EDWIN KASSOFF BIO: 

        Hon. Edwin Kassoff was formerly Presiding Justice of the Appellate Term of the Supreme Court of the State of New York and was Presiding Justice of the Guardianship Part in Queens County.  He had many of his decisions published, including Article 81 cases dealing with Article 81 of the Mental Hygiene Law for the appointment of Guardians of Incapacitated Persons.  He was an adjunct Professor of Law at St. John's Law School and on the faculty of the National Judicial College for many years.  He has authored or co-authored many publications including Elder Law and Guardianship in New York (West Publishing) and served as Chair of the Committee that authors the Bench Book for Trial Judges.   

A Presiding Member of the Council of Judicial Associations and past Chair of the State/Federal Judicial Council, Edwin Kassoff was President of the Association for Supreme Court Justices of the State of New York and the President of the Supreme Court Justices of the City of New York.  He also served as President of the American Business Law Association and the Northeastern Regional Business Law Association and is now a Member of the Executive Committee of both of these Associations.

Edwin Kassoff served six (6) years on the Executive Committee of the National Conference of State Judges of the American Bar Association.  He lectured and was a member of the faculty of the National Judicial College in Nevada for twelve (12) years.  He was named Judge of the Year for 1999 by the Association of Justices of the Supreme Court of the State of New York.  He was a Representative to the United Nations for the International Association of Judges for thirteen (13) years and attended their annual conferences in different cities throughout the world and submitted research reports at each conference.  

Edwin Kassoff initiated and lectured at an annual two (2) day Education Program for Appellate Term Justices of the Supreme Court. 

Edwin Kassoff is a member of the Executive Committee of the Elder Law Section of the New York State Bar Association and Chaired the Committee of Liaison to the Judiciary.

EDWIN KASSOFF'S DECISIONS:

A Partial List of Hon. Edwin Kassoff's Reported Decisions:

Fernandez, et al. v. Windsor Life Insurance Company of America, 83 Misc.2d 301.

To succeed in rescinding insurance contracts on grounds of misrepresentations, insurer has burden of proving that application contains misrepresentations of fact, that such misrepresentations were material in that they induced insurer to assume the risk which otherwise it would not have taken, and that the defense is not barred by the incontestability clause, and scienta s not a necessary element to insurers' rights to rescind. 

In the Matter of T.A. Maloney Contracting Corp., 380 N.Y.S. 2d 585.

Provided for the expiration of mechanics lien on public improvements where no Order of Continuance or enforcement action has been brought within six (6) months following filing of Notice of Lien without requiring order of cancellation. 

Matter of Isabelle Weiss v. Samuel Burger, et al., 86 Misc. 2d 109. 

Where no evidence was presented contradicting evidence offered by petitioner in an Article 78 Proceeding to set aside decision of the Commissioner of the Department of Social Services that denied application for home relief, as arbitrary and capricious, the matter did not have to be transferred from Supreme Court Special Term to the Appellate Division.  C.P.L.R. 780N Sec. 780(g).

Matter of Parkview Holding Corp. et al. v. Daniel W. Joy, et al., 87 Misc. 2d 570. 

Petitioner landlords brought Article 78 Proceeding to review and annul portions of determination of Commissioner of City Office of Rent Control.  The Supreme  Court, Queens County, Special Term Part I, Edwin Kassoff, J., held that where evidence established that delay by Commissioner in making decision as to landlords' 1973 application to transfer electrical service from rent inclusion basis to direct payment basis in accordance with existing 1968 schedules for rent decreases, there was no evidence of selectivity, and revision of schedules were shown to have rational basis.  Landlords failed to demonstrate that determination of Commissioner based on 1975 revised schedule were either arbitrary, capricious or contrary to law.  Application denied and Petition dismissed.

Patrick O'Shea, et al. v. Ellen Brennan, 387 N.Y 2d 212.

A former husband brought action against former wife to obtain custody of their 7 year old child, Supreme Court, Queens County, Edwin Kassoff, J., held that when the former wife married an Australian citizen and intended to move the child to Australia, the best interest for the child required that a change of custody be granted to the former husband, because an award of custody to the former wife would deny to the infant the right to the love, parental care, companionship and guidance of a father and it would deprive her of the right to be raised and educated in her own country.  Petition granted.

Boulevard Gardens Tenants Action Committee, Inc., et al. v. Boulevard Gardens Housing Corporation and the Division of Housing and Community Renewal Executive Department of the State of New York, 88 Misc. 2d 98. 

In determining whether an organization may challenge governmental action on behalf of those affected, the Court must consider the capacity of the organization to assume adversary position, by looking at its size and composition as fairly representing those affected, the adverse effect action would have on the group and whether organization membership is open to full participation by those it seeks to represent.  C.P.L.R. 901.

Washington Federal Savings & Loan Association v. Village Mall Townhouses, Inc., et al. defendants.  394 N.Y.S. 2d 772.

Bankers Trust Company v. Washington Federal Savings & Loan Association.  90 Misc. 2d 227

Valuation process which court utilizes in awarding attorney's fees for prosecuting class action requires definite information, not only as to way in which time was spent by attorneys,  i.e., discovery, oral argument, negotiations, etc., but also as to experience and standing of various lawyers performing each task, i.e., senior partner, junior partner, associate, etc.  C.P.L. 990. 

Victor Zinn v. Bernic Construction, Inc., defendant.  416 N.Y.2d 725.

If results of polygraph tests are admitted into evidence, such results are not intended to outweigh all other evidence.  Results of polygraph tests are not controlling, but should be considered with all other evidence.  Thus it would not be inconsistent to accept results of polygraph tests and nevertheless decide contrary to its conclusion, after taking into consideration all evidence which was introduced during trial.

Matter of Rego Properties Corp., v. The Finance Administrator.  424 N.Y.S. 2d 621.

An owner of real property brought suit against Taxation Officials of the City of New York, alleging inequality of assessment.  On defendant's Motion to Dismiss Petition, the Supreme Court, Queens County, Edwin Kassoff, Jr., held that a section  of the real property tax law relating to standards of assessment in unconstitutionally delegated to administrative officials the power to determine how great a tax burden was to be placed on a particular piece of property and provided no valid standard for classification of real property for tax purposes, denied due process and equal protection.  Motion to Dismiss Petition denied.

          Matter of Abel Alley v. Barbara Blum, 103 Misc. 2d 855.

Public Assistance recipient instituted an Article 78 Proceeding seeking to compel the City Department of Social Services to provide her with aggregate amount of mortgage arrears as well as late fee charges and legal fees.  The court  held that the Public Assistance recipient was entitled to payment of mortgage arrears, which existed for five (5) months prior to recipient's receiving Public Assistance, together with late charges and legal fees, on condition that lending institution agreed not to foreclose and that the petitioner return to the Department shelter allowance money in her possession/  The recipient was further entitled to a monthly shelter allowance.   

O.W. Siebert Company, Inc. v. Jack Kramer, et al. , 107 Misc. 2d 520.

Where five (5) feet of premises extending into bed of street was subject to a  restrictive use as street, but substantial portion of property was not affected by encumbrance, and that type of the property was marketable, vendors were entitled to retain down payment as damages upon purchasers' refusal to accept title.

          Burns, Jackson, Miller, Schmidt, & Spitzer v. William Lidner, et al., 108 Misc. 2d 458.

Law firm brought class action against Trans Union and certain of its offices seeking damages for mass transit strike.  Union moved to dismiss complaint for failure to state a cause of action.  The Supreme Court Special Term, Queens County, Edwin Kassoff, J., held that: 

                   1.  The Taylor Law Prohibition of Strikes by Public Employees is non-exclusive as to damages against public employees for damages caused by an illegal strike; thus private citizens as well as public officials have a cause of action.

                   2.  Element of: Intent imbodied in prima facie tort concept was satisfied, even though intent to harm was not sole motivation for strike, as union's conduct did not serve any socially justifiable purposes.

                   3.  Complaint stated cause of action ground in prima facie tort;

                   4.  As damages suffered by members of class of business and professional entities were direct, foreseeable and substantially different in kind from the potential injury to which a general public was exposed, second cause of action sounding in nuisance was valid; and

                   5.  Federal statutes governing labor relations did not pre-empt action. 

          Daniel Schultheis, Jr., v. Continental Insurance Company, 108 Misc. 2d 725.

Insured was not entitled to recover damages for insurer's breach of insuring agreement in failing to defend a claim against him, in that defendant was an excess insurer and defense of any litigation would be provided in the first instance by the primary liability carrier. 

          Frank Ferrante, et al. v. Vincent Ferrante, et al., 127 Misc. 2d 352.

                   In an action in New York seeking accounting for rents and damages for mental distress, justice was best served by permitting plaintiff, who was 92 years old, in poor physical condition, and permanently confined to a nursing home in Florida, to testify by means of video tape and simultaneously transcribed telephone conference call.

          Matter of Application of Lenore Cox v. David Cox, 519 N.Y.S. 2d 292.

                   Doctrine of Estoppels is generally not available against State when acting within its statutory or regulatory authority, in respect of any representations made by State employee or official.

          In the Matter of the Application of Dolores Blake Smith, Petitioner v. Ronald Ellerby, 534 N.Y.S. 2d 100.

                   Landlord, by permitting constant late payments of three (3) to four (4) weeks each month over at least one year, waives right to enforce payment on the first of the month as required by the lease.  Landlord thus could not contend that alleged late payment on two particular months was in violation of the By-Laws of Housing Corporation so as to render tenant ineligible for election to the Board of Directors.         

Forest Hills Gardens Corporation, et al. v. Bernard D. Baroth, 555 N.Y.S. 2d  1000.

                   Record owner of streets of private residential community had right to apply a boot to an unauthorized parked vehicle on its private streets.  There was little difference between the use of a boot and towing, and the owner gave adequate notice to the public that the streets were private and the violator will be towed and/or immobilized.

          Gregory Hughes, et al. by Physician's Hospital, 566 N.Y.S. 2d 496.

                   Generally, Courts are under a duty to protect special interest of an impaired person by the appointment of a Guardian, a Conservator or a Committee, but the manner in which these interests are to be protected is left to the wide discretion of Courts on a case-by-case basis, particularly where the individual is an unadjudged incompetent.  Supplemental Needs Trust approved.

Barbara Fallon, et al. v. New York State Division of Housing & Community Renewal,  585 N.Y.S. 2d 293.

          Heavy burden of demonstrating unconstitutionality beyond a reasonable doubt rests on party who attacks rent stabilization statute and regarding as unconstitutional. Courts strike down such legislative enactment as unconstitutional only as last unavoidable result.

Metropolitan Transportation Authority v. Peerless Weighing & Vending Machine Corporation, 601 N.Y.S. 2d 768.

          Owner whose property has been taken as a result of condemnation is entitled to just compensation, which is generally calculated by reference to fair market value of property at its highest and best use at time of appropriation. 

In the Matter of Application of Marva L. Hammonds, as Commissioner of Social Services for the Appointment of a Guardian of the Person Needs and Property Management of Hazel L. Mcehmke, alleged incapacitated persons, 625 N.Y.S. 2d 408.

          Court would appoint Guardians for Property Management and Personal Needs of octogenarian parents and their 47 year old daughter, who resided with them, even though they suffered from no mental impairment, and were intelligent individuals, capable of making themselves understood.  Parents were unable to provide for their own personal needs and to adequately understand and appreciate nature and consequences of that inability, and daughter was unable to provide for her own or her parents personal needs.  The house was in need of substantial repair and cleaning and was freezing because they had no oil to heat it and their income could not meet their expenses and could not pay for needed repairs to the house. 

In the Matter of Nahn Thi Thanhle et al., for the Appointment of a Guardian for Daniel K. Lee, 637 N.Y.S. 2d 614.

          The Supreme Court had jurisdiction over proceeding to appoint Guardian for Property Management of alleged incapacitated person who now lives in California where alleged incapacitated person was physically present in State when Guardian Proceedings was commenced. 

          The term "personal delivery" refers to in-hand service upon the alleged incapacitated person.  That term used in statute governing proceeding for the appointment of a Guardian for Personal Needs or Property Management is not to be confused with "personal service" in service of process statute which encompasses five (5) different methods of service, including personal delivery.  The statutory exception to personal delivery that states AIP's refusal to accept service is a limited one.  In order for the court to fashion an alternate method of service pursuant to statute, it must be established that AIP refused to accept service.

In the Matter of William Siegel, an Alleged Incapacitated Person, 646 N.Y.S. 2d.

          Supreme Court has inherent authority to review attorney's fees paid by alleged incapacitated person in Guardianship Proceedings.  Mental Hygiene Law 81.10.  In determining reasonable fee for attorney, the Supreme Court must consider:

                   time and labor required, difficulty of questions involved, skill required to handle problems presented, lawyer's experience, ability and reputation, amount involved in benefit of client from services; customary fee charged for similar purpose, contingency or certainty of compensation, results obtained and responsibility involved.

In the Matter of Wingate, as Commissioner of Suffolk County Department of Social Services, 647 N.Y.S. 2d 433.

          Special Guardian would be appointed for 97 year old alleged incapacitated person, solely to sell AIP's shares in co-operative apartment so that AIP could become eligible for Medicaid and remain at nursing home at which she resided, given AIP's inability to provide for her property management and engage in transaction to sell apartment and her attorney-in-fact's unwillingness to sell apartment.  Mental Hygiene Law 81.02(a)(b).

In the Matter of David Claiman, Petitioner, for the Appointment of a Guardian of Fannie Claiman, an Alleged Incapacitated Person, 646 N.Y.S. 2d 940.

          Son, who petitioned to appoint a Guardian for Property Management and Personal Needs of Alleged Incapacitated Person (AIP) his mother, was not entitled to a jury trial; no factual issue was presented as to need for Guardian for AIP and the only issue was who would be appointed Guardian.  Mental Hygiene Law 81.11(f).

In the Matter of Michael DiCecco, Petitioner, for the Appointment of a Guardian of Betty Gursten, an Alleged Incapacitated Person.  661 N.Y.S. 2d 943.

          Alleged Incapacitated Person (AIP) was incapacitated, and thus upon Petition of AIP's son, Supreme Court would appoint son as Personal Needs and Property Management Guardian for AIP, AIP suffered from severe dementia and cannot make any decisions as to her personal or financial affairs, was unable to communicate intelligently and her condition was not likely to improve.  The court allowed the Incapacitated Person's Guardian to transfer person's residence to Guardian with person retaining a life estate, and to transfer some of the person's assets to person's children, provided that person retains sufficient assets to pay for her needs during any penalty period of ineligibility for Medicaid.

In the Matter of Ronald S. LeBovici, Petitioner, as Guardian for Gertrude Menzel.  655 N.Y.S. 2d 305.

          Under Conservatorship and Committee statutes, contracts of persons of unsound mind who had not been found judicially incompetent are voidable rather than void, at election of incompetent or his duly authorized representative.

Assignee of mortgage was bona fide purchase for full value.  Mortgage entered into prior to Guardianship Proceedings in which mortgagor was adjudged incompetent was valid.  Assignee had no notice of mortgagor's incapacity at any time mortgage was executed.  Affidavit from title closer indicates nothing strange or unusual in mortgagor's behavior or appearance at the time of closing and that mortgagor was responsive to questions.

In the Matter of Lillian Barrios-Paoli Commissioner of Social Services and the City of New York for the Appointment of a Guardian of the Personal Needs and Property Management of Fred Kautsch, an Alleged Incapacitated Person, 662 N.Y.S. 2d 388.

          Before Court will fashion alternate method of service to personal service and proceeding for the appointment of a Guardian for Personal Needs or Property Management, Petitioner must demonstrate that alleged incapacitated person (AIP) has taken some affirmative act that evidenced deliberate attempt to resist service. 

In the Matter of Helen Lowe, Petitioner, for the Appointment of a Guardian of Sol Lowe, an Alleged Incapacitated Person.  688 N.Y.S. 2d 389.

          Even if all elements of incapacity are present, a Guardian shall be appointed only as the last resort, and Guardianship should not be imposed if available resources or other alternatives will adequately protect the person.  Mental Hygiene Law. 81.02(b).    Because the selection of a health care agent is a strictly personal decision, which can only be made by the competent principal himself, the Court cannot appoint a Guardian with authority to select an alternate health care agent for a person who does not have the capacity to do so for himself. 

In the Matter of Margaret A. Bomba, as Guardian of Beatriz H. Livingston, an Incapacitated Person, 694 N.Y.S. 2d 587.

          The Guardian of an Incapacitated Person was not entitled under statute or due process to be served with notice before the Court Examiner could issue an Ex-Parte Order directing the Guardian to appear at a hearing to determine whether she should be removed for reimbursing herself out of the estate for various expenses: the Order itself gave her adequate notice.

Conduct of an incapacitated person's guardian regarding reimbursing herself out of the estate for routine, incidental costs did not warrant her removal. 

Expenses incurred by incapacitated person's Guardian for photographs, facsimile transmissions, local transportation, clerical service, and telephone charges were routine, incidental costs to be absorbed in the Guardian's statutory commission, not "reasonable and necessary expenses" for which the Guardian could be reimbursed out of the estate.

In the Matter of Allan A. Ground, an Incapacitated Person, 697 N.Y.S. 2d 838.

          Incapacitated Person's estate would not be required to pay fees incurred by Conservator's attorney to reconstruct all of incapacitated person's financial records for preparation of Conservator's Accounting, where such reconstruction was necessitated by the Conservator's violation of a duty to keep precise financial records.

JOAN LENSKY ROBERT BIO:

JOAN LENSKY ROBERT practices exclusively in the areas of elder law and disability law. Ms. Robert is a graduate of Skidmore College, where she was a member of Periclean, the Skidmore College Honor Society, the University of Pennsylvania, where she studied pursuant to a Ford Foundation Fellowship, and Touro College School of Law, summa cum laude, where she was the recipient of a Deans Fellowship and was  valedictorian of the part time division.  Prior to entering the practice of law, Ms. Robert taught French with the Valley Stream Central High School District.

Ms. Robert served as Chair of  the New York State Bar Association Elder Law Section from 2003-2004  and also served as chair of the Section's Committee for Persons under a Disability.  Ms. Robert is a Director of the Nassau County Bar Association and is a  past chair of its Elder Law/Social Services/Health Advocacy Committee. Ms. Robert  is a past Dean of the  Nassau Academy of Law.   A member of the Legal Advisory Committee of the Long Island Alzheimer's Foundation, Ms. Robert was honored for outstanding service in 1997.  Ms. Robert was also honored her for outstanding service to Project Real in October, 2001 and was a member of the 2004 Class Leadership of the National Multiple Sclerosis Society, Long Island Chapter. 

Ms. Robert serves on the Board of Editors of the Bill of Particulars, the publication of the New York State Trial Lawyers Association, which honored her as outstanding downstate speaker in May, 1998.  She is a member of  the New York State Bar Association Trusts & Estates Section, and General Practice Section, and she serves as a member of the Continuing Legal Education Committee.  She is an attorney member of the Surrogate Decision Making Committee.  She  is a member of National Academy of Elder Law Attorneys and is the Secretary of the NY NAELA chapter.

        Ms. Robert is a past Editor in Chief of the New York Elder Law and Guardianship Newsletter, West Publications.  She  co-wrote the chapter on Creative Advocacy  in the book Guardianship Practice in New York State published by the New York State Bar Association. She also co-authored "Planning for Disability Helps Preserve a Client's Assets" in Estate Planning Magazine, as well as numerous articles for community groups and professional groups concerning elder law and disability law. She  frequently lectures to community  groups on these topics.  Ms. Robert also has been a faculty member at various Bar Association programs concerning Elder Law, Supplemental Needs Trusts and asset preservation, and has been an instructor at certified training programs for Guardians, Supplemental Needs Trust Trustees and  Court Evaluators sponsored by the New York State Bar Association, the Nassau Academy of Law, St. John's University, the Association of the Bar of the City of New York and the New York County Lawyers Association. 

STEVEN P. LERNER practices exclusively in the areas of Elder Law, Disability Law, including Social Security Disability, Retirement and Overpayment, Estate Law and Real Estate.  Mr. Lerner is a graduate of Long Island University, where he was awarded the Presidential Merit Award, and was a member of The National Social Science Honor Society and Who's Who in American Universities and Colleges.  Mr. Lerner is a magna cum laude graduate of Syracuse University College of Law.

Mr. Lerner is a member of the National Academy of Elder Law Attorneys, the Elder Law Section of the New York State Bar Association, the Trusts and Estates Section of the New York State Bar Association, and the Health, Advocacy & Disability Section of the Nassau County Bar Association.   Mr. Lerner has been honored as a Member of Who's Who in American Law.

Mr. Lerner is a frequent lecturer on a variety of topics focusing on Elder Law and  Disability Law and has spoken before community organizations and professional societies.  Mr. Lerner has conducted classes for many Adult Education Organizations.  Mr. Lerner is a lecturer for the Nassau Academy of Law and the Speakers Bureau of the Nassau County Bar Association, and has lectured other attorneys on the intricacies of Elder Law, Disability Law and Estate Planning.

Mr. Lerner acts as a presenter at the "Golden Gathering," an information and demonstration fair conducted for Senior Citizens by Senator Charles Fuchillo, Jr.

Mr. Lerner has authored many articles on Elder and Disability Law, and has been published in the Elder Law Attorney, a publication of the New York State Bar Association and in the Bill of Particulars, a publication of the New York State Trial Lawyers Institute.  Mr. Lerner has also appeared on the radio as a guest to address issues regarding seniors and persons with disabilities.

On a personal level, Mr. Lerner volunteers his time as a Youth Instructor for local youth athletic organizations and is a Board Member of a local Youth Soccer Organization and coordinator of a Youth Soccer Intramural Program.