Representative Matters
Kristine M. Carlson, Appellant v. Crissy Colangelo, individually and as trustee of the Donald P. Dempsey Revocable Trust, et al., 44 N.Y.3d 116, 269 N.E.3d 179, 242 N.Y.S.3d 193 (2025)
Frank W. Streng, Irma K. Nimetz
Estate & Trust Litigation – Will and Trust Contests – In Terrorem Clauses
McCarthy Fingar’s lawyers often deal with “in terrorem” clauses in estate and trust litigation involving Wills and Trust Agreements. An in terrorem clause, also known as a no-contest clause, is a provision in a will or trust that disinherits a beneficiary if they challenge the document’s validity or its provisions. In Carlson v. Colangelo, et al., two of our lawyers, Irma K. Nimetz and Frank W. Streng, represented a client, in which the lower court and one appellate court had determined that our client violated an in terrorem clause, and, thus, forfeited her legacies under the decedent’s trust agreement. However, on appeal, the Court of Appeals disagreed with the lower courts and agreed with our client. Irma, who argued the case, convinced the Court of Appeals that our client did not violate the in terrorem clause and thus did not forfeit her legacies.
In this case, Donald P. Dempsey, who was never married and did not have children, executed a pour-over will and revocable trust, The Donald P. Dempsey Revocable Trust, while he was hospitalized and shortly before he died. In the Trust, Donald, the grantor of the Trust (“grantor”, “Donald” or “decedent”) bequeathed a house in Cortlandt Manor, New York (the “Premises”) that he shared with Kristine M. Carlson (“Kristine” or “plaintiff”), a registered nurse and Donald’s girlfriend since 2004. Donald also bequeathed “a stream of income” of up to $350,000 to Kristine. The trustee of the Trust was Crissy Colangelo (“Trustee Colangelo”), the daughter of one of Donald’s former girlfriends. Trustee Colangelo was also a beneficiary under the Trust. The decedent provided for both Kristine and Trustee Colangelo in his will and Trust though the language of both instruments differ.
Two of the relevant provisions in the Trust provided:
B. After application of paragraph A of this Article, the Trustee shall distribute all of the Grantor’s interest or this Trust’s interest in and to Dempsaco LLC, a limited liability company operating at 122 Waterbury Manor, Cortlandt Manor, New York 10567, to CRISSY COLANGELO, presently residing at 8 Park Avenue, Apt. #1, Goldens Bridge, New York 10526, if she survives the Grantor. It is the Grantor’s sincere wish and desire that CRISSY COLANGELO provide a stream of income, not to exceed the sum of Three Hundred Fifty Thousand ($350,000) in total, to KRISTINE M. CARLSON, presently residing at 122 Eton Downs, Cortlandt Manor, New York 10567 if she is then living, or if she is not then living, to her then living issue, per stirpes. [Emphasis in original].
C. After application of paragraphs A and B of this Article, the Trustee shall distribute all of the Grantor’s interest or this Trust’s interest in and to 122 Eton Downs, Cortlandt Manor, New York 10567, to KRISTINE M. CARLSON, presently residing at 122 Eton Downs, Cortlandt Manor, New York 10567, if she survives the Grantor, or if she does not survive the Grantor, to her then living issue, per stirpes. [Emphasis in original].
Kristine alleged that she invested $100,000 in Dempsaco LLC with Donald and became a 50% owner of Dempsaco.
Both the will and the Trust contained an “in terrorem” clause. The in terrorem clause in Article Ninth of the Trust provided, in part, that:
In the event that any heir, distributee, beneficiary, agency, organization or other individual (“challenger”) shall contest any aspect of this Trust, or the distribution of the Grantor’s assets pursuant to his Last Will, inter vivos Trust Agreement, beneficiary designations or non-probate beneficiary designations, or shall attempt to set aside, nullify, contest, or void the distribution thereof in any way, then the Grantor directs that such rights of such challenger shall be ascertained as they would have been determined had that challenger predeceased the execution of this instrument and the Grantor, without living issue….
Trustee Colangelo did not notify Kristine that she was a beneficiary under the Trust until approximately two and one half years after Donald died. Trustee Colangelo advised Kristine, by a letter from the attorney for Trustee Colangelo, that Kristine was a beneficiary under the Trust of the Premises and a stream of income of up to $350,000. However, Trustee Colangelo explained that she would only distribute the Premises to Kristine if she signed a receipt, release and indemnity agreement, which, among other things, provided that Kristine would release Trustee Colangelo from all liability and indemnify her. In addition, Trustee Colangelo informed Kristine that she would not receive the stream of income of up to $350,000 because the Trustee determined that the decedent used “precatory language” regarding the stream of income, that Decedent overestimated his estate and that the Trustee and Dempsaco lacked funds or assets “to pay anything” to Kristine.
Trustee Colangelo’s counsel rebuffed the attempts by Kristine’s counsel to resolve the impasse without litigation. Kristine then commenced a lawsuit against Trustee Colangelo and Dempsaco to enforce her rights under the Trust and to obtain the two bequests the decedent wanted her to receive.
In the litigation, Kristine commenced an action against Trustee Colangelo and Dempsaco in the Supreme Court, Westchester County. Plaintiff demanded, among other things, relief including an injunction directing the Trustee to distribute the Trust’s interest in the Premises to Kristine; a declaration that Kristine is a 50% member of Dempsaco; a declaration that Kristine is entitled to the stream of income up to $350,000, compensatory damages not less than $350,000, punitive damages, an accounting of Dempsaco’s income and expenses since Donald’s death and the imposition of a constructive trust on Dempsaco’s proceeds.
The Supreme Court denied Defendants’ motion to dismiss the Verified Complaint. Thereafter, while discovery was still ongoing, Defendants moved for partial summary judgment arguing that Kristine was not a member of Dempsaco; Kristine opposed the motion and cross-moved for summary judgment asserting that she was entitled to the Premises. The Supreme Court granted Defendants’ motion and denied Kristine’s cross-motion. Kristine did not perfect an appeal from this decision and order. Thereafter, Defendants moved for summary judgment arguing that by claiming a 50% interest in Dempsaco, Kristine violated the in terrorem clause in the Trust. Kristine opposed the motion claiming that her action was meant to construe and enforce the Trust, not contest it. Kristine also cross-moved for summary judgment on her claims concerning the Premises, the income stream and unjust enrichment. The Supreme Court granted Defendants’ motion and awarded Defendants’ attorneys’ fees. Kristine appealed to the Appellate Division, Second Department, which granted a stay of enforcement of the Supreme Court’s order.
The Appellate Division, Second Department, modified the Supreme Court’s order by denying Defendants’ motion for attorneys’ fees and otherwise affirmed.
In its Opinion decided April 17, 2025, the Court of Appeals held:
because plaintiff’s lawsuit seeks to enforce the Trust provisions as written and intended by the grantor, plaintiff did not attempt to nullify the Trust or challenge its terms. Thus, plaintiff did not violate the in terrorem clause and defendant is not entitled to summary judgment. We further conclude that plaintiff has established her right to summary judgment on her first cause of action regarding her ownership rights to the Premises and her motion should be granted to that extent.
The Court of Appeals held that there are triable issues of material fact as to plaintiff’s second cause of action concerning the income stream and remitted for resolution such action to the Supreme Court, and, in addition, held that plaintiff’s fourth cause of action seeking damages under an unjust enrichment theory must be considered, in the first instance, by the Supreme Court.
Further, the Court of Appeals found that:
- “We now clarify that in terrorem clauses in trust agreements, like those in wills are enforceable but not favored, and must be strictly construed.”
- “None of these causes of actions and demands [asserted by plaintiff/Kristine] for relief contests the legality of the Trust instrument.”
- “Nor does plaintiff challenge any of the Trust’s bequests. To the contrary, she seeks distribution of her bequests in full accord with the Trust and in satisfaction of the grantor’s intent.”
- “There can be no argument that her request for this distribution [the Premises] triggers the in terrorem clause.”
- “Plaintiff’s action to protect her interest in the Premises was wholly consistent with the grantor’s intent.”
- “Plaintiff’s action did not trigger the clause, and she is therefore entitled to judgment as a matter of law on this [first] cause of action seeking recognition of plaintiff’s title to the Premises.”
- “Plaintiff’s claim that she is a 50% member in Dempsaco likewise does not amount to a challenge to the Trust or to the grantor’s intent. Her claim does not trigger the in terrorem clause and result in a forfeiture of her bequests under the Trust.”
- “The purpose of the in terrorem clause is to discourage challenges to the Trust that would upset the grantor’s distributive intent. An action like plaintiff’s, meant to require the Trustee to distribute the Trust in accordance with its stated provisions, is not a challenge to the grantor’s distributive plan. Indeed, it would be contrary to the grantor’s intent to hold that a party cannot file an action to receive exactly that which the grantor set aside for transfer to their named beneficiary.”
Stuart Yellin, et al. v. Revival Property Group, LLC, et al., ___ A.D.3d ___ (2d Dep’t 2025)
Real Estate Brokers – Dual Agency of Representing Buyer and Seller – Real Estate Transactions
McCarthy Fingar represents clients in litigation on real estate transactions. Here, real estate brokers acted as a dual agent on a real estate transaction in which they represented both the firm’s clients, as the buyer, and the sellers in the sale of certain property located in Nassau County. Shortly after the purchase of the property and contrary to the brokers’ representations, the firm’s clients discovered, among other things, that the property was remodeled without proper permits, causing significant structural defects, including potential fraud in the transactions. Acting for its clients, McCarthy Fingar commenced an action in the Supreme Court, Nassau County, against the real estate brokers, claiming fraudulent misrepresentation, negligent misrepresentation, gross negligence and breach of fiduciary duty. Several important claims were dismissed by the lower court, and McCarthy Fingar appealed that decision to the Appellate Division of the Supreme Court, Second Judicial Department (“Second Department”).
The Second Department reversed the lower court’s dismissal of several crucial claims, including fraudulent misrepresentation, negligent misrepresentation, gross negligence, and breach of fiduciary duty, against defendants Brode Ellison Group at Douglas Elliman Real Estate and Mark Brode. The appeal, argued by McCarthy Fingar partner, Joshua S. Subin, focused on the proper application of CPLR 3211(a) dismissal standards and the lower court’s error in effectively converting a motion to dismiss into a motion for summary judgment without providing the parties with the requisite notice under CPLR 3211(c). In its decision, the Second Department found that the lower court erred by treating the defendants’ CPLR 3211(a) motion as one for summary judgment without providing proper notice. While the Second Department proceeded to review the dismissal motion under the correct CPLR 3211(a) standards “in the interest of judicial economy,” its determination underscored the critical distinction between these two different procedural motions.
Applying the CPLR 3211(a) standards – which require accepting the facts alleged in the complaint as true, affording the plaintiffs the benefit of every possible favorable inference, and determining only whether the facts fit within any cognizable legal theory – the Second Department concluded that the plaintiffs’ complaint sufficiently stated causes of action. The Second Department found that the defendants’ documentary proof failed to “utterly refute” the plaintiffs’ factual allegations, particularly regarding claims of a fraudulent house-flipping scheme and a real estate broker’s breach of fiduciary duty due to alleged dual agency and lack of proper disclosure.
The Second Department also reversed the lower court’s denial of the plaintiffs’ motion for leave to amend their complaint, further empowering the plaintiffs to strengthen their case.
The case will now proceed in the lower court with the reinstated causes of action.
[Read in full]Matter of Komar, File No. 2023-557/D (Surrogate’s Court, Rockland County – 5-22-2024)
Estate & Trust 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.
[Read in full]Matter of Elizabeth R. Salerno (Sur. Ct., Westchester Co., 9-27-2023 – File No. 2021-2603)
Frank W. Streng, Irma K. Nimetz
Estate & Trust Litigation – Changing Beneficiaries of an Irrevocable Trust Agreement – Reformation of Trust Agreement or Will
McCarthy Fingar’s lawyers often represent clients in will and trust contests. Typically, such contests often involve decedents allegedly changing their wills or trust agreement and removing family or nonfamily members as beneficiaries. Here, two of our Surrogate’s Court litigators, Frank W. Streng and Irma K. Nimetz, represented a child who had been removed as beneficiary of an irrevocable trust agreement, which is an agreement that cannot be changed. The decedent made the following statement in her trust agreement: “Amendment and revocation. The Grantor does not reserve the right to revoke or amend this trust; the trust shall be irrevocable.” Yet, in an effort to convince the Westchester Surrogate’s Court that the decedent’s change of her irrevocable trust should be accepted, the other side argued that she intended to reserve the right to amend the trust and to change beneficiaries. Specifically, they asked the Court to “reform” the trust agreement, arguing that the lawyer who prepared the irrevocable trust agreement had, through an omission, made a mistake; and that the decedent had intended to reserve her right to change the beneficiaries. To support their case, they filed with the Court an attorney’s affirmation in which the attorney explained the decedent’s intention and stated that she, the lawyer, made a mistake. The Court rejected the “reformation” argument, finding that the language of the irrevocable trust agreement was unambiguous, thereby rejecting any efforts to introduce “extrinsic” evidence. Accepting McCarthy Fingar’s arguments, the Court determined that the decedent could not amend her irrevocable trust agreement, thereby permitting our client to continue to be a beneficiary of the trust agreement. The Court held as follows: “[C]ourts do not consider extrinsic evidence of intent where, as is the case here, the trust instrument itself is unambiguous.”
[Read in full]Matter of Rappaport, File No. 2010-2371 (Surr. Ct., NY County – 12-1-2023)
Estate & Trust Litigation – Enforcing Settlement Agreements – Assessment of Attorney Fees under Matter of Hyde
McCarthy Fingar’s lawyers are powerful advocates for our clients, and go to trial before judge and juries on our clients’ cases. However, most cases settle, often after complex settlement negotiations. In Matter of Rappaport, Frank W. Streng, representing an executor under the Will and trustees of trusts, negotiated the terms and conditions of a settlement in Surrogate’s Court, New York County. The settlement was then agreed to on the record before Surrogate Hilary Gingold, in which Frank’s adversary was represented by multiple attorneys. In view of the need for others to join the settlement, it was anticipated that there would be a written settlement agreement. But, Frank’s adversary changed his mind: he fired his lawyers and then refused to sign a written settlement agreement that was given to him and others to memorialize the in-court settlement. Frank then made a motion to the Surrogate’s Court to approve the settlement, based upon the adversary’s agreement on the record before the Surrogate. For various reasons described in the decision, Frank’s motion was granted, and his adversary’s cross motion was denied. Frank had another success: applying the principles in the Court of Appeal’s decision in Matter of Hyde, 15 N.Y.3d 179 (2010), Frank asked the Surrogate’s Court to assess legal fees against his adversary that were incurred by McCarthy Fingar in enforcing the settlement. On this issue, the Court ruled as follows: “In determining the sources from which legal fees are to be paid, the court must consider various factors, including, whether the unsuccessful party acted solely in his own interest and whether he acted in good faith (Id at 186-87). Upon consideration of these factors, it is evident that Errol’s conduct in failing to abide by the terms of the settlement agreement negotiated by the parties was frivolous and did not serve the interests of the estate. Thus, his share of the estate must be surcharged for the attorneys’ fees incurred to enforce the settlement in the sum of $31,095.”
[Read in full]Matter of AMH, 2022 N.Y. Slip Op. 00968 (1st Dep’t 2022)
Guardianship Practice – Adult Guardianship – Court Appointed Counsel in Complex Ongoing Guardianship Matter
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.
[Read in full]Tax Certiorari – Settlements Made During Trial
Our lawyers know that some cases need to go to trial in order to obtain a good outcome for a client. Stephen Davis, who chairs our Tax Certiorari & Condemnation group, settled a tax certiorari valuation claim in the middle of a trial. Through the settlement, Steve obtained a $1.5 million property assessment reduction, from $4.45 million to $2.95 million. Steve accomplished this result irrespective of an initial asking price on the property of $13 million! Notably, the property consisted of a 1951 Frank Lloyd Wright designed 5,500 sq. ft. house, constructed in 2008 upon a 10.3 ac. island within Lake Mahopac. Many consider this house an architectural rival to Mr. Wright’s renowned Falling Water at Mill Run, Pa.
Matter of Elias Schwartz (Sur. Ct., Westchester Co. 10-25-2022 – File No. 2020-3053/E)
Frank W. Streng, Irma K. Nimetz
Estate & Trust Litigation – Gifting through a Power of Attorney of Form – Property Turnover Proceeding
McCarthy Fingar’s lawyers sometimes represent clients in cases, in which, prior to death, there are questions as to whether a valid gift was made by a decedent/decedent’s agent pursuant to an alleged power of attorney. Here, two of our Surrogate’s Court litigators, Frank W. Streng and Irma K. Nimetz, won partial summary judgment and persuaded the Westchester Surrogate’s Court to nullify a gift allegedly made by the decedent’s agent of the decedent’s house pursuant to an invalid power of attorney. In Schwartz, our client’s brother asserted that a trust, in which he was an alleged beneficiary, owned the decedent’s house, and that he was entitled to keep the proceeds of sale of the house that he sold during his father’s lifetime. However, the father did not sign the deed in which the house was transferred to the trust, and the brother had transferred the house through a durable power of attorney form. But, as Frank and Irma pointed out to the Surrogate’s Court, the power of attorney form was flawed: the portion of the form setting forth powers of the agent was not initialed by the decedent, and there was no statutory gift rider, the portion of the form necessary to allow a gift by an agent. As a result, the Surrogate’s Court held that the power of attorney form was not valid, and there was no valid gift. The Surrogate’s, and Court directed that the brother transfer the sum of $685,698.41 to our client as limited administrator of her father’s estate.
[Read in full]Ellis v. Byrne et al. (Sup. Ct., Westchester Co.; 11/21/2022; Index No. 64659/2021)
Irma K. Nimetz, Frank W. Streng
Estate & Trust Litigation – Change of Beneficiary Designation – Digital Discovery
McCarthy Fingar’s lawyers know that, to win a case, getting facts and documents through pretrial discovery is essential. Here, two of our Trusts and Estates litigators, Irma K. Nimetz and Frank W. Streng, made and won a motion to compel discovery in a case in which two individuals allegedly used their iphones to change the beneficiary on a decedent’s 401K plan on a financial services company’s web site. In a case involving digital discovery, the Supreme Court, Westchester County, found spoliation, holding as follows: “Defendants ‘turned in’ their iPhones, and obtained replacement devices, while already aware that Plaintiff had accused them of using a computer device to unlawfully change the beneficiary designation. Defendants do not argue otherwise. Thus, Plaintiff has met its burden to establish spoliation.” The Court then directed a turnover to McCarthy Fingar’s lawyers of the defendants’ iphones for forensic examination “along with any information necessary to access all of the images, data, and information in the iPhones.” The Court also directed defendants to answer interrogatories as to their iphones.
[Read in full]Matter of Fischer (Sur. Ct., Rockland Co., 12-5-2022; File No. 2020-587/C)
Frank W. Streng, Ryan J. McLeod
Estate & Trust Litigation – Prenuptial Agreements – Spousal Rights
McCarthy Fingar’s Matrimonial lawyers prepare prenuptial agreements and our Surrogate’s Court lawyers litigate the validity of such agreements. Clients make prenuptial agreements when a client is getting married for the second time and desires for his or her prospective spouse to waive rights to elect against the client’s Will or Trust Agreement. The idea is that client wants to give assets to his or her children from a first marriage. Here, two of our Trusts and Estates litigators, Frank W. Streng and Ryan J. McLeod, represented the executor of an estate, in which the decedent’s surviving spouse challenged the validity of the prenuptial agreement that she signed in the 1970s. Following pre-hearing discovery, including depositions of the surviving spouse, Frank and Ryan moved for summary judgment in Surrogate’s Court, Rockland County, in successfully dismissing the surviving spouse’s elective share notice filed under EPTL 5-1.1. In rejecting the surviving spouse’s elective share claim, the Court mentioned that the surviving spouse, relying upon the prenuptial agreement, availed herself of the prenuptial agreement by making a trust agreement in which, like the decedent, she gave her assets to children of her first marriage. The Court upheld the basic legal principle that, In the absence of proof of fraud, a prenuptial agreement will be upheld. The Court noted that the surviving spouse did not prove either fraud or overreaching.
[Read in full]