Featured Articles

Q&A with Thomas C. Haberlack

In this edition of our Newsletter, we highlight the work of Thomas C. Haberlack. Tom concentrates his practice in estate planning, estate administration, elder law, and probate law. Tom discusses about the best time to consider estate planning, and how to protect your assets and loved ones as you prepare for the future.

THOMAS C. HABERLACK

Is it ever too early to prepare an Estate Plan?

No, it is never too early to set up your estate plan; nor is it ever too late. If you die and you haven’t provided for the transfer of your assets to your intended beneficiaries, then New York State will decide where your assets will go. Under current New York law, for instance, if you die survived by a spouse and children, then your assets will be divided between them. This can be unduly burdensome because if your children are minors, the portion going to your minor children will be controlled by the Surrogate’s Court until they reach age 18. If minor children become partial owners of any real property, including the primary residence, the surviving spouse would not have the ability to sell or even refinance the property without the prior approval of the Court.

Which Estate Planning tool do you recommend- a Trust or a Will?

As a practitioner that handles the planning and administration phases of estates, the decision will depend on many factors, including the client’s assets, family circumstances and intentions. Trusts do have some administrative advantages over a Will. A Trust avoids probate and, therefore, there is no need to locate or notify missing or excluded heirs. The transfer of assets upon death can be accomplished immediately, subject to providing for taxes and creditors’ claims. Also, the terms of the Trust remain private while a Will is filed with the court and becomes a public document.

When the estate is controlled by a Will, how long does the probate process take?

The timeline is fact sensitive, but generally, if all the necessary parties sign off on the probate, the time to probate a Will could be as little as four or five weeks from the date everything is submitted to the Court. However, if the decedent had minor children, the Court will appoint a Guardian Ad Litem to represent their interests, which could delay the proceeding for up to several months. Additionally, if there are missing heirs or if a party contests the validity of the Will, it could delay the probate of the Will for more than a year.

What other steps should I take to complete my estate plan to protect my family?

A full estate plan not only considers what happens upon death, but also provides for the possibility of a short term or long term disability. So, in addition to a Will or Trust, everybody should have a Power of Attorney, Health Care Proxy, Living Will and Advance Burial Directive. A Power of Attorney designates the person to handle your financial needs. The Health Care Proxy sets forth the person who will speak to your medical professionals if you cannot. The Living Will states your what measures you want taken in the event you are in a permanent coma. And finally, the Advance Burial Directive designates the person to whom you have communicated your burial wishes and directions. You may select either the same or different people for each role. If you do nothing and you become disabled, your family will be required to petition the Court to appoint a guardian to make these decisions for you without you ever having a voice in who handles your affairs.

No matter the size of your estate thoughtfully deciding how your assets will be distributed and choosing someone to be in charge of managing your affairs will go a long way towards having loved ones peacefully work together while avoiding family misunderstandings and costly probate proceedings.

DANIEL H. BRAFF

Can you Insure Development Rights?

As a New York City zoning and land use attorney, I regularly represent clients in the purchase of development rights (a/k/a “air rights” transfers). One question that I commonly hear from clients is “can I get title insurance?”

I’ll cut to the chase. The answer is no. Although, some background here is important. In order to transfer development rights from one tax lot to another where both are in separate ownership, the tax lots must be merged into a single zoning lot by a mechanism established in the New York City Zoning Resolution. The merger requires that the lots are contiguous for 10 linear feet, located within a single block, and are declared to be a tract of land to be treated as one zoning lot. In addition, this declaration (called a “Declaration of Zoning Lot Restrictions”) must be executed by each party-in-interest except if the party has waived its right to execute the Declaration. Both the Declaration and any waivers must be recorded against the parcels. Parties-in-interest generally include fee owners, mortgagees, holders of recorded or visible easements, contract vendees, holders of options to purchase, the United States as to federal liens, judgement creditors with docketed judgements, mechanic’s lienors, the City of New York for real estate taxes, and holders of reverters or rights of entry. The Zoning Resolution further requires that the title company prepare a certification of parties-in-interest to be provided to the Department of Buildings.

Moreover, the tax lot owners will typically enter into an agreement called a Zoning Lot Development Agreement (ZLDA). This is a private agreement between the parties that sets forth the rights and obligations within the merged zoning lot, and typically includes provisions setting forth which party gets the unused floor area within the merged zoning lot. This document is not required pursuant to the Zoning Resolution and lots can be merged without Zoning Lot Development Agreements.

So, what do you actually get when you merge lots into a common zoning lot? Nothing...everything. First, unlike purchasing fee title, you walk away with nothing. The rights are invisible. They cannot be touched or seen. It is a creation through zoning. Once lots are merged, any plans and zoning calculations filed for a new development must show the entire merged zoning lot, including any existing buildings on the zoning lot. The Department of Buildings does not care whether there is a Zoning Lot Development Agreement in place or what it says, or what the agreement is between the parties as to which party gets unused floor area. All they care about is whether the lots were properly merged and will require that the owner proposing development prove that a proper merger was completed pursuant to Section 12-10. The Department of Buildings will review the title company’s certification of parties-in-interest and confirm that all parties-in-interest have either executed the Declaration or waived their right to execute the Declaration.

So, if there are no tangible rights, are there any protections a title company can provide? The answer is yes. In New York City, title companies can issue a special product called a Development Rights Endorsement. It will insure that all parties-in-interest have joined in, waived, or subordinated their interests to the Declaration. In other words, it will protect the owners of a merged zoning lot against any third-party challenges to the validity of the zoning lot, such as a third-party that claims to be a party-in-interest that never consented to the lot merger. The endorsement will also insure that the seller has consented to the Zoning Lot Development Agreement (if one exists) and that it is valid and effective, and if there are any negative covenants such as light and air easements, but it will not insure the amount of floor area available or transferred, or other specific rights set forth in a Zoning Lot Development Agreement.

A failure of a zoning lot merger could be devastating to a project. You could imagine a scenario where a challenge to the validity of a zoning lot was successful after construction has commenced on a building using development rights from an adjoining parcel. Construction will be stopped and it will be impossible to obtain a certificate of occupancy until the proper merger is completed. Having a title company step up to defend the validity of the zoning lot is crucial.

Matters of Interest

SWC Defends Suffolk County and Defeats Townships' Motion to Dismiss Suffolk's Third-Party Complaint in LIPA Tax Lien Case

Jon Ward, Andrew Roth and Joseph Bjarnson are defending Suffolk County and the Suffolk County Comptroller in litigation that LIPA commenced to invalidate in excess of $22 million in real-property tax liens. The liens are pending against LIPA's electrical grid in Suffolk County. LIPA claims the tax liens are invalid because the electrical grid is tax exempt under the LIPA Act, a State statute under which LIPA took over the generation and distribution of electricity on Long Island from LILCO. In defending the case, the Firm brought a third-party complaint on behalf of Suffolk County against all ten Townships in Suffolk County, alleging, among other things, that if the tax liens are invalidated, the unpaid taxes must be charged back to the Townships from which they originated. The Towns' filed a motion to dismiss the County’s third-party complaint. The Suffolk County Supreme Court denied the Towns motion, finding that Suffolk County stated viable claims against the Towns.

JON A. WARD

ANDREW M. ROTH

Firm Defends Appeal over a Trademark Dispute

Christian Browne and Ralph Branciforte successfully defended an appeal in the Appellate Division, Second Judicial Department in a trademark infringement and unfair competition lawsuit. The Appellate Division upheld the trial court's determination in favor of the firm's client, the owner of a Pizzeria in Farmingdale. A competitor sued the client alleging that the client had improperly infringed upon the competitor's trade name and was engaging in unfair competition. After a trial, the Supreme Court dismissed the competitor's case.

The Appellate Division agreed with the Trial Court that the competitor failed to establish a legal basis for his claims against the Firm's client regarding the use of the trade name "Three Brother's Pizza".

RALPH BRANCIFORTE

SWC Prevails in Article 78 Litigation with Town Over Construction of a Self-Storage Facility

Christian Browne guided a protracted Article 78 litigation against the Town of Hempstead Board of Appeals. The Board denied a client’s application to construct a self-storage facility in Franklin Square. The Supreme Court found that the Town failed to justify its actions, clearing the way for our client to construct a new self-storage facility.

CHRISTIAN BROWNE

Restraining Order Obtained to Prevent Town From Enforcing a Stop Work Order

Christian Browne and Joseph Bjarnson obtained a temporary restraining order from the Nassau County Supreme Court that prevents enforcing a “stop-work order” against a builder that would have stopped work to complete a new home.

The firm asserted a number of claims against the Town for its interference with the client’s property rights, including claims for violations of the client’s constitutional civil rights. The litigation is ongoing, but construction continues.

JOSEPH R. BJARNSON

Zoning Approvals Obtained in New Bank Construction

John C. Farrell represented Bethpage Federal Credit Union to obtain variances in connection with the construction of a new 3,769 square foot bank building with two drive thru lanes on the corner of Walt Whitman Road and Overhill Road in Melville. The new building will replace a former bank and office building.

JOHN C. FARRELL

New Developments in the Law

Elaine Colavito's "Bench Briefs" Appears in Suffolk Lawyer

Elaine Colavito's "Bench Briefs" column was published in the September 2019 edition of The Suffolk Lawyer. "Bench Briefs" is a roundup of recent decisions from Suffolk County trial courts (Pages 6 & 30).

ELAINE M. COLAVITO

Firm News

Chris J. Coschignano Honored by the Italian Americans in Government

On October 2, 2019, SWC Partner Chris J. Coschignano was honored at the 38th annual Italian Americans in Government Columbus Day Dinner for his many years of government service and dedication to the community. The Italian Americans in Government organization also helps to support local charities such as AHRC, The Cooley’s Anemia Foundation, and the INN. Chris is pictured here with his wife Elisabetta and their children. Their charity of choice was St. Jude’s Children’s Hospital. In addition to the support of these charities, the organization also awards three scholarships to local High School students each year.

Out and About

Joshua Brookstein Leads Firm's Sponsorship of Fourth Annual North Shore Family Guidance Center Fundraiser

The Firm proudly sponsored the fourth annual North Shore Child and Family Guidance Center’s fundraiser for the Nassau County Family Court’s Children’s Center. The event raised over $20,000. The Children’s Center works to provide care and early learning to more than 1,400 children annually ranging from 6 months- 12 years old, while their parents or guardians appear in Family Court. Joshua Brookstein from the Firm currently sits on the Children’s Center Advisory Council where he works to ensure that the Children’s Center is equipped with the resources necessary to best support the children it serves.

JOSHUA D. BROOKSTEIN

John C. Farrell Participates in "A Comprehensive Plan for Long Island"

John Farrell will serve as a moderator of a panel discussing housing issues on Long Island at “A Comprehensive Plan for Long Island” hosted by Touro College Jacob D. Fuchsberg Law Center. The all-day conference features eight different break-out sessions discussing vital topics of interest as they pertain to Long Island.

Joshua D. Brookstein Participates in Early Voting Informational Panel

On October 16, 2019, Joshua Brookstein, Chair of the Nassau County Bar Association Community Relations & Public Educations Committee, participated in a panel co-hosted by the Nassau County Bar Association and Hofstra University discussing voting reforms that were recently enacted by New York State. One of the biggest changes is the ability for voters to cast their ballot before Election Day. As a result of the new voting laws, voters will be able to vote between October 26th and November 3rd at certain early voting sites.

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