Conybeare was for many years the anchorman at NEWS12 Hudson Valley and is now the public face of  Governor Cumo’s plan to replace the aging Tappan Zee Bridge span.

Gaines, Novick, Ponzini, Cossu & Venditti, LLP’s Business Breakfast series offers friends and clients of the firm the chance to hear directly from leaders in business and government on important issues of concern. Last October, the firm welcomed Westchester County Executive Rob Astorino who addressed a standing room only breakfast meeting at Gaines, Novick, Ponzini, Cossu & Venditti, LLP’s White Plains offices.

For more information about the Febraury 22, 2013 breakfast with Brian Conybeare contact Mary rose Gerring at mgerring@gainesllp.com

At Gaines, Novick, Ponzini, Cossu & Venditti, LLP we measure our success by the daily consistency of the service we provide and the work product we deliver for our clients.

With the addition of five seasoned attorneys during the last twelve months, Gaines, Novick, Ponzini, Cossu & Venditti, LLP has expanded its practice to include the defense of serious criminal matters, strengthened its civil litigation practice and expanded its trusts, estates and elder law capabilities. Richard Portale is now heading up Gaines, Novick, Ponzini, Cossu & Venditti, LLP’s growing white collar and criminal defense practice while James Randazzo continues to expand Gaines, Novick, Ponzini, Cossu & Venditti, LLP’s practice defending municipalities in several high profile cases involving alleged wrongful arrests and constitutional violations.

Gaines, Novick, Ponzini, Cossu & Venditti, LLP’s civil litigation practice, under the guidance of Managing Partner Steve Gaines, continued to provide clients with aggressive but cost-effective representation in a variety of matters. Commercial and municipal litigators, Robert Ponzini and Denise Cossu, won multiple victories in 2012 on behalf of clients in both federal and state court including one successful appeal that was argued before a panel that included United States Supreme Court Justice Sandra Day O’Connor.

Partner Ted Novick led Gaines, Novick, Ponzini, Cossu & Venditti, LLP’s growing medical malpractice and personal injury practice to recover verdicts and settlements in the multi-millions of dollars on behalf of client’s injured though medical malpractice and simple negligence as well as through errors in the workplace.

Gaines, Novick, Ponzini, Cossu & Venditti, LLP’s municipal and government affairs attorneys, meanwhile, continued to advise a growing number of municipalities throughout the region bringing to bear not only their legal skills but the practical knowledge gained through their own years in elected and appointed office.

The firm also continued to expand its representation of client’s in matters of trusts and estates and business planning. Joe Gruner represented numerous individuals, families and family businesses in planning addressing issues of inheritance, elder care and business succession.

Gaines, Novick, Ponzini, Cossu & Venditti, LLP continues to be proud of its public and community service as well. Gaines, Novick, Ponzini, Cossu & Venditti, LLP attorneys volunteer with a variety of non-profits, including local environmental organizations, arts organizations and other charities. Indeed, partner David Venditti was honored for years of service by being named the “Most Socially Conscious Attorney” at the 2012 “Above the Bar Awards”.

Gaines, Novick, Ponzini, Cossu & Venditti, LLP also provided friends and clients opportunities for gaining valuable insights and networking by hosting morning and evening events with, among others, Westchester County Executive Rob Astorino and a former Justice of the Supreme Court of Israel.

Gaines, Novick, Ponzini, Cossu & Venditti, LLP looks forward to building on these successes in 2013, because, in fact, the success of our clients is, ultimately, the true measure of our firm.

Justice Rivlin shared his experiences as an attorney and Justice in the State of Israel while the members and their guests, including numerous Supreme Court and Appellate Court Justices, enjoyed an evening of friendship

The Brandies Law Society, rooted in deep Jewish traditions and values, is open to all members of the bench and bar as well as law students that will one day enter the legal profession.

Photo: NYS Supreme Court Justice Ecker introduces Judge Rivlin

About fifty members of the Westchester legal, government and business communities had an opportunity to hear from the County Executive on his proposed budget and current economic development projects.

The firm regularly hosts breakfasts with community leaders.  If you would like to receive notice of future breakfasts e-mail Senior counsel John Murtagh at jmurtagh@gainesllp.com

PHOTO: County Executive Rob Astorino and Gaines, Novick, Ponzini, Cossu & Venditti, LLP Senior Counsel John Murtagh

About fifty members of the Westchester legal, government and business communities had an opportunity to hear from the County Executive on his proposed budget and current economic development projects.

The firm regularly hosts breakfasts with community leaders.  If you would like to receive notice of future breakfasts e-mail Senior counsel John Murtagh at jmurtagh@gainesllp.com

PHOTO: County Executive Rob Astorino and Gaines, Novick, Ponzini, Cossu & Venditti, LLP Senior Counsel John Murtagh

Gaines, Novick, Ponzini, Cossu & Venditti, LLP attorneys Bob Ponzini and Denise Cossu recently prevailed on behalf of the firm’s clients, The City of New Rochelle and its Deputy Commissioner of Buildings in which the plaintiff alleged that his Constitutional rights were violated when the City revoked the Certificate of Occupancy on a multi-family residence owned by the plaintiff. In its November 16, 2012 decision in Ceja v. Vacca et al the unanimous three Judge panel agreed with Gaines, Novick, Ponzini, Cossu & Venditti, LLP that the plaintiff had failed to exhaust remedies available to him at the municipal level and that he was also unable to establish that he possessed a Constitutionally protected interest in the Certificate of Occupancy.

The firm had initially prevailed in the District Court winning a dismissal and then defeated plaintiff’s appeal in the Appeals Court. Of note, the Appeals Court panel included Sandra Day O’Connor the retired Associate Justice of the United States Supreme Court.

Gaines, Novick, Ponzini, Cossu & Venditti, LLP attorneys have extensive experience representing both municipalities and private clients in transactional and litigated zoning, land use and permitting matters. We are able to draw on the insight of our land use and municipal law attorneys to provide effective representation dealing with all aspects of such matters both at the municipal level and in the courts.

For more information reach Bob Ponzini at rponzini@gainesllp.com or Denise Cossu at dcossu@gainesllp.com

By Joseph H. Gruner

Ann Landers once wrote in her column, “Where there’s a will, there’s a lawsuit.”  Although that is not always the case, there is some truth to that statement.

The fundamental obligation of any attorney involved in preparing a will on any level, from the simple to the complex, and in supervising its execution, is to exercise independent professional judgment on behalf of the testator.  At the same time, the attorney must at least consider the possibility of a will contest that could destroy the testator’s estate plan.  Even though a majority of will contests fail, the risk of a will contest increases when the testator was elderly, infirm or impaired.  Fortunately, there are various important factors for the attorney to consider and steps the attorney can take during the initial meeting with the testator, the actual execution of the will, and the time between these events, to reduce the chance of a will contest in the first place.

For the purposes of this article, the term “elderly, infirm and impaired” is intended to describe a person who is suffering from some degree of deficiency or limitation involving eyesight, hearing, memory, reading, understanding, concentrating, or other mental or physical disability that may bring into question the issues of competence and undue influence.  Obviously, the attorney preparing the will must know the criteria for determining whether the testator has the requisite testamentary capacity and is acting from his or her “free will.”  Before the will is prepared and signed, the attorney must firmly believe that the testator has a rational plan for the distribution of his or her property after death, knows the nature and extent of the assets and property in his or her estate, knows the natural objects of his or her bounty (including relatives, friends, caretakers, and may even be charities, and other organizations), knows who will actually receive a bequest and who will receive nothing, and knows the significance of the will as governing the distribution of property after his or her death.[1]

The following suggestions focus on the initial meeting prior to preparing the will, when there are reasonable concerns regarding capacity and undue influence:

•            Meet with the testator alone.

•            Ask the testator probing questions regarding health (eyesight, hearing, reading ability, medications, hospital stays), relatives, friends, shopping, cooking, etc.  Listen carefully to the answers and take notes of the answers given.

•            Obtain information directly from the testator regarding names, addresses and telephone numbers of relatives and friends, bank accounts, brokerage accounts, pensions, Social Security payments, expenses, accountant, tax returns, cash, health insurance, life insurance, and long term care insurance.

•            If the testator is not ambulatory, conduct the initial meeting at the testator’s home so you can observe the testator’s living conditions.

You should hear loud warning bells and see red flashing lights when:

•            the person who refers you to the testator, or a friend or relative of the referring party, is to be named as a beneficiary under the testator’s will;

•            the testator either has no relatives or does not stay in contact with relatives;

•            the testator wants to disinherit a relative without a specific reason or cause;

•            the testator lives alone; or

•            the proposed beneficiary is the person the testator is dependent upon for companionship, shopping, and care, or is an unusual choice of beneficiary based on the circumstances—such as a healthcare aide, a hairdresser, a caregiver, a distant cousin, a neighbor, or a “friend” who has had the opportunity to unduly influence the testator.

Be especially vigilant and exercise caution when confronted with any of the above circumstances.

Let some time pass between the initial meeting and the signing.  It’s a good idea to deliver a draft of the will to the testator at least a few days prior to the signing so that the testator has an opportunity to review the will and digest its provisions in private, even if the testator does not take that opportunity.

The following suggestions focus on the actual execution of the will, and are just a few steps that will douse some of the fuel from the dispute fire:

•            Will Execution Ceremony:  One of the best ways to avoid a will contest related to the execution of the will is to have the will executed properly.  It helps to have a “will signing ceremony” that has become your regular custom and practice.  Years and hundreds of wills later, when you may have trouble even remembering the testator’s name, you can at least testify that you know you took certain steps in her ceremony, asked certain specific questions, and followed certain specific procedures because you always do it in every will signing you supervise.

•            Attesting witnesses:  If there is a reason to suspect the possibility of a will contest, you may want to consider using friends, relatives or neighbors of the testator who have known the testator for a number of years, are not named in the will, and who will be able to testify if the situation arises.  Obviously, do not use the beneficiaries or anyone closely associated with the beneficiaries as witnesses.  If there are no such witnesses available, use office staff to witness will signings.

•            Contemporaneous Affidavits:  If there is a reason to suspect the possibility of a will contest, you may want to consider obtaining affidavits from close family and friends of testator, including, if possible, his or her attending physician(s), prepared at or near the time of will execution, as contemporaneous expressions by people who knew the testator well over a long period of time, were aware of the testator’s condition on or about the day the will was signed, and can effectively testify about how the testator’s condition that day compares to the affiant’s perception of testator’s condition for periods of time prior to the execution.

•            Discussions Prior to Execution:  In the presence of the attesting witnesses, some of whom may be meeting the testator for the first time at the will execution, have discussions with the testator and have the testator read something aloud, so that the witnesses can truthfully sign the affidavits.

•            Self-Proving Affidavit:  Consider expanding your self-proving affidavit or even drafting a separate one for witnesses to sign contemporaneously which will outline and preserve the witnesses’ observations of the testator’s state of mind and expressed intent.

•            Formality:  Don’t overlook the formality of the will signing.  Make sure you are alone with the testator and witnesses.  Never allow any other relatives or friends (particularly those who are beneficiaries), in the room when the will is being executed.  Go over the contents of the will again and make certain that the testator expresses his or her understanding of its contents to the witnesses.  Make sure witnesses are comfortable with the competence of the testator before the will is executed.

•            Videotaping:  If poorly done, it could do more harm than good.  However, if the stakes are high, you can hire a professional to create a video of the testator on the day of the will execution to demonstrate to the world the testator’s competence and freedom from undue influence.

•            Serial re-execution of estate documents:  If you suspect that a will might be challenged based on incompetence or undue influence grounds, consider having the testator come back to your office and republish or re-execute the same will a number of times over the course of a few months or a year.  It will strengthen the case that the testator was competent and acting without undue influence, and will, for obvious reasons, make the caveator’s task of setting the will aside difficult and expensive.

If you keep in mind the things you will likely have to prove in order to make out a prima facia case of a valid will execution,[9] how that proof might be perceived by perfect strangers years down the road, and act accordingly, you will have gone a long way towards discouraging questionable will contests.

Joseph H. Gruner is a partner in the law firm of Gaines, Novick, Ponzini, Cossu & Venditti, LLP, with offices in White Plains, New York.  Mr. Gruner practices extensively is the areas of estate planning and wealth preservation, estate administration, and elder law (guardianship proceedings, Medicaid eligibility, long term care insurance, nursing home admittance, advance directives and trusts).  He is a member of the National Academy of Elder Law Attorneys, the Trusts and Estates Section and the Elder Law Section of the New York State Bar, the Westchester County Bar Association, and the New York County Lawyers Association. 

The undeveloped property at issue in this condemnation proceeding consisted of 10.11 acres pre-taking and the 7.53 acres post taking. Both the claimant-property owner and petitioner-municipality agreed that a residential subdivision was the highest and best use of the subject property. At the nonjury trial held in this matter, the parties offered opposing evidence as to the density and scope of the subdivision that could be built on the property. The trial court credited the evidence offered by the property owner that it was reasonably probable that the entire 10.11 acres of the subject property could have been developed as a 38 units subdivision prior to the partial taking and that the entire remaining 7.53 acres could have been developed as a 21 unit subdivision. The trial court utilized an average value of the “comparables” offered by the municipality’s appraiser at trial and issued its condemnation award accordingly. On appeal, the Second Department found that there was no basis to disturb the trial court’s determination as to the properties pre- and post-taking highest and best uses.

Additionally, the Second Department held that the municipality’s post decision application to dismiss the compensation award as abandoned pursuant to 22 NYCRR 202.48 was without merit because there was no direction in the decision to settle or submit a judgment on notice and the relief awarded was solely monetary in nature.

A practicing lawyer for twenty-seven years, Mr. Venditti has long dedicated himself to community volunteer service and providing pro bono legal services. He volunteered as lead advocate for Briarcliff Manor assisting in overturning approval for the high pressure “Millennium pipeline,” which posed an unacceptable risk to local schoolchildren. Currently, Mr. Venditti serves as an elected Village Trustee in Briarcliff Manor and has been Deputy Mayor of the Village for the past nine years. As Trustee, David was instrumental in bringing about the construction of a new library; in proposing and drafting affordable housing legislation; and in the building of a downtown park, all for the benefit of the community.

David is a past-President of the Briarcliff Manor Chapter of Rotary International, supporting groups such as Phelps Memorial Hospital, Westchester Medical Center, the Ossining Children’s Center, DARE program, and the Briarcliff Safe Rides program. As a Member of the Briarcliff Community Coalition, he was involved in educating local youth on healthy life choices. While at his former firm, Skadden Arps, in New York City, he performed significant pro bono legal services.

David is a partner with Gaines, Novick, Ponzini, Cossu & Venditti, LLP, one of Westchester County’s fastest growing law firms, where he focuses on civil litigation and corporate, commercial, and real estate transactions.

The “Above the Bar Awards” honor the best and brightest Westchester-based attorneys in several categories. The awards are co-sponsored by Pace Law School, the accounting firm Citrin Cooperman, the Westchester County Business Journal, the Westchester County Bar Assn, the Westchester Women’s Bar Assn, and The Westchester Bank. The Featured Keynote Speaker will be Westchester County Executive Robert Astorino.