What if the Wicked Witch Had Just Hired a Lawyer Instead . . .

July 8th, 2016 DonaldTKileyJr No comments

Almira Gulch a/k/a the Wicked Witch of the West, as Executor of the Estate of the Wicked Witch of the East, deceased v. Dorothy Gale

United States District Court of Kansas

Index No.: 20154-1939

Hon. L. Frank Baum, U.S.D.C. Senior Judge Presiding

Plaintiff counsel: Margaret Hamilton, Esq., Hamilton, Walshe & Lewis, LLP

Defense counsel: Raymond Bulger, Esq., Bulger, Haley & Lahr, Esqs.

MEMORANDUM AND ORDER

History


The plaintiff, who was the decedent’s sister, qualified and was appointed as Executor for the decedent’s estate pursuant to the decedent’s Last Will and Testament.  Thereafter she brought an action for conversion of property and wrongful death in the Supreme Court of the Magical Land of Oz.  Defendant answered and made a motion to remove the case to this court, the District Court of the United States for the State of Kansas.  Removal was granted based upon federal diversity jurisdiction as enumerated in 28 U.S. Code § 1441, titled “Removal of Civil Actions.”

The case comes before the court on two motions.   The first, by the plaintiff, is to dismiss the action based upon a claim of  forum non conveniens.  The second, by the defendant, is for summary judgment on the wrongful death claim on the grounds that, as a matter of law, she is not civilly liable for the death of the decedent.

Facts

On July 23, 1939, the defendant, Gale, finding herself suddenly engulfed by a tornado and unable to reach the safety of her family’s storm cellar, sought safety with her dog, Toto, in their residence.  Thereafter, the storm became one of such great magnitude and extraordinary power, that it lifted the residence off its foundation and propelled it into the air and thus into the eye of the storm.  The residence came to rest in Munchkinland in the Magical Land of Oz with great force and struck the plaintiff’s decedent causing her to sustain serious personal injuries and to die.  The defendant (and her little dog, too) survived the crash.

The defendant may have been disoriented by the crash, as her description of its locale, its inhabitants, and her recitation of the subsequent course of events is fanciful and less than credible.  There is evidence that she may have suffered a concussion upon landing.  Alternatively, she may have been under the influence of hallucinogenic drugs, as she testified that at one point she fell asleep in a field of poppies.

Although the defendant’s tale is farcical, her counsel contends that it is supported by an independent witness.   The plaintiff alleged that the man was brainless.  Nevertheless he very articulately and intelligently testified at deposition that the defendant’s description of the location was accurate and that Munchkinland is a real place in the land of Oz.  Furthermore, he testified that it is the beginning of a Yellow Brick Road that he and the defendant later traveled intending to meet someone named “the Wizard.”

Plaintiff’s counsel claims that the witness’ testimony is irrelevant and that defendant’s  counsel offers it as a “straw man argument” which has no relevance to the issue of whether the defendant was  negligent or committed an intentional tort.   In other words, counsel claims that the witness’confirmation of the defendant’s description actually refutes an argument that is not germane to the plaintiff’s claims.

Two other witnesses were subpoenaed to appear at deposition.  One, a recent heart transplant recipient, was excused for medical reasons.  The other apparently fled the jurisdiction rather than testify – a cowardly act, by any measure.

By the wrongful death claim, the plaintiff pled liability based upon alternative theories of intentional tort and negligence.  Upon information and belief, the Munchinland  District Attorney investigated the accident but refused to prosecute for manslaughter,  as there was no evidence that the defendant intended to crash the house in which she was flying.  The defendant had no prior contact with the decedent nor is she known to be a member of any extremist terrorist organization.   The plaintiff subsequently amended her pleading to withdraw the allegation of an intentional tort and, now, relies soley upon the negligence claim.  The defendant has denied all allegations of negligence and it is this issue that lies before the court.

The plaintiff seeks compensation for (1) the decedent’s conscious pain and suffering, (2) the value of support and services the deceased provided to her family, and (3) burial expenses.

In her defense, the defendant argues that the decedent died upon impact, or, alternatively, was immediately rendered unconscious.  Therefore, she did not suffer conscious pain.  Although there were no emergency medical personnel who attended to the decedent at the scene of the accident, there were several witnesses including members of a candy merchant’s guild and employees of a local sleep clinic.  All of these testified that the decedent did not appear to be breathing after she was struck by the house.  Their opinions were confirmed by the local coroner who quoted, “As coroner I must aver, I thoroughly examined her.  And she’s not only merely dead, she’s really most sincerely dead.”   To date, the plaintiff has offered no competent medical evidence that the decedent survived the crash for any length of time, but that issue is yet to be resolved and the court reserves judgment.

The decedent was unmarried and childless.  The plaintiff alleges that her sister supported her, but the defendant disputes this and claims that the plaintiff is independently wealthy.  She asserts that the plaintiff lives in a castle and employs a fleet of Flying Monkeys and Winkie Guards.  The source of the plaintiff’s wealth is under investigation by Ozian Federal Authorities  who suspect that the Witch, the Monkeys and the Guards have derived income, directly or indirectly, from a pattern of racketeering activity including kidnap for ransom, menacing and extortion.  Although formal charges under the Racketeer Influenced and Corrupt Organizations (RICO) Act, have not been brought against this group, the allegations, if accurate will likely disprove the plaintiff’s claim that she was supported by the decedent.

The defendant also challenges the plaintiff’s claim to have incurred burial costs.  After the coroner declared her dead, a torrential rainstorm prevented Munchkins from retrieving the body.  Later they recovered the decedent’s hat, dress and coat piled in a heap, but the  decedent’s body was not found and seemed to have melted away.

Nevertheless, for the purposes of this motion, I will presume the plaintiff’s damages under the wrongful death claim to be genuine.

The plaintiff also asserts that after the crash, the defendant absconded with the decedent’s personal property – to wit: a pair of Ruby Slippers, value unproven, but alleged to have magical powers.  The plaintiff claims that the defendant unlawfully appropriated the slippers.  The plaintiff claims that they were gifted to her by one of the decedent’s distant relatives who glued them to her feet.

In any event, the conversion claim is not the subject of the plaintiff’s summary judgment motion.

Legal Analysis

The common-law doctrine of forum non conveniens provides a federal district court with the discretion to decline to accept jurisdiction over an action in favor of a more convenient venue where the interests of justice indicate that the action should be tried in another forum. See, e.g., Sinochem Int’l. Co. Ltd. v. Malaysia Int’l. Shipping Corp., 549 U.S. 422, 429 (2007); Ford v. Brown, 319 F.3d 1302, 1306-07 (11th Cir. 2003).  Under the doctrine, a district court has the inherent power to decline to exercise jurisdiction even where venue is proper.  The defendant believes that, as a witch, she cannot get a fair trial inasmuch as Kansans are by reputation, conservative and bible-thumping Christians.  While the court is sympathetic to the defendant’s concerns, she is not likely to find a more sympathetic jury in any other jurisdiction.  The plaintiff’s motion is denied.

Previously, the plaintiff moved pursuant to 28 U.S.C. §144 demanding that this Court recuse itself.  She claimed that this Court was unable to perform its judicial duties impartially, competently and diligently because she is green and the Court is Caucasian.  The Court denied her motion.  As no sitting federal district court judge is green, the “rule of necessity” as enunciated by Chief Justice Burger in United States v. Will, 449 U.S. 200 (1980) Trumps the plaintiff’s objection.

Apparently, the Munchkins are not a litigious people and there is little or no case law regarding negligence claims in the history of Munchinland jurisprudence.  Citing an obscure choice of law clause in the purchase agreement for the Ruby Slippers, the defendant claims that the case should be decided under New York law.  This court agrees.

As previously stated, the plaintiff’s claim for wrongful death is predicated on a claim of  negligence.  Negligence involves the failure to exercise the degree of care that a reasonably prudent person would exercise in the same situation.  See: Gray v Gouz, Inc., 204 A.D.2d 390, 611 N.Y.S.2d 637 (1994); It is not a fixed concept, but is shaped by “time, place and circumstance” (Sadowski v Long Island R.R. Co., 292 N.Y. 448, 455, (1944).

In her defense, the defendant has asserted a defense based upon the common-law emergency doctrines which recognizes that, faced with an emergency, even a reasonable person might choose a course of action which, in hindsight, proves to have been mistaken or ill-advised.  It holds that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency.  See: Caristo v Sanzone, 96 N.Y.2d 172, 174 (2001); Rivera v New York City Tr. Auth., 77 N.Y.2d 322, 327 (1991).

The essence of the emergency doctrine is that, where a sudden and unexpected circumstance leaves a person without time to contemplate or weigh alternative courses of action, that person cannot reasonably be held to the standard of care required of one who has had a full opportunity to reflect, and therefore should not be found negligent unless the course chosen was unreasonable or imprudent in light of the emergent circumstances.  See: Amaro v City of New York, 40 N.Y.2d 30, 36 (1976).

Although the existence of an emergency and the reasonableness of a party’s response to it will ordinarily present questions of fact.  See: Morgan v Ski Roundtop, 290 A.D.2d 618 (2002), they may in appropriate circumstances be determined as a matter of law.  See:  Huggins v Figueroa, 305 A.D.2d 460 (2003).  Here, invoking the emergency doctrine, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that her emergency landing of the house in which she was traveling was made only when the tornado, an act of God, forced her to make an emergency landing.  Apparently, the defendant’s house was not equipped with any brakes or steering mechanism.  Given these circumstances, it is apparent that the defendant had no other course of action but to land the house emergently in the place where the accident occurred.

Although negligence actions are not normally the subject of summary judgment motions, the factual circumstances of this case will lead this Court to the conclusion that summary judgment is appropriate.  Summary judgment is proper to eliminate unnecessary expense to litigants where no issue of material fact is present to justify a trial.  See: Axelrod v. Armitstead, 36 A.D.2d 593 (1st Dept. 1971); Donlon v. Pugliese, 27 A.D.2d 786 (3d Dept. 1967).  In Morowitz v Norton, 150 A.D.2D 536, 51 N.Y.S.2d 122 (2d Dept. 1989), the Court ruled that, “although negligence cases do not generally lend themselves to resolution by a motion for summary judgment, the Court will grant such a motion where, as here, the facts clearly point to the negligence of one party without any culpable conduct from the other.”  While summary judgment is granted infrequently in negligence actions, the remedy should be granted where there is no triable issue of fact. The Court of Appeals in Hartford Acc. & Ind. v. Wesolowski, 33 N.Y.2d 169 (1973), indicated that “the test on a motion for summary judgment is whether there are issues of fact properly to be resolved by a jury (CPLR § 3232(b)).

Accordingly, the defendant’s motion for summary judgment is granted and the plaintiff’s cause of action for wrongful death and personal injury is dismissed. The plaintiff’s motion to dismiss the action based upon a claim of forum non conveniens is denied.  This is a non-final disposition of the case.  The plaintiff’s cause of action for conversion is not affected by this order.

Dated:  January 4, 1941

Hon. L. Frank Baum, U.S.D.C. Senior Judge

© 2016 Donald T. Kiley, Jr. –  dkiley@kileylawfirm.com All Rights Reserved

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You Deserve The Truth Today….

October 1st, 2015 DonaldTKileyJr No comments

Recently, I received one of those “pass-it-on” emails about the 2015 Stella Awards presented for personal injury cases where plaintiffs are supposedly, the beneficiaries of outrageous verdicts and settlements.  See:  http://forum.cakewalk.com/2015-Stella-Awards-m3227858.aspx.  If you don’t wish to waste the time following the link, I’ll summarize.  The cases include a lady who was injured after placing her Winnebago on cruise control and leaving the wheel, and the woman who tripped over her son in a furniture store, and the teenager who was injured when his hand was run over as he tried to steal the car’s hubcaps.  All of these stories are apocryphal urban legends.  They never happened.  Someone(s) made them up. See:  http://www.snopes.com/autos/techno/cruise.asp.

The awards were so named in honor of Stella Liebeck, a plaintiff who was burned after buying McDonald’s coffee.  The “McDonald’s Case” as it is more commonly called, is one that all defense attorneys hope potential jurors have heard.  It’s a true case.  See Liebeck v. McDonald’s Restaurants, No. CV-93-02419, 1995 (N.M. Dist., Aug. 18, 1994).  Unfortunately, the story that is most widely circulated has the facts all wrong.  As it is told, Mrs. Liebeck bought a cup of McDonald’s coffee passing through the drive-thru.  She attempted to add sugar to the cup as it was on her lap and burned herself when it spilled.  In truth, McDonald’s knew that its coffee, which they intentionally served at 185 degrees, was likely to cause 3rd degree burns if spilled.  They had repeatedly been warned about the danger of serving its coffee at this temperature AND purposefully ignored these admonitions – because they make money selling really hot coffee to desperate caffeine addicts.  They also knew that customers buying coffee from a drive-thru had no alternative but to add sugar while sitting in their cars.  Mrs. Liebeck, who was 79 years-old, sustained full thickness third-degree burns over six (6%) percent of her body including her inner thighs and genitals.  After leaving the hospital, she asked McDonald’s to reimburse her for her medical bills,  about $11,000.00.   McDonald’s refused to be “extorted,” and offered to pay her $800.00 to go away.  Having no alternative, Mrs. Liebeck brought a lawsuit.  After lengthy discovery and a delayed trial, the jury awarded Ms. Liebeck $200,000 in compensatory damages for her injuries and medical bills, but reduced the award to $160,000 finding that she was also partially at fault for spilling the coffee in the first place. However, the jurors, infuriated by McDonald’s flagrant and callous disregard for the welfare of its customers decided that the company should pay $2.7 Mill. in punitive damages.

The purpose of a punitive damages award is to punish a defendant for purposeful cold-hearted actions and to deter future bad conduct.  Of course the justice system (which the Stella Award people love to malign) has appellate courts, which serve to sever emotion from justice.  The court drastically reduced the punitive damages award.  McDonald’s and Mrs. Liebeck finally settled out of court.  But only on McDonald’s insistence the final settlement was sealed so that it would never be disclosed.

Was Mrs. Liebeck a greedy money-grubbing plaintiff who hit the lottery.  I think not, as I’m sure this elderly woman would gladly have traded the money she was awarded in exchange for the severe pain and permanent damages she lived with for the rest of her life.

The Stella Award committee ignores the many, many cases involving plaintiffs who were terribly injured and appropriately aggrieved, but wrongly denied justice.  I’m sure that the wretched prevaricators (so much a nicer word than “liars”) who sit on the committee would happily resign their seats, hire a personal injury attorney and “sue the bastards” if they were seriously injured as a result of the negligent or purposeful acts of others.

Sir Winston Churchill once said that “democracy is the worst system in the world, except for all the others.” The same is true for our American civil justice system. But we have not yet devised  a better way to resolve these serious claims.

By the way, everybody hates lawyers until they need one.

If you find this blog informative, tell  your friends to have a nice day and pass THIS ONE on.”

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NYC Law Requires Reasonable Accommodation for Pregnant Employees

April 10th, 2014 JamesKiley No comments
2014 changes to the New York City Human Rights Law (“NYCHRL”) will treat an employee’s pregnancy much the same as a physical disability, requiring city employers with four or more employees to reasonably accommodate their employees’ pregnancy, childbirth, and related medical conditions, so long as the accommodation enables the employee to perform the essential functions of her position.
Reasonable Accommodation under the NYCHRL is defined as an accommodation that does not cause the employer an “undue hardship” which may involve evaluating the nature and cost of the accommodation and the size and financial resources of the employer.
To comply with the NYCHRL, employers must also provide a written notice of the right to be free from discrimination on the basis of pregnancy, childbirth, or a related medical condition and distribute this notice to new employees at the start of their employment and to existing employees within 120 days of the law’s effective date.  Employers that violate the NYCHRL can face private actions and liability for punitive damages and attorneys’ fees.

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New York City Earned Sick Time Act

April 1st, 2014 JamesKiley No comments

New legislation is expected to significantly expand the provisions of the New York City Earned Sick Time Act (Act). The Act, which takes effect on April 1, 2014, requires most private employers to provide up to 40 hours of paid or unpaid sick leave per year to employees working in New York City.  The proposed amendments to the Act will expand the Act’s paid sick leave requirements to cover employers with between five and fifteen employees, expand the definition of “family member,” and increase employers’ notice and record keeping requirements.

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New Law Makes Significant Changes to New York Estate and Gift Tax

April 1st, 2014 JamesKiley No comments
The New York State legislature passed a budget bill on April 1, 2014 which will increase the New York State estate tax exemption over a four year period to $5,250,000 and, by 2019, bring the state estate tax exemption in conformity with the federal estate tax exemption.  The increased amounts are as follows:
- April 1, 2014 $2,062,500
- April 1, 2015 $3,125,000
- April 1, 2016 $4,187,500
- April 1, 2017 $5,250,000
- January 1, 2019 $5,000,000 (plus the cost of living index from 2010 – thus making the exclusion the same as the Federal exclusion amount).
In addition, the top New York State estate tax rate will be gradually reduced from 16% to 10% over the same four year period and the generation skipping transfer tax enacted in 1999 will be repealed.  More significantly, the new law will require that the value of any lifetime taxable gifts made by a New York resident decedent after March 31, 2014 be added back into the New York gross estate.  This will increase the amount of estate taxes due.   Contact Kiley, Kiley & Kiley to determine if and how the new law will impact your estate plans.

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Black Ice- The Emergency Doctrine

February 4th, 2014 JamesKiley No comments
So, you were foolish enough to stay in New York instead of moving to Miami?  Okay, we all can’t retire and drink margaritas on the beach.  Picture this scenario: yesterday morning, when it was 20 degrees God dropped 12 inches of snow on Long Island.  Later in the afternoon the temperature rose to 50 degrees and the sun partially melted the snow.  Overnight the temperature dropped again to 20 degrees and the road became slick in some places with dreaded “black ice.”   Then, the temperature rose again and the sun shone down as you drove to work this morning.  Whether you believe the scientific warnings of “Global Climate Change” or the guy with the placard on 42nd St. and Broadway warning that the “End is Near,” these erratic weather patterns are a fact of life in the Northeast.
To continue our hypothetical, the driver immediately behind you collides into the rear of your car.  “It wasn’t my fault,” he claims.  He didn’t know that the road was slick and he ran into your car even though he was driving carefully.  Ordinarily, under New York law, a driver who strikes the rear of a car in front of his is presumed to be negligent.  But what if he was driving carefully and tried to stop  but couldn’t because the road was too slippery.  Is he still negligent?   The “Emergency Doctrine” exonerates him if he is faced with a sudden condition, which he could not have reasonably anticipated. Not to worry, the doctrine only applies if he’s faced with a sudden condition which he could not have reasonably anticipated.  Whether the driver believes in climate change or not, he should have anticipated that there “could” be black ice on the roadway.  Under these circumstances the Emergency Doctrine will not apply and his conduct is negligent.

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Out-Of-State May Be Out of Mind

April 21st, 2013 DonaldTKileyJr No comments

Have you ever wondered why so many cars parked on a New York City street have out-of-state license plates?  It costs a fortune to own a car and pay for insurance, tolls, gasoline and repairs.  The lure to register and insure a car in a different state where insurance rates are low is strong because New York State’s automobile insurance rates are among the highest in the nation.  But paying less for your annual premium will get you into serious trouble if you have an accident and will likely cost you much more.

A study recently submitted to the New York Senate reported that automobile insurance companies lose approximately $16 billion in lost premiums because of “Insurance Rate Evasion.”  (http://www.nysenate.gov/files/pdfs/InsuranceRateEvasion_Report_PRESSER_0.pdf.).  The only reason the Senate knows about this is because it’s a hot topic with the insurance industry.  And the insurance companies are doing all they can to plug the leaks and recover their losses.

If you report that your car is in an accident, your insurance company will quickly check to see where the accident happened and where you live.  If the accident happened in Brooklyn and your car is registered in another state, don’t expect the insurance company to “fugetaboutit.”  The adjuster will suspect that you may have committed insurance fraud.  He or she will cross check the accident information against your home address and if there’s not a match, they’ll deny your claim.  The company won’t pay to fix your car because you would have deliberately provided false information on your application for insurance.  Check your policy.  Under the “General Provisions” section you’ll find boilerplate language which provides that the company will deny coverage to any insured who has made any material misrepresentation to the company.  And the company will be legally within its rights because your insurance policy is a contract and the company is only obligated to pay claims which are their contractual obligations.  If you breach the contract, the company need not pay for the loss.

Even worse, if you’re injured, you may quickly incur thousands of dollars in medical bills.  When you attempt to collect No-Fault benefits, the company will demand that you appear for an Examination Under Oath (EUO) and ask your questions under oath, swearing to the truth of your answers.  If the company can prove that you lied about your residence in New York, it will deny your claim and you will be responsible for the medical bills.  And don’t think that your health insurance carrier will pay the claim when they discover that you were injured in an auto accident.  You will have to foot the bill yourself.

Furthermore, lying under oath can make your problems much worse.  If you lie to your mother, she may send you to bed without dinner.  If you lie to your wife, she may send you to sleep in another bed.  If you lie to the insurance company’s lawyer after swearing to tell the truth, a judge might make you sleep on a bed inside a 6 ft. by 9 ft. cell because perjury is a crime under Article 210 of the New York State Penal Code.

So think hard before you try to save the cost on your insurance premium.  The money you save will be a fraction of the money you may lose.

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I am selling my house – Do I have to pay taxes on the sales price?

July 12th, 2012 KevinKiley No comments
Asked to comment on the new constitution and speculate on the permanency of the newly formed United States of America, Benjamin Franklin stated that “In this world, nothing can be said to be certain, except death and taxes.”  Some 200 years later the certainty of taxation continues.


One tax imposed in the United States is the Income Tax.  The Internal Revenue Code defines “gross income” as “all income from whatever source derived.” It is not limited to earned income and includes profits earned from the sale of real property.


A seller’s income derived from the sale of real property is calculated by taking the gross amount received by the seller (in cash, trade, barter or otherwise) and deducting therefrom the cost of the real property.  This cost of the real property in tax terms is referred to as the “cost basis” and generally consists of the purchase price and the cost of any major capital improvements put into the property during the period of ownership.  For example, if a homeowner were to purchase his home for $20,000.00 and, during the term of his ownership, added a $10,000.00 extension, the cost basis in the property would be $30,000.00.  If the same homeowner were to sell this property for $100,000.00, he would have a gain or gross income of $70,000.00.


Under Section 121 of the Internal Revenue Code, some of the gain from the sale of one’s principal residence is excluded from gross income. In order to be eligible for the exclusion, a tax payer must have owned the property and used it as a principal residence for periods aggregating two years or more in the five year period prior to the date of sale.


For a single tax payer, the first $250,000.00 of gain is excluded from gross income.  In the case of married tax payers who file a joint return during the taxable year in which the sale occurred, $500,000.00 of gain is excluded from gross income.


In order to be eligible for the $500,000.00 exclusion, it is not necessary that both spouses own the property.  It is only required that one of the spouses own the property, however, the occupancy requirements must be met by both spouses.  It is also not necessary that both spouses be alive at the time of the sale, as there is a special rule for certain sales by surviving spouses. A surviving spouse will receive a $500,000.00 exclusion provided the sale occurs within two years of their spouses’ date of death and, provided that at the time of the spouses death, the parties would have been entitled to the $500,000.00 exclusion.


In general, the exclusion may only be used once every two years, but there are also exceptions to this rule if a sale is necessary “by reason of a change in place of employment, health or, to the extent provided in the regulations, unforeseen circumstances.”


Suppose you don’t have a house, but live in and own a Coop Apartment? The same rules apply. In the case of a cooperative, the ownership requirements apply to the titled holding of the stock and the use requirements apply to the occupancy of the apartment which the tax payer was entitled to occupy as a shareholder and owner of a proprietary lease.


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Finding a Guardian Angel

July 11th, 2012 DonaldTKileyJr No comments

As a parent of a minor child, you may in your will designate a guardian for your children in the event that you die during their minority.  The New York State Domestic Relations Law (DRL) § 81 authorizes the appointment of guardians by parents.  The Surrogate, who is the judge who handles estate matters, will generally approve your designee, provided he or she is not a person of dubious character.

Of all the decisions parents make when preparing their wills, the most difficult will likely be the choice of a guardian.

Here are some issues to consider before you make your choice:

(1)        Geographical Proximity (“Something tells me we’re not in Kansas anymore, Toto”):  Your children will likely have to move in with their guardian.  If you prefer that they continue to live in your neighborhood, then your brother Travis who owns an Alpaca farm in Pocatello, Idaho may not be a good choice.

(2)        Your Children’s Choice (“You’re going to send me WHERE!?”):  This is not a consideration with young children, but once your children reach a certain age, the courts will give some “deference to their preference.”  Either way, it’s good to make sure that your children will be comfortable with your selection.

(3)        Your Spouse’s Preference (“Hey, they’re my kids, too!”):  If you die, the children will come under the care of their other “parent and natural guardian.”  But, if he or she dies first the court will likely confirm your choice.  Still it’s best if you confer and come to an agreement on the same person or persons.

(4)        Religious, Moral and Political Beliefs (Better Not Choose Uncle Buck!):  Your good friends and loving relatives may not share the same beliefs as you do.  Give this consideration, as your children will be under their guardian’s influence.  It’s not likely that your children will go to church if their guardian doesn’t.

(5)        Age and Inclination (“Been there; done that.”):  Make sure that the person you choose choice is young enough and willing to assume the awesome responsibility of raising your children.  No matter how wonderful your children may be, parenting is still a job.  Also, consider that your babies will be minors until they turn eighteen.  Grandma and Grandpa may not be up to the task in fifteen years.

(6)        The Guilt Factor (It’s not just reserved for Catholics and Jews): Your friend or relation may agree to be the guardian of your children because they love you and your child.  Make sure that they feel comfortable to say no, if they believe that the burden is too great.

(7)        The Old Woman Who Lived in a Shoe Problem (Or . . . never have more children than you have car windows.):  Consider whether your prospective guardian has too many other children.  They may always have room for your children in their hearts, but make sure they have enough rooms in their house.

(8)        Financial Stability: (“A Fool and Your Children’s Money Are Soon Parted”): Your children’s guardian need not be the same person as the trustee who will invest their assets and manage their money.  Nonetheless the guardian should be good with money.  At the very least, his or her responsibility in this regard will impart an important lesson to your children.

Too many people postpone making a will because they cannot agree or decide on a guardian.  Never fear.  There is likely no perfect choice, as you can’t expect that your friends or family will make all the same choices you might make.  Nevertheless, consider the pros and cons for each possible choice.  Make up your mind and don’t delay making your will.

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When is a Bank Check Monopoly Money?

July 2nd, 2012 DonaldTKileyJr No comments

Americans have become accustomed to believing that the gold standard for banking transactions is a bank check.  The issuing bank guarantees that the check is as good as cash.  Right?  Wrong.

Let’s say that your Grandma died last week and you’re selling her wedding ring on e-bay.  A prospective buyer may offer to pay you with a bank check, which is a form of a cashier’s check.  Sounds great.  After all, it’s the BANK’s check.  Once you deposit the check in your account, the money will be yours the next day because your bank (the depositing bank),  must make the money available to you on the first business day after you deposit the check.  That’s the law, as the Expedited Funds Availability Act (12 CFR 229.10) assures next day availability.  What most people don’t know is that when your bank makes the money available, it is only making a “provisional settlement,” because the depository bank has not yet collected the funds from the drawee bank, from which the check was drawn.  Your bank acts as your agent to process the check and must wait for the issuing bank to transfer the funds, before the money is really yours.  If the check is fraudulent because it was printed by a Nigerian con artist, then the “drawee bank” either does not exist or the account is a fake.  When the check is dishonored your bank will charge you back and deduct the money from your account.  If you’ve spent the money or, God forbid, wired some of it back to the con artist to refund him for his overpayment, he’ll have the jewelry, your money and “your goat.”   He’ll sell the diamond on the black market, use your money to run another scam and give the goat to his family for milking.  Even worse, the bank will sue you to retrieve its money.

How is this possible? The check is no good, so the drawee bank won’t honor it.  But, you might say, “the teller told me that I could take the money the next day!”  Your bank won’t take the loss, because the Uniform Commercial Code (UCC) gives the depository bank the right of “charge back” when the check is fraudulent, even if your bank screws up and the teller misled you.  Under the UCC, your bank still has the right of charge back even if it “fail(s) . . . to exercise ordinary care with respect to the item.”  (See U.C.C. § 4-214(d)(1)).

Bankers will argue that this is a fair process, as our monetary system demands speedy transactions.  If the public wants quick access to their money, there’s a price to be paid.  They will also argue that the great majority of check transactions are not fraudulent. Still, bank check fraud is a serious issue if you are the victim.

Unfortunately, there is a hierarchy in the legal pantheon which is best illustrated by analogy to a pyramid.  At the base of the pyramid are local ordinances and regulations.  On the next rung up the pyramid are the laws of the individual states.  On top of that you’ll find our system of Federal Constitutional Law.  Superimpose on top of the Constitution, God’s laws and commandments. Then at the very top of the pyramid are the banking rules and regulations.

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