Guardianship Practice

McCarthy Fingar’s New York Metro Top Women Super Lawyers

Four of McCarthy Fingar’s lawyers are included in Super Lawyers’ listing of  New York Metro Top Women for 2023. Susan Taxin Baer, in Estate Planning & Probate; Gail M. Boggio, in Estates Trust Litigation; Kristen Mackay Pennessi, in Family Law; and Irma K. Nimetz in Estates Trust Litigation. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have been recognized by their colleagues as having the highest degree of peer recognition and professional achievement.

Burke Joins Firm McCarthy Fingar

We are pleased to announce that Natalie M. Burke has joined our firm as an associate attorney and is a member of our Trusts and Estates, Guardianship Practice, Surrogate’s Court Litigation, Taxation and Municipal Law & Land Use groups. Natalie’s work at the firm will include representing clients in estate planning, administering estates and trusts, estate litigation, estate and trust accountings and guardianships.

Kutzin Speaks on Revocable Trusts for NYSBA

Michael S. Kutzin, a member of various practice groups, including our Guardianship Practice, Taxation and Trusts & Estates groups, will speak on “Revocable Trusts: Creative Uses and Drafting for the Elder Law Practitioner”, in Saratoga Springs, NY, at a program sponsored by the Elder Law & Special Needs Section of the New York State Bar Association.

St. John Joins McCarthy Fingar

We are pleased to announce that Yvonne St. John has joined our firm as an associate attorney and is a member of our Trusts and Estates, Guardianship Practice, Surrogate’s Court Litigation and Taxation groups. Prior to joining McCarthy Fingar, Yvonne was an associate of a firm that concentrated its practice in trusts and estates and real estate transactions. Her experience includes, but is not limited to, the following: representing fiduciaries and beneficiaries in the administration of estates and trusts; estate planning services, including drafting wills and trust agreements and Medicaid planning; representing clients in residential and commercial real estate transactions from contract to closing; and assisting clients with business formation.

McCarthy Fingar’s “Super Lawyers”

Four of McCarthy Fingar’s lawyers have been selected Super Lawyers in the New York Metropolitan area. Susan Taxin Baer has again been selected in the fields of Estate Planning & Probate. Gail M. Boggio has again been selected in the fields of Estate & Trust Litigation/Estate Planning & Probate/Elder Law. Michael S. Kutzin has again been selected in the fields of Estate Planning & Probate, Estate & Trust Litigation and Elder Law. Frank W. Streng has again been selected in the fields of Estate & Trust Litigation and Estate Planning & Probate. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have been recognized by their colleagues as having the highest degree of peer recognition and professional achievement.

Boggio, Bramson & Kutzin Named in List of Westchester’s Top Lawyers

McCarthy Fingar is pleased to announce that Westchester Magazine has named Gail M. Boggio, Howell Bramson and Michael S. Kutzin to its list of Top Lawyers in Westchester. Each year Westchester Magazine publishes its list of Westchester’s Leading Lawyers, excerpted from BL Rankings LLC list of Best Lawyers in America, the preeminent referral guide to the legal profession in the United States.

Hon. Edward P. Borrelli Has Died

It is with deep sadness that we announce that our esteemed colleague, Edward P. Borrelli, has died. His obituary is set forth below:

Judge Edward P. Borrelli died peacefully on July 12, 2022 at the age of 70. He is survived by the love of his life and teenage sweetheart, his wife Cheryl Lynn (nee Malcolm) Borrelli, his beloved children, son Edward Malcolm Borrelli, daughter in law Elaina Borrelli, daughter Christen Michelle Moschetta, son in law Michael Moschetta, and the joys of his life, granddaughter Liliana Grace Moschetta, newborn grandson Michael Pasquale Moschetta and newborn grandson Enrico Luther Borrelli. He is also survived by his sister, Marie O’Leary, brother in law Timothy O’Leary and four nieces and their families.

Judge Edward P. Borrelli was born to Pasquale “Patsy” Borrelli of Casalduni, Italy and Susan (nee Santo) Borrelli of Yonkers, New York on August 25, 1951.

Judge Borrelli graduated from Manhattan Prep, in 1969, a member of one of the last classes to graduate from the Prep. He received his BA from Manhattan College (1973) and his Juris Doctor Degree from New York Law School (1976). He was admitted to practice in New York, the District of Columbia and the Supreme Court of the United States.

His first employment as a lawyer was as an Aide with the Education and Training Office of the New York State Office of Court Administration. He eventually rose through the ranks to ultimately serve as Acting Deputy Director of Human Resources for Education and Training for the New York State Unified Court System. While there he was responsible for the training of the Judiciary in New York State. He also served as national Secretary for the National Association of State Judicial Educators, guest lectured at the National Judicial College and for the National Judges’ Association, the American Bar Association, the New York State Bar Association, several local Bar Associations, New York Law School, Fordham Law School and Pace University Law School and other law schools and universities and for CJE and CLE programs for other states’ judiciaries. He was a frequent faculty member at the New York State Judicial Institute. Judge Borrelli was also named an honorary Texas Citizen for service to the Texas judiciary.

Judge Borrelli also served for several decades in various counsel positions and as a voting member on the New York State Advisory Committee on Judicial Ethics and was Chair of the statewide Judicial Campaign Ethics subcommittee of the ACJE.
Judge Borrelli’s dream of becoming a judge came true in January of 2000 when he was appointed to his first judgeship, Yonkers City Judge, by Mayor John Spencer. He was also appointed to serve as a trial Judicial Hearing Officer and Special Referee in Supreme Court Westchester County, Supreme Court and Family Court Orange County and Family Court, Putman County. Judge Borrelli’s greatest professional joy was presiding over trials in the Supreme Court.

Judge Borrelli retired from the court system in 2017 after 41 years of service and joined the law firm of McCarthy, Fingar, LLP where he practiced until his death.

Judge Borrelli was a classic car aficionado and he enjoyed the first car he ever owned, a 1968 Chevrolet Camaro convertible through most of his life. A member of the RocknRods Classic Car Club and Cadillac DeLaSalle Club, he and Cheryl enjoyed many wonderful times with cherished friends.

He also was highly decorated adult leader in the Boy Scouts of America, for several decades. He earned numerous awards including Wood Badge and the Silver Beaver, the highest award that can be granted an adult leader at the Council level. During his later years with the Boy Scouts he taught adult leaders creative outdoor cooking skills and how to produce upscale meals on open ground campfires.

Judge Borrelli was a member of the Order of the Sons of Italy, Calandra Lodge, and the Police Columbia Association of Westchester, where he served as legal counsel.

Judge Borrelli’s greatest personal joy was being together with his whole family around a dining table, whether a holiday feast in Yonkers, a summer barbeque at the cottage at Peach Lake or during one of the several family vacations to Europe that he and Cheryl hosted for the family to maintain family bonds and nurture ties with our cousins in Italy.

McLeod Joins McCarthy Fingar as Associate Attorney

We are pleased to announce that Ryan J. McLeod has joined McCarthy Fingar and is a member of our Trusts and Estates, Guardianship Practice, Surrogate’s Court Litigation, Taxation and Municipal Law & Land Use groups. Ryan joins McCarthy Fingar following a career in public service and in private law practice. Most recently, Ryan was the Supervisor of Legislative Assistance and Services in the New York State Senate, in which, among other things, he worked to ensure that all bills were properly filed and all Senate office requests were filled. Prior to that, he was a Senior Counsel responsible for advising elected officials on the ramifications of legislation before the Insurance, Energy and Telecommunications, and Commerce, Economic Development and Small Business committees. Prior to his work for the New York State Senate, Ryan was a Deputy Regional Director for Empire State Development, where his duties included counseling for-profit, not-for-profit and municipal corporations on how to obtain state and federal financial incentives for their economic development or workforce development projects. He also managed relationships with municipal officials and local economic development partners throughout the lower Hudson Valley. During this entire period of time, Ryan was also a lawyer in private practice where he handled real estate litigation, as well as trusts and estates issues.

Kutzin Wins Appeal on Guardianship Matter Involving Efforts to Reduce a Personal Needs Guardian’s Powers and to Reinstate a Health Care Proxy

Lawyers at McCarthy Fingar are often sought out by courts or other attorneys to handle the most difficult guardianship cases. In Matter of AMH, 2022 N.Y. Slip Op. 00968 (1^st Dep’t 2022), Michael S. Kutzin, a partner of the firm whose areas of concentration include guardianship and trusts & estates, was appointed as litigation counsel by the lower court to spearhead AMH’s efforts to reduce her Personal Needs Guardian’s powers and to reinstate the health care proxy that AMH had given in 2015 to her daughter (a physician). The disgruntled son of nonagenarian AMH, who had not seen his mother for more than 4 years, opposed the relief sought by Mr. Kutzin. After multiple motions and a four-day hearing, Mr. Kutzin and his co-counsel obtained the requested relief for AMH; and the lower court denied everything requested by the son. The son’s litigious efforts continued in the Appellate Division, First Department, where he filed three separate appeals and multiple motions, but to no avail. Mr. Kutzin, leading the efforts in the Appellate Division, persuaded the Appellate Division to uphold the lower court’s decision.

Kutzin Speaks on Remote Notarization and Witnessing

Michael S. Kutzin, a member of various practice groups, including our Guardianship Practice, Taxation and Trusts & Estates groups, spoke on “Remote Notarization and Witnessing: Update on Legislation and Best Practices”, at a program sponsored by the Elder Law & Special Needs Section of the New York State Bar Association.

Kutzin Speaks on Elder Law Issues

Michael S. Kutzin, a member of various groups, including our Guardianship Practice,  Taxation and Trusts & Estates groups, spoke on “Preparing for the End – Wills, Estate Planning, and Understanding the Process (Probate and Administration)” at the 33^rd Annual Elder Law Institute of the Practising Law Institute.

Kutzin is Co-Author of “New York Elder Law”

As of the January 2021 edition, Michael S. Kutzin, a member of various groups, including our Guardianship Practice,  Taxation and Trusts & Estates groups, became a co-author, along with Tara Anne Pleat, Esq., of the LexisNexis treatise, New York Elder Law.  The publication, which is one of the premier publications in the field, contains comprehensive analysis and practice guidance for trusts & estates, elder law and special needs attorneys practicing in New York. Some topics that are discussed include: planning for incapacity (property management & health care decisions); Medicare and long-term care insurance; Medicaid; supplemental needs trusts; guardianships; estate planning and wills; health care coverage and resources; financial planning; income and estate tax; and elder abuse.

Kutzin Co-Authors Article on Retirement Accounts

Michael S. Kutzin, a member of various groups, including our Guardianship Practice,  Taxation and Trusts & Estates groups, has Co-Authored an article entitled, “How “SECURE” Are You About Planning With Your Clients With Retirement Accounts? A Guide to Estate and Special Needs Planning After the SECURE Act”, published by the Elder Law and Special Needs Section of the New York State Bar Association.

Kutzin Named as Co-Chair of NYSBA Task Force on Remote Notarization and Witnessing of Estate Planning Documents

During the COVID-19 health care crisis, McCarthy Fingar lawyers have remotely supervised the execution of many Wills, Trust Agreements and related documents. We are pleased to announce that Michael S. Kutzin, a member of various groups, including our Guardianship Practice, Trusts & Estates and Surrogate’s Court Litigation groups, has been named as a co-Chair of the NYSBA Joint Elder Law and Trusts & Estates Sections Task Force on Remote Notarization and Remote Witnessing of Estate Planning documents.

Kutzin Wins Appeal on Guardianship Matter Involving Dispute Between Divorced Parents

McCarthy Fingar lawyers represent clients in the most difficult guardianship cases. In Matter of A.A. v. A., 2020 NY Slip Op 03468 (1st Dep’t 2020),  Michael S. Kutzin, a partner of the firm whose areas of concentration include guardianship and trusts & estates, represented, on a pro bono basis, the mother of an incapacitated child in an appeal to the Appellate Division, First Department, of a lower court decision in which, after a divorce, the mother had been named the guardian for her daughter, J.A. Michael succeeded in having the father’s appeal denied on the grounds that the lower court had properly exercised its discretion in naming the mother as guardian and that he had no independent right to have his adult child brought to a physician of his choice to prove his case.

Michael S. Kutzin Joins Firm as Partner

We are pleased to announce that Michael S. Kutzin has joined the firm as a partner and is a member of our Guardianship Practice, Trusts & Estates, Surrogate’s Court Litigation, Appellate Practice, Exempt Organizations, Taxation and Charitable Gift Planning groups. Michael joins McCarthy Fingar from Goldfarb Abrandt Salzman & Kutzin LLP, where he had been a partner for 17 years. Michael has extensive experience with all forms of Surrogate’s Court and Guardianship proceedings, from the most routine to the most complex and contentious. He has appeared in Westchester matters for years, as well as Surrogate’s Court and Guardianship cases in New York City.

Aging Adults & Estate Planning: How To Start The Conversation

New York Elder Law

LexisNexis (2021 Edition)

How “SECURE” Are You About Planning With Your Clients With Retirement Accounts? A Guide to Estate and Special Needs Planning After the SECURE Act

Elder Law and Special Needs Section of the New York State Bar Association

Matter of Komar, File No. 2023-557/D (Surrogate’s Court, Rockland County – 5-22-2024)

Michael S. Kutzin

Surrogate’s Court Litigation – Will and Trust Contests  – Attorney Client Privilege – Guardianship Practice

McCarthy Fingar’s expertise in guardianship matters –  where determinations of whether an individual is incapacitated (referred to as an “Alleged Incapacitated Person”, or “AIP”) –  is important, especially when we represent a client in a Will Contest in an AIP’s estate. In an ongoing Will Contest, in Surrogate’s Court, Rockland County, Michael S. Kutzin succeeded on behalf of our client, the surviving son of the decedent, in challenging attorney-client privilege claims by a Florida lawyer (also licensed in New York), who claimed to represent the AIP during the guardianship proceeding. In the guardianship proceeding, a hearing was held to determine whether, under Mental Hygiene Law §81.10(a), the AIP freely and independently chose this Florida lawyer. The guardianship court held that the AIP did not do so, in part because the AIP testified that it was his granddaughter (and our client’s opponent in the will contest) who procured this lawyer.

In the Surrogate’s Court Will Contest, Michael subpoenaed this Florida lawyer for his complete file and any emails or other communications regarding his involvement in the AIP’s guardianship proceeding. The Florida lawyer refused to comply with the subpoena, claiming, in part, that any communications he had with the AIP were protected by attorney-client privilege.  Michael then opposed a motion by the Florida lawyer in the Surrogate’s Court to quash the subpoena, in which we sought to compel the Florida lawyer to turn over his files as part of discovery in the Will Contest. In his motion papers, Michael argued that, since the Florida lawyer had been removed from the guardianship case, he did not enjoy an attorney-client relationship with the AIP, and that, therefore, no attorney-client privilege protected any of his files. The Surrogate’s Court agreed with Michael, holding, that, as the guardianship court had already determined that the AIP had not freely and independently retained the Florida lawyer, the requisite first requirement for attorney-client privilege was missing – to wit, an attorney-client relationship. The Surrogate’s Court evaluated the issue of attorney-client relationship as follows: “In its final ruling, the Court found that Decedent lacked the capacity and competence to manage his own affairs. The judgment and order resolving the guardianship proceeding, dated July 17, 2023, gave the guardian authority to “retain counsel in the State of Florida necessary to protect the [Decedent’s] property interests in Florida and to investigate and bring appropriate legal action including a disgorgement proceeding against [the Florida lawyer] for legal fees paid to him from the [Decedent’s] funds for alleged legal representation.” (Kutzin Affirmation in Opposition, Exhibit C, p.11 ). Given these facts, [the Florida lawyer] cannot be afforded the protection of the attorney-client privilege as such a relationship was never established.”

The Surrogate’s Court went on to find that the evidence in the Florida’s attorneys files was highly relevant to the Will Contest, stating as follows: “Further, the Court agrees with Respondent’s contention that communications between [the Florida lawyer], the attorney drafter of the Will and related documents, and Petitioner are relevant and are not privileged. The Petitioner was favored under the subject Will, and Decedent testified she had procured [the Florida lawyer] for him. These issues are relevant to determining the validity of the subject Will.”

As a result, Michael and his client will be receiving what they anticipate to be favorable evidence for the ongoing Will Contest and a related trust litigation.

Matter of AMH, 2022 N.Y. Slip Op. 00968 (1st Dep’t 2022)

Michael S. Kutzin

Lawyers at McCarthy Fingar are often sought out by courts or other attorneys to handle the most difficult guardianship cases. In Matter of AMH, the disgruntled son of nonagenarian AMH, who had not seen his mother for more than 4 years, created turmoil for many years for her and her guardians. At the request of AMH’s court appointed counsel, the lower court appointed McCarthy Fingar partner, Michael S. Kutzin, as litigation counsel to spearhead AMH’s efforts to reduce her Personal Needs Guardian’s powers reduced and to reinstate the health care proxy that AMH had given in 2015 to her daughter (a physician). The 2015 health care proxy had been voided by the lower court because the daughter and AMH’s health care proxy had not been able to work together, but by the time AMH’s application was filed, the daughter and the Personal Needs Guardian had worked well together for a number of years. The son was very litigious: he not only opposed this requested relief, but filed his own application to remove AMH’s longtime counsel, remove the Personal Needs Guardian and to have visitation restrictions (which had been imposed because of his misconduct) lifted. The son also sought to have the lower court compel AMH to testify, even though AMH suffered from health threatening stress when dealing with conflict. After multiple motions and a four-day hearing, Mr. Kutzin and his co-counsel obtained the requested relief for AMH; and the lower court denied everything requested by the son. The son’s litigious efforts continued in the Appellate Division, First Department, where he filed three separate appeals and multiple motions, but to no avail. Mr. Kutzin, leading the efforts in the Appellate Division, persuaded the Appellate Division to uphold the lower court’s decision.

Matter of A.A. v. A., 184 A.D.3d 496 (1st Dep’t 2020)

Michael S. Kutzin

McCarthy Fingar lawyers represent clients in the most difficult guardianship cases, including disputes over a guardianship of an adult child. While most people understand issues involving the care and custody of children is often front-and-center in a divorce case, sometimes even adult children with disabilities become collateral damage of a divorce as parents battle over guardianship of an adult child. This can happen for myriad reasons, including where well-meaning but ill-advised parents have a different vision for what kind of care the disabled child should receive. In Matter of A.A. v. A., Michael S. Kutzin, a partner of the firm whose areas of concentration include guardianship and Trusts & Estates, represented, on a pro bono basis, the mother of an incapacitated child in the appeal to the Appellate Division, First Department, of a lower court decision in which, after a divorce, the mother had been named the guardian for her daughter, J.A. The father had fought to become his daughter’s guardian and appealed the lower court decision, arguing that the daughter’s incapacity was brought on by the anti-psychotic medication that she was taking. The father further argues that he should have the right to take his daughter to a physician of his own choice, in his effort to demonstrate that it was the medicines that caused her illness. The mother, who had already prevailed in Family Court against such allegations when she obtained custody while the child was a minor, was named guardian in the lower court proceeding. Michael succeeded in having the father’s appeal denied on the grounds that the lower court had properly exercised its discretion in naming the mother as guardian and that he had no independent right to have his adult child brought to a physician of his choice to prove his case. The First Department uphold the lower court decision, finding that the mother “had been diligently caring for [the daughter] for years and appropriately attended to her needs, and the absence of any evidence supporting plaintiff’s claims of improper medical treatment . . . “

Relocation to Different State – Lack of Support Systems for Incapacitated Person

Michael S. Kutzin

Guardianship cases are designed to be flexible tools to protect the interests of an incapacitated person. Sometimes, however, people forget that and become more concerned with technical compliance with the law than with protection of the incapacitated person. In January, 2020, Michael S. Kutzin persuaded a judge in Manhattan, over the objections of the City of New York, court appointed counsel and an institutional temporary co-guardian that the brother of the incapacitated person acted properly in relocating her from New York to Oregon without prior court approval when her safety was endangered. The incapacitated person, who lived alone, had no memory and little understanding of her circumstances, brought a young man into her apartment late at night. The young man was recorded in security cameras leaving the apartment very early in the morning. The Court agreed that, in the absence of any support systems in New York, the brother, who was also co-guardian, acted properly in removing his sister to Oregon to be closer to her father and family members, and approved his request to have the guardianship transferred to Oregon.

Family Hostility – Revocation of Health Care Proxy

Michael S. Kutzin

Physical distance and family hostility created a situation in which an elderly woman’s health care had become compromised. In 2019, Michael S. Kutzin  represented a longtime family friend of the elderly woman in obtaining guardianship for client who had a lifetime relationship with the elderly woman, and obtained the revocation of a Hawaiian daughter’s health care proxy. The Hawaiian daughter had a hostile relationship with a New York daughter who had attempted to provide care for their mother. The health care agent directed medical providers not to listen to the New York daughter and to keep their mother’s medical information from her. As a result of the conflict between the daughters, their mother’s medical care had become compromised. For various reasons, the New York daughter was not a suitable candidate to become guardian of her mother, so, at the mother’s request, the friend intervened. A Manhattan court agreed with Michael’s argument that the hostility between the daughters put their mother’s care at risk, and found that the longtime family friend was the most appropriate person to serve as guardian.