News (All) - Page 148 of 163 - Campolo, Middleton & McCormick, LLP

The Most Important Part of an Estate Plan is the Memories

Posted: November 23rd, 2013

This month I completed the sale of my parents’ co-op in Queens. This is the apartment that I grew up in. The process of emptying the apartment (which I discussed back over the summer) has finally been completed. Most people, when they design their estate plan, think primarily about the large financial assets: real property, bank accounts, investment accounts, family businesses, etc. But let me tell you from personal experience, the most heart-wrenching decisions are who gets the “stuff.” I’ve found in my practice that family rifts and disputes are not over money, but over the little things that end up having little or no monetary value at all.

The family bible, the photo album, Mom and Dad’s wedding bands, Grandma’s heirloom hope-chest. These are the items that end up costing families more in harsh words, hurt feelings, and legal fees than any expensive property or valuable bank account. This is because these are the items that, although they may have a low financial value, have a high emotional value for families — a fact that many parents or grandparents do not consider when they are making out their Wills or Trusts. Luckily for me, living in an apartment didn’t give us the luxury of saving a lot of “memories.” If it wasn’t used, it didn’t stay.

Even though the Executor may be in charge, typically the heirs get to decide among themselves (or more commonly: fight among themselves) after your death as to who gets the crystal vase, jewelry, dining room furniture and handmade artwork. Instead, consider talking to the kids and grandkids about these memorabilia and emotional heirlooms right now. Keep in mind that this might not be an easy conversation to initiate. Most kids are reluctant to talk about, or even think about, their parents’ eventual passing. Believe it or not, many parents have found that they have to broach the subject more than once before their kids are willing to talk about it.

If you’re planning on giving your personal items to people other than your children, it is best to privately make up your own list of which heirlooms you’d like to go to which heir. After the list is written and signed, show it to your heirs ahead of time. This gives them the opportunity to voice their preferences or concerns while you’re still alive. In many cases simply knowing that you put time and thought into the giving of each heirloom makes heirs more likely to accept and appreciate your gifts when the time comes to receive them.

But know your heirs. If letting them know beforehand will cause arguments and them putting pressure on you, don’t show it to them. Who gets what should be your decision, not theirs. Although this list does not have the same legal significance as a Trust or Will, few heirs will not abide by it after your death. If it is that important that someone gets a particular item, then maybe that should go into your other estate planning documents such as your Trust or Will. If it’s an item that you no longer use, then maybe think about giving that item to that heir while you’re alive. I’ve seen it more than once where two (or more) people are claiming that Aunt So-And-So promised them the china. It’s not always easy to remember what you promised to whom. Remember, though, if there may be any hint of a disagreement, write it all down.

Well Settled Legal Principles and Proof Required to Prevail

Posted: November 10th, 2013

By Patrick McCormick

Three recent appellate decisions, each sparse on fact, nevertheless remind us of the relevance of well settled legal principles and confirm the proof required to prevail on each.The first, Tewksbury Management Group, LLC v. Rogers Investments NV LP¹, involves application of the doctrine of res judicata; the second, Bonacasa Realty Company, LLC v. Salvatore², discusses the concept of piercing the corporate veil; and the third, MH Residential 1, LLC MH v. Barrett³, inter alia, discovery.

In Tewksbury, the commercial tenant commenced an action against its landlord claiming landlord breached the lease by failing to obtain a valid certificate of occupancy, remove building violations that allegedly interfered with tenant’s use of the premises, to provide heat and to deliver possession of the entire premises. By order entered April 19, 2012, the Supreme Court granted landlord’s motion to dismiss the complaint.

As it turns out, several years earlier in 2008, landlord commenced a nonpayment proceeding against tenant. That proceeding ended with a consent judgment of possession and judgment for rent arrears. In affirming the dismissal of tenant’s claims upon the doctrine of res judicata, the Appellate Division held that tenant’s claims were “inextricably intertwined with defendant’s claims in the summary proceeding” and could have been raised by tenant in that summary proceeding. Obviously, tenant’s claims, if proved, would have provided a defense to landlord’s claims for possession and rent. Having failed to raise the claims in the summary proceeding and, more importantly, having consented to a judgment for rent arrears and possession, tenant necessarily acknowledged rent was owed, thus precluding its claim that landlord breached the lease. If you represent a tenant and have claims that could provide a defense to a claim of nonpayment and that would also result in an award of damages, the claim must be raised in the summary proceeding or it may be forever lost.

In Bonacasa, tenant vacated the demised premises prior to the expiration of the lease. Landlord thereafter commenced an action against the corporate tenant for rent due and owing and also asserted claims against the corporation’s principal. Landlord alleged that the corporation was a sham corporation “formed solely for the purpose of leasing the premises” and the individual defendant exercised dominion and control over the corporation and thus sought to pierce the corporate veil. In affirming the dismissal of the claim against the individual defendant, the Appellate Division found the evidence supported the finding that the individual “executed the lease in his corporate capacity as a principal of [the corporate tenant] and that he did not exercise dominion and control over [the corporation] to commit a wrong or injustice against the plaintiff.” The Court further found that “a simple breach of contract, without more, does not constitute a fraud or wrong warranting the piercing of the corporate veil.”

Finally, MH Residential 1, LLC, involved protracted residential holdover proceedings. Tenants filed two motions for leave to conduct various discovery. In affirming the denial of the first motion, the Appellate Term noted that the motion was made eleven months after an unappealed order denied a prior motion for similar relief and tenant had not shown a “material change in circumstances.” As for the second motion, the Court determined movant had not demonstrated “ample need” for the discovery sought. These standards for obtaining discovery are well known, but need to be remembered as litigation progresses.

¹ 2013 WL 5712338, ___N.Y.S.2d___ (1st Dep’t 2013)
² 109 A.D.3d 946, 972 N.Y.S.2d 84 (2d Dep’t 2013)
³ 41 Misc.3d 24,___N.Y.S.2d___(App. Term 1st Dep’t 2013)

CBS and Time Warner Negotiations

Posted: November 9th, 2013

By: Joe Campolo, Esq. email

Tags: negotiation

On Aug. 2nd, CBS-owned stations in New York, Los Angeles and Dallas went dark on Time Warner Cable systems after talks between the companies broke down. Time Warner also removed Showtime and three other cablers from lineups nationwide in the dispute.

The blackout was a result of a dispute over CBS’ request for higher fees from the cable company to retransmit CBS stations.They ended their one month battle/contract dispute, with CBS winning not only a significant financial increase for its programming,but also its stake in the digital future. The outcome should set a precedent for cable companies and their view of blackouts as a viable negotiation tool. Last month, Time Warner Cable reported a huge quarterly loss of television subscribers, the largest in its history: 306,000 of its 11.7 million subscribers dropped the company. While CBS has came out unscathed.

Harvard Law School’s Program on Negotiation published an article written by Katie Shonk entitled “The CBS – Time Warner Cable Dispute: Making a Bad BATNA Even Worse.” She discusses how the CBS/TWC standoff is a perfect example of how attempting to punish a negotiation counterpart into conceding often backfire. As Time Warner played hardball with CBS in an attempt to frighten the network into conceding, they lost focus on how the standoff would impact its customers and ultimately lose subscribers. Time Warner’s BATNA — its “best alternative to a negotiated agreement” with CBS — was a bad one from the start.

To read the full article, click here .

Dec 2 – CMM Ronkonkoma Exec Breakfast

Posted: November 4th, 2013

December 2, 2015

Tax Update
Presented by Robert Quarté, CPA

As 2015 draws to a close, join us to learn year-end tax tips and strategies that will help you minimize any tax season surprises and start your business off on the right foot for 2016. Robert Quarté of Albrecht, Viggiano, Zureck & Company, P.C. (AVZ) will share strategies on individual, business, and retirement planning, the Affordable Care Act, filing deadlines changes, FBAR’s and college savings plans. With the new year upon us, now is the perfect time to get your business in order and plan for a successful new year.

EVENT DETAILS:

8:30am – 9:00am
Arrival and Breakfast

9:00am – 9:45am
Presenting Speaker

9:45am – 10:00am
Q&A and Discussion

REGISTRATION: All events are FREE but registration is required. Complimentary breakfast will be served.

LOCATION: CMM’s Ronkonkoma office, 4175 Veterans Memorial Highway, Ronkonkoma.

October 2013 Legal Brief – Firm Newsletter

Posted: October 30th, 2013

CMM Relocates Offices to Accommodate its Growth

Posted: October 29th, 2013

Campolo, Middleton & McCormick is celebrating its 5th anniversary by tripling the size of its office space. The expansion will assist in the firm’s strategic growth plans while improving daily operations to provide outstanding service that their clients have grown to expect. Now located on the fourth floor of 4175 Veterans Memorial Highway in Ronkonkoma, at the entrance to MacArthur Airport, the new space offers state of the art technology, more offices, a more efficient layout and larger event rooms.

Since its inception, Campolo, Middleton has grown to a full service practice now with 17 attorneys. Campolo, Middleton’s growth derives from its philosophy of delivering Big Firm Quality and Small Firm Value. The firm has carved out a reputation of delivering the highest quality of services and the most efficient and cost-effective solutions.

In announcing the move, Managing Partner Joe Campolo said, “We’re excited to expand our office and our practice in a location perfectly suited to serve the needs of our clients and the firm. Ronkonkoma is an ideal location in terms of its size, close proximity to the airport, the LIRR and its easy access to the major highways. The redevelopment of the area, known as the Ronkonkoma Hub project, will revitalize the community and the firm is excited to be a part of that economic growth for the region.”

Supreme Court Sharpens Focus on Arbitration and Class Actions

Posted: October 28th, 2013

This blog previously explored the Supreme Court’s June 2013 decision in American Express Co. v. Italian Colors Restaurant, in which the Court validated the credit card company’s contract with merchants mandating arbitration and eliminating the possibility of a class action (a result Justice Elena Kagan memorably described as “Too darn bad”).

Shortly before deciding the apparently contentious Italian Colors case, however, the Supreme Court unanimously decided Oxford Health Plans LLC v. Sutter. The facts leading up to this case began over a decade ago, when physician Ivan Sutter and Oxford Health Plans entered into an agreement whereby Oxford would pay Dr. Sutter for the medical services he provided to Oxford members. The agreement contained an arbitration clause prohibiting litigation of disputes in court, instead mandating arbitration.

Several years into the agreement, Dr. Sutter filed a class action on behalf of himself and other physicians in Oxford’s network, claiming that Oxford had failed to promptly and fully pay the doctors for their services. Oxford moved to compel arbitration, which request was granted by the New Jersey Superior Court. The parties then agreed that the arbitrator should decide whether their agreement authorized class arbitration.

During the course of the arbitration proceedings, the Supreme Court decided Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 559 U.S. 662 (2010), holding that the Federal Arbitration Act (“FAA”) prohibits class arbitration absent contractual evidence that the parties had agreed to allow it. Meanwhile, in Sutter, the arbitrator found that the contract between Oxford and Sutter did allow for class arbitration.

Oxford then moved to vacate the arbitration award in federal court, arguing that the arbitrator had exceeded his powers under the FAA. The District Court denied the motion, and the Third Circuit affirmed, upholding the arbitrator’s decision to allow Sutter’s claim to proceed in class arbitration. The case then made its way to the Supreme Court, which unanimously affirmed, holding that the arbitrator had not exceeded the scope of his power. In fact, the arbitrator had done precisely what the parties had requested: interpret the agreement and decide whether it permitted class arbitration.

Under FAA § 10(a)(4), a Court can vacate an arbitration award only “Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” As the arbitrator did not exceed or “imperfectly execute” his powers in this case, the Supreme Court, given the limited scope of review, confirmed that the arbitrator’s decision could not be overturned-even if they thought it was wrong. (Although Oxford had relied on the Court’s decision in Stolt-Nielsen in its efforts to overturn the award, the Court rejected Oxford’s arguments, pointing out that in that case the parties had stipulated that they had never reached an agreement regarding class arbitration.) As Justice Kagan summarized: “The arbitrator’s construction holds, however good, bad, or ugly.”

The Sutter decision is a reminder that arbitration, while often considered an appealing and less expensive alternative than litigation, is not without risk. Businesses should take care to ensure their agreements set forth their arbitration procedures with specificity.

Should You Talk to Your Heirs?

Posted: October 26th, 2013

By: Martin Glass, Esq. email

Tags: elder law, estate planning

Last month I discussed how to avoid a Will contest. I noted that one way to at least minimize that risk is to talk to your heirs about your estate plan. It sounds simple, but the subject of inheritance is one that most people arduously avoid for a number of different reasons: superstition, fear, lack of knowledge, or a misguided desire for secrecy. Many adults, such as my parents, were raised to believe that money was a private affair, and that talking about it was inappropriate. But beyond that, many people simply fear that if they talk about their estate plan with their heirs, they will meet with resistance, disagreement or, in a worst-case scenario, their heirs will try to counter the estate plan with legal action of their own. If that scenario exists, then a revocable trust should probably be part of your plan. But that’s a topic for another time.

While in some families and circumstances these fears are justified, in most circumstances being silent about your estate plan can have more disastrous consequences. If nothing else, a refusal to talk about money or your estate plans with your children means that they will have a difficult time following your wishes in regards to your medical treatment or protection of your assets should disaster strike. Most adult children are actually eager to fulfill their parents’ last wishes, regardless of how it may or may not impact their own inheritance, especially if they understand why their parents are doing what they’re doing.

Furthermore, your plans for leaving a legacy for your children or grandchildren may clash with their own needs or plans. For example, you may want to leave extra money to a grandchild with special needs, but if that child is receiving government benefits, leaving a significant inheritance in their own name could cause a loss of those benefits. Or one child may be doing very well and has no need to add to their estate. They may, in fact, prefer if you gave their share to their siblings. Discussing your plans with your children ahead of time can prevent situations like these from occurring.

So the answer to the question above is yes — you should talk to your children or heirs about your estate plan. Talking about it will not only make it easier for them to follow your wishes, but it may even help you determine how you want to make the best difference in their lives

5 Hard-nosed Negotiation Tips from Steve Jobs

Posted: October 25th, 2013

By: Joe Campolo, Esq. email

Tags: negotiation

A judge ruled last month that Apple violated antitrust laws in conspiring with some of the largest book publishers to fix e-book prices. While Apple continues to fight the allegations, there is a lot to be learned from the released e-mail exchange between Steve Jobs and James Murdoch. The e-mails had an important role in the lawsuit, but they also provide an savvy high-stakes negotiation between the leaders of two powerful firms.

Eric Sherman writer for Inc.com, reviews the series of e-mails and the negotiation principles used to create the best conditions for winning.

“A series of emails about ebook prices between Apple and HarperCollins, including ones written by Steve Jobs, were recently released as part of the Department of Justice price-fixing suit against Apple and a number of major publishers. As the site Quartz pointed out, these offer some great insight into how Jobs negotiated.

However, Zachary Seward at Quartz called it an example of “hard-nosed” negotiation at which Jobs excelled. I’d take a different view. This is not hard-nosed. The emails show how an excellent negotiator used a series of principles to create the best conditions for winning. Let’s look in greater detail at the exchange between Steve Jobs and James Murdoch, son of Rupert Murdoch and the ultimate decision maker, and see how Jobs ultimately got his way.”

To read the full article, click here.