13 A.D.3d 405, 785 N.Y.S.2d 707 (2d Dep’t 2004).

6. Ins. Law § 5102(d).

7. State Farm Mut. Auto. Ins. Co. v. Kankam, 3 A.D.3d 418, 770 N.Y.S.2d 714 (1stDep’t 2004).

8. 5 A.D.3d 476, 772 N.Y.S.2d 588 (2d Dep’t 2004).

9. See In re Steck, 89 N.Y.2d 1082, 1084, 659 N.Y.S.2d 839 (1996).

10. 5 A.D.3d 277, 774 N.Y.S.2d 679 (1st Dep’t 2004).

11. 4 Misc. 3d 1012A, 791 N.Y.S.2d 874 (Sup. Ct., Bronx Co. 2004).

12. 4 A.D.3d 422, 771 N.Y.S.2d 378 (2d Dep’t 2004).

13. 7 A.D.3d 717, 776 N.Y.S.2d 829 (2d Dep’t 2004).

14. 8 A.D.3d 390, 777 N.Y.S.2d 652 (2d Dep’t 2004).

15. 6 Misc. 3d 1035A, 2004 N.Y. Misc. LEXIS 3027 (Sup. Ct., Queens Co. 2004).

16. 6 A.D.3d 441, 776 N.Y.S.2d 291 (2d Dep’t 2004).

17. See N. Dachs & J. Dachs, Tricks of the Trade: Let the ‘Trickster’ and ‘Trickee’Beware, N.Y.L.J., May 11, 2004, p. 3, col. 1.

18. See Liberty Mut. Ins. Co. v. Morgan, 11 A.D.3d 615, 782 N.Y.S.2d 662 (2dDep’t 2004); AIU Ins. Co. v. Marciante, 8 A.D.3d 266, 778 N.Y.S.2d 55 (2d Dep’t2004); N.Y. Cent. Mut. v. Coriolan, 5 A.D.3d 493, 772 N.Y.S.2d 827 (2d Dep’t2004).

19. 11 A.D.3d 463, 783 N.Y.S.2d 379 (2d Dep’t 2004).

20. 7 A.D.3d 629, 775 N.Y.S.2d 890 (2d Dep’t 2004).

21. 11 A.D.3d 615.

22. 8 A.D.3d 266, 778 N.Y.S.2d 55 (2d Dep’t 2004).

23. 5 A.D.3d 493.

24. 12 A.D.3d 1142, 784 N.Y.S.2d 410 (4th Dep’t 2004).

25. 8 A.D.3d 582, 778 N.Y.S.2d 713 (2d Dep’t 2004).

26. See Commerce & Indus. Ins. Co. v. Nester, 230 A.D.2d 795 (2d Dep’t 1996),aff’d, 90 N.Y.2d 255, 660 N.Y.S.2d 366 (1997); see also One Beacon Ins. Co. v. Bloch,298 A.D.2d 522, 748 N.Y.S.2d 783 (2d Dep’t 2002).

27. 13 A.D.3d 588, 789 N.Y.S.2d 160 (2d Dep’t 2004).

28. 9 A.D.3d 429, 781 N.Y.S.2d 41 (2d Dep’t 2004).

29. Nationwide Ins. Co. v. McDonnell, 272 A.D.2d 547, 548, 708 N.Y.S.2d 146 (2dDep’t 2000).

30. 5 A.D.3d 684, 774 N.Y.S.2d 758 (2d Dep’t 2004).

31. N.Y.L.J., Mar. 23, 2004, p. 20, col. 5 (Sup. Ct., Nassau Co. 2004).

32. N.Y.L.J., Mar. 5, 2004, p. 20, col. 1 (Sup. Ct., Nassau Co. 2004) (citationsomitted).

33. 5 A.D.3d 776, 773 N.Y.S.2d 608 (2d Dep’t 2004).

34. 9 A.D.3d 431, 779 N.Y.S.2d 788 (2d Dep’t 2004).

35. 5 A.D.3d 762, 774 N.Y.S.2d 565 (2d Dep’t 2004).

36. 6 A.D.3d 961, 774 N.Y.S.2d 849 (3d Dep’t 2004).

37. Id. at 962 (citing Santiago v. 1370 Broadway Assoc., 96 N.Y.2d 765, 766, 725N.Y.S.2d 599 (2001)).

38. 8 A.D.3d 253, 777 N.Y.S.2d 323 (2d Dep’t 2004).

39. 8 A.D.3d 564, 780 N.Y.S.2d 19 (2d Dep’t 2004).

40. 6 Misc. 3d 1007A (Sup. Ct., Kings Co. 2004).

41. 12 A.D.3d 353, 784 N.Y.S.2d 138 (2d Dep’t 2004).

does not arise until the insured demonstrates that the lim-its of his or her bodily injury coverage exceeds the samecoverage in the tortfeasor’s policy.”

In Rodriguez v. Metropolitan Property & Casualty Ins.Co.,91 the court held that where the claimants failed toprovide the documentation to establish that their bodilyinjury coverage exceeded the policy limits available to thetortfeasor, their action to recover SUM benefits was prop-erly dismissed.

Consent to SettleThe Regulation 35-D SUM endorsement requires that theclaimant obtain consent to any settlement with the tort-feasor(s) as a condition precedent to an underinsuredmotorist claim.

In State Farm Mutual Auto. Ins. Co. v. Lucano,92 the courtrejected the claimant’s contention that her belated verifi-cation that no excess insurance was available excused herfailure to obtain the petitioner’s consent to her settlementof the underlying action and execution of a generalrelease because that fact did not obviate the prejudice tothe petitioner’s subrogation rights since the tortfeasorswere not judgment-proof.

Exhaustion of Underlying LimitsBy statute and by the terms of the applicable SUMendorsement, no obligation exists under an underinsuredmotorist policy unless and until the underlying limits ofthe tortfeasor’s insurance coverage have been exhaustedby the payment of judgments or settlements.

In Russell v. New York Central Mutual Fire Ins. Co.,93 thecourt held that a valid underinsured motorist claim doesnot arise until the limits of all available bodily injury lia-bility bonds or policies have been exhausted by paymentof judgments or settlements.

In Webb v. Lumberman’s Mutual Casualty Co., the courtreminded that the underinsured motorist scheme“requires primary insurers to pay every last dollar andrequires plaintiffs to accept no less, prior to the initiationof an underinsurance claim.”94 In that case, the courtfound that the dismissal of the underlying personalinjury action against the tortfeasor on the ground thatthere was no causal connection between the defendant’snegligence and the claimant’s alleged injuries precludedsuch exhaustion and, therefore, eliminated the claimant’sentitlement to SUM benefits.

In Liberty Mutual Ins. Co. v. Doherty,95 the court heldthat the underinsured motorist benefits provision of thepolicy was triggered when the claimant exhausted,through a settlement, the bodily injury liability policylimits under the policy of the offending vehicle, whichwas less than the liability coverage provided under theSUM policy. The court further held that the claimant wasnot also required to exhaust the liability coverage limitsunder a separate policy for the operator of the offending


42. See Mitchell S. Lustig & Jill Lakin Schatz, Representing the SUM Claimant:Beware the Statute of Limitations, N.Y.L.J., Dec. 6, 2004, p. 4, col. 4.

43. See Moore v. Ewing, 9 A.D.3d 484, 781 N.Y.S.2d 51 (2d Dep’t 2004); 79thRealty Co. v. Wausau Ins. Co., 7 A.D.3d 507, 776 N.Y.S.2d 96 (2d Dep’t 2004);Alvarez v. Allstate Ins. Co., 5 A.D.3d 270, 773 N.Y.S.2d 298 (1st Dep’t 2004); N.Y.Cent. Mut. Fire Ins. Co. v. Majid, 5 A.D.3d 447, 773 N.Y.S.2d 429 (2d Dep’t 2004).

44. 13 A.D.3d 788, 786 N.Y.S.2d 604 (3d Dep’t 2004).

45. Id. See In re Vanguard Ins. Co. (Polchlopek), 18 N.Y.2d 376, 275 N.Y.S.2d 515(1966). Note: The Baust decision contains the puzzling statement that the SUMinsurer “could have protected itself from recovery of benefits in this situationby ‘exclud[ing] from the definition of an uninsured auto those autos uponwhich a disclaimer of coverage is made subsequent to an accident.’” The basisand validity of this statement is unclear given the existence of the standard,mandatory SUM endorsement of Regulation 35-D.

46. 12 A.D.3d 329, 784 N.Y.S.2d 863 (1st Dep’t 2004).

47. 4 A.D.3d 530, 771 N.Y.S.2d 717 (2d Dep’t 2004).

48. 3 A.D.3d 554, 771 N.Y.S.2d 176 (2d Dep’t 2004).

49. 369 F.3d 102 (2d Cir. 2004).

50. N.Y.L.J., July 27, 2004, p. 19, col. 3 (Sup. Ct., Nassau Co. 2004).

51. See also Heegan v. United Int’l Ins. Co., 2 A.D.3d 403, 767 N.Y.S.2d 861 (2dDep’t 2003) (no excuse by insurer for failing promptly to commence investiga-tion); Martin v. Safeco Ins. Co. of Am., 1 Misc. 3d 912A, 781 N.Y.S.2d 625 (Sup. Ct.,N.Y. Co. 2004) (disclaimer untimely where insurer waited 47 days before com-mencing investigation and an additional 21 days before issuing disclaimer).

52. 5 A.D.3d 447, 773 N.Y.S.2d 429 (2d Dep’t 2004).

53. See also Lake Carmel Fire Dep’t, Inc. v. Utica First Ins. Co., 2 Misc. 3d 1004A,784 N.Y.S.2d 921 (Sup. Ct., Queens Co.) (“It is perfectly reasonable that theinsurer verify the surrounding facts so that, if it chooses to disclaim, it does soon the basis of concrete evidence”).

54. 5 A.D.3d 449, 773 N.Y.S.2d 431 (2d Dep’t 2004).

55. See also Blue Ridge Ins. Co. v. Jiminez, 7 A.D.3d 652, 777 N.Y.S.2d 204 (2dDep’t 2004) (27-day delay was reasonable as a matter of law); Pub. Serv. Mut.Ins. Co. v. Harlen Hous. Assoc., 7 A.D.3d 421, 777 N.Y.S.2d 438 (1st Dep’t 2004)(27- or 37-day delay was not unreasonable).

56. See Greenidge v. Allstate Ins. Co., 312 F. Supp. 2d 430 (S.D.N.Y. 2004); Atl.Mut. Cos. v. Ceserano, 5 A.D.3d 382, 773 N.Y.S.2d 80 (2d Dep’t 2004) (no duty todisclaim where “coverage did not exist under the terms of the policy in the firstinstance”); Nat’l Union Fire Ins. Co. v. Utica First Ins. Co., 6 A.D.3d 681, 775N.Y.S.2d 175 (2d Dep’t 2004) (“Disclaimer pursuant to section 3420(d) is unnec-essary when a claim falls outside the scope of the policy’s coverage portion.Under such circumstances, the insurance policy does not contemplate coveragein the first instance, and requiring payment of a claim upon failure to timelydisclaim would create coverage where it never existed.”); see also N.H. Ins. Co.v. Zurich Ins. Co., N.Y.L.J., July 27, 2004, p. 19, col. 3 (Sup. Ct., Nassau Co. 2004).

57. 6 A.D.3d 614, 775 N.Y.S.2d 83 (2d Dep’t 2004) (citations omitted).

58. Id. at 615 (citations omitted).

59. 5 A.D.3d 410, 774 N.Y.S.2d 153 (2d Dep’t 2004).

60. See Hereford Ins. Co. v. Mohammod, 7 A.D.3d 490, 776 N.Y.S.2d 87 (2d Dep’t2004).

61. 6 A.D.3d 534, 774 N.Y.S.2d 435 (2d Dep’t 2004).

62. See also Halali v. Evanston Ins. Co., 8 A.D.3d 431, 779 N.Y.S.2d 119 (2d Dep’t2004).

63. 3 A.D.3d 494, 771 N.Y.S.2d 141 (2d Dep’t 2004).

64. See also Viggiano v. Encompass Ins. Co., 6 A.D.3d 695, 775 N.Y.S.2d 533 (2dDep’t 2004); Mitchell S. Lustig & Jill Lakin Schatz, Disclaimers of Coverage forLate Notice, N.Y.L.J., June 7, 2004, p. 1, col. 1.

65. 5 A.D.3d 449, 773 N.Y.S.2d 431 (2d Dep’t 2004).

66. Id. at 450 (citing Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159,168–69, 278 N.Y.S.2d 793 (1967)).

67. See Pawtucket Mut. Ins. Co. v. Soler, 184 A.D.2d 498, 499, 584 N.Y.S.2d 192(2d Dep’t 1992); see also Baust v. Travelers Indem. Co., 13 A.D.3d 788, 786 N.Y.S.2d604 (3d Dep’t 2004) (defendant failed to meet “heavy” burden of providing

willful and avowed obstruction on the part of plaintiff as a matter of law whereplaintiff allegedly refused to attend numerous IMEs); N.Y. Cent. Mut. Fire Ins.Co. v. Bresil, 7 A.D.3d 716, 777 N.Y.S.2d 174 (2d Dep’t 2004) (refusal to answerquestions and referral to attorney do not reflect attitude of willful and avowedobstruction); Blinco v. Preferred Mut. Ins. Co., 11 A.D.3d 924, 782 N.Y.S.2d 483(4th Dep’t 2004); Warnock v. Blue Ridge Ins. Co., 6 A.D.3d 697, 775 N.Y.S.2d 158(2d Dep’t 2004); MetLife Auto & Home v. Burgos, 4 A.D.3d 477, 772 N.Y.S.2d 357(2d Dep’t 2004); see also N. Dachs & J. Dachs, Thrasher Threshold Thriving,N.Y.L.J., Mar. 15, 2005, p. 3, col. 1.

68. 7 A.D.3d 652, 777 N.Y.S.2d 204 (2d Dep’t 2004).

69. See Hartford Ins. Co. v. County of Nassau, 46 N.Y.2d 1028, 416 N.Y.S.2d 539(1979); Haslauer v. N. Country Adirondack Coop. Ins. Co., 237 A.D.2d 673, 654N.Y.S.2d 477 (3d Dep’t 1997); Aetna Cas. & Sur. Co. v. Rosen, 205 A.D.2d 684, 613N.Y.S.2d 664 (2d Dep’t 1994).

70. 6 A.D.3d 692, 775 N.Y.S.2d 162 (2d Dep’t 2004).

71. 13 A.D.3d 198, 786 N.Y.S.2d 482 (1st Dep’t 2004).

72. 12 A.D.3d 229, 785 N.Y.S.2d 52 (1st Dep’t 2004).

73. Id. (quoting Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829, 414 N.Y.S.2d 117(1978)).

74. 8 A.D.3d 663, 780 N.Y.S.2d 357 (2d Dep’t 2004).

75. 8 A.D.3d 571, 780 N.Y.S.2d 21 (2d Dep’t 2004).

76. See also Am. Home Assurance Co. v. Manzo, 12 A.D.3d 369, 783 N.Y.S.2d 304(2d Dep’t 2004).

77. 8 A.D.3d 266, 778 N.Y.S.2d 55 (2d Dep’t 2004).

78. Id. at 267 (citing Employers Commercial Union Ins. Co. v. Firemen’s Fund Ins.Co., 45 N.Y.2d 608, 611 (1978); Kaplan v. Travelers Ins. Co., 205 A.D.2d 501, 503,612 N.Y.S.2d 658 (2d Dep’t 1994)).

79. 14 A.D.3d 704, 789 N.Y.S.2d 267 (2d Dep’t 2005).

80. 11 A.D.3d 694, 783 N.Y.S.2d 400 (2d Dep’t 2004).

81. See Utica Mut. Ins. Co. v. Leconte, 3 A.D.3d 534, 770 N.Y.S.2d 750 (2d Dep’t2004).

82. 5 A.D.3d 601, 772 N.Y.S.2d 850 (2d Dep’t 2004).

83. See also Merch. Mut. Ins. Group v. Idore, 10 A.D.3d 613, 781 N.Y.S.2d 674 (2dDep’t 2004).

84. 5 A.D.3d 480, 772 N.Y.S.2d 565 (2d Dep’t 2004).

85. __ A.D.3d __, 791 N.Y.S.2d 605, 2005 N.Y. App. Div. LEXIS 2630 (2d Dep’t2005); see also Agway Ins. Co. v. De Leon, 5 Misc. 3d 1018A (Sup. Ct., Queens Co.2004).

86. 4 A.D.3d 355, 773 N.Y.S.2d 68 (2d Dep’t 2004).

87. 7 A.D.3d 627, 777 N.Y.S.2d 146 (2d Dep’t 2004).

88. See Am. Mfrs. Mut. Ins. Co. v. Morgan, 296 A.D.2d 491, 746 N.Y.S.2d 726 (2dDep’t 2002); Allcity Ins. Co. v. Cedena, 6 Misc. 3d 1007A (Sup. Ct., Kings Co.2004).

89. 1 Misc. 3d 908A, 781 N.Y.S.2d 627 (Civ. Ct., Queens Co. 2004).

90. 11 A.D.3d 668, 783 N.Y.S.2d 404 (2d Dep’t 2004).

91. 7 A.D.3d 775, 776 N.Y.S.2d 868 (2d Dep’t 2004).

92. 11 A.D.3d 548, 783 N.Y.S.2d 618 (2d Dep’t 2004).

93. 11 A.D.3d 668.

94. __ F. Supp. 2d __, 2004 U.S. Dist. LEXIS 12942 (W.D.N.Y. July 2, 2004); Fed.Ins. Co. v. Watnick, 80 N.Y.2d 539, 546, 592 N.Y.S.2d 624 (1992).

95. 13 A.D.3d 629, 789 N.Y.S.2d 55 (2d Dep't 2004).


Aparent is disqualified from inheriting as a distrib-utee of the estate of a deceased child when theparent has failed to support or has abandoned the

child, according to the current provisions of section 4-1.4of New York’s Estates, Powers and Trusts Law (EPTL).1The statute is silent, however, where a parent is found tohave permanently neglected or abused a child. Indeed,while such circumstances may result in criminal prosecu-tion or the termination of parental rights pursuant toSocial Services Law § 384-b,2 they have no impact uponthe post-mortem right of a parent to inherit as a distribu-tee of a child’s estate.

The matter is undoubtedly one of legislative oversightrather than intent, and requires rectification. Given thegrowing number of reported cases of abuse, childrentoday are in need of every additional protection the lawcan provide.

Toward this end, in 2002, the Executive Committee ofthe Trusts and Estates Law Section of the New York StateBar Association voted in support of a proposed amend-ment to EPTL 4-1.4(a) to include a finding of abuse pur-suant to Social Services Law § 384-b as a separate and dis-tinct ground for disqualification of a parent as an intestatedistributee of a child’s estate. Upon consideration of thisproposal, the New York State Bar Association’s House ofDelegates expanded its terms to encompass any of theinstances where parental rights are terminated pursuantto § 384-b of the Social Services Law. That proposal,which was passed by the New York State Senate (2005Sen. Bill #43), and is now before the New York StateAssembly reads as follows:

Section 1. Section 4-1.4 of the estates, powers and trustlaw is REPEALED and a new section 4-1.4 is added toread as follows:

Section 4-1.4. Disqualification of parent to take intes-tate share.

(a) No distributive share in the estate of a deceasedchild shall be allowed to a parent if a parent, whilesuch child is under the age of twenty-one years:

(1) has failed or refused to provide for the child or hasabandoned such child, whether or not such child diesbefore having attained the age of twenty-one years,unless the parental relationship and duties are subse-quently resumed and continue until the death of thechild; or

(2) has been the subject of a proceeding pursuant toSection 384-b of the Social Services Law which:

(A) resulted in an order terminating parental rights, or

(B) resulted in an order suspending judgment, inwhich event the Surrogate’s Court may make a deter-

ProposedAmendment toEPTL 4-1.4 Expand Grounds forParental Disqualification

By Ilene S. Cooper and Staci A. Graber

ILENE SHERWYN COOPER <[email protected]> is a partner with thefirm of Farrell Fritz, P.C., located in Uniondale, New York, where she con-centrates in the field of trusts and estates. She is a graduate of HofstraLaw School.

STACI A. GRABER <[email protected]> is an associate with thefirm of Schram & Carew, P.C., located in New York, New York, where sheconcentrates in the field of trusts and estates. She is a graduate ofBrooklyn Law School.


mination disqualifying the parent on the groundsadjudicated by the Family Court, if the Surrogate’sCourt finds, by a preponderance of the evidence, thatthe parent, during the period of suspension, failed tocomply with the Family Court order to restore the par-ent-child relationship.

(b) Subject to the provisions of subdivision eight oftwo hundred thirteen of the civil practice law andrules, the provisions of subdivision (a)(1) of this sec-tion shall not apply to a biological parent who placesthe child for adoption based upon (1) a fraudulentpromise, not kept, to arrange for and complete theadoption of such child, or (2) other fraud or deceit bythe person or agency where before the death of thechild, the person or agency fails to arrange for theadoptive placement or petition for the adoption of thechild, and fails to comply timely with conditionsimposed by the court for the adoption to proceed.

(c) In the event that a parent or spouse is disqualifiedfrom taking a distributive share in the estate of a dece-dent under this section of 5-1.2, the estate of such dece-dent shall be distributed in accordance with 4-1.1 asthough such spouse or parent had predeceased thedecedent.

Historical PerspectiveThe concept of disqualification originated in 1929 pur-suant to § 87 of the Decedent’s Estate Law (DEL), and ini-tially affected only a spouse’s right to inherit. Thereafter,the statute was amended several times, resulting in theaddition of subdivision (e), which enumerated not onlygrounds for the disqualification of a spouse, but also theforfeiture of a parent to share in the estate of his or herchild. Subdivision (e) provided, in part, that no distribu-tive share in the estate of a child would be allowed to aparent who has neglected or refused to provide for thechild during infancy or who has abandoned the childduring infancy. The intent of the amendment wastwofold: to deprive a parent of a distributive share, and toprevent a parent from profiting from his or her ownwrong, according to the 1889 decision in Riggs v. Palmer.3In such cases, disqualification resulted in the distributionof the child’s estate as though the parent predeceased thechild.

No definitions were provided in DEL § 87 for theterms “neglect” or “abandonment.” The terms were,however, defined in DEL § 133(4)(c), currently EPTL 5-4.4,as a “voluntary breach or neglect of duty to care for andtrain the child and a duty to supervise and guide hisgrowth and development.”4 Early cases further interpret-ed abandonment to include “neglect and refusal to per-form natural and legal obligations to care and support,withholding his presence, his care, opportunity to displayvoluntary affection, and neglect to lend support andmaintenance.”5 Under both DEL §§ 87 and 133, neglect,

refusal to support, and abandonment are separate anddistinct grounds for disqualification. Although the sepa-rate ground of neglect was omitted from the recodifica-tion of DEL § 87 to EPTL 4-1.4, decisions continue to findneglect a ground for disqualification under EPTL 4-1.4(a),relying upon public policy and the principles establishedin Riggs.6

In Riggs, a beneficiary under a will was convicted ofmurdering the testator so that he could accelerate the dis-tribution of the estate for his benefit. At the time of thedecision, no specific statute was in place to provide guid-ance to the court regarding disqualification; only generallaws of devolution of property existed. Notwithstandingthe lack of statutory specificity, the court held that “itcould not have been the intention of the legislature in thegeneral laws passed for the devolution of property bywill or descent, that they should operate in favor of onewho murdered his ancestor in order to come into posses-sion of his estate.” The court was not concerned with thegeneral language contained in the existing laws butrather with public policy.7

Since the opinion in Riggs, courts have created a dis-tinction between those persons who act with intent tocause harm and those who commit acts that are acciden-tal, involuntary, or performed in self-defense. The ratio-nale for these decisions is that one who acts under the lat-ter circumstances does not do so with the requisite intentto cause harm to another.8 The same result arises where adefendant-beneficiary is determined to be incompetent orinsane. Such person is not considered to act with theintent to profit from a legal wrong, and thus, the princi-ples of Riggs are inapplicable.

Nevertheless, the basis for disqualification has beenextended to include those persons who act with recklessdisregard for the life of another. For example, in In reWells,9 the defendant-beneficiary was convicted ofmanslaughter in the second degree, a non-intentionalfelony. The court found that the defendant was not enti-tled to share in the decedent’s estate, concluding thatwhile the crime was not considered an intentional felony,it involved a “reckless and conscious disregard for the lifeof another.”10 Section 15.05(3) of the New York PenalCode defines recklessness as conduct by a person who “isaware of and consciously disregards a substantial andunjustifiable risk that a result will occur and that such cir-

In Riggs, a beneficiary under awill was convicted of murdering

the testator so that he couldaccelerate the distribution of the

estate for his benefit.


cumstance exists.” Because the defendant in Wells wasconsciously aware of the risk and possible result of heractions, her conviction of second-degree manslaughterbarred her from inheriting from the decedent’s estatedespite the lack of intent.11

In a similar case, In re Estate of Grant,12 a man was con-victed of second-degree manslaughter in the death of hiswife and was barred from receiving both his distributiveshare in his wife’s estate and the proceeds of a life insur-ance policy on her life. The court explained that althoughthe second-degree manslaughter conviction did not auto-matically bar inheritance because it is not an intentionalcrime, public policy dictates that the principle of disqual-ification be applied to prohibit a beneficiary from profit-ing from such reckless conduct which caused another’sdeath.

It is clear that the trend in case law sustains the settledprinciple that prohibits one from profiting from wrongfulconduct, whether intentional or reckless, at the expense ofan innocent victim’s estate, and, perhaps more importantin this context, expands the application of this rule whenthe interests of justice and public policy so require.

To this extent, both statute and evolving judicial prece-dent support the conclusion that a parent whose parentalrights are terminated on the grounds of permanent neg-lect or abuse of a child should be disqualified as a distrib-utee of the child’s estate on the grounds that such conductevinces a reckless disregard for the child’s life.13

Disqualification should apply as equally to the parentwho actually abuses or neglects a child as to the parentwho remains idle and allows the abuse and neglect tooccur. Both parents have a duty to care for and protecttheir child; both have intentionally or recklessly failed tofulfill that role.

A number of cases speak to this issue. For example, inIn re Shane T.,14 the Commissioner of Social Services fileda petition against the natural parents of Shane T., whowas 14, seeking an adjudication that the boy was anabused child. The child was continually called “fag,”“faggot,” and “queer” by his father both at home and inpublic, and his mother ignored the boy’s pleas to inter-vene. The continual humiliations and accusations causedthe child considerable stomach pain and other physicaland emotional illnesses that would likely require years ofpsychiatric care.

In the decision, the court referenced the Family CourtAct’s definition of abuse, which states that an abusedchild is one

less than eighteen years of age whose parent or per-sons legally responsible for his care inflicts or allows tobe inflicted upon such child physical injury by otherthan accidental means which causes or creates sub-stantial risk of death, or . . . protracted impairment ofphysical or emotional health or protracted loss orimpairment of the function of any bodily organ.15

The court opined that there is no specific requirementof the use of force in the definition of an abused child andthat it is the actual or potential impact on the child asopposed to the per se seriousness of the injury that formsthe predicate for abuse. In view of the purpose of theFamily Court Act to protect children from injury or mis-treatment, physically, mentally, and emotionally, thecourt terminated the father’s parental rights.Significantly, the court terminated the mother’s parentalrights as well due to a failure on her part to protect herson from the abuse of his father.16

In Mark G. ex rel. Jones v. Sabol,17 the court disqualifiedboth parents from inheriting from the child’s estate, albeitthe father and not the mother was found guilty ofmanslaughter in the child’s death. As to the mother, the

court concluded that she had “contributed significantlyto the child’s death” in that she had previously inflictedphysical abuse upon him during his lifetime and hadstood by and took no affirmative steps to protect her childfrom the abusive conduct of his father that resulted in hisdeath. The result was largely influenced by the court’ssense of morality, as it held: “While the instant situationmay not be exactly what the drafters [of EPTL 4-1.4] hadin mind, it clearly fits within the ambit of the statute inwording and in spirit . . . as a matter of case and statuto-ry law, morality and common sense.”18

The proposed EPTL statute formally legislates theforegoing views by accommodating statutory and judi-cial precedent supporting disqualification on the groundsof intentional or reckless conduct, as well as moral andpublic sentiment to ensure the well-being of society’schildren. Additionally, it preserves the constitutional con-cerns of due process by relying upon the procedural safe-guards requisite to a termination of parental rights pur-suant to Social Services Law § 384-b.

Termination of Parental RightsOnce a child is placed in foster care after complaints ofabuse or neglect are brought before the court,19 an author-ized agency, such as the Administration for Children’sServices (ACS) or the Department of Social Services(DSS), will evaluate the home situation and make a rec-

A parent whose parental rights are terminated should bedisqualified as a distributee of the child’s estate.


ommendation to the court as to necessary steps to betaken by the parent to strengthen the parental relation-ship. The agency will recommend the specific require-ments of the parent in order to regain custody of thechild. Additionally, the parent is required to partake inone or more of the following, among others: parentingskill sessions, domestic violence classes, and substanceabuse classes. Section 384-b requires that a parent begiven a minimum of one year to comply before it can bedetermined that the parent has failed to comply with thecourt’s requirements to plan for the child’s future andsafe return to the home.

If the detrimental circumstances have gone un-changed, to the extent that it would not be in the bestinterests of the child to return to the parent, a petition,which specifically states the agency’s recommendationsand the diligent efforts made to cure the household con-ditions, is filed with the family court, which begins theproceeding for the commitment of the guardianship andcustody of the child.

Once the parent is served with a summons, an attor-ney may be assigned for those parents who cannot affordprivate counsel. A fact-finding hearing then takes place todetermine whether the allegations made in the petitionare supported by clear and convincing evidence.

Once the cause of action is established, the lawrequires that there be a dispositional hearing, at whichtermination is based upon abuse or permanent neglect. Adispositional hearing is not required, but may be had, inthe case of termination based upon abandonment or men-tal illness or retardation.20 Generally, in the latter circum-stances, once a cause of action for termination is estab-lished, the child is freed for adoption. The quantum ofproof at the dispositional hearing is clear and convincingevidence.

At the conclusion of the dispositional hearing, thecourt may dismiss the petition if the allegations are notestablished; enter a suspended judgment21 for a period ofno more than one year, unless exceptional circumstancesare found; or commit the guardianship and custody of thechild, which terminates the parents’ rights and frees thechild for adoption.

In the event that a suspended judgment is entered, theparent must take steps as directed by the court to reestab-lish the parent-child relationship. At the conclusion of itsterms, however, the judgment is not self-executing, andsteps must be taken by the agency to either extend thejudgment or move to have it “violated.”22 If the agencyfails to do anything, the proceeding is dismissed and theagency must institute a new proceeding for terminationof parental rights. If the agency acts, it, and not the par-ent, must establish by a preponderance of the evidencethat the parent failed to comply with the requirements ofthe suspended judgment.23 If the agency succeeds in its

proof, termination of parental rights, as previously adju-dicated, will be effected.

A Case for Amending EPTL 4-1.4Disqualification of a parent whose parental rights havebeen terminated is supported by case law and public pol-icy. Indeed, in a parent-child relationship the argumentfor disqualification is stronger than that in the spousalrelationship given the duty of the parent to care for andprotect the child, and the likelihood of serious harm ordeath to a child who is victimized and lacks the where-withal to leave home or seek help. The proposed amend-ment to EPTL 4-1.4 would serve as a deterrent to parentalconduct that endangers the welfare of a child.

As a general rule, the family court would adjudicatethe issue of abuse, to which the surrogate’s court woulddefer as being the court with the greater expertise tomake such findings. This would guarantee that no undueburdens would be placed on the surrogate’s court tomake these determinations on its own.

Where a finding is made to commit the guardianshipand custody of a child and to free the child for adoption,disqualification, under the proposed amendment, wouldautomatically occur. In those cases where a child diesduring a period of suspended judgment, the proposedamendment provides that the surrogate’s court concludethe proceeding and render a determination based on therecord developed by the family court and any additionalevidence – such as the number of parental attempts dur-ing the period to fulfill the conditions of the family courtorder – needed to render a just decision limited solely tothe issue of whether a parent should be disqualified onthe grounds of abuse.

Today, with cases of child abuse and neglect frequent-ly in the news, we recoil at the thought of innocent chil-dren suffering, either physically or emotionally, at thehands of a friend, family member or, worse, a parent.Despite offering no tolerance for such abuse, New Yorklaw inexplicably stops short of providing safeguardspost-mortem. The proposed amendment would remedythis situation by providing a framework by which a courtmay disqualify a parent whose parental rights are termi-nated. Unfortunately, until this promising legislation ispassed, such parents may continue to inherit from theirchild's estate. ■

1. EPTL 4-1.4(a) provides, in pertinent part, that “[n]o distributive share inthe estate of a deceased child shall be allowed to a parent who has failed orrefused to provide for, or has abandoned such child while such child is under

Disqualification shouldapply equally to the parent

who remains idle and allowsthe abuse and neglect to occur.


the age of twenty-one years, . . . unless the parental relationship and duties aresubsequently resumed and continue until the death of the child.”

2. Social Services Law § 384-b authorizes termination of parental rights basedupon a finding of abandonment, permanent neglect, parental mental illness orretardation, and severe or repeated abuse. Although the proposed amendmentto EPTL 4-1.4(a), as passed by the House of Delegates and New York StateSenate (see infra), would require disqualification whenever parental rights areterminated pursuant to Social Services Law § 384-b, it had its genesis with caselaw regarding forfeiture and the notion that one may not profit from intention-al or reckless harm caused to another, as in the case of parental abuse and per-manent neglect.

3. 115 N.Y. 506 (1889).

4. DEL § 133; see also In re Herbster’s Estate, 121 N.Y.S.2d 360 (Sur. Ct. 1953).

5. Id.

6. 115 N.Y. 506; see also In re Loud’s Estate, 70 Misc. 2d 1026, 334 N.Y.S.2d 969(Sur. Ct., Kings Co. 1972).

7. The principle in Riggs has been codified to a limited extent in EPTL 4-1.6which provides that a joint tenant convicted of murder in the first degree orsecond degree as defined in Penal Law §§ 125.27, 125.25, respectively, shall notbe entitled to the distribution of any moneys associated with that tenancyexcept for the moneys contributed by the convicted joint tenant.

8. See, e.g., In re Fitzsimmons’ Estate, 64 Misc. 2d 622, 315 N.Y.S.2d 590 (Sur. Ct.,Erie Co. 1970).

9. 76 Misc. 2d 458, 350 N.Y.S.2d 114 (Sur. Ct., Nassau Co. 1973).

10. See also In re Savage, 175 Misc. 2d 880, 670 N.Y.S.2d 716 (Sur. Ct., RocklandCo. 1998).

11. 5 Warren’s Heaton on Surrogate’s Courts, § 74.13[1], at p. 74-42; see alsoSavage, 175 Misc. 2d 880.

12. In re Estate of Grant, N.Y.L.J., Apr. 12, 1984, p. 12 (Sur. Ct., Bronx Co.).

13. See Social Services Law § 384-b(8)(a) defining a “severely abused” child asone who is abused “as a result of the reckless or intentional acts of the parent.”

14. 115 Misc. 2d 161, 453 N.Y.S.2d 590 (Fam. Ct., Richmond Co. 1982).

15. Family Court Act § 1012(e)(i).

16. See also In re Custody & Guardianship of Marino S., Jr., 181 Misc. 2d 264, 274,693 N.Y.S.2d 822 (Fam. Ct., N.Y. Co. 1999), aff’d, 293 A.D.2d 223, 741 N.Y.S.2d207 (1st Dep’t 2002); Mark G. ex rel. Jones v. Sabol, 180 Misc. 2d 855, 694 N.Y.S.2d290 (Sup. Ct., N.Y. Co. 1999).

17. 180 Misc. 2d 855.

18. Id. at 860.

19. See Family Court Act art. 10.

20. Anne Crick & Gerald Lebovits, Best Interests of the Child Remain Paramountin Proceedings to Terminate Parental Rights, N.Y. St. B.J., May 2001, at p. 46.

21. In a case where a judgment is suspended, the court has entered a judgmentterminating parental rights but has suspended the effect of the judgment pend-ing parental attempts to restore the parent-child relationship. See In re Grace Q.,200 A.D.2d 894, 607 N.Y.S.2d 457 (3d Dep’t 1994).

22. Id.

23. Id.

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As a trusts and estates attorney,my exposure to matrimonialdisputes generally begins after

one of the parties has died. That isunfortunate. Bitter experience teachesthat we lawyers often do our clients’families (excluding the soon-to-be ex-spouse) a great disservice when wefail to promptly focus on the potentialestate-related problems engenderedby separation and divorce.

Review the PlanOne of the first items of business whenseparation or divorce is contemplatedshould be to review the client’s testa-mentary plan. Your client shouldrevoke any existing will that favors theanticipated ex-spouse and execute anew will with a minimum electiveshare clause1 bequeathing the mini-mum required by law. If there is anuntimely death during the divorce pro-ceeding, even intestacy is preferred toa will that leaves everything to theother spouse, especially if your clienthas children from a prior marriage. Indiscussing the client’s estate plan, ask:

• Is there a revocable lifetime trustfavoring the spouse? If there is,amend or revoke it.

• Are there jointly held assets? Ifthere is a house, condo or co-opapartment owned as tenants bythe entirety, you probably cannot

do anything about it without theother spouse’s cooperation, but astandard minimum elective sharebequest clause will offset thevalue of the survivor’s interest.

• Are there life insurance policiesnaming the soon-to-be ex-spouseas beneficiary? If so, change thebeneficiary to a trust for yourclient’s children or, at the veryleast, to the executors/adminis-trators of the estate.

• Are there retirement planaccounts? If so, change the benefi-ciary designation where possible.Certain beneficiary designationsin plans that are subject to ERISAmay not be changed without thespouse’s consent. Other designa-tions can and should be changedpromptly.

• Are there any Totten trustaccounts naming the other spouseas beneficiary? If so, change theaccount title or amend the client’swill to expressly revoke each suchaccount.2

• Is there a pre-nuptial or post-nup-tial agreement with the spouse? Ifthere is an existing agreement,you need to review it as it mayrestrict the client’s ability to makesome of the changes discussed inthis article.

You will have to adapt these gener-al recommendations to the specifics ofyour client’s situation. However, theprincipal assets of the typical client,such as a house, life insurance, retire-ment plan and bank and securitiesaccounts, can and should be dealt withon an expedited basis.

If estate planning is not somethingyou do, then refer the client to one ofyour partners or to an estate planninglawyer so that a prompt review of theclient’s assets can be undertaken andany necessary changes timely imple-mented. The failure to promptly andproperly deal with these issues cancause disastrous results if the clientdies unexpectedly during the course ofthe matrimonial proceeding, or there-after, without reassessing whom thenatural objects of his or her bounty areand redirecting the distribution ofassets to them. Even an interim revisedplan is better than leaving one in placethat does not reflect the client’schanged circumstances.

We start with the premise that untila court of competent jurisdiction ren-ders a decree of divorce or annulment,the parties are still spouses.3 Becausespouses, whether or not in the throesof a matrimonial proceeding, are enti-tled to certain statutory rights on thedeath of the other, planning for such a

PLANNING AHEADBY GARY B. FREIDMAN

GARY B. FREIDMAN <[email protected]> is a member of Greenfield Stein & Senior, LLP, wherehe concentrates in trusts and estates matters. He graduated from St. John’s University School of Lawand received a Masters degree in Taxation from New York University Graduate School of Law.

Estate Planning in the Face of Divorce: An Ounce of Prevention . . .


possibility should be one of the firstmatters discussed.

These rights include a distributiveshare in intestacy, an elective share,and so-called exempt property. If theclient dies without a will during thecourse of a matrimonial proceeding,the surviving spouse, if there are issue,is entitled to $50,000 plus one-half ofthe residue, or 100% if there are noissue.4 If there is a will, the survivingspouse is entitled to whatever isbequeathed to him or her, but no lessthan his or her elective share amountunder EPTL 5-1.1-A (the greater of$50,000 or one-third of the net estate).For deaths occurring after September1, 1994, the old elective share trusts(one-third of the net estate in trust forthe spouse for life, remainder towhomever) no longer satisfy the elec-tive share requirements of EPTL5-1.1-A. In addition, the spouse is enti-tled to the “exempt property”described in EPTL 5-3.1.5

Good News, Bad NewsThe good news is that, if you and theclient do nothing and the client sur-vives until the marriage is dissolvedbut then dies, the former spouse has noclaim in intestacy. If there is a will, anydispositions to the former spouse ornomination of him or her as fiduciaryare deemed revoked under EPTL 5-1.4.6 In effect, EPTL 5-1.4 creates a con-clusive presumption that where a tes-tator, after executing a will, unless thewill expressly provides otherwise, isdivorced, the marriage is annulled, isdeclared a nullity, or is dissolved onthe ground of absence, then any dispo-sitions to the former spouse or nomina-tion of him or her as fiduciary arerevoked and the dispositions are treat-ed as if the former spouse predeceasedthe testator.

The bad news is that under currentNew York law, EPTL 5-1.4 and the con-version by operation of law of a tenan-cy by the entirety into a tenancy incommon7 are the full extent of the“revocatory effect” of a divorce. Inother words, unless you and the clienttake affirmative action to make the nec-essary title and beneficiary changes,unintended consequences will result.

When reviewing a matrimonialclient’s estate plan, you should inquirewhether the client has created any rev-ocable lifetime trusts, which havebecome increasingly popular will sub-stitutes. Often when the client has cre-ated a lifetime trust, the will is a simpleone that merely “pours over” any non-trust assets to the pre-existing trust.Under current law, the dissolution ofthe marriage has no effect on disposi-tions under a trust because EPTL 5-1.4currently has no application to lifetimetrusts.

Similarly, since there is no automat-ic revocation of Totten trust accounts,beneficiary designations of life insur-ance policies, annuities, retirementaccounts and other death benefitswhich pass independently of theclient’s will, it is imperative that youreview with the client those policies,accounts and death benefits, the cur-rent beneficiaries, and the client’schoice of new beneficiaries.

Jointly owned property presentsspecial problems, because each jointtenant owns a one-half undividedinterest in the whole with a right ofsurvivorship. Although a co-tenantcannot unilaterally affect the owner-ship of the other co-tenant’s interest, heor she can destroy the right of sur-vivorship by transfer or conveyance ofhis or her interest.8

An example of the disastrous conse-quences that can result from a lack of

adequate planning is Storozynski v.Storozynski.9 There, the husband andwife were divorced in November 2000,but the husband never changed thebeneficiary designations (from thewife) on his life insurance policies andhis IRA accounts. The husband died inOctober 2002. When the wife sought tocollect the life insurance and IRAaccount proceeds, the husband’s estatesought to enjoin collection based onvague waiver language contained inthe parties’ divorce agreement. TheAppellate Division held that the wifewas entitled to the proceeds and thatthe agreement was insufficient as awaiver because the insurance and theIRA account were not specifically men-tioned and a waiver of such rights maynot be inferred.

Needless to say, but for the currentprivity rules, this can be a malpracticeclaim waiting to happen.

Over the past several years, billshave been introduced in the New YorkState Assembly10 to extend the revoca-tory effect of a divorce beyond a will.However, to date, no bill has passedboth houses of the state legislature.Even if passed, the “revocatory effect”legislation only solves part of the prob-lem when the marriage is dissolved. Itwould still have no application if theclient dies during the course of thematrimonial proceeding.

When it comes to advising clientswho are experiencing marital difficul-ties, an ounce of prevention can avoidpotentially weighty, unintendedresults. ■

1. Examples of such clauses may be found inmany of the leading will drafting treatises such asKlipstein & Bloom, Drafting New York Wills: Law andForms § 10.07 Form 1 (3d ed. 2004).

2. EPTL 7-5.2(2) requires that the will specificallydescribe the account as “being in trust for a namedbeneficiary in a named financial institution.”

The good news is that, if you and the client do nothing and theclient survives until the marriage is dissolved but then dies,

the former spouse has no claim in intestacy.


3. The myriad of circumstances where a “spouse”is disqualified under the EPTL are beyond the scopeof this article. In sum, EPTL 5-1.2 provides that: “Ahusband or wife is a surviving spouse within themeaning, and for the purposes of 4-1.1, 5-1.1,5-1.1-A, 5-1.3, 5-3.1 and 5-4.4, unless it is establishedsatisfactorily to the court having jurisdiction of theaction or proceeding that” the surviving spouse isdisqualified as such by virtue of divorce, annul-ment, declaration of the nullity of the marriage, adecree of separation rendered against the spouse,abandonment by the survivor which continueduntil death, or the failure of the spouse to supportthe other spouse, provided that the spouse had aduty and the means to do so.

4. EPTL 4-1.1.

5. The exempt property consists of, inter alia,(a) $15,000 in money or other property; (b) furni-ture, utensils, a sewing machine, appliances, com-puters, and clothing of a value up to $10,000; (c)books, pictures, video and computer tapes, discsand software of a value up to $1,000; (d) domesticanimals with food, farm machinery, a tractor andlawn tractor, of a value up to $15,000; and (e) a carof a value up to $15,000.

6. This is contrary to what had been the commonlaw rule in New York. Prior to September 1, 1967(the effective date of chapter 952 of the Laws of1966, which added EPTL 5-1.4), a decree of divorceor annulment, by itself, did not effect a revocation ofa testamentary disposition in favor of a spouse. In reHollister, 18 N.Y.2d 281, 274 N.Y.S.2d 585 (1966),overruled in part on other grounds by In re Maruccia, 54N.Y.2d 196, 445 N.Y.S.2d 73 (1981). EPTL 5-1.4 pro-vides:

(a) If, after executing a will, the testatoris divorced, his marriage is annulled orits nullity declared or such marriage isdissolved on the ground of absence, thedivorce, annulment, declaration of nulli-ty or dissolution revokes any disposi-tion or appointment of property madeby the will to the former spouse and anyprovision therein naming the formerspouse as executor or trustee, unless thewill expressly provides otherwise, andthe provisions, dispositions andappointments made in such will shalltake effect as if such former spouse haddied immediately before such testator. If a provision, disposition or appoint-ment is revoked solely by this section, itshall be revived by testator’s remarriageto the former spouse.

(b) The provisions of this section applyto the will of a testator who dies on orafter its effective date, notwithstandingthat the will was executed and thedivorce, annulment, declaration of nulli-ty or dissolution was procured priorthereto.

7. Freeman v. Freeman, 112 A.D.2d 805, 492N.Y.S.2d 307 (4th Dep’t 1985).

8. In re Suter, 258 N.Y. 104 (1932).

9. 10 A.D.3d 419, 781 N.Y.S.2d 141 (2d Dep’t 2004).

10. See, e.g., A4037 of 2001 which was referred tothe judiciary committee and not reported out ofcommittee. In 1995, as A7862, the bill passed theAssembly but did not pass the Senate.

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KinshipProceedingsProving the Family Tree

By David N. Adler

Kinship remains a subject of keen interest to oursociety. A recent bestseller, In Praise of Nepotism,1analyzes the historical, sociological and political

aspects of kinship networks. Thousands of families havetraced their genealogical roots to locate family origins.State-of-the-art medical technology and genetic engineer-ing may be on the verge of altering our traditional under-standing of next of kin. When legal issues arise, kinshipproceedings provide the formal mechanism to determineblood relatives and establish proof of heirship.

In cases that require intestate administration, theaccounting proceeding is the stage at which all activitiesand issues must be finally resolved. As part of theaccounting, the fiduciary must make a final determina-tion of whom the decedent’s heirs are so that assets can bedistributed and the fiduciary can be discharged.2

In many estates, the heirs have either been known tothe fiduciary or have been established through affidavitsat early stages of the administration. When some ques-tions of lineage do remain, the fiduciary has usually donepreliminary research and made reference to “allegedheirs” or to heirs who may exist but are “unknown.”

Typically, “alleged heirs” often consist of cousins whohave come forward with a claim, but the validity of theirstatus is not clear and questions remain about whetherthere may be other heirs with equal or superior claims.(See sidebar on page 44 for a description of the statutorystandards.) The relative remoteness of their lineage, cou-pled with their potential right to inherit, requires a formalkinship proceeding to confirm their status.

At this point, counsel representing “alleged heirs”objects to the fiduciary’s proposed accounting, assertingthat the “alleged heirs” are, in fact, the heirs and are enti-tled to inherit their appropriate percentages of the estate.3The interested parties are any alleged claimants (heirs),other claimants, the fiduciary, and the attorney general of

New York State because the state maintains an interest inthe outcome of this proceeding.4 If heirship is ultimatelyunproved or partially proved, a certain fraction of theestate may pass to New York State.5

As a matter of course, the court appoints a guardian adlitem to represent the interests of any potential unknownheirs.6 In many kinship matters, the fiduciary is often thecounsel to the public administrator, either because no oneelse has taken the initiative to resolve the estate, or theheirs involved are sufficiently distant.7 As part of his orher relief, the claimant requests a kinship hearing todetermine the identity of the distributees.

The burden of proof is at all times on the claimant, oralleged heir. The standard of proof is a preponderance ofthe evidence. This standard is based upon a degree ofprobability and has been defined as “persuading the tri-ers of fact that the existence of the fact is more probablethan its non existence.”8 Ultimately, a claimant mustdemonstrate that he or she was either the closest bloodrelative to the decedent, or among a class of equally closeblood relatives as defined in the parameters of Estate,Powrers and Trusts Law 4-1.1 (EPTL).9

DiscoveryOnce issue has been joined, the matter is traditionallyreferred to a referee who conducts a hearing and reports tothe surrogate’s court.10 The referee is normally a memberof the Law Department, and is required to conduct theproceeding in the same manner as a court trying an issue

DAVID N. ADLER, a trusts and estates attorney in Queens, New York, is apast president of the Queens County Bar Association and has been amember of the executive committee of the Trusts and Estates Law Sectionof the NYSBA. He is a graduate of New York University and received hisJ.D. from St. John's University School of Law.


without a jury.11 Initially, the referee may set up a pretrialconference, grant time for discovery, if necessary, and seta date for a hearing.12 The date set for a hearing is crucial,because all proof must be completed by the claimant with-in one year of that date, or objections will be dismissed.13

Often, kinship proceedings take more than one day andmay run over many months. Still, that hearing date startsthe running of the one-year statute of limitations.

The Civil Practice Law and Rules apply as they wouldin any civil trial.14 The discovery devices are also fullyavailable, yet, practically speaking, are extremely limited.This is not a traditional hearing or trial. Often, all otherinterested parties have absolutely no knowledge regard-ing any aspects of a claimant’s lineage. Thus, discoveryhere is often not focused on the adversary but consists ofa thorough investigation of family information and rela-tionships from a variety of sources. The admissibility ofthis evidence is discussed below, but the key element isthat the focus should be on searching both for individu-als who know the claimant’s family history, and for vari-ous documents reflecting that history.

Where to LookThe personal effects of the decedent are usually an excel-lent starting point. Normally, these are in the possessionof the fiduciary, often the public administrator. Once theauthority of counsel to represent a claimant is estab-lished, these effects must be made available for review.They may consist of letters, photographs, address books,personal notes, vital statistics records, or other importantmemoranda. Counsel’s own investigation is often moreeffective. The search for those with knowledge of the fam-ily may include relatives, neighbors, clergy, businessassociates, friends, or employees. Not every individual isexpected to have a full and thorough knowledge of theentire family, maternal and paternal sides. Yet, to theextent that isolated areas of knowledge can be acquiredfrom sufficient people, an entire family portrait may bepieced together.

The search for documentary evidence is equallyimportant. Documents can establish tangible proof of theexistence and identification of decedent’s blood relatives,thereby providing the necessary link in the genealogicalchain to the claimant. This evidence includes vital statis-tics records (birth, death, and marriage), census records,cemetery (burial) records, naturalization and immigra-tion records, court records (surrogate, matrimonial, adop-tion), church records, Holocaust records, and militaryrecords. The nature of records essential to an individualcase varies, but it is only limited by one’s imagination.

Many records can be obtained by a letter that requestssuch records, describes the reasons for the request,accompanied by payment of the appropriate fee. Ifrecords are not forthcoming or sealed, a court order maybe issued and will often produce the records. It may be

advisable to retain a certified genealogist to assist counselin the search. A genealogist is acutely aware of the neces-sary steps in establishing heirship, may have more readyaccess to sources of information that are difficult to reach,and can ordinarily complete a search within a set timeframe. Upon all evidence, both oral and documentary,constituting proof of kinship being marshaled, the hear-ing can proceed.

Manner of Proof – Testimonial EvidenceThe admissibility of oral testimony offered as proof ofany aspect of family relationship is subject to two severelimitations. The first, generally referred to as the DeadMan’s Statute, is codified at CPLR 4519. It provides that aparty or person interested in an event is incompetent totestify concerning any personal transaction or communi-cation with the decedent.15 A kinship hearing is clearlywithin the parameter of events covered by the statute;16

the claimants or individuals seeking to inherit are clearlyinterested in the event because they stand to gain or loseby operation of the judgment.17

Unfortunately for the claimant, the concept of transac-tion or communication is broadly defined. It applies to awide range of behavior involving the claimant and thedecedent, including all forms of conduct and language. Itembraces every “variety of affairs which can form thesubject of negotiations, interviews, or actions betweentwo persons.”18 Thus, the claimant cannot testify to anyconversation or correspondence between the decedentand himself.

Individuals not interested in the event (those who donot stand to inherit) are not barred from testifying. Forexample, a claimant’s spouse or friends, if present at acertain conversation between the claimant and the dece-dent, can provide admissible testimony about their per-sonal knowledge of an event. If the decedent constantlyreferred to the claimant as his or her “favorite cousin” or“sole surviving cousin,” the claimant cannot testify butfriends or a spouse would be able to substantiate thatstatement.

Exception to Hearsay RuleThe second limitation concerns the concept of hearsay.Hearsay consists generally of statements made out ofcourt that are offered for the truth of their contents.19

Much information pertaining to one’s family history may

When legal issues arise, kinshipproceedings provide the formalmechanism to establish proof

of heirship.


be received this way as a function of word of mouth.Hearsay evidence is traditionally excluded unless theparticular hearsay falls within one of the exceptions to thegeneral rule of exclusion. Fortunately, one exception tothe hearsay rule concerns declarations of pedigree or fam-ily descent.20

The conditions of admission for pedigree declarationsconsist in the fact that the original declarant is dead, was

related by blood or marriage to the family of whom he orshe spoke, and made these pedigree declarations beforethis kinship proceeding arose.21 These declarations maybe written as well as oral. A proper foundation must belaid to incorporate all of these criteria before testimony isreceived.22 In the simple case, the submission of a deathcertificate, birth certificate or marriage certificate shouldsuffice. Here, a witness could testify about family infor-

Statutory Foundation for Kinship ProceedingsThe framework for analyzing kinship issues is provided by the Estates, Powers and Trusts Law, specificallyEPTL 4-1.1, which identifies the priorities among claimants who seek to inherit from an estate and speci-fies formal rules for the inheritance process.

The statute effectively describes how to build a “family tree,” providing schemata for the proximity offamily ties and identifying the “distributees” who qualify as heirs of the decedent.1

Spouses and children have the highest priority. The spouse receives the first $50,000 and half the bal-ance of the net estate after deducting traditional debts, taxes and expenses.2 Issue of the decedent receivethe other half. “Issue,” by definition, are descendants from a common ancestor.3 They are often the dece-dent’s children. If there are no issue, the spouse receives everything. If there is no spouse, the issue inher-it everything.4

If no spouse and no issue survive, the priority for inheritance consists of, in descending order, parents,siblings/nieces/nephews, grandparents, uncles/aunts/first cousins, and first cousins once-removed.5

If issue inherit, they generally take “by representation,” which essentially means an equal distributionat each generational level.6 Suppose that the decedent, D, is survived by one child A; V and W, who arechildren of predeceased child B; and X, Y, and Z who are children of predeceased child C. A chart for thisscenario would look like this:

D____________________|____________________

A (B) (C)/ \ / | \

V W X Y Z

There are three lines of inheritance. If all children (A, B, C) survive the testator, each is entitled to one-thirdof the net estate. At A’s generational level, only A survives, so A takes his one-third share. The next com-plete surviving generational level is that of the testator’s grandchildren, V, W, X, Y, and Z. The remainingtwo-thirds is divided equally among each member of that level, so that V, W, X, Y and Z each take two-thirds divided by five units or two-fifteenths of the net estate each.

A decedent’s relatives of the half blood are treated as if they were relatives of the whole blood.7 Thus,siblings who share just one parent may inherit as if they were full siblings.

If grandparents or their issue (uncles/aunts of the decedent) are the only survivors, the maternal andpaternal sides are divided in half with respective issue sharing only their respective half. In the absence ofissue on one side, the other side’s issue could share in the whole. These rules of intestate succession pro-vide the numerical guidelines for distribution of the decedent’s property, and they further place a legisla-tive imprimatur on the priority of the familial relationships.

1. EPTL 1-2.5, 2-1.1.

2. EPTL 4-1.1(a)(1).

3. EPTL 1-2.10.

4. EPTL 4-1.1(a)(2), (3).

5. EPTL 4-1.1(a)(4), (5), (6), (7).

6. EPTL 1-2.16.

7. EPTL 4-1.1(b).


mation that he or she received from a predeceased rela-tive of the family.

Finally, any individuals, interested or not, may testifyregarding their own heirship status.23 For example, ifasked to identify one’s parents, siblings, grandparents,uncles, aunts, etc., one may testify as to their own person-al knowledge of family relationships. Yet, for theclaimant, such testimony stops at identifying any rela-tionship with the decedent. Any third party not interest-ed in the event has extremely wide latitude with respectto testimony, including transactions or communicationswith the decedent, or declarations of pedigree overheardfrom predeceased individuals. This underscores theimportance of an investigation to locate a variety of disin-terested individuals who can freely and openly providelinks in the family chain.

Manner of Proof – Documentary EvidenceThe admissibility of documentary evidence offered toestablish any facet of heirship is geared to its authentici-ty. There is a preference for original documents. The BestEvidence Rule is reflective of historical case law thatwhenever parties seek to prove the contents of a writing,they must produce the original or satisfactorily accountfor its absence.24 In the absence of original documents,the problem of reliability becomes an issue.

Public documents may be received into evidence ifthey are properly authenticated.25 It is acknowledged thatoriginals of public documents are extremely impracticalto procure and that copies validated by the appropriatecustodian or authorized agent are the equivalent of theoriginals. CPLR 4540 sets out the applicable methods ofauthentication of copies, certified, exemplified andsworn.26 Birth, death, marriage, court, voter registration,naturalization and military records are of this type.

A range of documents may be best described as semi-public. They are not official public documents but areissued by institutions and have a mechanism by which anauthorized agent can certify them. These include church,cemetery and baptismal records. Census records may beadmitted on judicial notice.

Private documents contain a greater possibility ofinaccuracy because there is no formal mechanism forauthentication in place.27 These documents often consistof material found among the decedent’s personal effectssuch as letters, telephone books, holiday cards, and per-sonal notes. These documents may be admitted into evi-dence in the following ways: the means of authenticatingprivate documents consist of the testimony of a witnesswho saw that person write or sign the document; as anadmission made by an adversary; by circumstantial evi-dence; or by proof of handwriting.28 For handwritingproof, a lay witness may be used.29 Photographs may alsobe authenticated by the testimony of a witness familiarwith the subject portrayed.30

Finally, the ancient document rule operates as a pre-sumption of authenticity and greatly aids in the admis-sion of older documents in kinship proceedings.31 Therule states that when the writing is 30 or more years old,is in the possession of the natural custodian, and is freefrom indications of fraud or invalidity, it proves itself.32

Essentially, the document is self-authenticating. A naturalcustodian in this type of proceeding could be any rangeof institutions or agencies, including the decedent, if doc-uments of this type were found among the personaleffects in the decedent’s household. Physical review ofthe document for tampering or damage is a conditionprecedent to its admission.

Foreign documents also require authentication inaccordance with CPLR 4542. One primary feature of thisstatute consists in the affixation of an “apostille,” which isa certification of validity practiced in a variety ofEuropean countries and approved in U.S. courts.33

Closing the ClassDespite extensive discovery and marshaling of evidence,certain aspects of the family tree may remain open. Analleged distributee may be missing (whereaboutsunknown) or it may not be sufficiently proved that theheirs before the court are in fact the only heirs. This situa-tion occurs commonly in dealing with Holocaust sur-vivors or severely fragmented families. Years ago, thisoften created an insurmountable problem to establishingthe right to inherit the entire estate: a fraction of saidestate pertaining to the “open,” not sufficiently proven,side of the family might have been payable to New YorkState under the theory of escheat.

Fortunately, the legislature chose to rectify this situa-tion in SCPA 2225. This section creates a presumption that“the distributees before the court are the only distribu-tees” (the only ones entitled to inherit) if certain condi-tions are met.34 The conditions are two-pronged and theyspecifically pertain to the time elapsing from the dece-dent’s death, coupled with an appropriate search forexisting heirs.

Part (a) of SCPA 2225, in dealing with a single allegedheir, requires that at least three years must elapse from thedeath of the decedent along with a diligent search havingbeen conducted to discover the status of the missingheir.35 If no evidence has been found, that individual maybe presumed dead. Here, presumption of death is definedas one predeceasing the decedent without issue.36

Part (b) of SCPA 2225 pertains to a determination thatno other distributees, other than those already before thecourt, exist. This also involves the three-year time periodelapsing from the date of death of the decedent, butrequires a more exhaustive diligent search, using allavailable sources.37 Because this section provides a broad-er-based exclusion of any and all heirs not before thecourt, it requires a higher degree of proof.


The sources composing the diligent search consist ofall aspects of attempts to locate, including the discoverydevices referred to above. An abbreviated definition ofdue diligence is contained in the Uniform Rules.38

Although specifically applicable to probate in that con-text, it encompasses the most basic elements of a diligentsearch including interviewing friends, relatives andneighbors, inspecting personal effects, and reviewingmotor vehicle, post office and voter registration records.The use of the Internet as an inventory of last names andaddresses is also noted and continues to expand as aresearch option. The degree of diligence required is oftenanalyzed in relation to the size of the estate.39 Generally,the greater the value of the estate, the more comprehen-sive the diligence required by the court in efforts to locatethe missing or alleged heirs and satisfy the statutes.Finally, the use of a genealogist as an expert in matters ofkinship is often indispensable to completing a truly dili-gent search. The genealogist may marshal all forms ofevidence and provide opinion testimony regarding heir-ship status.40

In conjunction with SCPA 2225, EPTL 2-1.7 also createsa presumption of death if after three years of continuousunexplained absence, a diligent search fails to locate a par-ticular individual. The individual is presumed to havedied three years after the unexplained absence, or lessthan three years if it can be established that the individ-ual was exposed to a specific peril.41 Other presumptionsmay also aid in the proof of aspects of family status: everyperson is presumed legitimate or born in wedlock;42 amarriage ceremony is presumed to have been legally per-formed;43 a male under the age of 14 and a female underthe age of 12 are presumed not capable of having chil-dren;44 a person who would have been more than 100years old at the time of the decedent’s death is presumedto have predeceased the decedent.45

These statutes provide a means to prove a negative –the non-existence of other distributees. They are usefultools for reaching a final resolution and determination ofheirs. The three-year statutory period from death shouldalways be kept in mind before initiating proceedings sothat its application is not limited. Upon proof that noheirs exist other than those before the court and in therecord, the class of heirs may be closed.

The ProceedingThe kinship proceeding itself is generally referred to as ahearing, although it contains elements of a trial. It func-tions as an end in itself, retains the full force of judicialsanction, and may be set up by filing a Note of Issue andCertificate of Readiness in certain counties.

The venue for such a proceeding is normally the sur-rogate’s court in the county of the decedent’s domicile.46

Occasionally, the hearing or any part of it may be con-ducted outside this venue upon application to the court.The grounds for this removal, referred to as a commis-sion, are covered by CPLR 3108 and are geared to theunavailability of witnesses within New York State. Here,the court travels to the witness if the witness cannot trav-el to the court. Common reasons justifying unavailabilityconsist of age, infirmity, and political barriers.47 The coor-dination and production of witnesses who are often fromdifferent parts of the country or the globe should be con-firmed as early as possible. Travel factors and livingaccommodations pending the duration of the hearingshould be anticipated before scheduling.

Family TreeThe preparation of a detailed family tree is essential tosuccess in the world of kinship. The family tree consists ofan outline from a chronological perspective of all familyrelationships.48 It should contain names, name changes,dates of birth, death, marriage, and issue produced perperson. The tree proceeds both downward from the old-est common ancestor, laterally incorporating those withequal degrees of lineage. It should provide a clear, unbro-ken connection from one generation to another andamong members of the same generation. It is traditional-ly offered into evidence at the beginning of the hearing,not for the truth of its contents which remain to beproven, but for identification purposes. It is an invaluabletool in consolidating the objects of a claimant’s proof, andthus it should accurately reflect the testimonial and doc-umentary evidence. As a practical matter, all interestedparties at the hearing rely on the family tree as a physicalguideline to the claims.

The order of testimony may provide distinct advan-tages in attempting to prove elements of the family tree.The burden of going forward is always on the claimant.Disinterested witnesses are often viewed as possessingthe highest degree of credibility, particularly those notmarried to, or children of, the claimant. Yet, disinterestedwitnesses may only be able to provide testimony concern-ing limited aspects of the family. This, when coupled withother factors, can be sufficient and highly influential.

Many practitioners believe it is most beneficial to openwith strong disinterested witnesses to confirm variousaspects of the family tree. It is always advisable to havethe claimant appear and testify. If multiple claimantsexist, and are all part of the same nuclear family or on the

The preparation of a detailedfamily tree is essential to success

in the world of kinship.


same generational level and possess the same knowledge,it may only be necessary to produce one claimant.Although claimants are limited in testifying about theirrelationship to the decedent, they may testify about theirown pedigrees. The genealogist is often used as a clean-up hitter to fill in any holes in the family framework,close the class, if required, and possibly provide a sum-mary and confirmation of prior testimony. The above ismerely suggestive; any order that counsel deems mostappropriate for proving the case at hand may be used.

As with any hearing or trial, the depth and certainty ofknowledge and its lucid presentation are most effective asan offer of proof. In kinship, precise testimony is particu-larly crucial because the nature of the proceeding incor-porates specificity of names and dates, not merely gener-al descriptions.

Documentary evidence may be submitted and offeredfor proof at various phases of the proceeding, but it isoften most advisable to submit all documents at the endof testimony, as exhibits. It is prudent to have all docu-ments numbered and have numbered copies, in additionto a copy of the family tree, distributed to all interestedparties at the outset. The court normally requests copiesof all documents approximately one to two weeks beforethe hearing. Only originals or copies with the appropriateauthentication will be accepted into evidence after allinterested parties have reviewed them and declined toobject.

ConclusionAt the completion of all testimony and offers of proof,

all parties rest and the referee typically reserves decision.Within 30 days of the hearing, the referee is required toissue a report indicating the findings of fact and conclu-sions of law.49 The report specifies the identity and rela-tionship of the decedent’s heirs based upon the evidencesubmitted. Any interested party may then make a motioneither confirming or denying, in whole or in part, thefindings of the referee. If no motion or objection is made,the report is deemed confirmed. At this point the surro-gate reviews the report, and if it is found legally suffi-cient, the surrogate issues a decree reflecting the report’sfindings and conclusions.50

Finally, funds are distributed to the appropriate indi-viduals in the amounts or percentages dictated in thedecree, and in accordance with the rules for intestate suc-cession. The legal determination of the heirs at law of aparticular decedent has thus been established and thequestion of who maintains the right to inherit has beenanswered. ■

1. Adam Bellow, In Praise of Nepotism (2003).

2. Surrogate’s Court Procedure Act 2215(1) (SCPA).

3. Uniform Rules for Surrogate’s Court § 207.41.

4. SCPA 316.

5. SCPA 2222(1), (2), (3). In the event that property has already passed to NewYork State, and heirs are subsequently located, a kinship hearing may be initi-ated by a petition for withdrawal of funds from the State Comptroller.

6. SCPA 315(2)(a)(iii).

7. SCPA 1001, 1112.

8. See Richardson on Evidence § 3-206 (11th ed.); see also Uniform CommercialCode § 1-201(8) (UCC).

9. See Turano, McKinney’s Practice Commentary, EPTL 4-1.1 (2003).

10. SCPA 506(1).

11. SCPA 506(3), (6)(a).

12. SCPA 510.

13. Uniform Rules for Surrogate’s Court § 207.25(a).

14. SCPA 506(3).

15. CPLR 4519. For an in-depth analysis, see Professor Radigan, New Rules onSurrogate’s Court Assignments Prompt Review of Issues in Dead Man’s Statute, N.Y.St. B.J. (June 2003).

16. In re Christie’s Estate, 167 Misc. 484, 4 N.Y.S.2d 484 (1938).

17. Hobart v. Hobart, 62 N.Y. 80, 81, 83 (1875).

18. Holcomb v. Holcomb, 95 N.Y. 316, 325 (1884).

19. See Richardson on Evidence § 8-101 (11th ed.) (hereinafter “Richardson”).

20. See Richardson § 8-901.

21. See Richardson § 8-903; see also Aalholm v. People, 211 N.Y. 406, 412, 105 N.E.647 (1914).

22. See Richardson § 8-904; see also Young v. Shulenberg, 165 N.Y. 385, 59 N.E.135 (1901).


24. See Richardson § 10-101; see also Schozer v. William Penn Life Ins., 84 N.Y.2d639, 620 N.Y.S.2d 797 (1994).


26. CPLR 4540; see Richardson § 9-202.



29. See Richardson § 7-318(a)(i), (ii).

30. See Richardson § 4-212; see also Moore v. Leaseway Transp. Co., 49 N.Y.2d 720,426 N.Y.S.2d 259 (1980).

31. See Richardson § 3-124; see also Fairchild v. Union Ferry Co., 121 Misc. 513,518, 201 N.Y.S. 295 (1923) aff’d, 212 A.D. 823, 207 N.Y.S. 835, aff’d, 240 N.Y. 666,148 N.E. 750 (1925).

32. In re Brittain, 54 Misc. 2d 965, 283 N.Y.S.2d 668 (1967).

33. Weinschenk, An Update on Kinship Proof in Surrogate’s Court, N.Y.L.J., Oct.9, 1992, p. 1.

34. See Turano, McKinney’s Practice Commentary, SCPA 2225 (2002).

35. SCPA 2225(a).

36. Id.

37. SCPA 2225(b).

38. Uniform Rules for Surrogate’s Court § 207.16(d).

39. In re Whelan, 93 A.D.2d 891, 461 N.Y.S.2d 398 (2d Dep’t 1983), aff’d, 62N.Y.2d 657, 476 N.Y.S.2d 290 (1984).


41. EPTL 2-1.7(b).

42. See Richardson § 60; see also In re Matthews’ Estate, 153 N.Y. 443, 47 N.E. 901(1897).

43. See Richardson § 65; see also Fisher v. Fisher, 250 N.Y. 313, 165 N.E. 460(1929).

44. EPTL 9-1.3(e)(1), (2).

45. Young v. Shulenberg, 165 N.Y. 385, 59 N.E. 135 (1901).

46. SCPA 205(1).

47. CPLR 3108; Kelleher v. Mazzaro, 175 A.D.2d 352, 572 N.Y.S.2d 429 (3d Dep’t1991).

48. Uniform Rules for Surrogate’s Court § 207.16(c).

49. SCPA 506(3).

50. SCPA 506(4), (6)(a), 2215(1).


President A. Vincent Buzard

School,” the “Ask a Lawyer” column in the local newspa-per, a “Tools for School” project to distribute backpacksand school supplies to underprivileged students, the stu-dent mentoring program at School 29, and revision of theMCBA’s judicial evaluation process, creating safeguardsagainst gender, racial or other bias. Buzard established aSpecial Committee on Day Care and an ombudsman pro-gram to deal with client complaints in order to avoidunnecessary grievances. He arranged for the entireAppellate Division, Fourth Department to appear beforethe local bar. He established relationships with print and broadcast media, and was regularly quoted in themedia on behalf of the MCBA and the profession. He con-tinues to work in both radio and television, including ashost of public affairs programs and as a commentator,and received the Adolf J. Rodenbeck Award for his out-standing contributions to the community and the profes-sion.

Buzard’s community activities include membership inthe City of Rochester Cultural Center Commission andthe Monroe County Sports Development Authority; hehas served on the Rochester Board of Ethics. He is a mem-ber of the Governor’s Fourth Department JudicialScreening Committee to review candidates for judicialappointment, and serves as a referee for the New YorkState Judicial Conduct Commission. Buzard served onChief Judge Judith S. Kaye’s Special Committee on theEstablishment of Commercial Courts in the State of NewYork.

A trial lawyer for more than 35 years, Buzard’s prac-tice focuses on complex civil litigation including commer-cial and municipal matters. In addition, he chairs hisfirm’s Appellate Practice Group. He also represents peo-ple who are seriously injured, with a particular emphasison those who have suffered brain injuries. He is a pastpresident and a former board member of the New YorkState Head Injury Association, and has lectured exten-sively on trial practice and representation of people withhead injuries.

Buzard received his undergraduate degree fromWabash College and earned his law degree from theUniversity of Michigan Law School, with honors.

MEET YOUR NEW OFFICERS

A. Vincent Buzard, a Rochesterpartner in the statewide law firmof Harris Beach LLP, took officeon June 1 as president of the

71,000-member New York State Bar Association. TheHouse of Delegates, the Association’s decision- and poli-cy-making body, elected Buzard at the organization’s128th annual meeting, held this past January inManhattan.

Buzard has held various leadership positions in theAssociation during the past 20 years, including servingon the Executive Committee as a member-at-large, as vicepresident representing the Seventh Judicial District, andas Association secretary. Buzard has served as a memberof the House of Delegates, chair of the New York StateConference of Bar Leaders, and co-chair of both theLawyers in the Community and Medical Malpracticecommittees. He chaired the House of Delegates and co-chairs the President’s Committee on Access to Justice(formed to help ensure civil legal representation is avail-able to the poor). He also chaired the special committeesto Review Attorney Fee Regulation, LegislativeAdvocacy, and Cameras in the Courtroom.

As chair of the Special Committee on Cameras in theCourtroom, Buzard led a comprehensive study of audio-visual coverage of trials in other states and interviewedscores of New York judges and attorneys who had partic-ipated in televised trials during the decade-long camerasin court “experiment.” The committee determined that“there is no pattern of specific harm in specific cases andno substantial evidence that cameras adversely affect theoutcome of trials.” In March 2001, as the result ofBuzard’s passionate advocacy, the House of Delegatesreversed its long-standing position that cameras couldonly be allowed in New York courtrooms with the con-sent of both parties, and voted to recommend returningcameras without the consent provision but with appro-priate safeguards.

Buzard also presented the report of the SpecialCommittee on Legislative Advocacy at the January 2002meeting of the House of Delegates. The House adoptedthe report, and it is being implemented.

During his tenure as president of the Monroe CountyBar Association (MCBA), Buzard emphasized raising thevisibility of the MCBA and improving the public’s under-standing of the legal system and the profession. The pro-grams initiated during his term included a “People’s Law


President-elect Mark H. Alcott

Mark H. Alcott, the new presi-dent-elect of the 71,000-memberNew York State Bar Association,was elected by the House ofDelegates, at the Association’s

128th annual meeting. Alcott, a resident of Larchmont,N.Y., is an honors graduate of Harvard College andearned his law degree from Harvard Law School. As pres-ident-elect, Alcott will chair the House of Delegates andco-chair the President’s Committee on Access to Justice.In accordance with NYSBA bylaws, he becomes presidentof the Association on June 1, 2006.

Alcott currently serves on the Association’s 26-mem-ber Executive Committee, which oversees the manage-ment and administration of the state bar within policiesdetermined by the House of Delegates. He is a vice pres-ident, representing the First Judicial District, a position inwhich he has served since June 2001.

In his more than 35 years in the Association, Alcott hasheld many leadership positions and launched a numberof initiatives. During his tenure as chair of theCommercial and Federal Litigation Section, section mem-bers worked on more than 100 projects through 44 com-mittees and task forces. Alcott also chaired a section taskforce that proposed creation of a statewide commercialcourt, and served on the committee established by ChiefJudge Judith S. Kaye that implemented that proposal.

Alcott chaired the Association’s special committeeson Continuing Legal Education and AdministrativeAdjudication, which, after an extensive, year-long study,recommended major changes in the administrative rulesand procedures used in five state agencies (MotorVehicles, Health, Family Assistance, Workers’ Compen-sation and Environmental Conservation).

In addition to his state bar activities, Alcott is involvedin civic and philanthropic affairs. He is a past recipient ofthe American ORT Jurisprudence Award. He is a Fellowof The New York Bar Foundation and the AmericanCollege of Trial Lawyers, where he served two terms aschair of the Downstate New York Committee and fouryears as chair of the college’s International Committee.

Alcott plays an active role as a federal and state medi-ator with the U.S. District Court for the Southern Districtof New York and the Commercial Division of the NewYork Supreme Court. Alcott lectures on litigation issues inthe U.S. and abroad. He is frequently invited to arguemodel cases at legal meetings and conventions.

SecretaryKathryn Grant Madigan

Kathryn Grant Madigan, apartner in the Binghamton lawfirm of Levene Gouldin &Thompson, LLP, was re-electedsecretary of the New York StateBar Association.

Madigan graduated Phi Beta Kappa from theUniversity of Colorado at Boulder, where she received the1975 Pacesetter (Outstanding Senior) Award, and waspoint guard for the Lady Buffs basketball team. Sheearned her law degree from Albany Law School.

The Binghamton resident has held a number of leader-ship positions within the Association, serving 11 years onthe Executive Committee, currently as secretary, and for-merly as vice president for the Sixth Judicial District andas a member-at-large.

As chair of the Special Committee on AssociationPublications, Madigan led the 2004 search for the neweditor-in-chief of the Journal, the Association’s flagshippublication. She is the former chair of the MembershipCommittee and the Elder Law Section, and chaired thesection’s Litigation Task Force, which recommended thehistoric NYSBA v. Reno lawsuit. A member of the SpecialCommittee on Balanced Lives in the Law, Madigan spokeon work/life balance at this year’s Young LawyersSection Annual Meeting Program. She serves on the com-mittees on Bylaws, Diversity and LeadershipDevelopment, Membership, and the Special Committeeon Fiduciary Appointments.

The founding chair of the Committee on Attorneysin Public Service, Madigan served on the ExecutiveCouncil of the New York State Conference of Bar Leaders(NYSBCL), Task Force on Solo and Small FirmPractitioners, Committee on the Future of the Profession,and Nominating Committee. A long-time mentor for theYoung Lawyers Section, Madigan has been a member ofthe House of Delegates for 18 years. She is a Life Fellowof The New York Bar Foundation and chair of the SixthDistrict Fellows.

A past president of the Broome County BarAssociation, Madigan remains active on its CLECommittee. Under her leadership, the local bar twicereceived NYSCBL’s Award of Merit. A noted lecturer inthe field of estate planning and elder law, Madigan is amember of the Administrative Board for the Offices of thePublic Administrator, a Fellow of the American College ofTrust and Estate Counsel, a member of the National


Academy of Elder Law Attorneys and a Fellow of theAmerican Bar Foundation.

Madigan received the 2000 Kate Stoneman Awardfrom Albany Law School and the 1987 NYSBAOutstanding Young Lawyer Award; she is listed inAmerica’s Best Lawyers. She is a trustee of the BinghamtonUniversity Foundation, a past chair of the Harpur Forum,and a trustee of the United Health Services Foundation,where she chairs its Nominating and Personnel commit-tees. Madigan performs at the annual Broome CountyChamber of Commerce Dinner as a Live Wire Player,and is immediate past president of the Chamber’s LiveWire Club.

TreasurerJames B. Ayers

James B. Ayers, a partner inthe Albany law firm of WhitemanOsterman & Hanna, LLP, hasbeen re-elected treasurer of the71,000-member New York State

Bar Association. A resident of Guilderland, Ayersreceived his undergraduate degree from ColgateUniversity and earned his law degree from ColumbiaLaw School.

Ayers has served in the public sector as: confidentiallaw assistant to the state Supreme Court, AppellateDivision; assistant counsel to Gov. Nelson A. Rockefeller;counsel, Temporary State Commission on ConstitutionalTax Limitations; and special counsel to the DeputyMajority Leader, New York State Senate. Prior to joiningWhiteman, Osterman & Hanna, he was a partner in theAlbany law firm of DeGraff, Foy, Holt-Harris, Kunz &Devine.

An active member of the Association, Ayers hasserved as treasurer since 2002. Prior to that he servedthree years as vice-president of the Third Judicial District.In addition, Ayers chaired the Trusts and Estates LawSection and has served on its Executive Committee since1984. He is a member of the Albany County andAmerican Bar associations and a Fellow of the AmericanCollege of Trust and Estate Counsel.

In addition to his professional affiliations, Ayers hasbeen active in various civic groups, including serving onthe boards of directors of the American Red Cross,Salvation Army, Historic Albany Foundation andKattskill Bay Association, and on the board of trustees ofthe Westminster Presbyterian Church.

A Pro BonoOpportunities

Guide For Lawyers inNew York State

Now Online!

Looking to volunteer? This easy-to-use guide will helpyou find the right opportunity. You can search by coun-ty, by subject area, and by population served. A collabo-rative project of the Association of the Bar of the City ofNew York Fund, New York State Bar Association, ProBono Net, and Volunteers of Legal Service.

You can find the OpportunitiesGuide on the Pro Bono Net Web siteat www.probono.net/NY/volunteer,through the New York StateBar Association Web site atwww.nysba.org/volunteer,through the Association of theBar of the City of New YorkWeb site atwww.abcny.org/volunteer, and through theVolunteers of Legal Service Web site at www.vol-sprobono.org/volunteer.



LexisNexis®

AnswerGuide™

New York Civil Disclosure by David Paul Horowitz

Busy lawyers want to know if a newbook passes the test of being truly use-ful. This book passes. Topics can beeasily located. Checklists serve as blue-prints on how to approach each andevery problem. Practice tips aboundand caveats are very useful.

What makes the text particularlyrelevant is that the citations are author-itative and recent. In short, this book isup to date in the always rapidly chang-ing world of New York’s civil proce-dure. Mr. Horowitz should be com-mended for generously citing othersources, such as New York Civil Practice:CPLR (Weinstein, Korn and Miller).There are cross-references at the end ofeach chapter.

One example may suffice to showthe usefulness of this text. Chapter 14,dealing with objections at depositions,is extremely thorough. There is achecklist for interposing and respond-ing to objections, and a list as to whento raise objections or delay them untiltrial. We’re told what objections mustbe made at deposition. Checklists arethere. Citations to the appropriateCPLR sections are there. Cross-refer-ences at the end of each section arethere, including obtaining the latestinformation on LexisNexis. There’seven a section on dealing withobstreperous conduct and heaven

knows, unfortunately, we need that.All this is dealt with in under 20 pages.

I very much recommend this text tomy colleagues. It makes an excellentdesk reference on practice issues. Itmakes a fine companion when going todepositions. In its paperback format, itfits easily and lightly into one’s bag.

My compliments to DavidHorowitz for a job well done. ■

HENRY G. MILLER, is the senior member of theWhite Plains, New York, law firm of Clark,Gagliardi & Miller, P.C. He is the author of OnTrial: Lessons From a Life in the Courtroom,ALM Publishing, New York, and a past presidentof the New York State Bar Association. He is agraduate of St. John’s University and St. John’sUniversity School of Law, and attendedColumbia University and New York University.

David Paul Horowitz has giventhe New York Bar a very use-ful guide to civil practice in his

new text, LexisNexis® AnswerGuide™New York Civil Disclosure. David is ide-ally suited for the task. In addition tobeing a plaintiff’s lawyer concentrat-ing in tort claims such as products lia-bility and medical malpractice, he isan adjunct professor of law at NewYork Law School where he teachesNew York Practice. He also serves onthe Advisory Committee on CivilPractice for the Office of CourtAdministration. His new book will benot only a blessing to the newly admit-ted but also a great tool for seasonedadvocates.

At the very start of the book, we areshown how to use Lexis.com® withthe text. The old veterans of the Barwill have to learn a few new tricks.David shows us how.

In each chapter, we are given notonly an overview, but most important,a checklist on how to deal with eachand every aspect of civil practice,including such topics as interposingobjections to disclosure commands,protective orders, attorney work prod-uct, material prepared in anticipationof litigation and, of course, the ever-important subject of conducting oraldepositions.

BOOK REVIEWBY HENRY G. MILLER


To the Forum:I recently met with a new client (let’scall him A. Fineman), reviewed hisassets and financial situation (bothpresent and predicted for the future),and was engaged to draft a will and acomplicated estate plan. We agreed ona $3,000 flat fee for my services, ratherthan an hourly rate. In arriving at thisfigure I took into account several fac-tors, including my estimate that itwould take approximately 10 hours todo the work. This was to include theinitial drafting, revisions after clientreview, and the eventual signing of thewill and related forms (healthcareproxy, power of attorney, living will,HIPAA authorization). Mr. Finemanpaid the full fee, in advance. However,just as I was about to start work on hisfile, I learned by sheer chance thatanother lawyer in my firm had just fin-ished putting together a will and anestate plan for a client with circum-stances very similar to Mr. Fineman’s.

I obtained a redacted copy of mypartner’s work, and it appears as if Ican revise and adapt it for Mr.Fineman’s needs in about two hours.(Word processors make a big differ-ence these days.) At my usual hourlyrate, and even factoring in the addi-tional time for client meetings and theformal execution of the documents, themost my client would pay would beabout two-thirds of the agreed-uponfee – which I believe had been very rea-sonable in the first place. I should addthat if my time had exceeded my esti-mate, I would not have requested anyadditional payment beyond the $3,000.Under these circumstances, whatshould I do regarding my present rela-tionship with Mr. Fineman, and do Ihave an obligation to return any of theprepaid fee?

Thank you for your advice.

Yours sincerely,Wanting to Be Fair

Dear Wanting to Be Fair:Your concern about charging morethan you might have had you known

about your partner’s work in advanceis commendable. It is clear that there isno need to remind you about EC 1-5,which teaches that a lawyer shouldmaintain high standards of profession-al conduct. The question is, now thatall the facts are known, what is theright course of conduct?

DR 2-106(A) prohibits a lawyerfrom entering into an agreement for,charging or collecting an excessive fee.This is defined in DR 2-106(B), as fol-lows: “A fee is excessive when, after areview of the facts, a lawyer of ordi-nary prudence would be left with adefinite and firm conviction that thefee is in excess of a reasonable fee.” Aseries of factors are then set forth as towhat comprises a reasonable fee. Thetime and labor required to completethe matter is the first factor set forth inDR 2-106(B). Certainly, applying thisconsideration, your fee did not appearto be excessive at the time of “enteringinto, charging” and “collecting” thatfee based upon your good-faith esti-mate of how much time would beneeded.

That does not end the matter, how-ever. EC 9-6 establishes the benchmarkfor attorney conduct: “Every lawyerowes a solemn duty to uphold theintegrity and honor of the profession. . . to inspire the confidence, respect,and trust of clients and of the public.”To uphold that integrity, it appears thatone of two courses of action would beappropriate, depending upon your ini-tial discussions with the client.

If the description of services thatyou gave to your client focused onyour estimate that it would takeapproximately 10 hours to do the workagreed upon, but it actually took lesstime than that, you have a duty to soadvise the client and to offer a reason-able refund when he comes in to exe-cute the documents you had prepared.Failing to do this would result in yourhaving collected an excessive fee.Moreover, you would have made amisrepresentation to your client, how-ever inadvertently.

Even if you were not specific as tohours, but hours were nonetheless afactor in setting your fee (as one com-ponent of arriving at a reasonable fig-ure, as set forth in DR 2-106(B)), youshould still advise your client of thelesser amount of time expended. Arefund likely would be in order.However, without an initial represen-tation and fee quote based primarilyand/or expressly on the hours to beexpended, you would be able to dis-cuss the value of the final product aswell, and not focus on time alone. Thiswould permit you to explain that thepreexisting work done by a member ofyour firm has value, and that the clienthas benefited from the use of thatwork. This might affect the size of therefund.

This is akin to a fee charged by aspeaker at corporate events, which isthe same notwithstanding the fact thatthe speaker gives the same speech(with minor alterations) each time. It is

ATTORNEY PROFESSIONALISM FORUM

The Attorney Professionalism Committeeinvites our readers to send in commentsor alternate views to the responses printed below, as well as additional hypothetical fact patterns or scenarios tobe considered for future columns. Sendyour comments or questions to: NYSBA,One Elk Street, Albany, NY 12207, Attn:Attorney Professionalism Forum, or bye-mail to [email protected].

This column is made possible through theefforts of the NYSBA’s Committee onAttorney Professionalism. Fact patterns,names, characters and locations presentedin this column are fictitious, and any resem-blance to actual events or to actual persons,living or dead, is entirely coincidental. Thesecolumns are intended to stimulate thoughtand discussion on the subject of attorneyprofessionalism. The views expressed arethose of the authors, and not those of theAttorney Professionalism Committee orthe NYSBA. They are not official opinionson ethical or professional matters, norshould they be cited as such.


I seem to have been born with a sil-ver foot in my mouth. Every time oneof my litigation clients asks for myfrank evaluation of his or her case, I,fool that I am, do exactly that. The lastsuch client to request my opinion, aprofessional accused of malpractice,blanched when I gave him my honestassessment of his liability. He accusedme of not believing in his cause, andtook his business elsewhere. Anotherclient, after requesting and receivingmy evaluation of what was his clearmalpractice, thanked me for my can-dor and requested a final bill before fir-ing me and retaining the services of mysuite-mate (let’s call him Raw-MeatRalph), a fiery litigator who tells hisclients what they want to hear.

It seems that all that my clientswant to hear is good news. Would I bedoing them a disservice by tellingthem what they want to hear? And amI doing my own practice a disserviceby telling them the truth?

Sincerely,Raw Meat Wannabe

the value of the speech for which thespeaker is paid, and no discount isexpected or given because presenta-tions have been made elsewhere. Onemight even suggest that DR 2-106 beamended to add another factor tothose to be considered in establishing areasonable fee, “the value of the workalready existing in the firm that is usedin performing the service.”

Yet another factor may be involved.If additional work is performedbeyond what was initially discussed(for example, material changes arerequested by the client, additional doc-uments are prepared or reviewed), youstill must tell the client that less timewas needed to complete the matter asoriginally described, and that a refundwould be in order – but that therequired additional services warrantan additional/revised fee. There isnothing improper in applying anyoverpayment to the charge for newservices, as long as the client, with fullunderstanding, agrees.

There are those who might arguethat the client should be called imme-diately when it becomes clear that aquoted fee is too high, and a refundmade at once, even before the matter isconcluded. However, while it is proba-ble that no client would reject a refund,this makes any additional conversationabout a revised fee, because of addi-tional work, awkward after the work iscompleted.

In sum, each situation in which aquoted fee appears to be too high inlight of new information or changedcircumstances should be carefullyevaluated, in terms of what was said tothe client and what is reasonable – andwhat would be the right and profes-sional thing to do.

The Forum, byMiriam M. Netter, Esq.Miriam M. Netter, Attorney at LawDelmar, New York

QUESTION FOR THE NEXT ATTORNEY

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• Everything you need to obtain fullMCLE credit is included online or on CD!

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Come click for CLE credit at:

or to purchase CDscall 800-582-2452


Question: Is the word ways cor-rect in the sentence, “There’s along ways to go”?

Answer: That expression is general-ly considered colloquial or vernacular(colloquial being “informal,” and ver-nacular “language common to a regionor a group of people”). For example,The American Heritage Dictionary of theEnglish Language (2000) considers waysa singular noun “acceptable, but usual-ly considered informal.”

“There’s a long ways to go” seemsto be either informal or vernacular,depending on whether it is in usenationally or only regionally. Google’sonly listing for ways is a line from aLouis Armstrong tune, “A long waysfrom Paris Ave.”

On the other hand, Webster’s ThirdNew International Dictionary, Una-bridged (1993), usually the most avant-garde of modern dictionaries, listsways, without categorizing it, in theexpression “a long ways from home.”Webster’s only comment is that ways isa grammatical plural used as a singu-lar.

The word ways originated in OldEnglish as the verb wegan, from ancientGothic, meaning “to move.” The nounway, first spelled as weg in Chaucer’stime, originally meant “movement”and then broadened to indicate “athoroughfare designed for trans-portation.” Dictionaries now list manymore meanings for the noun way,Webster’s devoting almost a page todefinitions.

How did way become ways? ErnestWeekley’s usually helpful EtymologicalDictionary of Modern English says onlyof ways that it is interchangeable with -wise in the expressions “likewise” and“endwise.” If so, analogy to those suf-fixes may have influenced the pluralform. My guess is that ways originatedbecause the expression, “a long wayaway” seemed awkward and some-what confusing. Adding an s to thefirst way avoids the repetition.

The adverb anyways seems to haveoriginated in New England as a ver-

nacular expression, but it is now usedthroughout the country. Webster’s callsit an archaic Middle English wordmeaning “in any respect,” and TheAmerican Heritage Dictionary dismissesanyways as a “non-standard” substitutefor anyway, which means “neverthe-less, in any case,” as in, “I’m going todo it anyways.” However, the com-monly heard expression, no way,appears to be in no danger of addingan s.

One more point: When the expres-sion any way means “any method,” it iswritten as two words.

Question: Would you agree that thefollowing sentence was not a good oneto use in a brief in which one wasresponding to an accusation of disinge-nuity? The sentence was, “Appellee isclueless about the pragmatic ambiva-lence of deontic utterances.”

Answer: This sounded like a trickquestion, but Pittsburgh correspondentNorma Chase assures me that it wasnot. Most readers will agree it was nota good sentence to use in a brief – orelsewhere. The adjective deontic is aGreek derivative meaning “obliga-tory,” a common and easily under-stood adjective, which should be sub-stituted.

The phrase pragmatic ambivalence isused in the field of linguistics thatdeals with language as it is used in asocial context to describe the tendencyto say one thing and mean another. Theentire sentence calls to mind the ques-tion a reader submitted about thephrase enlightened obfuscation, whichwas discussed in the May “LanguageTips” column, on page 48. (Whetherthe language is “enlightened” may bearguable, but it is certainly obfus-catory.)

If the brief-writer wanted to appearlearned without communicating, hehas accomplished his purpose. If heintended to persuade a judge to hispoint of view, he has failed.

As I responded to Ms. Chase’s ques-tion, I recalled Daniel McDonald’sadvice in his article, “The Art ofAvoiding the Question.” which

appeared in the semantic journal etcetera (Spring 1990, page 8). Lawyersmay find his advice helpful. His firstsuggestion: When you are in a group ofpeople, you can avoid answering aquestion by pretending not to hearit. Then someone else in the groupis forced to answer. You win; he loses.

Some other suggestions: Challengethe questioner by asking, “Why do youask?” Or gain time by asking what ismeant by a term (“What do you meanby ‘the pragmatic ambivalence ofdeontic utterances’?”) If your question-er is a lawyer, ask, “What do youthink?” This will provoke a long dis-cussion, during which the originalquestion may be forgotten.

Or, argue that the issue is complex;then use long sentences replete withhigh-flown, abstract language so thatyour questioner is bored to death andwants only to get away. Changing thesubject altogether may succeed: “I’msure your son is ready for college now;how time flies.” (Asking people abouttheir children is a great diversionarytactic.)

McDonald’s final suggestion is notrecommended here: “Lie.” ■

GERTRUDE BLOCK is lecturer emerita at theUniversity of Florida College of Law. She is theauthor of Effective Legal Writing (FoundationPress) and co-author of Judicial Opinion Writing(American Bar Association). Her new book isLegal Writing Advice: Questions and Answers(W. S. Hein & Co., 2004).

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Innumerable, numerous. Things “in-numerable” can be counted, but onlywith great difficulty. “Innumerable”does not mean “countless.”“Numerous” means many.

Instinctive, intuitive. “Instinctive”behavior is inborn. “Intuitive” behav-ior is unreasoned. Correct: “After thewitness instinctively blinked and swal-lowed, the trial judge intuitively sus-pected that the witness was lying.”

Intra, inter. “Intra” means “within”or “inside.” “Inter” means “between”or “among.” An intramural MootCourt competition, for example, is acompetition held within a school forstudents of that school only. An inter-mural Moot Court competition is heldfor students of more than one school.

Involve. To “involve” means “toenvelop.” It does not mean to “cause,”“concern,” “imply,” “mean,” “resultin,” or “use.” Incorrect: “The caseinvolved a civil-rights dispute.” ■

1. Anonymous, reprinted in Street News, NewYork City, 5th Issue 2000, at 3, col. 2.

2. See People v. Jorge, 159 A.D.2d 237, 238, 552N.Y.S.2d 217, 218 (1st Dep’t) (mem.) (emphasis inoriginal), lv. denied, 76 N.Y.2d 859, 561 N.E.2d 899,560 N.Y.S.2d 999 (1990).

3. People v. Jorge, 161 A.D.2d 372, 372, 555 N.Y.S.2d116, 117 (1st Dep’t 1990) (mem.) (emphases in origi-nal).

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CONTINUED FROM PAGE 64 GERALD LEBOVITS is a judge of the New York CityCivil Court, Housing Part, in Manhattan. Anadjunct professor at New York Law School, hehas written Advanced Judicial Opinion Writing,a handbook for New York’s trial and appellatecourts, from which this column is adapted. Hise-mail address is [email protected].

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Justin L. Vidgor, RochesterLucia B. Whisenand, Syracuse

EX-OFFICIOChair of the Fellows

M. Catherine Richardson, Syracuse

Vice Chair of the FellowsSusan B. Lindenauer, New York City

As a tribute to their outstanding service to our Journal, we list here the names of each living editor emeritus of our Journal’s Board.

HOWARD ANGIONE

Immediate Past Editor-in-Chief

RICHARD J. BARTLETT

COLEMAN BURKE

JOHN C. CLARK, IIIANGELO T. COMETA

ROGER C. CRAMTON

MARYANN SACCOMANDO FREEDMAN

EMLYN I. GRIFFITH

H. GLEN HALL

PAUL S. HOFFMAN

CHARLES F. KRAUSE

PHILIP H. MAGNER, JR.WALLACE J. MCDONALD

J. EDWARD MEYER, IIIKENNETH P. NOLAN

ALBERT M. ROSENBLATT

ROBERT J. SMITH

LAWRENCE E. WALSH

FINANCEKristin M. O’Brien, Director

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MARKETING

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2005-2006 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

A. VINCENT BUZARDPresident

Rochester

MARK H. ALCOTTPresident-Elect

New York

JAMES B. AYERSTreasurerAlbany

KATHRYN GRANT MADIGANSecretary

Binghamton

KENNETH G. STANDARDImmediate Past President

New York

VICE-PRESIDENTS

First DistrictStephen D. Hoffman, New York

Bernice K. Leber, New York

SECOND DISTRICT

Barry Kamins, Brooklyn

THIRD DISTRICT

Rachel Kretser, Albany

FOURTH DISTRICT

Cristine Cioffi, Niskayuna

FIFTH DISTRICT

Michael E. Getnick, Utica

SIXTH DISTRICT

James C. Gacioch, Binghamton

SEVENTH DISTRICT

C. Bruce Lawrence, Rochester

EIGHTH DISTRICT

Sharon Stern Gerstman, Buffalo

NINTH DISTRICT

Henry S. Berman, White Plains

TENTH DISTRICT

Hon. Joel K. Asarch, Hempstead

ELEVENTH DISTRICT

Seymour W. James, Jr., Kew Gardens

TWELFTH DISTRICT

Lawrence R. Bailey, New York

MEMBERS-AT-LARGE OF THEEXECUTIVE COMMITTEE

Donald C. DoerrVincent E. Doyle, III

David L. Edmunds, Jr.John H. Gross

Claire P. GutekunstGlenn Lau-Kee

Jay G. SaferDavid M. Schraver

FIRST DISTRICTAlcott, Mark H.Barson, Alan D.Berg, Andrew N.Bienstock, PeterBlasi, Gregory J.Boyers, Hon. SeymourBrett, Barry J.Brown Spitzmueller, JanieceBrown, Geraldine Reed

† Campos-Galvan, ManuelChambers, Hon. Cheryl E.Christian, Catherine A.

* Cometa, Angelo T.Davis, Racer E.Dimon, Samuel J.Dominguez, Ivan J.Eppler, KlausFerrara, Lucas A.Fish, Daniel G.Flood, Marilyn J.

* Forger, Alexander D.Frank, Paul M.

* Gillespie, S. HazardGrays, Taa R.Green, Prof. Bruce A.Gregory, Prof. John D.Gross, Marjorie E.Gutekunst, Claire P.

† Haig, Robert L.Harris, Joel B.Harris, John B.Hendricks, Susan L.Hoffman, Stephen D.Hollyer, A. ReneHoran, John R.Jackson, Damian S.Jacobs, Sue C.Kiernan, Peter J.

* King, Henry L.Kougasian, Peter M.

†* Krane, Steven C.Kuntz, William F., IILansner, David J.Lau-Kee, GlennLeber, Bernice K.Lee, Charlotte C.Lesk, Ann B.Levinsohn, Robert J.Lieberman, EllenLieberstein, Marc AriLindenauer, Susan B.

* MacCrate, RobertMcShea, Sarah DianeMillett, Eileen D.Minkowitz, MartinMitchell, Thomas J.Mitzner, MelvynMoreland, Thomas H.Nathanson, EugeneNathanson, Malvina

* Patterson, Hon. Robert P., Jr.Paul, Gerald G.Plevan, Bettina B.Reimer, Norman L.Reitzfeld, Alan D.Richman, Steven H.Rifkin, RichardRobertson, Edwin DavidRothstein, AlanSafer, Jay G.Schultz, Kenneth A.

* Seymour, Whitney North, Jr.Sherman, Carol R.Sherwin, Peter J.W.Sherwood, O. Peter

† Silkenat, James R.Smoley, Lewis M.Sonberg, Hon. Michael R.Stenson, Lisa M.Wachtler, Lauren J.Wales, H. ElliotWalsh, Susan J.Warner, Rita WassersteinWilliams, Bryan R.

SECOND DISTRICTBranda, Rose Ann C.Castillo, Nelson A.Connors, John P., Jr.Cyrulnik, Hon. MiriamDiGiovanna, Lawrence F.Hall, Thomas J.Kamins, BarryLongo, Mark A.

Romero, Manuel A.Slavin, Barton L.Sunshine, Hon. Jeffrey S.Sunshine, Nancy T.

THIRD DISTRICTAyers, James B.Copps, Anne ReynoldsDavidoff, MichaelDeFio, Elena M.R.Dixon, Philip H.Dolin, Thomas E.Doyle, Hon. Cathryn M.Fernandez, HermesGreenberg, Henry M.Higgins, John EricKinum, John B.Kretser, RachelLynch, Margaret ConardMartinelli, PatriciaMcNally, Richard J., Jr.Meislahn, Harry P.Moy, Lillian M.Netter, Miriam M.Perino, Justina CintronPotter, James T.Privitera, John J.Rosenberg, Philip

†* Tharp, Lorraine PowerThornton, Timothy B.

* Yanas, John J.FOURTH DISTRICT

Bartlett, Richard J.Breedlove, Brian H.Burke, J. DavidCantwell, Lori A.Cioffi, CristineClements, Thomas G.Hoffman, Robert W.King, Barbara J.Manning, John T.McAuliffe, J. Gerard, Jr.Pelagalli, PaulTishler, Nicholas E.

FIFTH DISTRICTBenedict, Timothy A.Carmen, Peter D.Doerr, Donald C.Fetter, Jeffrey M.Getnick, Michael E.Girouard, Theresa M.Hayes, David M.McClusky, James P.Myers, Thomas E.Norfleet, Doren P.Peterson, Margaret MurphyPriore, Nicholas S.

* Richardson, M. CatherineRivera, Ramon E.Weinstein, Ellen Stempler

SIXTH DISTRICTCummings, Patricia A.Egan, Shirley K.Gacioch, James C.Gorgos, Mark S.Lee, Carolyn S.Madigan, Kathryn GrantSmyk, Stephen D.Tyler, David A.Walsh, Ronald T., Jr.

SEVENTH DISTRICTAmuso, John P.Barney, Brian J.

† Buzard, A. VincentCastellano, June M.Doyle, Hon. John D.Harren, Michael T.Lawrence, C. Bruce

†* Moore, James C.* Palermo, Anthony R.

Reynolds, J. ThomasSchraver, David M.Tyo, John E.

* Vigdor, Justin L.* Witmer, G. Robert, Jr.EIGHTH DISTRICT

Brady, Thomas C.Cosgrove, Edward C.Doyle, Vincent E., IIIEdmunds, David L., Jr.Flaherty, Michael J.

* Freedman, Maryann SaccomandoGerstman, Sharon Stern

†* Hassett, Paul Michael

Kelly, Michael T.Martin, Jeffrey R.McCarthy, Jeremiah J.McCarthy, Joseph V.Meyer, Harry G.Peradotto, Hon. Erin M.Porcellio, Sharon M.Seitz, Raymond H.Shaw, James M.Young, Oliver C.

NINTH DISTRICTBerman, Henry S.Campanaro, Patricia L.Enea, AnthonyGordon Oliver, Arlene A.Gouz, Ronnie P.Ingrassia, JohnJohnson, Martin T.Klein, David M.Kranis, Michael D.Krooks, Howard S.Lagonia, Salvatore A.Lindgren, ThomasMarkhoff, Michael S.Marwell, John S.Miklitsch, Catherine M.

* Miller, Henry G.Murray, Conal E.

†* Ostertag, Robert L.Plotsky, Glen A.Ramsey, Hon. B. HaroldRuderman, Hon. Terry JaneSeiden, Hon. Adam

†* Standard, Kenneth G.Sweeny, Hon. John W., Jr.Tyre, Margaret H.Wallach, Sherry LevinWelby, Thomas H.Wilson, Leroy, Jr.Zeltner, Peter P.

TENTH DISTRICTAsarch, Hon. Joel K.

* Bracken, John P.Clarke, Lance D.Cooper, Ilene S.D’Angelo, Frank G.Fredrich, DoloresGiorgio, Frank, Jr.Gross, John H.Karson, Scott M.Kossove, Scott E.

†* Levin, A. ThomasMihalick, Andrew J.

* Pruzansky, Joshua M.Purcell, A. CraigQuinlan, Robert F.

* Rice, Thomas O.Robert, Joan L.Santemma, Jon N.Shulman, Arthur E.Smolowitz, Barry M.Sperendi, Michael F.Tell, M. DavidThompson, Charlene R.Tully, RosemarieWalsh, Owen B.

ELEVENTH DISTRICTCohen, David L.Dietz, John R.Goldblum, A. PaulHans, Stephen D.Haskel, Jules J.James, Seymour W., Jr.Lee, ChanwooLeinheardt, Wallace L.Nashak, George J., Jr.Rosenthal, Edward H.Walsh, Jean T.

TWELFTH DISTRICTBailey, Lawrence R., Jr.Chavez, Daniel M.Kessler, Muriel S.Millon, Steven E.

†* Pfeifer, Maxwell S.Price, Hon. Richard LeeSummer, Robert S.Weinberger, Richard

OUT-OF-STATE* Fales, Haliburton, II

Peskoe, Michael P.Smith, Prof. Beverly McQueary

* Walsh, Lawrence E.

† Delegate to American Bar Association House of Delegates* Past President


THE LEGAL WRITER

Problem Words and Pairs inLegal Writing — Part IV

This series of columns will helpyou decide which word to use.But once you’ve resolved the

issue of word choice, be careful to usethe rite (wright? write? right?) homo-nym and homophone. Homonyms arewords that have the same form asother words but which have differentmeanings (“through” the wall or“through” with work). Homophonesare words that are pronounced thesame but are spelled differently (“aid”and “aide”; “dear” and “deer”; “hear”and “here”; “aisle” and “isle”; “bee”and “be”).

The Spell Checker Poem makes itclear how errors can go undetected:

I have a spelling Checker;It cam with my PC.It clearly marks for my revue,Mistakes I cannot sea.I’ve run this poem threw it;I’m sure your pleased to no.Its letter perfect in it’s weigh;My Checker tolled mi sew!

Two rite with care is quite a feet,Of witch won should bee proud.And we mussed dew the best weecan,Sew flaws are knot aloud.1

One New York judicial opinioninnocently explains the nature of hom-ophone errors, in a sense. In 1988 acourt reporter transcribed a trialjudge’s instruction to a jury in a crimi-nal case that “each defendant is pre-sumed to be innocent in a sense.”2 TheAppellate Division affirmed the con-viction but chastised the judge. Afterthe Appellate Division’s opinion waspublished, the prosecution moved tocorrect the opinion. Here’s how theAppellate Division decided the

motion, amending its opinion “in fair-ness to the parties, and indeed to thetrial judge”:

Essentially, the People confront uswith the same problem which con-founded Frederick, the love-starved hero of The Pirates ofPenzance, whose life, as allSavoyards know, was severelycomplicated by the failure of hisnurse, in his infancy, to understandhis dying father’s wish thatFrederick be apprenticed to a pilot.Due to a sad misunderstanding,the nurse apprenticed Frederick toa pirate, with dire consequencesthat are only resolved in the lastact. Thus the People urge here thatJustice [Edward J.] McLaughlin, inhis charge to the jury, did not saythat the defendant is presumed tobe innocent “in a sense,” but mere-ly repeated the word “innocence.”There is no suggestion that thiswas done through “innocent mer-riment,” in the sense used by TheMikado.3

If, whether. “If,” when comparedwith “whether,” means “if and onlyif.” “Whether,” when compared with“if,” means “whether or not.”Attorney: “Judge, please let me knowif (or whether?) you want me to briefthe issue.” The “if” requests an answeronly if the judge wants a brief. The“whether” requests an answer to theattorney’s question no matter what.Law clerk: “Your opinion writing willbe competent if (or whether?) you prac-tice writing.” For most people, it is“if.” Only stars write competentlywhether or not they practice writing.

Illegal. Anything against the law,including the civil law, is illegal. If you

BY GERALD LEBOVITS

mean illegal in the penal sense, prefer“criminal” to “illegal.”

Impediment, obstacle. An “impedi-ment” hinders action. An “obstacle”blocks action.

Imply, infer. To “imply” is to suggestor express indirectly. To “infer” is tosurmise or conclude. The writerimplies; the reader infers.

Important, importantly? — the for-mer. The pretentious “more important-ly” is grammatically incorrect, a hyper-correction.

In, into, in to. “In” means “within.”“Into” means “from outside to inside”or “from one point to another.” The“in” in an adverb-preposition combi-nation modifies a verb. Correct: “Whiledrunk, Mr. X drove in his Corvette. Inhis stupor he drove into a van. But heturned himself into an honest citizenby turning himself in to the police.”

Inequity, iniquity. An “inequity” isan inequality or unfairness in treat-ment. An “iniquity” is an evil deed.

Informant, informer. The two are syn-onymous; both give information. Butonly an informer gives information tolaw enforcement. Some information:New York courts habitually callinformers “informants,” as in “confi-dential informants,” because“informer” has a pejorative connota-tion.

Ingenious, ingenuous, disingenuous.Something or someone “ingenious” isinnovatively smart. Someone “ingenu-ous” is candid and guileless.“Disingenuous” people hide their feel-ings and thoughts. A “disingenuous”argument might be a correct argument,but it is not a candid argument.

CONTINUED ON PAGE 59

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