Fiduciary Need Attorney | Wrong Court | Revenge Porn

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A Fiduciary Must Appear By An Attorney

A Fiduciary Must Appear By An AttorneyIn Matter of the Estate of Van Patten, a Surrogate dismissed the objections filed pro se by an executor. “Pro se” (proh say) is Latin for “for oneself.” A party to a lawsuit who represents themselves, is appearing in the case “pro se.”

In an accounting proceeding before the Surrogate’s Court, J.P. Morgan Chase Bank, NA, as trustee of a trust under the last will and testament of Charles A. Van Patten, moved to dismiss the objections filed by Carol Van Patten, who was the executor of the estate of Philip Van Patton, Charles’ deceased son and Carol’s late husband. Philip’s estate was an income beneficiary of the trust. Chase argued that although a layperson could represent her own interests pro se, Carol could not represent the interests of an estate, as it implicated the interests of other parties. The Court agreed.

The Court reasoned that “SCPA § 401(1) provides that, with certain exceptions, a person may represent him or herself in the litigation. The statute favors the principal that a party can choose his or her own counsel, and it constitutes an exception to the general rule that prohibits the practice of law by a non-lawyer. However, when the interests of an estate are at issue, the fiduciary of the estate is named as a party not as an individual, but in her capacity as a representative of the persons interested in the estate. If she is not a lawyer and appears pro se, such representation is not merely a matter of a person’s choice to be her own counsel. Rather, pro se representation of this sort, where the party is not merely prosecuting or defending her own interests, but is appearing for others, constitutes a prohibited practice of law without a license.”

The Court further reasoned that this “principal has been firmly established in New York case law in the context of powers of attorney. Although a validly appointed lay attorney-in-fact may appear in the litigation in her representative capacity with regard to the interests of the principal who appointed her, she cannot prosecute or defend the matter pro se, even though her principal could have done so. Such representation constitutes unlawful practice of law. Rather, the non-lawyer attorney-in-fact must be represented by counsel. *** This principle applies as well to fiduciaries other than attorneys-in-fact and bars a non-lawyer executor from appearing pro se where such representation affects the interests of other persons.”

Although Carol argued that the rule allowing pro se representation of one’s own interests should prevail because she is the only beneficiary of her husband’s estate, in his will, her husband left some historical documents to a charity, or, if the charity did not want them, to his daughter. He left all the rest of the estate to Carol. Carol argued that the charity had accepted the documents, and, therefore, she is in fact the only beneficiary of her husband’s estate. The Court disagreed because as executor of her husband’s estate, Carol also had a fiduciary responsibility to the creditors of the estate, “and thus does not represent only her own beneficial interests.” She “cannot prosecute objections on behalf of the interests of creditors.” The Court gave her thirty days to appear by an attorney, or the objections to the accounting would be dismissed.

Surrogate Says: Wrong Court

Surrogate Says: Wrong CourtIn Matter of the Estate of Escobar, the American Cancer Society, a remainder beneficiary to a life estate, sought a determination of the Surrogate’s Court that it and the other remainder beneficiary, the United Negro College Fund, Inc., were entitled to possession of certain real property by reason of the termination of the life estate in that property given to the decedent’s nephew, Tricien Ashby (“Ashby”).

The decedent, Jocelyn Ashby Escobar, died on February 29, 2000. On October 31, 2001, her last will and testament, dated February 24, 2000, was admitted to probate and letters testamentary were issued. In Jocelyn’s will, she left a joint life estate in a residence in Brooklyn to her sister Elsie Springer and Ashby, subject to the condition that they live in the house until their respective deaths, and upon the death of either, their respective share vests in the survivor of them. Upon the death of both, the will directed that the property be sold and the proceeds be equally divided between the American Cancer Society and the United Negro College Fund.

A “life estate” is the ownership of land for the duration of a person’s life. It is an estate in real property that ends at death when ownership of the property may revert to the original owner, or it may pass to another person, the remainder beneficiary. The owner of a life estate is called a “life tenant.” Here, Elsie died before Jocelyn, so under Jocelyn’s will the executor deeded the property to Ashby as a life tenant with remainder to the remainder beneficiaries in equal parts. The American Cancer Society asked the Surrogate’s Court to declare that Ashby’s life estate was terminated by reason of his no longer residing at the property, and that the two remainder beneficiaries are now entitled to possession of the property. Ashby had admitted on the record at the call of the calendar that he currently lives in Florida. In addition, it was shown that Ashby neglected to pay real estate taxes and water and sewer fees on the property and the liens that arose by reason of his failure to pay the water and sewer fees are being foreclosed on. Because of this, the American Cancer Society argued that Ashby had repudiated his obligation as a life tenant and had abandoned the property.

On the other hand, Ashby opposed the petition on the ground that the Court has no “subject matter jurisdiction.” Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. For instance, a bankruptcy court only has the authority to hear bankruptcy cases.

The Court agreed with Ashby. It held that it is “fundamental that the Surrogate’s Court has exclusive jurisdiction where the issue before it relates to the affairs of the decedent or the proceeding relates to the administration of an estate.” Citing case law precedent, the Court recognized that this “seemingly broad subject matter jurisdiction is nevertheless limited as it does not include jurisdiction over a controversy between living parties ‘independent’ of any matter ‘affecting’ the estate of the decedent.” It therefore concluded: “Here, the matter in controversy relates to the determination of whether the life tenant has repudiated his obligation on property which was deeded to him as a life tenant and whether he has abandoned the property resulting in the remainder beneficiaries being entitled to possession thereof. This controversy in no way affects the affairs of the decedent or the administration of her estate. Rather, it relates to an independent matter involving a controversy between living parties or entities. The petition asserts that the life estate has been terminated; notably, the petition does not assert that the termination results in the property reverting to the estate or that the estate is entitled to any portion there of or that the Surrogate’s Court will be required to determine how this property will be distributed.”

The “property clearly passed from the estate to the life tenant and the termination of the life estate will not reestablish jurisdiction in the Surrogate’s Court.”

Revenge Porn” Was Not Criminal

Revenge Porn” Was Not CriminalIn our last newsletter, we discussed a case about rapper Curtis “50 Cent” Jackson being sued for publishing a sex tape in which the plaintiff was featured. The court held that the posting of this video to the internet, depicting the former girlfriend of a rival rapper, was done for “trade purposes,” and therefore violated Civil Rights Law § 50 and 51.

In this article we will discuss a court’s recent dismissal of a criminal complaint against a man who posted a naked picture of his former girlfriend to his Twitter account, and then emailed that picture to her boss and sister. This phenomenon known as “revenge porn” has become so common that it has its own Wikipedia page.

The government in People v. Barber, 42 Misc.3d 1225(A) (Crim. Ct. N.Y. Cnty. 2014) brought three charges against the defendant for his acts: (1) Dissemination of an Unlawful Surveillance Image in the Second Degree; (2) Aggravated Harassment in the Second Degree; and (3) Public Display of Offensive Sexual Material. All three are crimes under New York’s Penal Law, but all three were dismissed for being “facially insufficient,” i.e., the complaint did not contain enough “non-hearsay allegations providing reasonable cause to believe that the People could prove every element of the crime charged.” The Judge stated that the defendant’s act, “while reprehensible, does not violate any of the criminal statutes under which he is charged.”

The first charge, “Dissemination of an Unlawful Surveillance Image in the Second Degree” failed because the complaint did not allege that the image was obtained “surreptitiously,” which is a requirement under this statute.

The second charge, “Aggravated Harassment in the Second Degree,” failed because the defendant did not “communicate” with the victim, as this term is understood under the Penal Law. Rather, the defendant “only” posted the picture to his Twitter account and emailed the picture directly to the victim’s boss and sister. Therefore, the defendant is not alleged to have sent anything to the victim — thus, he did not “communicate” with her. The Court refused to uphold any notion that merely posting a photograph to one’s Twitter account is a direct communication with one’s Twitter followers under the Penal Law. Accordingly, this charge was dismissed.

The third and last charge, “Public Display of Offensive Sexual Material,” failed for two reasons. First, the statute requires a “public display,” which the court held does not encompass the posting of an image on Twitter — a subscriber-based social networking service — or sending images to a small number of private individuals via email. Further, the law is clear that a nude image alone does not meet the statutory requirement that the image also “predominantly appeal to the prurient interest in sex.”

Although this defendant avoided the criminal charge, and likely any civil liability as well, it is only a matter of time until the Legislature fills this obvious gap in our State laws with a statute imposing criminal and/or civil liability for the commission of these acts of revenge.

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