A Disturbing Court Decision for Real Estate Owners

WV Supreme Court Rules on Confidentiality of Appraisal Reports

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Posted: Feb 13, 2012 1:31 PM ESTUpdated: Feb 13, 2012 2:23 PM EST

By Andrea Lannom - email

Appraisal reports of nonparty condemned properties are not discoverable in condemnation proceedings, West Virginia Supreme Court justices decided in a Feb. 10 ruling.

The appeal stems from two cases filed in Wood County Circuit Court by the state's Department of Transportation and the Division of Highways.

The state agencies sought the court to prohibit an order requiring them to turn over appraisal reports involving condemned properties in the South Mineral Wells project. The state agencies claimed the circuit court order violated federal confidentiality requirements.

The DOH condemned numerous properties in Wood County for the project including a Taco Bell, gas station, convenience store, parking area and a video lottery operation.

During the condemnation proceedings, property owners engaged in discovery seeking state agencies to turn over appraisal information.

Guided by State of West Virginia Department of Transportation v. Cookman, Wood County Circuit Judge Jeffrey B. Reed granted property owners' requests in a September 19 order.

"The result in Cookman was reached because the majority opinion declined to analyze the discovery of appraisal reports under federal law as requested by DOH," the Feb. 10 opinion stated. "If Cookman had applied federal law, the outcome in that case would have been different."

Justices overturned the Cookman case, saying it failed to consider federal law.

"The decision in Cookman failed to resolve the issue of the discoverability of federally-funded condemnation appraisal reports under the applicable federal law," the opinion stated. "The omission unquestionably provides this court with the special justification necessary for the departure from the doctrine of stare decisis."

In her dissent, Justice Margaret Workman explained property owners wanted the reports to see if they were receiving a "fair deal." Justice Brent Benjamin joined Workman in her dissent.

"It is important to note that the DOH used one appraiser to perform all of the appraisals on all of the properties in question," Workman's dissenting opinion stated.  

Workman said the circuit judge made the right decision because he allowed property owners further protection.

"While I agree that the DOH is bound by federal law and must comply with all relevant regulations, the majority opinion's acceptance of the DOH's agreement amounts to nothing more than tortured logic," Workman wrote.  

Workman said there is no provision to prevent a circuit judge from ordering the state agencies from producing the appraisal reports.

"The majority opinion's decision allows the DOH to do whatever it chooses to do in appraising land in future condemnation proceedings with neither any type of check on its actions nor any means for landowners whose property is being condemned to have any examination of the fairness and consistency or lack thereof by the government's appraisers," Workman wrote. "It further allows the DOH to do so under the guise of confidentiality even when there are relevant and material reasons for disclosing the appraisals to the respondents.

Attorney John M. Aversa is Disbarred After Acting As A Guardian And Submitting Unverified Petition For Probate

LEGAL ETHICS

Lawyer Acting as Guardian Disbarred for Helping Ward Will $5M Estate to His Wife

Posted Aug 30, 2011 11:51 AM CST
By Martha Neil

Despite a hitherto unblemished disciplinary record over a 30-year legal career, a New York attorney appointed as a guardian to an incapacitated person has been disbarred for helping her prepare a will in favor of his wife.

John M. Aversa was appointed in July 2009, and the next month his ward got a settlement of over $5 million in a personal injury suit, recounts the Fourth Judicial Department of the New York Supreme Court Appellate Division in an opinion (PDF) earlier this month.

A court told Aversa to retain independent counsel to help the woman prepare a will. Instead he prepared the will himself without bringing in independent counsel or evaluating the woman's testimentary capacity. It named Aversa as the executor and his wife, under her maiden name, as the beneficiary. Two members of his immediate family were witnesses.

Besides committing what the court described as serious misconduct for personal gain, Aversa also "demonstrated a shocking lack of candor in this proceeding," the court wrote, "by belatedly presenting to the Grievance Committee a document designed to conceal his misconduct and by providing explanations for his conduct that lack credibility."

Aversa had claimed that the will was drafted in an effort to distribute his ward's assets to charity, as she wished, via his wife. He presented an unsigned, undated will addendum giving instructions to that effect after he was asked to resign as guardian, the opinion says.

Hat tip: Legal Profession Blog.

 SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
MATTER OF JOHN M. AVERSA, AN ATTORNEY, RESPONDENT.  GRIEVANCECOMMITTEE OF THE SEVENTH JUDICIAL DISTRICT, PETITIONER. -- Order
of disbarment entered.  

Per Curiam Opinion: 

Respondent was admitted to the practice of law by this Court on February 18,
1981, and maintains an office in Niagara Falls.  The Grievance Committee filed

a petition charging respondent with acts of
misconduct arising from his appointment as guardian of an
incapacitated person (hereafter, IP).  Respondent filed an answer
admitting the material allegations of the petition and he
appeared before this Court and submitted matters in mitigation.
Respondent admits that, in July 2009, he was appointed as
guardian for the IP, who was a plaintiff in a pending personal
injury action.  Respondent further admits that, in August 2009,
the IP received settlement funds in an amount in excess of $5
million and, on numerous occasions thereafter, Supreme Court
instructed respondent to retain independent counsel to draft a
will on behalf of the IP.

Respondent admits that, in contravention of those
instructions, he prepared a will for the IP, which was executed
in March 2010, appointing himself as sole executor of the estate
and designating respondent’s wife, in her maiden name, as sole
beneficiary of the will.  Respondent further admits that, prior
to the execution of the will, the IP did not receive advice from
independent counsel and was not evaluated to determine if she
possessed testamentary capacity.  In addition, respondent admits
that two members of his immediate family served as subscribing
witnesses to the will.

In June 2010, the court advised respondent in a letter that
his conduct in preparing the will, designating his wife as sole
beneficiary, and retaining counsel to probate the will was
improper, and the court requested that respondent resign as
guardian.  Respondent admits that he thereafter resigned as
guardian without responding to the letter and did not attempt to
offer the will for probate.  Additionally, respondent admits
that, during the investigation conducted by the Grievance
Committee into this matter, he produced a petition for probate,
which he had prepared and verified, that had not been filed and
that contained an undated, unsigned addendum purporting to
instruct respondent’s wife to distribute the IP’s assets to
charity.  The petition for probate was verified by respondent two
days after the date of the letter from the court requesting his
resignation as guardian.

When respondent appeared before this Court in relation to
this matter, he submitted that he did not understand that his
conduct was improper and did not construe the instructions by the

 court as a directive to retain independent counsel for the IP.
He further stated that he drafted the will in an attempt to
fulfill the IP’s testamentary wish to distribute her assets to
charity.  We reject respondent’s explanation for his misconduct
as incredible.

We conclude that respondent has violated the following Rules
of Professional Conduct:
rule 1.8 (c) (1) (22 NYCRR 1200.0) - soliciting a gift from
a client, including a testamentary gift, for the benefit of the
lawyer or a person related to the lawyer;
rule 1.8 (c) (2) (22 NYCRR 1200.0) - preparing on behalf of
a client an instrument giving the lawyer or a person related to
the lawyer any gift where the lawyer or other recipient is not
related to the client and a reasonable lawyer would not conclude
that the transaction is fair and reasonable; and,
rule 8.4 (h) (22 NYCRR 1200.0) - engaging in conduct that
adversely reflects on his fitness as a lawyer.
In determining an appropriate sanction, we have considered
respondent’s previously unblemished record after 30 years in the
practice of law.  Respondent, however, has committed serious
misconduct for personal gain.  Additionally, respondent has
demonstrated a shocking lack of candor in this proceeding by
belatedly presenting to the Grievance Committee a document
designed to conceal his misconduct and by providing explanations
for his conduct that lack credibility. 

Accordingly, after consideration of all of the factors in this matter, we conclude
that respondent should be disbarred.  

PRESENT: CENTRA, J. P.,
PERADOTTO, LINDLEY, GREEN, AND MARTOCHE, JJ.  (Filed Aug. 2,
2011.)

Office of Court Administration Finds Blacks and Latinos Are Underrepresented In Jury Pools

Study find Blacks and Latinos are underrepresented in jury pools

By CRAIG D. FRAZIER Special to the AmNews | Posted: Thursday, February 2, 2012 12:00 am

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New York State's Office of Court Administration (OCA) released a yearlong data collection effort on the state's jury pools. The report points to an underrepresentation of African-Americans and Hispanics in jury pools in some New York jurisdictions. 

The report and study are the result of state legislation. The Jury Pool Fair Representation Act (A.2374/S.2613), introduced by Assembly Members Rory Lancman and Hakeem Jeffries and State Sen. Jeff Klein, was passed into law in 2010. It requires that jury pool demographic data be recorded in order to determine whether jurors in New York State represent a fair cross section of the community.

New York is a recognized leader in implementing procedures designed to increase jury participation. New York meets every standard that has been recommended for maximizing jury representation by the American Bar Association and the National Center for State Courts.

As of Oct. 10, 2011, the statewide-automated Jury Management System reported that 491,382 jurors had served between Sept. 13, 2010, and Sept. 9, 2011. Seventeen percent of those jurors were Black.

"OCA's unprecedented demographic survey shows that some New Yorkers are less likely than others to be tried by a jury of their peers," said Lancman. "I look forward to working with my colleagues in the Legislature, bar leaders, community representatives and OCA to develop and implement strategies for making our juries fairly representative of the communities they hail from."

Report findings on juror demographic data in specific counties in New York State indicate a discrepancy between jury pool members identified as African-American or Hispanic and their respective representation in the general population. 

In Queens, the representation of Hispanics in jury pools was 35 percent lower than their representation in the general population. Those surveyed in Queens who self-identified as "Other" were underrepresented by 41 percent.  In addition to Queens, Hispanics were underrepresented by 39 percent in Nassau, 22 percent in New York, 47 percent in Suffolk and 45 percent in Westchester counties. 

"Everyone deserves the same shot at justice," Klein said. "We must examine the findings of this report and make the necessary changes to ensure that our court system upholds our values in every community across New York State."

Scranton PA Parents Question The Use Of Danielle Ross as a Guardian As Litem

November 20, 2011 

Parents target family court

By Christopher J. Hughes chughes@golackawanna.com
Go Lackawanna Editor

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SCRANTON - A group of parents demonstrating on Courthouse Square Friday morning across from the Lackawanna County Administration Building at 200 Adams Ave., Scranton, said they feel the county’s family court and guardian ad litem are the focus of an investigation by the Federal Bureau of Investigation.

The Administrative Office of Pennsylvania Courts defines a guardian ad litem as a “person appointed by a court to look after interests of a minor or incapacitated person involved in legal proceedings.”

But parents holding signs suggesting county officials “Toss Ross” and handing out literature about the county’s guardian ad litem system said that was not the case.

Olyphant resident Cherie Matassa said guardian ad litem Danielle Ross, who is supposed to represent her two children in a custody battle that began in March 2010, has not listened to their own wishes.

Matassa claimed that Ross forced her to provide visitation rights to her ex-husband, who she did not name but claimed is employed in Lackawanna County government, despite the children’s expressed wishes.

“I paid her to be their voice... She didn’t care what they said,” she said.

Matassa fears that she could eventually lose custody of her children because of the actions in family court, but a visit by the FBI to the Lackawanna County court administrator’s office on Monday gives her hope that such issues could begin to be resolved.

Efforts to reach Ross for comment at her office in the county administration building and by phone Friday afternoon were not successful.

When contacted earlier this week regarding the FBI’s search at the Lackawanna County Courthouse, Court Administrator Ron Mackay, FBI Special Agent J.J. Klaver, and spokesperson for the U.S. Attorney’s Officer Heidi Havens each declined comment on the nature of the ongoing investigation.

Dawn Lewis of Scranton claimed that her father-in-law’s working relationship with a current county judge prevented her from keeping full custody of her now-7-year-old son after his father died from cancer in 2010.

Lewis said the Ross is also her child’s appointed guardian ad litem.

“My son was seen twice for a total of 22 minutes,” Lewis said. “During this 22 minutes, Ms. Ross came to her own conclusions and figured out what was best for my (then-) 5-year-old son who was grieving the loss of his father. She decided he needed to spend three out of five days with his grandparents. Custody? Visitation? No. That’s co-parenting, and that is not right.”

Lewis said she’s working to get a new court date after more than 18 months of legal battles. She believes that the FBI is looking into the finances of family court and that it “is only the tip of the iceberg.”

Another woman from Blakely also feels she was treated unfairly by the county’s family court system. She said Ross, her children’s court guardian, gave custody of her children to a man with whom she had a prior relationship.

That man, Maurice Wayne Hunting III, was charged Sept. 28 with rape of a child, involuntary deviate sexual assault of a child, indecent assault of a person under age 13, corruption of minors, and contact with minors involving sexual offenses, according to court records.

Charges were held for county court after an Oct. 5 preliminary hearing, and a formal arraignment was set for Nov. 18.

The woman, who is not being named to protect the identity of the alleged victims, said she hopes that an investigation by the FBI will end troubles in the Lackawanna County court system.

Read more: http://www.timesleader.com/golackawanna/news/Parents_target_family_court_11-20-2011.html#ixzz1lfL7p96i

Elderly Woman Loses Brownstone to Brooklyn Courts' Inside Baseball

Elderly Woman Loses Brownstone to Brooklyn Courts' Inside Baseball

AAACommentsBy Joe Calderone Tuesday, Apr 30 2002

...continued from page 1

"Why should I have any less rights than anyone else to buy the house just 'cause I work in the courts?" said Randall, who acknowledged the sale might "look funny," but said it was "on the up and up."

Kilfoyle, however, said he couldn't remember if Randall came to him seeking permission. He said he did recall Crowley's complaints, which he said he reported to Judge Michael Pesce, the chief administrative judge in Brooklyn at the time. "My initial reaction was to report it to my superior," Kilfoyle said.

What I did was not wrong," Randall said. "In terms of appearance, on face value, I could understand where you'd have some concern. But it was done on the up and up to help the woman. She wanted to stay in her home. She didn't want to go to a nursing home. This way she was able to stay and she was happy. I felt good about it. She was able to live out her last days the way she wanted to."

Randall denied that he got any special deal, although he said one reason he was attracted to the house was because of the price." 

I was single [at the time]. I needed something to help me with taxes. I'm looking for a house and the price wasn't unreasonable and it was a chance to help someone out.

"The place was no bargain. It needed a lot of work," he said.

After the purchase, Randall said he invested between $20,000 and $30,000 in new windows and other repairs.

David Bookstaver, a spokesman for the Office of Court Administration, which oversees the courts, defended the deal, an unusual stance given recent moves by Chief Judge Judith Kayeand her number two, Chief Administrative Judge Jonathan Lippman, to at least give the appearance of breaking up the insider politics pervading business in Brooklyn civil court. It was Kaye and Lippman who, in the wake of Judge Barron's arrest, eased Pesce out of his post as administrative judge in favor of Judge Ann Pfau, an aide to Lippman who is seen by many Court Street lawyers as nothing less than an invading force whose mission is to tighten OCA's grip on the Brooklyn courthouse.

Bookstaver said the unadvertised sale of Perry's home to Scholnick's clerk did not trouble the powers that be within OCA.

"It was brought to the attention of counsel's office, and an opinion was given that there was nothing untoward or unethical about the transaction. It was not done in a vacuum. The final outcome did this woman a tremendous favor," Bookstaver said.

Terrelonge, the guardian who pushed for the sale, went on to serve as president of the Brooklyn Bar Association before dying this year after an illness. The bar association helps screen those seeking election to the bench, and the sometimes cozy relationships between lawyers active in the bar and judges they appear before has been sharply criticized.

Experts question why Terrelonge and Scholnick didn't push for a competitive sale of the home or devise another arrangement, short of a sale, that would have allowed Perry to draw on the equity in her home without having to give up ownership. Laws governing the disposal of property owned by incompetents require that the property be advertised for four successive weeks by a notice of sale "posted conspicuously on the premises" and by the publication of a notice of sale advertisement.

But in court papers signed by Judge Scholnick, Terrelonge argued successfully that those requirements be waived. Perry's brownstone was not advertised out of a fear "that posting and publication would be an open invitation for vandalism to the property and could bring about a danger to the occupants of the premises," Terrelonge stated.

Legal experts who advocate for the elderly said judges have a responsibility to look out for the needs of incompetents and avoid even the appearance of impropriety. "The bottom line is the interests of the incapacitated person have to be protected," said Toby Golick, director of Cardozo Law School's Bet Tzedek Legal Services.

Golick said it would be difficult to justify not advertising Perry's property on the open market. "It might be appropriate not to put up a for sale sign, but that doesn't mean there shouldn't be an effort to get the best price for a property by, for example, using a real estate agent or otherwise advertising."

One Brooklyn lawyer who specializes in elder law said the deal "smells. At the very least he [the judge] should have recused himself. Let another judge sign the order."

The lawyer also questioned why the house had to be sold at all. "Why sell her house? You could get a reverse mortgage."

In an appearance before a different Brooklyn Supreme Court judge, Sebastian Leone, who approved the final terms of the sale, Perry eventually agreed to the sale of her home. But she pleaded with the lawyers to not take advantage of her.

"I consent to it, but just give me someone to treat me good and don't take all the money from me. Let me live happy till I die."

---

Additional reporting: Ed Barrera

Queens, NY - Judge of Mazoltuv Borukhova Case Steps Down from Other Custody Battle

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Queens, NY - A judge has decided to back out of a wrenching custody battle involving a 10-year-old boy whose TV commentator mom accused the judge of putting suicidal thoughts in the boy’s head.

Queens Supreme Court Justice Sidney Strauss announced Friday that he will hand off the case involving Fordham University Law professor Annemarie McAvoy to another judge.

Strauss didn’t address the nasty allegations lobbed by McAvoy, which caused the case to be moved to a Brooklyn judge for an emergency hearing two weeks ago.

“I think Judge Strauss has acted in a very wise way throughout a very difficult process,” said Justice Jeremy Weinstein, the administrative judge for the civil division of Queens Supreme Court. “He wants the case to be done. This matter has dragged on for many months, and that does nobody any good.”

Weinstein will pick a new judge Monday.

McAvoy claims that after Strauss refused to change custody in September, the youngster talked about killing himself or his father.

“I guess I’m the one who created the suicidal ideation, then,” Strauss said. “I didn’t tell him what he wanted to hear.”

The same judge made another controversial custody switch in 2007, placing a toddler with her dad against the recommendations of all involved.

The girl's distraught mother, Mazoltuv Borukhova, then had the father killed. The custody change was presented as her motive at her murder trial.

U.S. Appeals Court: "Pay To Play" Rules Do Not Violate Free Speech Rights

Challenge to NY campaign finance laws fails: US appeals court

12/21/2011COMMENTS (0)

NEW YORK, Dec 21 (Reuters) - A U.S. appeals court on Wednesday tossed out a challenge to New York City anti-corruption campaign finance laws, finding the so-called "pay to play" rules do not violate free speech rights.

In an opinion affirming a 2009 lower court ruling, the 2nd U.S. Circuit Court of Appeals in New York said city rules prohibiting corporate contributions to political campaigns, and requiring candidates to disclose contributions from people and groups that do business with the city, were appropriate given legitimate concerns about corruption.

"Contributions to candidates for city office from persons with a particularly direct financial interest in these officials' policy decisions pose a heightened risk of actual and apparent corruption, and merit heightened government regulations," the opinion by judges Debra Livingston, Guido Calabresi and Paul Crotty said.

The lawsuit, brought by Republican politician Tom Ognibene and others, sought to use the landmark 2010 U.S. Supreme Court decision Citizens United v. Federal Election Commission to attack the New York City laws.

In Citizens United, the Supreme Court found that the government cannot ban political spending by corporations in elections. The 2nd Circuit judges said that ruling only applies to independent corporate expenditures, and not to contributions limits such as those enacted in New York.

"There is no doubt that the threat of corruption or its appearance is heightened when contributors have business dealings with the city," the court said. "Accordingly, it is reasonable and appropriate to further limit their contributions."

A lawyer for Ognibene did not immediately return a call seeking comment.

In a separate concurring opinion, Judge Calabresi said he agreed with the majority view, but criticized the Supreme Court "Citizens United" decision. By preventing governments from regulating contributions in an effort to protect the free speech of donors, the decision had the effect of prohibiting them from "leveling the playing field," Calabresi said.

"In much the same way that anti-noise ordinances help to prevent megaphone users from downing out all others in the public square, contribution limits can serve to prevent their wealthiest donors from rendering all other donors irrelevant --from, in effect, silencing them."

(Reporting by Basil Katz)